Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - Guatemala (Ratification: 1960)

The Committee notes the communication of the Indigenous and Rural Workers Trade Union Movement of Guatemala (MSICG), dated 28 August 2009, sent to the Government on 19 October 2009. The MSICG comprises the following organizations: the General Confederation of Workers of Guatemala (CGTG); the Trade Union Confederation of Guatemala (CUSG); the National Trade Union and Peoples’ Coordinating Body (CNSP); the Altiplano Rural Workers Committee (CCDA); the National Indigenous Rural Workers and People’s Council (CNAICP), the National Front for the Defence of Public Services and Natural Resources (FNL); and the Trade Union Confederation of Guatemala (UNSITRAGUA). The Committee will address this communication, along with any comments of the Government, at a future session.

Discrimination on the basis of pregnancy: pregnancy testing and dismissals. The Committee recalls that in its previous comments it considered the problem of the practice of pregnancy tests and dismissals on the ground of pregnancy, especially in export processing enterprises (maquiladoras), on the basis of communications received from UNSITRAGUA and the International Confederation of Free Trade Unions (ICFTU), now the International Trade Union Confederation (ITUC). Furthermore, it recalls that in its previous observation, it noted the communication of the Trade Union of Civil Aviation Workers (USTAC), which alleged that the hiring of workers under heading 29 has made it possible to dismiss pregnant women and make illegal arrangements whereby they are requested to leave their employment at the enterprise for the purpose of giving birth, to be hired again subsequently. The USTAC also indicated that this situation occurs throughout the public service.

The Committee considered that the problem of dismissals based on pregnancy was part of a wider problem which called for vigorous structural measures to tackle it and requested the Government to take such measures. It also requested the Government to step up its efforts to tackle discrimination on the ground of pregnancy with regard to obtaining or keeping a job and to strengthen the protection afforded to pregnant workers.

The Committee notes that the Government once again indicates in its report that the General Labour Inspectorate has not received any complaints relating to the imposition of pregnancy tests by enterprises. With regard to the cases of dismissal, it indicates that efforts have been made to encourage the employers concerned to reinstate the workers affected without it being necessary to refer the cases to the courts. It also indicates that the General Labour Inspectorate and the Department for the Promotion of Working Women have managed to raise the awareness of several agencies which have hired women under heading 29 – which nonetheless meet the requirements laid down by the Labour Code for the establishment of an employment relationship – and these women have been granted the benefits relating to pregnancy, maternity and nursing periods.

The Committee wishes to stress that discrimination on the basis of pregnancy constitutes a serious form of discrimination on the basis of sex. The Committee once again draws the Government’s attention to the fact that the lack of complaints of discrimination on the ground of pregnancy with regard to obtaining or keeping a job does not mean that this type of discrimination does not exist in practice. Not only is there often a lack of awareness among workers of their rights and the extent of those rights, victims of discrimination are also afraid of possible reprisals from their employers.

Consequently, the Committee urges the Government to take all the necessary measures without delay and in consultation with the social partners, to ensure effective protection of women against discrimination on the basis of pregnancy with regard to obtaining and keeping a job and against reprisals for bringing cases of discrimination, including measures aimed at sensitizing judges, lawyers, labour inspectors and bodies responsible for enforcing compliance with the relevant regulations. Please also provide information on the measures taken in this regard by the Department for the Promotion of Working Women and the number of cases of reinstatement of women workers and recognition of maternity benefits which are the result of action taken by the General Labour Inspectorate and the Department for the Promotion of Working Women.

Discrimination on the basis of race and colour. Indigenous peoples. The Committee notes the conclusions of the “Analysis of Racism in Guatemala, 2009” concerning the cost of discrimination on the basis of ethnic group or race against indigenous peoples. It notes, in particular, that according to this study the wage gap between indigenous workers and non-indigenous workers is around 8,500 quetzales per year. It notes that this gap is the result of discrimination and of the different working conditions and levels of education between indigenous persons and non-indigenous persons. With regard to access to education, it also notes that the gap between indigenous persons and non-indigenous persons has been narrowing at the pre-primary and primary levels, but has been widening even further at the middle and university levels. The Committee requests the Government to provide information on the measures taken or envisaged to eliminate the gaps between indigenous persons and non-indigenous persons, as identified in the “Analysis of Racism” study, with regard to access to education, employment and occupation and with regard to working conditions, including information on the measures taken in the context of the public policy on coexistence and the elimination of racism, and on the results achieved.

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