Texts of pending comments

In order to provide a comprehensive view of the issues relating to the application of ratified Conventions on labour inspection, the Committee considers it appropriate to examine Conventions Nos 81 (labour inspection) and 129 (labour inspection in agriculture) together.

The Committee notes the information provided by the Government in reply to its previous comments in relation to Article 17 of Convention No. 81 and Article 22 of Convention No. 129 (legal or administrative proceedings in the case of violations of or failure to comply with legal provisions enforceable by labour inspectors).

Article 3 of Convention No. 81 and Article 6 of Convention No. 129. Functions of labour inspectors. The Committee notes that, in reply to its request for information on the measures adopted to ensure that the conciliation functions of labour inspectors do not interfere with the effective discharge of their primary duties, the Government indicates that labour inspectors fulfil conciliation functions on a daily basis within their inspection duties, as part of their obligation to ensure compliance with conciliatory settlements as set out in section 278 of the Labour Code. The Committee however notes that the Government has provided additional information according to which there are certain labour inspectors to whom conciliation cases are assigned and others who are responsible for carrying out inspections. In this regard, the Government indicates that the delegation of the General Labour Inspectorate of the department of Guatemala has 18 inspectors who undertake conciliation and 23 who carry out inspection visits of workplaces following denunciations. The Committee recalls that, in accordance with Article 3(2) of Convention No. 81 and Article 6(3) of Convention No. 129, any further functions which may be entrusted to labour inspectors, such as conciliation, shall not be such as to interfere with the effective discharge of their primary duties or to prejudice in any way the authority and impartiality which are necessary to inspectors in their relations with employers and workers. In view of the high proportion of inspectors in at least one department who undertake conciliation functions on a daily basis, and the absence of information regarding the fulfilment of inspection visits and related duties by these same inspectors, the Committee requests the Government to provide detailed information on the time and resources allocated to the conciliation activities undertaken by labour inspectors, as a percentage of the total time and resources used by inspectors for the discharge of their primary duties, as envisaged in Article 3(1) of Convention No. 81 and Article 6(1) of Convention No. 129.

Article 12(1)(a) of Convention No. 81 and Article 16(1)(a) of Convention No. 129. Powers of labour inspectors to enter freely at any hour of the day or night any workplace liable to inspection. With reference to its request to adopt measures to ensure that labour inspectors can enter enterprises at any hour of the day or night, the Committee notes the Government’s indication in its report that for inspectors to be able to enter any workplace liable to inspection without previous notice, they have to take into account its working hours so that their inspection can take the time that is necessary. The Committee notes the Government’s indication that the National Tripartite Commission on Industrial Relations and Freedom of Association (CNTRLLS) has been discussing a draft legislative initiative for the reform, among other provisions, of section 281(a) of the Labour Code which, according to the Government’s indications, limits the entry of labour inspectors into any workplace liable to inspection to the working day, in accordance with the internal rules or the authorizations issued by the Ministry of Labour and Social Welfare (MTPS). The Committee also notes that, according to the information provided by the Government, the number of inspections carried out at night between 2017 and May 2021 represented fewer than 1 per cent of the total number of inspections undertaken by day over the same period. The Committee requests the Government to take concrete measures, including within the context of a possible amendment to section 281(a) of the Labour Code, in order to guarantee that labour inspectors provided with proper credentials are empowered to enter at any hour of the day or night any workplace liable to inspection, in accordance with Article 12(1)(a) of Convention No. 81 and Article 16(1)(a) of Convention No. 129. The Committee also requests the Government to report any progress in the adoption of the legislative initiative for the amendment of section 281(a) of the Labour Code.

