In order to provide a comprehensive view of the issues relating to the application of ratified occupational safety and health (OSH) Conventions, the Committee considers it appropriate to examine the application of Conventions Nos 13 (white lead, paint), 127 (maximum weight), 148 (air pollution, noise and vibration), 161 (occupational health services) and 167 (safety and health in construction) together in a single comment.

Legislative developments. The Committee notes the information provided by the Government in its various reports on the amendments made in 2016 and 2022 to the Occupational Safety and Health Regulations (OSH Regulations), adopted by Government Decision No. 229-2014, and the adoption of the new Regulations on the establishment, organization and operation of joint OSH committees, approved by Ministerial Decision No. 486-2023 (the joint OSH committees Regulations). Taking into account the wording of the above amendments (Government Decisions Nos 33-2016 and 57-2022) and the information provided by the Government in its report on the Occupational Health Services Convention, 1985 (No. 161), the Committee observes that: (i) the OSH Regulations were revised with a view to updating their provisions and aligning them with the current situation in the country; (ii) the 2016 reforms were adopted at the initiative of the Government, employers and workers, who came together for that purpose in a dialogue forum; and (iii) the 2022 reforms, relating among other matters to occupational health services, were included through tripartite social dialogue in the National Occupational Safety and Health Council (CONASSO). The Committee also notes that, in accordance with the new wording of sections 1, 2 and 13, the OSH Regulations are applicable to workers who are present in a workplace, irrespective of whether they are for public or private entities, in which they perform industrial, agricultural, commercial of any other kind of work. The Committee notes that the restrictions have been removed from sections 1 and 13 which placed conditions on the application of the OSH Regulations in the public sector and excluded certain workplaces from their scope.

General provisions

Occupational Health Services Convention, 1985 (No. 161)

The Committee notes the information provided by the Government in reply to its previous comment concerning the technical assistance provided by the ILO (follow-up activities to the Declaration of Intent signed in 2014 with the National Congress).

Articles 2 and 4 of the Convention. Coherent national policy on occupational health services in consultation with the most representative employers’ and workers’ organizations. Measures to give effect to the Convention. With reference to its previous comment, the Committee notes the Government’s indication that, through tripartite social dialogue in the CONASSO, health services at the workplace have been included in the OSH Regulations through the 2022 legislative amendments. The Committee notes that, in its report on the White Lead (Painting) Convention, 1921 (No. 13), the Government adds that these reforms seek to strengthen preventive health services in the workplace, and the prevention of work-related risks, through the constant updating of the plan for the prevention of occupational risks and the establishment of joint OSH committees in public and private enterprises. The Committee also notes that section 301 of the OSH Regulations, as amended, provide that occupational health services have a preventive purpose (and as such supplement curative or reactive medical services) and are intended to maintain the working environment safe and healthy. The Committee takes due note of the information provided by the Government and requests it to refer to the comments made on Articles 5, 7, 8 and 9 of the Convention on the functions, organization and operating conditions of occupational health services, the general principles of which make up the national policy on occupational health services.

Articles 3 and 7. Progressive development of occupational health services for all workers. Organization of occupational health services. In relation to its previous comment on Article 3 of the Convention, the Committee refers to its comments above on the extension of the scope of application of the OSH Regulations following their amendment in 2016 and 2022. Similarly, with reference to its previous comment on Article 7 of the Convention, the Committee notes the Government’s indication that, under the terms of new section 302 of the OSH Regulations, all employers are required to install a monitor responsible for managing the prevention of occupational risks in workplaces, who represents the employer and is a member of joint OSH committees (which exist in workplaces with ten or more workers). On this basis, and the information on the functions of occupational health services, which is noted below, the Committee observes that these services appear to be organized jointly by employers, the Ministry of Labour and Social Insurance (MTPS) and the Guatemalan Social Security Institute (IGSS).

The Committee also notes that new section 303 of the OSH Regulations provides that health services established at workplaces shall operate in relation to two levels of care, the second of which can only be provided by physicians with competence in OSH, and specifies that in workplaces where a physician is present, the latter may provide the two levels of care. In this respect, the Committee observes that this provision of the Regulations does not provide for the possibility that certain workplaces (under certain conditions) may come together in groups or communities with a physician for the group. Moreover, the Committee notes that the requirement has been removed from section 302 of the OSH Regulations, as amended, for the presence of a physician during working hours in workplaces with over 100 workers. Having noted these legislative amendments, the Committee requests the Government to: (i) indicate whether the functions of occupational health services are organized solely as services for a single enterprise or whether they can be organized as of joint services for several enterprises; and (ii) provide information on the manner in which the two levels of care provided by health services, referred to in section 303 of the OSH Regulations, are implemented and operate in practice in workplaces, specifying how many of them have the services of a physician and the arrangements and conditions under which the physician provides services.

