Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

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

The Committee takes note of the supplementary information provided by the Government in light of the decision adopted by the Governing Body at its 338th Session (June 2020). The Committee proceeded with the examination of the application of the Convention on the basis of the supplementary information received from the Government this year, as well as on the basis of the information at its disposal in 2019.

The Committee notes the observations of the Autonomous Popular Trade Union Movement and Global Unions of Guatemala, received on 16 October 2020. The Committee requests the Government to send its comments in this regard.

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 the content of these initiatives as regard the Convention and any progress achieved with regard to their adoption.

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, however, 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 asks the Government to take measures to include in the labour legislation 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 recalls the Government’s indication in its previous report that it had 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 Committee notes the Government’s indication in its supplementary report that no progress has been made on this matter. The Government also indicates that: (1) 107 cases of dismissal on the basis of pregnancy were referred in 2019–2020 to the Working Women’s Unit with a significant increase during the emergency resulting from the COVID-19 pandemic; (2) the labour inspectorate indicates that it did not receive any complaints of pregnancy testing in 2019–2020; and (3) during the same period, it received 257 complaints for dismissals of pregnant women.

The Commission also notes the information that, between 2015 and 2020, the courts reinstated in their posts 5,236 workers dismissed for reasons of pregnancy. The Committee requests the Government to continue providing information: (i) on the measures adopted to prevent mandatory pregnancy testing for securing or retaining employment, and on the number of complaints and cases detected by the labour inspectorate in this area; and also (ii) on progress being made in considering legislation to prohibit such mandatory testing.

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 in this respect, including: (1) 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); (2) the inclusion of a gender perspective in the various programmes of the Indigenous Development Fund of Guatemala (FODIGUA); (3) the initiatives of the Ministry of Defence (MINDEF) to encourage women participation (changes in the manuals and selection procedures, availability of uniforms, access to technical college, etc.); (4) the participation of women (49.33 per cent of the participants) in the National Competitiveness Programme of the Ministry of Economy; and (5) 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 occupational gender segregation. Noting that, under the PNPDIM and the PEO, the 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.

Equality policy. Domestic work. In its previous comment, the Committee requested the Government to: (1) examine whether the special legal regime applicable to domestic workers results in a form of inequality that greatly disadvantages women; and (2) 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. The Committee notes the Government’s indication that the Working Women’s Unit of the Ministry of Labour and Social Welfare is in the process of designing promotional material to make domestic workers aware of their rights. Between January 2019 and August 2020, a total of 732 domestic workers approached the aforementioned Working Women’s Unit for advice on labour obligations and rights and the impact of the COVID-19 pandemic on these rights and obligations. 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. 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). 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 and 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. 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. With regard to the “Technical training programme – Annual operational programme 2020”, the Government states that in the first four months of this year, dissemination activities were carried out to identify strategic partners to cater for groups in situations of vulnerability, including young persons, returnee migrants, persons with disabilities and indigenous women’s groups. In this regard, on account of the emergency situation in the country, the training programme has not yet begun and it is not yet certain whether it will be possible to launch it this year. For this reason, strategic partnerships have been established with various organizations regarding financial support and catering for different partners who have already been identified as beneficiaries of technical training grants. 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. With regard to the above issues, and in more general terms, 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 activities of CODISRA, which included: (1) courses for public servants and staff of private and civil society institutions on the rights of indigenous peoples, racism and racial discrimination; (2) support and individual and group advice for individuals from the Maya, Garifuna and Xinka peoples; (3) proposal for the inclusion of indigenous peoples (and cultural aspects) in the response to the COVID-19 pandemic, with immediate actions and a medium- and long-term vision, and also in the emergency plan; (4) training for current and former maquila (export processing sector) workers to become auxiliary nurses specializing in reproductive rights and human and labour rights promoters, in coordination with the Women’s Solidarity Association (AMES); and (5) strengthening of the Maquila Coordination Committee (ICM). The Committee also notes that it has been proposed to include two new procedures to address cases of employment-related and sexual harassment in the workplace in the Single protocol on procedures for the labour inspection system (PUPSIT) and that the approval process is under way. The Committee further 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 CODISRA, the labour inspectorate and the courts, the number of cases identified and the follow-up to these cases.