Observation (CEACR) - adopted 2017, published 107th ILC session (2018)

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 the ratified labour inspection Conventions, the Committee considers it appropriate to examine Conventions Nos 81 and 129 together.

The Committee notes the observations of the Autonomous Popular Trade Union Movement and Global Unions of Guatemala, received on 30 August 2017, on the legislative reform examined below and on the resources, functions and training of labour inspectors.

The Committee notes the Government’s indication in its report that the Labour Code (Decree No. 1441) has been amended by Decree No. 7-2017 promulgated by the Congress of the Republic, and published on 6 April 2017.

Article 12(1)(a) of Convention No. 81 and Article 16(1)(a) of Convention No. 129. Authorization for labour inspectors to enter at any hour of the day or night any workplace liable to inspection. The Committee notes that section 281(a) of the Labour Code, as amended by Decree No. 7-2017, limits the entry of inspectors into any workplace liable to inspection to the workday, in accordance with internal workplace rules or the authorization issued by the Ministry of Labour and Social Welfare. The Committee also notes that the previous wording of section 281 empowered inspectors to visit workplaces at different hours of the day and night, if work was carried out at that time. In this regard, the Committee notes the observations of the Autonomous Popular Trade Union Movement and Global Unions of Guatemala, according to which the legislative reform enables employers to restrict the entry of inspectors to the hours of the working day, which are established by internal workplace rules, even though many complaints concerning violations of labour law are related to overtime work or work performed outside the usual hours, often at night. Recalling that pursuant to Article 12(1)(a) of Convention No. 81 and Article 16(1)(a) of Convention No. 129, labour inspectors provided with proper credentials shall be empowered to enter freely and without previous notice any workplace liable to inspection at any hour of the day or night, the Committee requests the Government to adopt the necessary measures to ensure full compliance with these provisions.

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. The Committee notes that section 281 of the Labour Code, as amended by Decree No. 7-2017, provides that labour inspectors shall provide credentials indicating their identity, their appointment and the objective of the inspection, in order to benefit from the obligations and powers set out in the Labour Code. However, the Committee notes that the legislation does not provide for an exception to the requirement of the notification of the presence of inspectors through the provision of credentials indicating their identity and appointment, while Article 12(2) of Convention No. 81 and Article 16(3) of Convention No. 129 provide that inspectors shall notify the employer or her/his representative of their presence, unless they consider that such a notification may be prejudicial to the performance of their duties. The Committee requests the Government to take the necessary measures to ensure that inspectors have the power to omit to notify their presence to the employer or her/his representative if they consider that such notification may be prejudicial to the performance of their duties, in accordance with paragraph 2 of Article 12 of Convention No. 81 and paragraph 3 of Article 16 of Convention No. 129.

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 observe, legal provisions enforceable by labour inspectors. With reference to its previous comment on the process of imposing penalties for violations of labour legislation, the Committee notes with interest that Decree No. 7-2017 amends sections 271, 272 and 281 of the Labour Code and provides that labour inspectors shall be empowered to adopt the measures listed in paragraph (f) of section 281, including the power to initiate the process of imposing administrative penalties through compliance orders for violations of labour provisions or the obstruction of labour inspectors, and the power to order the cessation of work in cases of serious or imminent risk to workers’ safety and health. Decree No. 7-2017, through the amendment of section 415 of the Labour Code and the introduction of sections 417 and 418, recognizes the capacity of the Ministry of Labour and Social Welfare, through the General Labour Inspectorate, to take direct action to promote and remedy violations of the labour and social welfare legislation through administrative action or, failing that, the initiation of administrative proceedings. Taking due note of the legislative reform of 2017, the Committee requests the Government to provide information on the application in practice of the new provisions respecting the powers of labour inspectors to take measures listed in paragraph (f) of section 281 of the Labour Code, as amended by Decree 7 2017, including to impose penalties or prohibitory orders. In this regard, the Committee requests the Government to provide detailed information on the compliance orders on violations of labour provisions issued by labour inspectors, and the action proposed through proceedings, if administrative measures have failed to produce results.

Article 18 of Convention No. 81 and Article 24 of Convention No. 129. Obstruction of labour inspectors in the performance of their duties. Adequate and effectively enforced penalties. With reference to its previous comment on the obstruction of labour inspectors in the performance of their duties, the Committee notes with interest that sections 269 and 271(3) of the Labour Code, as amended by Decree No. 7-2017, provide that: (a) in the event that the employer or her/his representatives or workers or trade unions and their representatives, refuse to collaborate with the inspection services to verify compliance with labour provisions for which violations may be penalized with fines, the procedure for penalizing the person responsible shall be commenced and the process of inspection continued; (b) the obstruction of the process of inspection by the employer or her or his representatives, or by workers or trade unions or their representatives, within the meaning of section 281 of the Labour Code, shall constitute an offence subject to penalties. Moreover, with reference to the need for sufficiently dissuasive penalties that are effectively enforced, the Committee notes that section 272 of the Labour Code, as amended by Decree No. 7-2017, sets out the criteria and the procedure for the imposition of penalties by departmental delegates of the General Labour Inspectorate. However, the Committee notes the observations of the Autonomous Popular Trade Union Movement and Global Unions of Guatemala, alleging that inspectors do not in practice apply the penalties set out in the law because the Ministry of Labour and Social Welfare has not adopted the necessary administrative measures for this purpose. Taking due note of the legislative reform of 2017, the Committee requests the Government to provide its comments on the observations of the Autonomous Popular Trade Union Movement and Global Unions of Guatemala, and to provide detailed information on the number of penalties imposed, including the amounts of fines.

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