Article 5. Functions that are adequate and appropriate to the occupational risks of the enterprise. The Committee notes that, with reference to its previous comment, the Government indicates that the MTPS and the IGSS are the bodies responsible for the functions of the health services set out in Article 5 of the Convention. With reference to clauses (c), (e) and (h) of this Article of the Convention, the Committee notes that, in accordance with the OSH Regulations, the MTPE and the IGSS are required to: (i) provide advice and make appropriate recommendations to prevent or reduce risks affecting workers in workplaces or positions (section 12(a); and (ii) provide technical assistance on OSH to public and private establishments; inform and instruct employers and workers on measures for the prevention of occupational accidents and diseases; and prepare reports and recommendations on compliance with OHS legislation in workplaces (section 12(e) to (g)). The Committee also notes that, according to the information provided by the Government, the IGSS is required to provide to workers, in the event of accidents, protection which includes rehabilitation benefits and when a worker undergoing rehabilitation is authorized to return to work, the employer is required to restore the worker to the former work position or assign the worker to an occupation compatible with the residual capacity for work (sections 15, 19 and 20 of Decision No. 1002, Regulations on accident protection).

With reference to clauses (a) and (i) of Article 5 of the Convention, the Committee notes that new section 302 of the OSH Regulations provides that employers shall have a plan for the prevention of occupational risks (if they have fewer than ten workers) or an OSH plan (in the case of employers with ten or more workers). Section 302 also provides that the section of the OSH plan that addresses occupational health shall be drawn up and signed by a competent physician, who may also draw up and sign the part addressing occupational safety if the physician fulfils the requirements set out in the legislation (if not, the second part must be under the responsibility of a person who is competent). In this regard, the Committee notes that OSH plans have to include as a minimum a profile of the job and the associated risks, an epidemiological surveillance system for occupational diseases and the occurrence of employment accidents, and the programming and methodology for information, training and the promotion of measures to prevent occupational accidents and diseases, taking as a reference the risk factors described in the job profile, as well as for reassignment to work, without prejudicing labour rights. In the light of the above, the Committee requests the Government to provide information on the measures adopted or envisaged to ensure that occupational health services established in workplaces (without prejudice to the responsibility of each employer) have the following functions: (i) surveillance of the factors in the working environment and working practices which may affect workers’ health, including sanitary installations, canteens and housing where these facilities are provided by the employer (Article 5(b)); (ii) participation in the development of programmes for the improvement of working practices, as well as testing and evaluation of health aspects of new equipment (Article 5(d)); (iii) surveillance of workers’ health in relation to work (Article 5(f)); (v) promoting the adaptation of work to the worker (Article 5(g)); (vi) organizing of first aid and emergency treatment (Article 5(j)); and (vii) participation in analysis of occupational accidents and occupational diseases (Article 5(k)).

Articles 9 and 10. Conditions of operation of health services. The Committee notes that the OSH Regulations provide that the MTPS and the IGSS, in coordination, shall act in harmony with the action taken by other competent departments and directorates for the prevention of occupational risks, maintain relations with national and international bodies on OSH matters; and issue reports and opinions at the request of other authorities or bodies in relation to the prevention of occupational risks (sections 11(c) and (d) and 12(b)).

The Committee also notes that, in accordance with the OSH Regulations: (i) the OSH monitor proposed for each employer shall be responsible for the follow up and implementation of the plan for the prevention of occupational risks or the OSH plan (depending on the number of workers), have competence in the subject, be trained by an accredited institution and have a profile determined with regard to the economic activity of the workplace and the risks of the jobs (section 302); (ii) the second level of health services in workplaces can only be provided by physicians who are competent in OSH (section 303); and (iii) the part of the OSH plan (for employers with ten or more workers) on occupational health has to be drawn up and signed by a physician who is competent in the subject, who must also have duly accredited technical and academic knowledge, membership of an active professional association and be registered with the OSH department of the MTPS; the physician may also draw up and sign the part of the plan on occupational safety if she or he has the competence and the authorization of the department, or if not the second part must be the responsibility of a person who is competent in the subject, whose knowledge must be accredited and who must be registered with the above department (section 302). The Committee requests the Government to indicate the manner in which it is guaranteed that the personnel of occupational health services, including the OSH monitor and physician, fulfil their functions in cooperation with the other services in the enterprise and enjoy full professional independence.

