Direct Request (CEACR) - adopted 2011, published 101st ILC session (2012)

Forced Labour Convention, 1930 (No. 29) - Guatemala (Ratification: 1989)

Articles 1(1) and 2(1) of the Convention. 1. Obligation to work overtime under threat of a penalty.

(a) Justices of the peace. According to the allegations previously made by the Trade Union Confederation of Guatemala (UNSITRAGUA), “in most of the towns of the country, there is only one justice of peace who has to be on duty 24 hours a day, every day of the year. The auxiliary staff of justices of the peace has to cover shifts by rotation as additional work supplementing their ordinary day. The shifts worked on public holidays, Saturdays and Sundays are compensated with time off, but the shifts worked after the completion of the ordinary working day are not compensated in time off, nor are they paid. Failure to perform such shifts constitutes an offence liable to be punished by dismissal.” The Committee expressed the hope that the Government would take the necessary measures to ensure that the requirement to perform work is not imposed beyond the limits imposed by the legislation, with refusal being punished with the loss of employment. The Committee notes that the Government provides no information on this point. The Committee requests the Government to provide information on the complaints received by the labour inspectorate in this regard as well as on the outcomes of the inspections carried out. The Committee also refers in this connection to its comments addressed to the Government on the application of the Hours of Work (Commerce and Offices) Convention, 1930 (No. 30).

(b) Employees of the municipal water company (EMPAGUA) – municipality of the capital City of Guatemala. In its previous comments, the Committee noted the observations made by the UNSITRAGUA and by the Union of Operators of Plants and Wells, Guardians of the Municipal Water Company and Allied Workers (SITOPGEMA) on the situation of employees of EMPAGUA, who have to work for 24 consecutive hours, followed by 48-hours rest. According to the unions, this work arrangement prevents the payment of hours worked beyond the normal working hours and refusal to work under these conditions may be subject to dismissal and criminal prosecution.

The Government indicated in this connection that, in June 2008, an arbitration award had been handed down by the Sixth Labour and Social Insurance Court, establishing a working week of 48 hours and that overtime hours shall be paid in accordance with the law. The Committee notes that, in its latest report, the Government indicates that the arbitration award has been respected since no complaints have been received on this matter.

As regards the demand made by 103 EMPAGUA employees for failure to pay overtime hours and which had been set aside in a ruling issued on 16 April 2008 by the Fifth Labour Court, the Committee observes that such sentence has been overturned by the Third Chamber of the Labour and Social Appeal Court. The Committee notes the information provided in this regard by the SITOPGEMA in its communication received in August 2010. The SITOPGEMA considers that the City of Guatemala is using delaying tactics which are intended to prolong the process as much as possible, as it appealed to the Constitutional Court against the decision which rejected the action for infringement of fundamental rights and freedoms (denegatoria de amparo). The Committee hopes that the Government will provide updated information on the case pending before the Constitutional Court and refers to its comments addressed to the Government on the application of the Hours of Work (Industry) Convention, 1919 (No. 1).

(c) National Forensic Science Institute (INACIF). The Committee takes note of the inspection visit conducted by the general inspectorate to the INACIF in June 2010. It notes that the inspection report elaborated following the visit contains no record of violations with regard to working hours.

(d) Plantations. In its previous observations, the Committee noted the Committee noted UNSITRAGUA’s comments relating to cases of enterprises which set production targets for workers who, to earn a minimum wage, have to work beyond ordinary working hours, with the additional hours being unpaid. The Committee requested the Government to provide information on the measures adopted to ensure that in the plantations sector work is not imposed beyond normal working hours under the threat of dismissal. The Committee notes that, in its latest report, the Government indicates that a special high-level commission of labour inspectors has been established to monitor “ex officio” the labour relations in these workplaces and that an operational plan has been implemented in order to verify the compliance with the governmental agreement fixing minimum wages for agricultural and non-agricultural activities (operational plan covering agriculture, plantations and farms within the country). Noting that the operational plan establishes that the labour inspectorate is responsible for the execution of the plan and must submit a detailed report to the central authority on its outcomes, the Committee requests the Government to provide relevant information in this regard.

2. Trafficking in persons. The Committee notes the adoption of the law against sexual violence, exploitation and trafficking in persons (Decree No. 9/2009), which contains provisions aiming to prevent, suppress, sanction and eradicate trafficking in persons, as well as to ensure care and protection to victims and compensation for the damages suffered. The Committee notes with interest that the new law includes section 202ter in the Penal Code, criminalizing trafficking in persons, providing for prison sentences of eight to 18 years, establishing that in no case the consent of the victims of trafficking shall be taken into account and defining the concept of “for exploitation purposes” contained in the crime of trafficking in persons. The Committee observes that the law also establishes that those convicted of the crime of trafficking in persons shall be required to compensate victims for the damages caused. The Committee requests the Government to provide information on the extent of the phenomenon of trafficking in persons in Guatemala, as well as on the application in practice of this new law. Please provide information on the actions taken by the department to combat sexual violence, exploitation and trafficking in persons to effectively perform the mandate conferred upon it by law. Finally, the Committee requests the Government to provide information on any legal proceedings initiated under the new section 202ter of the Penal Code.