Observation (CEACR) - adopted 2021, published 110th ILC session (2022)

Guatemala

Labour Inspection Convention, 1947 (No. 81) (Ratification: 1952)
Labour Inspection (Agriculture) Convention, 1969 (No. 129) (Ratification: 1994)

In order to provide a comprehensive view of the issues relating to the application of ratified Conventions on labour inspection, the Committee considers it appropriate to examine Conventions Nos 81 (labour inspection) and 129 (labour inspection in agriculture) together.

The Committee notes the information provided by the Government in reply to its previous comments in relation to Article 17 of Convention No. 81 and Article 22 of Convention No. 129 (legal or administrative proceedings in the case of violations of or failure to comply with legal provisions enforceable by labour inspectors).

Article 3 of Convention No. 81 and Article 6 of Convention No. 129. Functions of labour inspectors. The Committee notes that, in reply to its request for information on the measures adopted to ensure that the conciliation functions of labour inspectors do not interfere with the effective discharge of their primary duties, the Government indicates that labour inspectors fulfil conciliation functions on a daily basis within their inspection duties, as part of their obligation to ensure compliance with conciliatory settlements as set out in section 278 of the Labour Code. The Committee however notes that the Government has provided additional information according to which there are certain labour inspectors to whom conciliation cases are assigned and others who are responsible for carrying out inspections. In this regard, the Government indicates that the delegation of the General Labour Inspectorate of the department of Guatemala has 18 inspectors who undertake conciliation and 23 who carry out inspection visits of workplaces following denunciations. The Committee recalls that, in accordance with Article 3(2) of Convention No. 81 and Article 6(3) of Convention No. 129, any further functions which may be entrusted to labour inspectors, such as conciliation, shall not be such as to interfere with the effective discharge of their primary duties or to prejudice in any way the authority and impartiality which are necessary to inspectors in their relations with employers and workers. In view of the high proportion of inspectors in at least one department who undertake conciliation functions on a daily basis, and the absence of information regarding the fulfilment of inspection visits and related duties by these same inspectors, the Committee requests the Government to provide detailed information on the time and resources allocated to the conciliation activities undertaken by labour inspectors, as a percentage of the total time and resources used by inspectors for the discharge of their primary duties, as envisaged in Article 3(1) of Convention No. 81 and Article 6(1) of Convention No. 129.

Article 12(1)(a) of Convention No. 81 and Article 16(1)(a) of Convention No. 129. Powers of labour inspectors to enter freely at any hour of the day or night any workplace liable to inspection. With reference to its request to adopt measures to ensure that labour inspectors can enter enterprises at any hour of the day or night, the Committee notes the Government’s indication in its report that for inspectors to be able to enter any workplace liable to inspection without previous notice, they have to take into account its working hours so that their inspection can take the time that is necessary. The Committee notes the Government’s indication that the National Tripartite Commission on Industrial Relations and Freedom of Association (CNTRLLS) has been discussing a draft legislative initiative for the reform, among other provisions, of section 281(a) of the Labour Code which, according to the Government’s indications, limits the entry of labour inspectors into any workplace liable to inspection to the working day, in accordance with the internal rules or the authorizations issued by the Ministry of Labour and Social Welfare (MTPS). The Committee also notes that, according to the information provided by the Government, the number of inspections carried out at night between 2017 and May 2021 represented fewer than 1 per cent of the total number of inspections undertaken by day over the same period. The Committee requests the Government to take concrete measures, including within the context of a possible amendment to section 281(a) of the Labour Code, in order to guarantee that labour inspectors provided with proper credentials are empowered to enter at any hour of the day or night any workplace liable to inspection, in accordance with Article 12(1)(a) of Convention No. 81 and Article 16(1)(a) of Convention No. 129. The Committee also requests the Government to report any progress in the adoption of the legislative initiative for the amendment of section 281(a) of the Labour Code.

Article 12(2) of Convention No. 81 and Article 16(3) of Convention No. 129. Notification of the presence of inspectors unless such notification may be prejudicial to the performance of inspection duties. With reference to its request to adopt measures to ensure that inspectors have the power to omit to notify their presence to the employer if such notification may be prejudicial to the performance of their duties, the Committee notes the Government’s indication that labour inspectors do not give prior notice to employers that they will be carrying out controls at workplaces, but only show the employer the letter of appointment and identity documents of the inspectors concerned and the purpose of the control, and the employer is then required to allow the entry of the inspectors. In this regard, the Committee also notes that, according to the information provided by the Government, the CNTRLLS has also been discussing a draft initiative to reform section 271 of the Labour Code, which sets out the requirement to notify the presence of inspectors by producing proof of their identity and appointment, without envisaging exceptions in this regard. The Committee requests the Government to adopt concrete measures, including within the context of a possible amendment to section 271 of the Labour Code, to ensure that labour inspectors can choose not to notify the employer or his representative of their presence, if they consider that such notification may be prejudicial to the performance of their duties, in accordance with Article 12(2) of Convention No. 81 and Article 16(3) of Convention No. 129. The Committee also requests the Government to provide information on any progress achieved in the adoption of the legislative initiative to amend section 271 of the Labour Code.

Article 18 of Convention No. 81 and Article 24 of Convention No. 129. Adequate and effectively enforced penalties. The Committee notes that, in reply to the observations of the Autonomous Popular Trade Union Movement and Global Unions of Guatemala concerning the failure of the labour inspection services to impose penalties in practice, the Government indicates that, although in the past the conditions did not exist for the effective enforcement of the penalties issued by labour inspectors (the necessary units had not been established and the personnel to monitor the enforcement of such penalties had not been recruited), penalty procedures are now being initiated and decisions issued to impose fines on enterprises that are in violation. In this regard, the Committee notes the Government’s indication that the lack of personnel responsible for following up cases is still affecting their processing, especially in the General Labour Inspectorate of the department of Guatemala. The Committee requests the Government to provide information on the functioning of the units responsible for enforcing the effective application of the penalties imposed by labour inspectors, with an indication of the measures adopted to reinforce their activities and improve the human resources available to them. The Committee also requests that the Government provide detailed information on the number and nature of penalties imposed, including the amounts of fines imposed and collected, once the penalty procedures have been initiated and decisions issued.

The Committee is raising other matters in a request addressed directly to the Government.