Application in practice. The Committee notes that, in reply to its previous comment, the Government indicates that, under the terms of Ministerial Decision No. 191-2010, employers are required to register and notify the OSH department of the MTPS of employment accidents and occupational diseases that occur at the workplace. The Government reiterates that that it still does not have an (updated) official national list of occupational diseases and that the CONASSO is responsible for the development of a project in this regard. The Government adds that the General Labour Inspectorate (IGT) registers employment accidents on the basis of its normal monitoring and the complaints received and that the IGT cannot consider a disease to be occupational as the official national list has not been adopted. The Government also indicates that the IGT did not receive denunciations of employment accidents prior to 2022 or of occupational diseases between 2017 and 2023. The Government also emphasizes that 205 OSH plans were registered in 2022 alone. The Committee requests the Government to provide information on the specific measures adopted for the establishment of an updated list of occupational diseases. The Committee also requests the Government to refer to the comments that it is making in its direct request on the application of Article 14 of the Labour Inspection Convention, 1947 (No. 81), and Article 19(1) of the Labour Inspection (Agriculture) Convention, 1969 (No. 129) (notification to the labour inspection services of industrial accidents and cases of occupational disease).

Protection against specific risks

White Lead (Painting) Convention, 1921 (No. 13)

Articles 1, 2 and 5 of the Convention. Prohibition of the use of white lead, sulphate of lead and all products containing these pigments. Regulation of its use in work where it is not prohibited. The Committee notes that, according to the information provided by the Government in reply to its previous comment, the CONASSO, a tripartite body, indicates that the OSH Regulations set out the basic principles contained in the Convention and that their provisions on hazardous substances and products (including sections 201 to 209) are applicable to white lead. The Committee also notes that, according to the Government, at its meeting on 14 June 2023, the CONASSO decided by consensus to review, study and analyse the subject of white lead and decided to include it on its agenda for the purpose of avoiding any risk of accidents or diseases caused by its handling, transport or storage. In the light of the above, the Committee requests the Government to indicate any progress achieved in the context of the discussions held in the CONASSO on the use of white lead, sulphate of lead and any other products containing these pigments. The Committee also requests the Government to provide information on the activities in which, in the painting industry at the national level, white lead, sulphate of lead and any other products containing these pigments are still used.

Article 7. Compilation of statistics on lead poisoning. Application in practice. With reference to its previous comment, the Committee notes the Government’s indication that the OSH department of the MTPS does not have a record of cases that have been registered, declared or are presumed to be lead poisoning and that the Ministry of Public Health and Social Assistance dealt with two cases of patients (one of them a minor) diagnosed with lead poisoning in 2015 and 2023. The Committee requests the Government to continue providing information on registered or declared cases of lead poisoning, including fatalities, to the MTPS (through the OSH department and/or the IGT) and the Ministry of Public Health and Social Assistance and to indicate whether the cases concern working painters and whether, in general, they are occupational in origin. The Committee also requests it to provide information on the follow-up measures adopted by the competent authorities in relation to the cases of lead poisoning identified.

Maximum Weight Convention, 1967 (No. 127)

The Committee notes the information provided by the Government in reply to its previous comment on Article 5 (measures to ensure that workers receive adequate training in working techniques) of the Convention.

Articles 3, 4, 6 and 7 of the Convention. Maximum weight of loads transported by an adult worker. Young workers. Conditions in which the work is to be performed and use of suitable technical devices. With reference to its previous comment, the Committee notes with interest that, as amended, section 90 of the OSH Regulations raises to 18 years the minimum age for the manual transport of loads. The Committee also notes that this section reduces the maximum weight of loads for adults, sets limits to the weight of manual loads transported during the working day and in relation to the distances covered, and sets out the manner in which workers shall handle the loads.

Working Environment (Air Pollution, Noise and Vibration) Convention, 1977 (No. 148)

The Committee notes the information provided by the Government in reply to its previous comment on Articles 3 (definitions) and 10 (prohibition on requiring workers to work without personal protective equipment) of the Convention.

Article 6(2) of the Convention. Responsibilities whenever two or more employers undertake activities simultaneously at one workplace.The Committee requests the Government to refer to its comments below on the application of Article 8 (and particularly paragraph 1(a) and (c)) of the Safety and Health in Construction Convention, 1988 (No. 167) (coordination whenever two or more employers or self-employed workers undertake activities simultaneously at one site).

