Direct Request (CEACR) - adopted 2018, published 108th ILC session (2019)

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

The Committee notes the observations of the Autonomous Popular Trade Union Movement and the Global Unions of Guatemala, received on 30 August 2017.

Article 1(a) of the Convention. Information on national policies and laws. In its previous comments, the Committee requested the Government to continue to provide information on the migration policies that had been adopted, and particularly on the measures taken to ensure their implementation in practice and their impact on the application of the provisions of the Convention. It also requested the Government to continue to provide statistical information, disaggregated by sex, sector of activity and country of origin, on the number of migrant workers resident in Guatemala, and any such information available with respect to Guatemalan workers resident abroad. The Committee notes that, in its report, the Government states that the Migration Act (Decree No. 95-98 of 17 December 1998) was replaced by the Migration Code, adopted through Decree No. 44-2016 of 20 September 2016. The Committee notes that, under the Migration Code, the State guarantees that all individuals present on the national territory have equal access to public services related to security, education, labour, housing, and all other essential services (section 2). Chapter 3 of the Migration Code also establishes the rights of migrant workers and their families. The Committee notes, in particular, that according to section 22(2) of the Migration Code, “provisions that imply that the rights recognized in domestic and international legislation and in any provision of a public or private nature are waived, diminished, prejudiced or limited shall be null and void and shall not apply to migrant workers”. The Committee also notes that the Migration Code provides for the establishment of: (i) the Guatemalan Institute of Migration, which has exclusive competence to implement migration policy (section 120), and whose multiple functions include the protection of the rights of migrants and the coordination of specific action to ensure the care, assistance and protection of migrants (section 122); and (ii) the National Migration Authority, which is responsible for developing, establishing and monitoring migration policy, and for safe migration (section 116).

The Committee notes the statistical data provided by the Government on the number of foreign residents in the country and on the number of Guatemalan temporary residents in Mexico and Canada. The Committee particularly notes that, in 2016, a total of 1,853 work permits were issued, of which 553 were for women. The nationalities of migrants included Salvadoran, Korean, Colombian, Mexican, Venezuelan and Nicaraguan. The Committee also notes the report on the human rights situation in Guatemala, which was drafted in 2017 by the Inter American Commission on Human Rights (OEA/Ser.L/V/II/Doc.208/17, 31 December 2017), and according to which one in ten Guatemalans live outside their country and the majority of Guatemalan migrants (97.4 per cent) move to the United States. The report indicates that the number of people who have been forced to leave Guatemala owing to various forms of violence has increased dramatically in recent years. The Committee requests the Government to provide information on the application in practice of the Migration Code and its impact on the application of the provisions of the Convention, including information on the measures taken by the Guatemalan Institute of Migration and the National Migration Authority, and on any progress made in the development, establishment and monitoring of migration policy provided for in section 116 of the Migration Code. The Committee also requests the Government to continue to provide statistical data, disaggregated by sex, sector of activity and country of origin, on the number of migrant workers residing in Guatemala, and any such information available on the number of Guatemalan workers resident abroad.

Article 1(c). Information on general agreements and special arrangements. In its previous comments, the Committee requested the Government to provide information on specific agreements concluded with other States, with a view to providing protection for migrant workers, and on the number of workers covered by such agreements. It also requested the Government to indicate whether the Memorandum of Understanding with the Government of Mexico, to which the Government had referred previously, had been signed. The Committee notes that the Government refers to the Declaration by the Labour Ministers of Central America and the Dominican Republic of June 2013, which established a regional action plan with ILO technical assistance, in order to, inter alia, promote greater collaboration at the regional level to integrate the management of labour migration into employment policies, with a view to regulating migration and protecting migrant workers. The Committee also notes that the Government provides information on: (i) the Memorandum of Understanding on labour cooperation between Mexico, El Salvador, Guatemala and Honduras; (ii) the Agreement on Bilateral Labour Cooperation between Mexico and Guatemala, which expired in 2016; (iii) and the Agreement between Guatemala and Belize on a programme for temporary workers. The Committee requests the Government to continue to provide information on the general agreements and special arrangements adopted, as well as copies of such agreements.