Article 12(2) of Convention No. 81 and Article 16(3) of Convention No. 129. Notification of the presence of inspectors unless such notification may be prejudicial to the performance of inspection duties. With reference to its request to adopt measures to ensure that inspectors have the power to omit to notify their presence to the employer if such notification may be prejudicial to the performance of their duties, the Committee notes the Government’s indication that labour inspectors do not give prior notice to employers that they will be carrying out controls at workplaces, but only show the employer the letter of appointment and identity documents of the inspectors concerned and the purpose of the control, and the employer is then required to allow the entry of the inspectors. In this regard, the Committee also notes that, according to the information provided by the Government, the CNTRLLS has also been discussing a draft initiative to reform section 271 of the Labour Code, which sets out the requirement to notify the presence of inspectors by producing proof of their identity and appointment, without envisaging exceptions in this regard. The Committee requests the Government to adopt concrete measures, including within the context of a possible amendment to section 271 of the Labour Code, to ensure that labour inspectors can choose not to notify the employer or his representative of their presence, if they consider that such notification may be prejudicial to the performance of their duties, in accordance with Article 12(2) of Convention No. 81 and Article 16(3) of Convention No. 129. The Committee also requests the Government to provide information on any progress achieved in the adoption of the legislative initiative to amend section 271 of the Labour Code.

Article 18 of Convention No. 81 and Article 24 of Convention No. 129. Adequate and effectively enforced penalties. The Committee notes that, in reply to the observations of the Autonomous Popular Trade Union Movement and Global Unions of Guatemala concerning the failure of the labour inspection services to impose penalties in practice, the Government indicates that, although in the past the conditions did not exist for the effective enforcement of the penalties issued by labour inspectors (the necessary units had not been established and the personnel to monitor the enforcement of such penalties had not been recruited), penalty procedures are now being initiated and decisions issued to impose fines on enterprises that are in violation. In this regard, the Committee notes the Government’s indication that the lack of personnel responsible for following up cases is still affecting their processing, especially in the General Labour Inspectorate of the department of Guatemala. The Committee requests the Government to provide information on the functioning of the units responsible for enforcing the effective application of the penalties imposed by labour inspectors, with an indication of the measures adopted to reinforce their activities and improve the human resources available to them. The Committee also requests that the Government provide detailed information on the number and nature of penalties imposed, including the amounts of fines imposed and collected, once the penalty procedures have been initiated and decisions issued.

The Committee is raising other matters in a request addressed directly to the Government.

The Committee notes that the Committee on Freedom of Association has referred to it the legislative aspects of Cases Nos. 2967 and 3089 (393rd Report of the Committee, March 2021), concerning allegations of incompatibility of a number of provisions of the Criminal Code and the Labour Code with the Convention. The Committee notes that most of the provisions challenged in Cases Nos. 2967 and 3089 have already been examined by the Committee in the framework of its monitoring of the application of the Convention. The Committee notes, however, that the allegations also refer to several additional provisions of the Criminal Code (sections 256, 292, 294 and 414) which, according to the Guatemalan Union, Indigenous and Peasant Movement would facilitate the criminalization of peaceful labour protests by means of an excessively broad and subjective characterization of common offences (such as usurpation of buildings or paralysation of means of transport). The Committee requests the Government to provide information on the possible application in practice of the above-mentioned provisions of the Criminal Code to events occurring in the context of the exercise of freedom of association, in particular the right to strike.

The Committee notes the observations of the International Trade Union Confederation (ITUC) and the joint observations of the Autonomous Popular Trade Union Movement and the Global Unions of Guatemala, both received on 1 September 2021, relating to matters examined in the present comment. The Committee also notes the Government’s replies to these observations. The Committee further notes the Government’s comments on the matters raised in 2020 by the national trade union federations on the impact of the COVID-19 pandemic on the application of the Convention.

