Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

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

Legislative reforms. The Committee notes the Government’s indication in its report that two legislative initiatives Nos 5232 and 5523 that seek to reform the Labour Code and fulfil the requirements under the Convention are being examined in the Labour Committee of the Congress. The Committee requests the Government to provide information on its evolution.

Article 1(1)(a) of the Convention. Discrimination based on sex. Sexual harassment. The Committee notes that there is no reference to sexual harassment in the Labour Code. The Committee notes that, in 2019, a protocol defining sexual harassment was adopted for addressing cases of workplace sexual harassment in the Office of the Public Prosecutor. The Committee requests the Government to consider adopting legislative provisions that define, prohibit and penalize sexual harassment and grant victims the right to compensation.

Pregnancy tests and dismissal on the basis of pregnancy. In its previous comment, the Committee requested the Government to take measures to prohibit mandatory pregnancy testing for securing or retaining employment. The Committee notes the Government’s indication in its report that it submitted the recommendation to prohibit such testing in the legislation for examination to the President of the Subcommittee on Labour Legislation and Policy of the National Tripartite Committee on Labour Relations and Freedom of Association. The Government also indicates that: (i) two cases of dismissal on the basis of pregnancy were presented to the Office for the Protection of Indigenous Women between 2017 and 2019; (ii) the Directorate for Labour Management of the Judicial Authority indicates that it did not receive complaints of pregnancy testing between 2016 and 2019; and (iii) the labour inspectorate indicates that, during the same period, it received 728 complaints for dismissals of pregnant women and, in six of these cases, pregnancy testing had been mandatory. The Committee also notes the Government’s indication in its report on the application of the Equal Remuneration Convention, 1951 (No. 100), that, in 2016, the single protocol on procedures for the labour inspection system was approved with a view to standardizing the approaches followed by the labour inspectorate, with the support of the ILO and other international agencies. The Committee notes with interest that this protocol provides for checks on whether workers have been denied employment or dismissed on the basis of pregnancy. While noting these developments, the Committee observes that the United Nations Human Rights Committee expressed concern about the persistence of discriminatory practices in business enterprises, including pregnancy testing during the recruitment process (CCPR/C/GTM/CO/4, 7 May 2018, paragraph 8). The Committee requests the Government to report on the application in practice of the guidelines under the single protocol on procedures for the labour inspection system related to pregnancy testing. The Committee requests the Government to report other measures adopted to prevent mandatory pregnancy testing for securing or retaining employment, to inform on the scope of the protection of pregnant women with respect to dismissal, and to continue providing information on the number of complaints and cases detected by the labour inspectorate in this area.

Articles 2 and 3(b) and (f). Gender equality policy. Results of the policy. In its previous comment, the Committee requested the Government to send information on the results achieved through the measures adopted as part of the implementation of the National Policy for the Advancement and Comprehensive Development of Women (PNPDIM) and the Equal Opportunities Plan 2008–23 (PEO), to eliminate gender stereotypes and facilitate women’s access to a more diverse range of jobs. The Committee notes that, in its report, the Government provides detailed information on the various measures adopted by Government institutions in this respect, including: (i) the organization of workshops and guidance sessions by the unit for women workers of the General Directorate of Social Security of the Ministry of Labour and Social Security (MTPS); (ii) the inclusion of a gender perspective in the various programmes of the Indigenous Development Fund of Guatemala (FODIGUA); (iii) the initiatives of the Ministry of Defence (MINDEF) to avoid discouraging the participation of women (changes in the manuals and selection procedures, availability of uniforms, access to the technical college, etc.); (iv) the participation of women (49.33 per cent of the participants) in the National Competitiveness Programme of the Ministry of Economy; and (v) the activities of the Ministry of Education to raise awareness of the importance of quality and equal education, protection against violence and the prevention of the pregnancy of girls. While noting this information, the Committee observes that the United Nations Committee on the Elimination of Discrimination against Women (CEDAW) expressed concern at the significant level of illiteracy, particularly among indigenous girls and women, and the high dropout rates of girls in the education system, as well as the segregation of most women into the lowest-paid occupations (CEDAW/C/GTM/CO/8-9, 20 November 2017, paragraphs 32 and 34). While welcoming the Government’s numerous initiatives to encourage the elimination of gender stereotypes, the Committee requests the Government to continue adopting specific measures to promote the access of girls and women to education and professional training, and to address professional segregation. Noting that, under the PNPDIM and the PEO, the Presidential Secretariat for Women shall periodically evaluate their effect on the lives of women, the Committee requests the Government to provide information on the outcomes of this monitoring.