Articles 2, 4 and 7. Services to assist migrant workers. In its previous comments, the Committee requested the Government to provide detailed information on the functioning of the Guatemalan National Council for Assistance to Migrants (CONAMIGUA) and the Working Subcommittee on Labour Mobility, and on the specific measures adopted by these bodies with a view to the application of Article 2 of the Convention. It also requested the Government to provide information on the activities for the protection of Guatemalan migrant workers abroad carried out by the Consular Service of Guatemala. The Committee notes that the Government provides information on the functioning of CONAMIGUA. It notes in particular that CONAMIGUA runs a programme offering free legal advice to Guatemalans abroad, their families in Guatemala, Guatemalan deportees and migrants on the national territory. CONAMIGUA also carries out various communication activities on the rights of the migrant population and the risks of undocumented migration, organizes training programmes in collaboration with the Technical Institute for Training and Productivity (INTECAP), which are aimed at Guatemalan migrants and their families, and migrants on the national territory, and facilitates the social services provided by various competent bodies (including medical consultations), among other activities. Regarding the Working Subcommittee on Labour Mobility, the Committee notes that the Government provides information on, inter alia, the Labour Mobility Initiative (INILAB) created in 2016, under which coordination activities have been carried out to promote information campaigns on fraud prevention and migrant recruitment processes. The Government also indicates that the Subcommittee provides free services in relation to job placements and vocational guidance and training. The Committee also notes that the Government provides extensive information on the activities carried out as part of consular duties, which include: information and awareness-raising visits on labour standards in the destination country; consular protection visits; on-the-spot support at court hearings or appointments with lawyers or doctors; and collaboration with local authorities. Furthermore, the Committee notes that, in their observations, the Autonomous Popular Trade Union Movement and the Global Unions of Guatemala indicate that CONAMIGUA is not functioning at present and that the services provided to Guatemalan migrants have been suspended. Recalling that, under the Migration Code, the Guatemalan Institute of Migration is responsible for, inter alia, coordinating specific actions for the care, assistance and protection of migrants, the Committee requests the Government to provide information on any measures taken with regard to this Institute. It also requests the Government to continue to provide information on any other measures adopted to give effect to Articles 2, 4 and 7 of the Convention. The Committee requests the Government to send its comments on the observations made by the Autonomous Popular Trade Union Movement and the Global Unions of Guatemala.

Return. The Committee notes that the report on the human rights situation in Guatemala, drafted in 2017 by the Inter-American Commission on Human Rights (OEA/Ser.L/V/II/Doc.208/17), highlights the forced return of migrants, particularly following the tightening of the migration policies in Mexico and the United States in recent years, and points out that this situation poses significant challenges for ensuring the reintegration of these people into society and the effective enjoyment of their rights in the country. The Committee requests the Government to provide information on the assistance programmes for migrant workers returning to the country and on any obstacles encountered in this regard.

Article 3. Measures to prevent misleading propaganda. In its previous comments, the Committee requested the Government to continue to report on the measures adopted with a view to providing precise information to workers who decide to leave and work abroad. The Committee notes that the Government provides information on the measures taken regarding fraud prevention and information on labour rights, which include campaigns to prevent fraud against migrants, informative radio programmes, training workshops for public officials working in citizen service centres, and the development of a manual to raise awareness of the rights of temporary workers with a view to combating abuse in recruitment. The Committee requests the Government to continue to provide information on the measures adopted to prevent misleading propaganda, including information on the steps taken to penalize conduct that is misleading and harmful to migrants for employment.

Article 6. Equal treatment. In its previous comments, the Committee referred to the fact that section 13 of the Labour Code, read in conjunction with the Regulations governing authorization of the work of foreign nationals for private sector employers (Government Agreement No. 528-2003), prohibits employers from hiring less than 90 per cent of Guatemalan workers (only 10 per cent may be foreigners) and from paying Guatemalan workers less than 85 per cent of the total wage bill in the respective enterprises (15 per cent may be paid to foreign workers). The Committee also noted that, according to the statistical information provided by the Government, seven out of ten foreign nationals were recruited as managers, directors, administrators, supervisors and general managers of enterprises to whom, under section 13 of the Labour Code, this restriction does not apply. The Committee therefore requested the Government to provide information on: (i) the application of these provisions in practice, particularly their impact on the number of foreigners hired and the remuneration that they receive, including any complaints of discrimination; (ii) the application in practice of its policy and legislation concerning equality of treatment for nationals and migrant workers, particularly in relation to the matters covered by Article 6(1)(a)–(d) of the Convention; and (iii) the measures taken by the labour inspectorate and the judicial authorities in the event of non-compliance with the provisions of national law that give effect to Article 6. The Committee notes the Government’s indications on the manner in which section 13 of the Labour Code is applied in practice, including the requirement for the employer concerned to certify the total number of workers of the entity, the numbers of nationals and foreign citizens and the corresponding percentages, and the total wages paid, which must be accompanied by a notarial deed that proves the authenticity of the above particulars. The Committee also notes the Government’s indications regarding the total number of foreign nationals who have a permit managed by their enterprise, in other words, employees hired as managers, directors, administrators, supervisors and general managers of enterprises, 81 per cent of whom have a university education, 17 per cent have a diversified education, and 2 per cent whose education is not specified. The Government also indicates that the Ministry of Labour and Social Welfare, through the Department for Permits for Foreign Nationals, ensures that both foreign and Guatemalan workers receive equal treatment with respect to their rights. This involves, inter alia, establishing whether the workers have been included on the payroll as indicated in the required certification, which would entitle foreign workers to benefits, such as social security and statutory allowances. The Committee also notes that the Government provides statistical information on complaints addressed by the labour inspectorate, and indicates that there are no court cases involving non-compliance with domestic legislation that relate to Article 6 of the Convention. Noting that, under the Migration Code, the Guatemalan Institute of Migration is responsible for, inter alia, protecting the rights of migrants, the Committee requests the Government to provide information on any measures taken by this Institute with a view to ensuring that migrant workers who are legally residing in the country are not treated less favourably than Guatemalan nationals with regard to the rights provided for in Article 6 of the Convention. It also requests the Government to continue to provide information on any relevant court decisions, and on the number and nature of infringements recorded by the labour inspectorate and the penalties imposed.