Follow-up by the Governing Body of the progress achieved in the implementation of the technical cooperation programme “Strengthening of the National Tripartite Committee on Labour Relations and Freedom of Association in Guatemala for the effective application of international labour standards”

The Committee recalls that: (i) on the basis of the Governing Body’s decision adopted in November 2018 (Decision GB.334/INS/9) to close the procedure of the complaint made under article 26 of the ILO Constitution alleging the violation of the Convention by the State of Guatemala, the Governing Body requested the Office to draw up a technical cooperation programme to promote progress in the application of the Road Map adopted in 2013 within the framework of the follow-up to the complaint; and (ii) at its 340th Session (October–November 2020), the Government Body welcomed the adoption of the technical cooperation programme, “Strengthening of the National Tripartite Committee on Labour Relations and Freedom of Association in Guatemala for the effective application of international labour standards” and requested the Office to report annually on its implementation at its October–November sessions for the duration of the three-year programme (Decision GB.340/INS/10).

The Committee notes the discussions at the 343rd Session of the Governing Body (October–November 2021) on the implementation of the technical cooperation programme and the decision of the Governing Body to note the information provided by the Office on this subject (Decision GB.343/INS/7)

Trade union rights and civil liberties. The Committee regrets to note that it has been examining since 2005 allegations of serious acts of violence against trade union leaders and members, including numerous murders and the related situation of impunity. The Committee also notes that the Committee on Freedom of Association examined at its session in October 2021 Case No. 2609, which brings together denunciations of acts of anti-union violence, including a very high number of murders of members of the trade union movement between 2004 and 2021 (see 396th Report, October 2021, Case No. 2609, paragraphs 307–348).

The Committee notes the information provided by the Government on the situation with regard to the investigations and prosecutions relating to the murders of 96 members of the trade union movement and its indications that: (i) 28 verdicts have so far been handed down, including 22 convictions (in relation to 19 murders, with three cases giving rise to two convictions each), five charges have been set aside and one security and remedial measure has been adopted; (ii) seven arrest warrants are still pending; (iii) three cases are at the stage of public hearings and trials; (iv) the criminal prosecutions lapsed in six cases in which the accused died; and (v) the other cases are still at the investigation stage. The Committee also notes the Government’s indication that progress was reported in 2020 in 13 cases that are under investigation. The Committee also notes the information provided by the Government on the security measures taken for members of the trade union movement who are at risk, in the context of which: (i) 55 risk analyses were carried out for members of the trade union movement during the course of 2020, with one personal security measure being provided and 47 perimeter security measures; and (ii) between 1 June and 31 August 2021, 19 risk analyses were carried out for members of the trade union movement, with 15 perimeter security measures being adopted.

The Committee also notes that the Government refers to its replies provided in the context of Case No. 2609. The Committee takes due note in this regard of the detailed information provided by the Government on the active role played by the National Tripartite Committee on Labour Relations and Freedom of Association (hereinafter the National Tripartite Committee) and its Subcommittee on the Implementation of the Road Map in monitoring the response of the criminal justice system to acts of anti-union violence. The Committee takes special note in this respect of the high-level meetings held by the National Tripartite Committee with the Office of the Public Prosecutor and the plenary of the Supreme Court, and that the Subcommittee on the Implementation of the Road Map specifically requested the competent authorities to ensure: (i) the exhaustive investigation of all cases of murders of members of the trade union movement, with emphasis on a series of 36 cases of special relevance; (ii) the reactivation of the Technical Trade Union Forum in the Office of the Public Prosecutor and the Standing Technical Trade Union Forum for Comprehensive Protection in the Ministry of the Interior; (iii) the facilitation by the judicial authorities of current prosecutions for murders of members of the trade union movement; (iv) the assignment of a criminal analysis unit to the Special Prosecutor’s Unit for Crimes against Trade Unionists; and (v) the strengthening of collaboration between the Office of the Public Prosecutor and the Ministry of the Interior in cases of requests for protection measures by members of the trade union movement.