Article 8. Revision and specification of exposure limits. Consultation of technically competent persons. The Committee notes that, according to the Government’s indications, the CONASSO has agreed to submit to social dialogue the review of the subjects raised by the Committee in its comments on the application of this Article of the Convention, including the absence of exposure limits to vibration. The Committee requests the Government to indicate any progress achieved in this regard in the discussions in the CONASSO and invites it to draw the attention of this tripartite body to all the provisions of this Article of the Convention.

Exposure limits to noise. The Committee also notes that, following their amendment in 2016, sections 182, 187, 188 and 189 of the OSH Regulations set new exposure limits to noise, prohibiting exposure in workplaces to peak sound levels equal to or higher than 140 decibels (dB) with a C-weighting and establishing a limit of 85 dB with an A-weighting for a work shift of eight hours. In the latter case, if the decibels rise, the time limit for exposure is reduced and the exposure of workers without protective hearing equipment is prohibited.

Article 11. Medical examinations free of charge prior to employment. Alternative employment or other measures adopted to maintain income. Maintenance of the rights of workers under social security or social insurance legislation. With reference to its previous comments, the Committee notes that the Government refers to sections 303 and 302 of the OSH Regulations which, as amended, provide respectively that: (i) health services in workplaces shall provide two levels of care, the second of which may only be provided by physicians and includes medical examinations prior to employment and the medical surveillance of workers, and the management of their reassignment (in accordance with their capacities) on the basis of a medical assessment following an accident or the diagnosis of a disease without affecting their labour rights; and (ii) OSH plans (which must be adopted by employers with ten or more workers) have to include as a minimum the programming and methodology for reassignment without prejudice to labour rights. The Committee notes the Government’s indication that, under the terms of Decision No. 1529 of the Executive Board of the IGSS, approved by Government Decision No. 9-2023, all employers are required to register their workers with the social security system and they are therefore covered by the benefits provided by the IGSS. The Committee takes due note of this information and requests the Government to indicate the measures adopted or envisaged to ensure that: (i) the surveillance of the health of workers does not involve any costs for them (Article 11(2) of the Convention); and (ii) where continued assignment to work involving exposure to air pollution, noise or vibration is found to be medically inadvisable, measures shall be adopted to provide the worker concerned with suitable alternative employment or to maintain their income through social security measures or otherwise, including in cases in which such exposure does not have its origins in an accident or has not yet led to emergence of a disease, as indicated in section 303 of the OSH Regulations (Article 11(3) of the Convention). The Committee also requests the Government to refer to the comments that it is making above on the application of Article 7 of the Occupational Health Services Convention, 1985 (No. 161) on organization of occupational health services.

Article 12. Requirement of notification. In view of the Government’s indication that this subject will also be reviewed by the CONASSO, the Committee requests it to indicate any progress achieved in this respect. The Committee also invites the Government to draw the attention of this tripartite body to this Article of the Convention, which provides that the use of processes, substances, machinery and equipment, to be specified by the competent authority, which involve exposure of workers to occupational hazards in the working environment due to air pollution, noise or vibration, shall be notified to the competent authority which may, as appropriate, authorize the use on prescribed conditions or prohibit it.

Article 15. Requirement for the employer to appoint a competent person or to use a competent outside service. The Committee notes that, in reply to its previous comments, the Government refers to the requirement for all employers to have a responsible OSH monitor (trained by an accredited institution), as set out in section 302 of the OSH Regulations, as it noted in its comments on Convention No. 161 on occupational health services. The Committee further notes that this provision also provides that OSH plans (for employers with ten or more workers) must be drawn up and signed by a physician or by other competent persons who are duly accredited. The Committee notes this information which addresses its previous request.

Protection in specific branches of activity

Safety and Health in Construction Convention, 1988 (No. 167)

The Committee notes the information provided by the Government in reply to its previous comment on the relevant legislative developments and on Article 4 (laws and regulations adopted on the basis of an assessment of the safety and health hazards) and Article 9 (safety and health of workers in the design and planning of a construction project) of the Convention.

Article 8 of the Convention. Cooperation whenever two or more employers or self-employed workers undertake activities simultaneously at one contraction site. With reference to its previous comments, and particularly in relation to Article 8(1)(c) of the Convention, the Committee notes that section 4 of the OSH Regulations, as amended, provides that all employers, or their representative, intermediary, supplier, contractor or subcontractor, and third party enterprises, are required to adopt or apply OSH measures at workplaces to protect the life, health and safety of their workers.

