Observation (CEACR) - adopted 2016, published 106th ILC session (2017)

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

The Committee notes the observations of the Trade Union of Workers of Guatemala (UNSITRAGUA) received on 22 October 2014.

Articles 1 and 2 of the Convention. Discrimination on the basis of sex. Pregnancy tests and dismissal on the basis of pregnancy. For several years, the Committee has been referring to the discriminatory practice of mandatory pregnancy testing for securing and retaining employment. The Committee notes that UNSITRAGUA refers in its comments to the persistence of this practice. The Committee notes that the Government refers in its report to the action of the labour inspectorate in cases involving complaints for dismissal on the basis of pregnancy and indicates that 59 cases were detected in 2016. In addition, five complaints were brought before the courts in 2015 and 2016, of which four are pending and one has been withdrawn. The Committee observes that the Labour Code prohibits dismissal on the basis of pregnancy or during the breastfeeding period but does not contain any provisions that forbid the employer to impose mandatory pregnancy testing for securing or retaining employment. The Committee recalls that distinctions in employment or occupation on the basis of pregnancy or maternity are discriminatory since, by definition, they only affect women. The Committee also recalls that the employer’s imposition of mandatory pregnancy testing for securing and retaining employment constitutes a particularly serious form of discrimination on the basis of sex and underlines the importance of governments adopting specific measures, in collaboration with the social partners, to combat discrimination effectively. The Committee urges the Government to take the necessary steps without delay to explicitly prohibit in the legislation mandatory pregnancy testing for securing or retaining employment and to take specific measures to raise the awareness of the public authorities, employers and workers with regard to the discriminatory nature of these practices. The Committee requests the Government to provide information on any progress made in this regard and also on the complaints submitted concerning the dismissal of pregnant women and mandatory pregnancy testing, the action taken in response to the complaints, the penalties imposed and the compensation awarded.

Enforcement. In its previous comments, the Committee referred to the observations of the General Confederation of Workers of Guatemala (CGTG) indicating that, as a result of the general context of impunity, no penalties are imposed in cases of discrimination on the basis of gender, race or sex. The Committee asked the Government to provide information on the complaints brought before the Commission against Discrimination and Racism, the violations detected by the labour inspectorate and the penalties imposed. The Committee notes that the Government refers to the various training activities for judges held across the country in 2015 and 2016 in relation to dissemination of the Convention, and has provided statistical information on the complaints concerning violations of the labour rights of women examined by labour inspectors, but has not provided any information on the action taken in response. Nor has the Government provided information on the activities of the Commission against Discrimination and Racism. The Committee underlines the importance of raising the awareness of workers, employers and the public authorities regarding the relevant legislation, of enhancing the capacity of the competent authorities, including judges, labour inspectors and other public officials, to identify and address cases of discrimination and also to examine whether the applicable substantive and procedural provisions allow, in practice, claims to be brought successfully. The Committee also emphasizes that adequately resourced and responsive procedures and institutions, which are accessible to all groups, are critical in this context (2012 General Survey on fundamental Conventions, paragraphs 868 and 871). The Committee requests the Government to provide information on the specific activities carried out by the Commission against Discrimination and Racism, and in particular on the complaints for discrimination in employment and occupation that have been examined and the action taken in response. The Committee also requests the Government to provide information on the activities relating to the Convention undertaken by the labour inspectorate and the judicial authorities, particularly the action taken in response to the complaints of discrimination received from men and women workers, including information on examples of compensation awarded and penalties imposed. The Committee further requests the Government to continue supplying statistical information in this respect, disaggregated by sex and grounds of discrimination.

The Committee welcomes the ILO project funded by the European Commission (DG Trade) to provide support for countries benefiting from GSP+, a component of the Generalized Scheme of Preferences aimed at the effective application of international labour standards, which focuses on four countries, including Guatemala.

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