Direct Request (CEACR) - adopted 2007, published 97th ILC session (2008)

Migration for Employment Convention (Revised), 1949 (No. 97) - Guatemala (Ratification: 1952)

1. Article 1 of the Convention. Information on national policies, laws and regulations. The Committee notes the extensive information provided by the Government in its report, as well as the attached documentation. In particular, it notes the developments in migration policy and with respect to the policy of consular protection and assistance for Guatemalan migrant workers abroad. It also notes with interest the National Policy for Social Development and the Population, which includes fundamental human rights principles and includes amongst its general objectives practical strategies and action which take into account national and international migratory trends from the perspective of development and combating poverty. The Committee requests the Government to provide further information on the measures adopted to give effect in practice to the above policies and the results achieved as they relate to the provisions of the Convention. Please also provide information on any practical difficulties encountered in the application of the Convention and indicate whether the ordinary courts or other bodies have issued rulings on questions of principle relating to the application of the Convention. If so, please provide copies of such rulings.

2. Information concerning general agreements and special arrangements. The Committee notes that communications are ongoing relating to understanding and cooperation between the Government of Guatemala and that of the United States of Mexico with a view to coordinating migration controls, the participation of the consular offices of the two countries and the issuing of temporary work and local visitors’ visas. The Committee also notes that a Memorandum of Understanding on Guatemalan migrant workers in Mexico is being prepared, which it hopes will take into account issues relating to gender equality and the feminization of migratory trends, and will be formulated in the light of the Convention, Annex II to the Convention and the Migration for Employment Recommendation (Revised), 1949 (No. 86). The Committee would be grateful if the Government would provide a copy of the final text of the Memorandum of Understanding as well as information on its application in practice, together with data on the number of men and women migrants covered when such information is available.

3. Articles 2 and 7. Services and assistance to migrant workers. The Committee notes with interest the establishment of measures to provide services to migrant workers and to protect their interests. The Committee notes in particular: the Migrant Services Office which ensures compliance with the rights of migrants and the conditions of their entry into the country; the Office of the Ombud for the Uprooted and Migrant Population which is the mechanism to inspect government institutions and prevent any abuse of authority through failure to comply with the obligations deriving from an individual employment contract; the National Programme for the Migrant Population of the Ministry of Public Health and Social Assistance and that of the Guatemalan Social Security Institute on the health of the migrant population and their family members. The Committee requests the Government to provide detailed information on the activities undertaken by the Migrant Services Office, the Office of the Ombud for the Uprooted and Migrant Population, and the programmes on the health of the migrant population and family members, with the results achieved in promoting the application of the Convention. The Committee further requests the Government to continue providing information on the various programmes and policies to promote and protect the rights of migrant workers in Guatemala and of Guatemalan migrant workers abroad.

4. Article 6. Equality of treatment. The Committee notes section 13 of the Labour Code (Decree No. 18-2001), in conjunction with the Regulations respecting the authorization to work of foreign nationals for private sector employers (Government resolution No. 528-2003), which restrict foreign workers to 10 per cent and to 15 per cent in total of the remuneration paid to the personnel. Noting that the application of a restriction on the remuneration of foreign workers may result in discrimination in practice against them in relation to national workers, the Committee wishes to recall that Article 6(a) of the Convention implicitly requires the elimination of discriminatory legal provisions and practices in the areas addressed by the Convention. The Committee asks the Government to provide information on the effect given in practice to section 13 of the Labour Code, including whether complaints have been received of discrimination in relation to the remuneration of migrant workers. The Committee would also be grateful if the Government would provide fuller information on the application in practice of its policy and legislation concerning equality of treatment between nationals and migrant men and women workers, including information on any activity undertaken, and on any complaint to the judicial, administrative or any other appropriate authorities, such as the Migrant Services Office and the Office of the Ombud for the Uprooted and Migrant Population.

5. Annex I. Private employment agencies. The Committee notes that, according to the Government in its report, private employment agencies do not operate in Guatemala and that, furthermore, there are no regulations on recruitment, entry and hiring operations. Given the wide scope for the abuse of prospective migrants by intermediaries during the recruitment procedure, it is recommended that these operations are subject to the approval of the competent authority in the territory (see General Survey on migrant workers, 1999, paragraph 172). Noting that the role of such agencies in the process of international migration is constantly increasing, the Committee requests the Government to keep it informed of any development relating to the emergence of private employment agencies. It also requests the Government to indicate whether it envisages adopting legislative measures to regulate their activities or, where appropriate, to provide information on the measures adopted to promote self-regulation with a view to protecting migrant workers against possible abuses.

6. The Committee notes the statistics provided by the Government but would be grateful if the Government would provide in its next report statistical data disaggregated by sex, sector of activity and origin on the number of migrant workers resident in Guatemala, as well as the same information on Guatemalan workers resident abroad.