Demande directe (CEACR) - adoptée 2012, publiée 102ème session CIT (2013)

Convention (n° 29) sur le travail forcé, 1930 - Guatemala (Ratification: 1989)

The Committee notes the Government’s report as well as the observations submitted by the Indigenous and Rural Workers Trade Union Movement of Guatemala (MSICG) and by the Trade Union of Workers of Operators of Plants, Wells and Guards of the Municipal Water Company (SITOPGEMA) on the application of the Convention, which were received on 10 September 2012 and 2 October 2012, respectively, and forwarded to the Government on 28 September 2012 and 12 October 2012.

Articles 1(1), 2(1) and 25 of the Convention. Trafficking in persons. In its previous comments, the Committee requested the Government to provide information on the practical application of the new law against sexual violence, exploitation and trafficking in persons (Decree No. 9/2009), the adoption of which made it possible to strengthen the mechanisms to combat trafficking in persons by including measures to prevent and suppress trafficking and protect the victims.

In its report, the Government states that, for reasons linked to its history and geographical location, Guatemala is a source, transit and destination country for victims of trafficking, especially with a view to their sexual and economic exploitation. Those cases identified reveal the involvement of organized criminal networks, which have ramifications for a number of countries in the region. The Government provides statistics from the Public Prosecutor on the number of cases of trafficking in persons recorded between 2004–11, which show that this phenomenon is on the constant increase. It specifies moreover that these figures underestimate the situation because not all cases of trafficking in persons come before the judicial authorities given the difficulty in identifying these cases, the difficulty for victims to lodge complaints and the lack of awareness among society as a whole about this issue. From the institutional standpoint, the Government refers to the national strategic action plan 2007–17 and the creation of the State Secretariat against Sexual Violence, Exploitation and Trafficking in Persons (SVET), which is the body responsible for promoting, coordinating and evaluating the actions of various state bodies involved in combating trafficking in persons. The SVET, which was only able to begin operating in June 2011, started by organizing training activities among various state bodies, including the labour inspectorate, as well as conducting awareness programmes (49 workshops and conferences).

The Committee notes this information. Moreover, it notes the existence of an inter-institutional committee against trafficking in persons and the introduction of a specialized team to combat trafficking in persons within the Public Prosecutor’s Office. The Committee notes that – according to the available statistics on the website of the National Centre for Judicial Analysis and Documentation – out of the 294 cases brought before the judicial courts during the period 2009–July 2012, 38 legal rulings were handed down resulting in ten convictions. The Committee requests the Government to provide information on the activities carried out by the SVET and the inter-institutional committee to combat trafficking in persons to continue making society as a whole and the actors concerned more aware of the phenomenon of trafficking in persons. Recalling that comprehensive and coordinated action is vital to combat this phenomenon, the Committee requests the Government to indicate the measures taken to ensure that the various bodies work in a coordinated manner in the context of defined priorities and established objectives. In this respect, it is asked to provide information on the surveys carried out by the SVET and the actions undertaken by the various bodies. Finally, the Committee requests the Government to indicate the way in which the competent authorities provide protection for victims, facilitate their access to justice and guarantee compensation for the harm they have suffered. It also invites the Government to continue to provide statistics on the investigations carried out, the judicial procedures initiated, the rulings handed down and the penalties imposed on the basis of section 202ter of the Penal Code, as well as on the compensation granted to the victims, in accordance with section 58 of the Act against sexual violence, exploitation and trafficking in persons.

Articles 1(1) and 2(1). Obligation to work overtime under threat of a penalty. The Committee notes that, in its observations received on 10 September 2012 and forwarded to the Government on 2 October 2012, the MSICG refers to the situation of some workers who are obliged to work beyond the limits of daily working hours imposed by law and collective agreement, under threat of a penalty, which is tantamount to forced labour. The MSICG particularly refers to the situation in some public services and in the maquilas in the textiles and clothing sector. The Committee requests the Government to reply to these observations.

(a) Justices of the peace. In its previous comments, the Committee referred to observations received from the Trade Union Confederation of Guatemala (UNSITRAGUA) on the situation of the auxiliary staff of justices of the peace who, to guarantee a 24-hour service, had to be on duty over and above normal daily working hours without systematically being compensated in time off or being paid; failure to perform such shifts constituted an offence liable to be punished by dismissal. The Committee requested the Government to ensure that the requirement to perform work was not imposed beyond the limits set by the legislation, with refusal being punished with the loss of employment, and to provide information on the complaints received by the labour inspectorate in this regard. The Government indicates, in its report, that these workers have not lodged any complaint with the labour inspectorate. It adds that the labour inspectorate deals with all complaints alleging the obligation to do overtime and that, in the context of this examination, it was very difficult to ascertain that the situation of the worker or category of workers was tantamount to forced labour, given that the “obligation” to do overtime had not been established. The Committee notes this information and, given that this issue concerns hours of work in the public sector, refers to its comments on the application of the Hours of Work (Commerce and Offices) Convention, 1930 (No. 30).

(b) Employees of the Municipal Water Company (EMPAGUA). Municipality of the capital city of Guatemala. In its previous comments, the Committee referred to the situation of employees of the EMPAGUA, who had to work for 24 consecutive hours, followed by a 48-hour rest. It noted that, according to SITOPGEMA, this work arrangement prevented the payment of hours worked beyond the normal working hours and refusal to work under these conditions might be subject to dismissal and criminal prosecution. The Committee notes that, in its observations submitted in 2012, the SITOPGEMA indicates, in reference to the appeal lodged in 2004 by 103 EMPAGUA workers for failure to pay overtime, that various procedures have been initiated and brought before the Labour and Social Appeal Court and the Constitutional Court, and that the ruling acknowledging these workers should be paid for overtime is now considered as final. However, new proceedings have been initiated concerning the execution of the decision, and in particular concerning the precise calculation of the amounts due, and, consequently, the workers have still not yet been compensated for their overtime. The Committee notes that the Government confirms the trade union’s information on the new ongoing procedures. The Committee observes that the workers’ entitlement to the overtime they have worked has been acknowledged and, in so far as the effective payment of amounts due is a matter dealt with under the Hours of Work (Industry) Convention, 1919 (No. 1), it refers to the comments it has made on this Convention.

(c) Plantations. In its previous observations, the Committee noted the UNSITRAGUA’s comments relating to cases of enterprises which set production targets for their workers who, to earn a minimum wage, had to work beyond ordinary working hours, with the additional hours being unpaid. The Committee noted the establishment of a special high-level commission of labour inspectors responsible for carrying out unannounced visits to monitor the labour relations in these workplaces. Furthermore, an operational plan had been implemented in order to verify the compliance with the governmental agreement fixing minimum wages for agricultural and non-agricultural activities (operational plan covering agriculture, plantations and farms in the interior of the country). The Committee recalls that this operational plan establishes that the labour inspectorate is responsible for its execution and must prepare a detailed report to the central authority on its outcome. In the absence of information from the Government, the Committee requests it once again to send information on the implementation of the action plan and the findings of the labour inspectorate after visits to monitor the obligation to work overtime.

Article 2(2)(c). Consent of prisoners for work. The Committee notes the Prisons Act (Decree No. 33-2006 of 7 September 2006). According to sections 17, 65 and 67 of this Act, detainees have the right and duty to perform a useful and remunerated job, either inside or outside the prison. In the case of work outside the prison, it may be carried out for public or private enterprises, after approval by the enforcement judge, and the prisoners benefit from the rights guaranteed under the labour legislation. The Committee requests the Government to specify the manner in which the prisoners formally give their free, formal and informed consent to work for private enterprises.