The Committee notes, also in relation to its previous comments that the Government refers to the provisions of the OSH Regulations respecting OSH plans in construction works, and provisions of the Regulations on joint OSH committees in relation to the types of committees, joint solidarity between the enterprise that receives the services and intermediary, contracting or subcontracting enterprises and the possibility for those responsible for the OSH plans in the latter enterprises to be invited to join the existing OSH committee in the enterprise where the services are being provided. The Committee however notes that these provisions do not give effect to the requirements of Article 8(1)(a) and (b) and (2) of the Convention. The Committee requests the Government to indicate whether measures exist or it is planned to adopt measures, including legislative measures, to ensure that whenever two or more employers undertake activities simultaneously at one construction site: (i) the principal contractor, or other person or body with actual control over or primary responsibility for overall construction site activities, shall be responsible for coordinating the prescribed safety and health measures (Article 8(1)(a) of the Convention); and (ii) where the principal contractor, or other contractors, are not present at the site, a competent person or body at the site shall be nominated with the authority and the means necessary to ensure on behalf of the principal contractor, coordination and compliance with the prescribed safety and health measures (Article 8(1)(b) of the Convention). The Committee also requests the Government to provide information on the manner in which effect is given to Article 8(2) of the Convention, with an indication of whether laws or regulations have been adopted which prescribe that whenever employers of self-employed persons undertake activities simultaneously at one construction site they shall have the duty to cooperate in the application of the prescribed safety and health measures.

Article 12(2). Obligation of the employer to stop the operation and evacuate workers. The Committee notes that, in reply to its previous comment, the Government refers to the powers conferred by section 281(4) of the Labour Code on labour inspectors to order the stoppage or the immediate prohibition of work or operations due to failure to comply with the rules on the prevention of occupational risks, in the event of a serious or imminent risk to the safety and health of workers. The Committee recalls that this Article of the Convention does not refer to the powers of the Government authorities, but to the obligations of the employer in the event of an imminent risk to the safety of workers. The Committee requests the Government to provide information on the measures adopted or envisaged, in law or practice, to ensure that where there is an imminent risk to the safety of workers, the employer shall take immediate steps to stop the operation and evacuate workers as appropriate.

Article 20. Cofferdams and caissons. With reference to its previous comment, the Committee notes that the Government only refers to the provisions of the OSH Regulations respecting the storage and handling of pressurized cylinders and that it provides information on OSH inspection activities carried out by the IGT and the OSH department of the MTPS in construction sites between 2015 and May 2023. The Committee, therefore, requests the Government to indicate whether measures have been adopted or are envisaged, in accordance with Article 20 of the Convention, to ensure that: (i) cofferdams and caissons are of good construction and suitable and sound material and of adequate strength, and are provided with adequate measures for workers to reach safety in the event of an inrush of water or material; (ii) the construction, positioning, modification or dismantling of a cofferdam or caisson takes place only under the immediate supervision of a competent person; and (iii) every cofferdam and caisson shall be inspected by a competent person at prescribed intervals.

Article 21. Work in compressed air. With reference to its previous comment, the Committee requests the Government to provide information on the measures adopted or envisaged to ensure that work in compressed air is carried out only: (i) in accordance with measures prescribed by national laws or regulations; and (ii) by workers whose physical aptitude for such work has been established by a medical examination and when a competent person is present to supervise the conduct of the operations.

Article 22. Structural frames and formwork. With reference to its previous comment, the Committee requests the Government to provide information on the measures adopted or envisaged to ensure that: (i) the erection of structural frames and components, formwork, falsework and shoring is carried out only under the supervision of a competent person; (ii) adequate precautions have to be taken to guard against danger to workers arising from any temporary state of weakness or instability of a structure; and (iii) formwork, falsework and shoring are so designed, constructed and maintained that it will safely support all loads that may be imposed on it.

Articles 24(b) and 27(b). Demolition, explosives and competent persons. The Committee notes that, in reply to its previous comment, the Government indicates that it has not yet adopted legislation that is in force on demolition and explosives respecting the definition of the “competent person” referred to in Article 2(f) of the Convention. The Government adds that the CONASSO, at its meeting on 14 June 2023, decided by consensus to review, study and analyse this subject and include it in its work agenda. The Committee requests the Government to keep it informed of any progress made in the discussions held in the CONASSO on the inclusion in the legislation on demolition work and explosives (sections 153 to 156 of the OSH Regulations) of the intervention of a competent person in the specific activities and under the conditions set out in these Articles of the Convention.