The Committee takes due note of this information. It also observes that, despite the difficulties caused by the COVID-19 pandemic, two new convictions were handed down in 2021 in relation to murders of members of the trade union movement. At the same time, the Committee notes with deep concern : (i) the Government’s indications that the Office of the Public Prosecutor recorded six new cases of murders of members of the trade union movement in 2020; and (ii) the observations of the national trade union confederations and the ITUC denouncing the murder on 7 May 2021 of Ms Cinthia del Carmen Pineda Estrada, a trade union leader of the Education Workers’ Union of Guatemala (STEG), as well as other serious acts of anti-union violence committed in 2020 and 2021. While noting the Government’s replies in relation to the investigations carried out into these crimes, the Committee once again recalls that trade union rights can only be exercised in a climate free from violence, intimidation and threats of any kind against trade unionists and that it is for governments to ensure that this principle is respected.

In light of the above, while taking due note of the action that the Government is continuing to take, the results reported and the difficulties involved in shedding light on the oldest murder cases, the Committee once again expresses deep concern at the allegations of further murders and other acts of anti-union violence committed in 2021 and the persistence of a high level of impunity, as there have still been no convictions for the great majority of the numerous recorded murders of members of the trade union movement. Emphasizing the importance of the initiatives called for by the Subcommittee on the Implementation of the Road Map, the Committee once again urges the Government to continue to take and intensify as a matter of urgency all the necessary measures to: (i) investigate all acts of violence against trade union leaders and members with a view to determining responsibilities and punishing the perpetrators and instigators of these acts, taking the trade union activities of the victims fully into account in the investigations; and (ii) provide prompt and effective protection for all trade union leaders and members who are at risk in order to prevent any further acts of anti-union violence. With reference to the specific action required in this regard, the Committee refers to the recommendations made by the Committee on Freedom of Association in Case No. 2609.

Legislative issues

Articles 2 and 3 of the Convention. The Committee recalls that for many years it has been requesting the Government to take measures to:

-amend section 215(c) of the Labour Code, which requires a membership of “50 per cent plus one” of the workers in the sector to establish a sectoral trade union;
-amend sections 220 and 223 of the Labour Code, which establish the requirement to be of Guatemalan origin and to work in the relevant enterprise or economic activity to be eligible for election as a trade union leader;
-amend section 241 of the Labour Code, under the terms of which strikes have to be called by a majority of the workers and not by a majority of those casting votes;
-amend section 4(d), (e) and (g) of Decree No. 71-86, as amended by Legislative Decree No. 35-96 of 27 March 1996, which provides for the possibility of imposing compulsory arbitration in non-essential services and establishes other obstacles to the right to strike;
-amend sections 390(2) and 430 of the Penal Code and Decree No. 71-86, which establish labour, civil and criminal penalties in the event of a strike by public officials or workers in certain enterprises; and
-ensure that the various categories of public sector workers (hired under item 029 and other items of the budget) enjoy the guarantees afforded by the Convention.

The Committee also recalls that in its comments in 2018, 2019 and 2020 it noted that: (i) the tripartite agreement concluded in February 2018 on the amendments sought in four of the six points indicated above (relating to the requirements to be elected as a trade union leader, compulsory arbitration in non-essential services, penalties applicable in the event of a strike, and the application of the guarantees of the Convention to various categories of public sector workers); (ii) the submission on 7 March 2019 of this tripartite agreement to the Labour Commission of the Congress of the Republic so that the examination of Bill No. 5199 could be set aside, as it did not have the support of the social partners, and instead a legislative reform could be adopted based on tripartite agreement; and (iii) the tripartite agreement concluded in August 2018 on the principles that should guide reforms on two of the other points in the above list relating, on the one hand, to the requirements for the establishment and operation of sectoral unions and, on the other, the conditions for strike ballots.