Articles 2 and 3(b) and (f). Equality policy in the domestic work sector. In its previous comment, the Committee requested the Government to provide information on the measures adopted to prevent discrimination in the domestic work sector. The Committee notes the Government’s indication that the Directorate for the Promotion of Labour Law of the MTPS has contributed to better protections in the sector through the following three measures in particular: (i) legal advice for the resolution of cases; (ii) participation in a technical roundtable for addressing the rights of domestic workers chaired by the Deputy Minister for Labour Administration, in coordination with the labour inspectorate, the unit for women workers of the MTPS and the National Office for Women; and (iii) the training of workers in the sector on their labour rights and obligations. While noting this information, the Committee observes that domestic work is subject to a special legal regime, set out in Chapter 4 of Title IV of the Labour Code. In this respect, the Committee observes that the United Nations Human Rights Committee expressed concern about the inequalities associated with that special regime (CCPR/C/GTM/CO/4, 7 May 2018, paragraph 10). The Committee also notes that, according to the statistical data included in the Government’s report on the population employed in domestic work, in January 2018, some 99.3 per cent of domestic workers were women. Taking into account that this sector employs significantly more women, the Committee requests the Government to examine whether the special legal regime applicable to domestic workers results in a form of inequality that greatly disadvantages women. The Committee also requests the Government to provide information on labour inspection activities in the domestic work sector, and on the number of complaints in relation to discrimination in this sector and the follow-up to those complaints.

Article 3(b) and (e). Education programmes and guidance and vocational training activities for indigenous workers. In its previous comment, the Committee requested the Government to provide information on the measures adopted to facilitate access to education, training and employment for indigenous workers. With regard to access to education, the Committee notes the information provided by the Government on the “initial teacher training” (FID) programme and the “academic programme for the professional development of teachers” (PADEP/D) of the Ministry of Education, aimed at promoting greater inclusion of students from Mayan language communities. In addition, it refers to a series of projects carried out at the San Carlos de Guatemala University (USCG) to support indigenous students. With regard to vocational training, the Government indicates that the Technical Institute for Training and Productivity (INTECAP) has adopted measures to ensure the access of indigenous peoples to vocational training and provides statistical data demonstrating an increase in the number of participants from indigenous communities in INTECAP activities between 2016 and 2018 (19,968 participants in 2016, 22,297 participants in 2017, and 27,594 participants in 2018). The Committee also notes the additional information provided by the Government on the access of indigenous workers to the training activities and the employment exchange established by the General Directorate of Employment of the MTPS. Lastly, the Committee notes the Government’s indication that, in the context of the International Day of the World’s Indigenous People, 9 August 2019, an inter-institutional cooperation agreement was concluded between the Global Network of Indigenous Employers and the MTPS, which aims to unify efforts for the benefit of women, indigenous people and young people to foster economic growth and comprehensive community development. While noting this information, the Committee refers to its detailed comments on the application of the Indigenous and Tribal Peoples Convention, 1989 (No. 169).

General observation of 2018. Regarding the above issues and more generally, the Committee would like to draw the Government’s attention to its general observation on discrimination based on race, colour and national extraction which was adopted in 2018. In the general observation, the Committee notes with concern that discriminatory attitudes and stereotypes based on the race, colour or national extraction of men and women workers continue to hinder their participation in education, vocational training programmes and access to a wider range of employment opportunities, resulting in persisting occupational segregation and lower remuneration received for work of equal value. Furthermore, the Committee considers that it is necessary to adopt a comprehensive and coordinated approach to tackling the obstacles and barriers faced by persons in employment and occupation because of their race, colour or national extraction, and to promote equality of opportunity and treatment for all. Such an approach should include the adoption of interlocking measures aimed at addressing gaps in education, training and skills, providing unbiased vocational guidance, recognizing and validating the qualifications obtained abroad, and valuing and recognizing traditional knowledge and skills that may be relevant both to accessing and advancing in employment and to engaging in an occupation. The Committee also recalls that, in order to be effective, these measures must include concrete steps, such as laws, policies, programmes, mechanisms and participatory processes, remedies designed to address prejudices and stereotypes and to promote mutual understanding and tolerance among all sections of the population.

The Committee draws the Government’s attention to its general observation of 2018 and requests the Government to provide information in response to the questions raised in that observation.

Enforcement. In its previous comment, the Committee requested the Government to provide information on the activities carried out by the Commission against Discrimination and Racism (CODISRA) and the activities of the labour inspectorate and the judicial authorities in the area of discrimination. The Committee notes the detailed information provided by the Government on the training activities of CODISRA, which included courses with members of the judiciary and other public institutions on the subject of discrimination, forums for public servants and conferences with the organizations and authorities of indigenous peoples. The Government also indicates that, between January 2016 and January 2019: (i) CODRISA examined 693 individual cases, which were sent to the relevant institutions; and (ii) 356 complaints of discrimination were submitted to the labour inspectorate (including 13 cases on the ground of ethnic group). The Committee also notes that the single protocol on procedures for the labour inspection system provides for checked on whether distinctions, exclusions or preferences are established that have the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation. The Committee notes that, according to information provided by the Government, the number of complaints of cases of discrimination (all grounds) to the labour inspectorate has decreased in recent years (164 in 2016, 123 in 2017, and 59 in 2018). The Committee also notes the Government’s indication that the labour inspectorate does not have information on the penalties imposed for discrimination (although it is taking action to obtain such information) and the Directorate for Labour Management of the Judicial Authority cannot provide information on cases of discrimination. The Committee requests the Government to provide information on the number of inspections as regards discrimination, the number of complaints of discrimination (received by CODRISA, the labour inspectorate and the courts), the number of cases identified and the follow-up to these cases.