The Committee notes that in its latest report the Government confines itself to: (i) indicating that the legislative amendments requested by the Committee form part of the work plan of the National Tripartite Committee and its legislative subcommittee; (ii) recalling once again that Bill No. 5199, designed to respond to the Committee’s observations, had been submitted to the Congress of the Republic on 27 October 2016, but that the social partners called for it to be set aside and the discussion was to continue with a view to reaching consensus on the reforms to be adopted; (iii) indicating that, at the meeting on 22 April 2021 of the National Tripartite Committee, the Government submitted a draft legislative initiative based on the tripartite agreements on the four points referred to above covered by a full tripartite agreement, which had been submitted to the Congress of the Republic on 7 March 2018, with a full discussion on the reasoning given for the draft legislative initiative.

While noting the information provided by the Government, the Committee observes with deep concern the lack of specific progress in bringing the legislation into conformity with the Convention, despite the repeated requests by the various ILO supervisory bodies and the Governing Body and the serious impact of the legislative provisions concerned on the effective exercise of freedom of association. In this regard, the Committee recalls that in its previous comments it noted with concern the indications by the trade union organizations that the combination of: (i) the fact that it is impossible to create sectoral unions as a result of the requirements of section 215(c); and (ii) that it is impossible in small enterprises, which account for almost all companies in Guatemala, to assemble the 20 workers required by section 216 of the Labour Code for the establishment of a union, mean that the great majority of workers in the country do not have access to the right to join unions. While emphasizing the importance of reforms of labour legislation being the subject of consultation with the social partners and, in so far as possible, giving rise to tripartite consensus, the Committee emphasizes that, in the last resort, it is the responsibility of the Government to take the necessary decisions to ensure compliance with the international commitments assumed by the State through the ratification of international labour Conventions. The Committee therefore urges the Government to take the necessary measures without delay to bring the national legislation into conformity with the Convention. The Committee hopes to receive specific information in the near future on the tangible progress achieved in this regard.

Application of the Convention in practice

Registration of trade unions. In its previous comments, the Committee once again invited the Government and the trade unions to take major steps forward in their dialogue on facilitating the process of trade union registration. The Committee notes the Government’s indication that it is strengthening the public register of trade unions of the General Directorate of Labour through the development of an information technology tool that will facilitate the processes. The Committee also notes from document GB.343/INS/7, submitted to the Governing Body at its session in October-November 2021, that: (i) the Office is providing assistance for the project for the strengthening of the public register of trade unions; (ii) according to the information provided by the Government, of the 52 applications for registration received in 2020 by the Ministry of Labour and Social Welfare, 28 resulted in registrations, 16 were rejected and eight are still being processed; and (iii) of the 39 applications received in 2021 between 1 January and 16 September, 12 resulted in registrations, nine were rejected and 18 are still being processed. Noting from the information provided by the Government that more than one third of the applications for registration of trade unions reviewed in the past two years have been rejected and a significant number of applications are still being processed several months after their submission, the Committee once again encourages the Government, with the technical assistance of the Office and in dialogue with the national representative organizations, to make progress in facilitating the process of trade union registration.

Awareness-raising campaign on freedom of association and collective bargaining. The Committee recalls that this campaign is one of the commitments made by the Government through the Road Map adopted in 2013. In its previous comments, the Committee urged the Government, with the support of the social partners and the technical cooperation programme prepared by the Office, to take all the necessary measures to ensure that the awareness-raising campaign is given real visibility in the national mass media. The Committee notes the Government’s indication that it is awaiting the approval of the Multiannual Operations Programme of the European Union programme on support for decent employment in Guatemala, which includes specific action to address the subjects of freedom of association and collective bargaining within the framework of the corresponding ILO Conventions. While noting that the action taken in response to the emergencies resulting from the COVID-19 pandemic may have made it difficult to take action in this regard, the Committee regrets the lack of specific initiatives for the dissemination of the awareness-raising campaign. The Committee therefore once again urges the Government to take measures for the effective dissemination of the awareness-raising campaign on freedom of association and collective bargaining in the national mass media.

Regretting, despite the existence of the National Tripartite Committee and the technical assistance provided by the Office, the absence of specific progress over the past three years, the Committee urges the Government to take all the necessary measures to resolve, in the near future, the serious violations of the Convention that have been noted for many years.

The Committee is raising other matters in a request addressed directly to the Government.

The Committee notes the observations of the International Trade Union Confederation (ITUC), received on 1 September 2021, referring to issues examined by the Committee in the present comment. The Committee also notes the joint observations of the Autonomous Popular Trade Union Movement and the Global Unions of Guatemala, received on 31 August 2021, containing numerous allegations of anti-union discrimination and obstruction to collective bargaining, in both the private and public sector. While noting the Government’s replies to these observations, the Committee requests it to provide specific follow-up to each of the cases highlighted by the trade union organizations with a view to ensuring the application of the guarantees established by the Convention.

The Committee also notes the Government’s comments on the issues raised in 2020 by the national trade union organizations concerning the impact of the COVID-19 pandemic on the application of the Convention.

In its previous comments, the Committee noted the closure by the Governing Body of the complaint made in 2012 under article 26 of the ILO Constitution, concerning non-observance of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). The Committee recalls that in the follow-up to the above-mentioned complaint and in the road map adopted by the Government in 2013 in the context of the complaint, several issues had been raised with regard to the implementation of Convention No. 98. The Committee noted that during the 340th Session of the Governing Council (October–November 2020), the Governing Body had welcomed the technical cooperation project “Strengthening of the National Tripartite Committee on Labour Relations and Freedom of Association in Guatemala for the effective application of international labour standards” and had requested the Office to present an annual report on the implementation of the project at its October–November meetings, during the three-year project duration (decision GB/340/INS/10). The Committee notes the discussions held at the 343rd Session of the Governing Council (October–November 2021) regarding the implementation of the above-mentioned project and the decision of the Governing Body to take note of the information provided by the Office in this respect (decision GB.343/INS/7).

Article 1 of the Convention. Protection against anti-union discrimination. Activities of the General Labour Inspectorate. In the context of the implementation of Legislative Decree No. 7/2017, which had restored the power of the General Labour Inspectorate to impose penalties, and after underlining the vital importance of labour inspection in achieving adequate protection against acts of anti-union discrimination, especially in a context of numerous complaints on this matter, the Committee, in its previous comment, noted: (i) the first figures provided by the General Labour Inspectorate concerning anti-union acts and their treatment; and (ii) the forthcoming adoption of the Ministerial Agreement that will render operational the General Labour Inspectorate Tripartite Advisory Council, which is the appropriate forum for the labour inspection services and the social partners to exchange views on improving the implementation of Decree No. 7/2017. The Committee notes that, in its latest report, the Government: (i) provides information, within the framework of the Single Protocol on Procedures of the General Labour Inspectorate, on the existence and application of the special investigation procedure on freedom of association and collective bargaining, the content of which was revised in 2017; (ii) indicates that, according to the Statistics Bureau, the General Labour Inspectorate received, between 2017 and 17 May 2021, 352 complaints relating to the exercise of freedom of association and the right to collective bargaining; (iii) reports that, with the support of the ILO through the project, “Supporting respect for workers’ labour conditions in the agricultural export sector in Guatemala”, the General Labour Inspectorate is revising its electronic case system; and (iv) between 1 January 2020 and May 2021, the General Labour Inspectorate organized 34 dialogue forums, aimed at settling collective disputes with results achieved in four cases to date. While noting the information provided by the Government, the Committee notes that it has not received information on the inspection activities and decisions taken by the General Labour Inspectorate in relation to the complaints of anti-union acts registered, or on initiatives, including through the functioning of the General Labour Inspectorate’s Tripartite Advisory Council, aimed at strengthening the effectiveness of the Inspectorate with regard to protection against anti-union discrimination. The Committee therefore once again requests the Government to strengthen the measures taken to ensure that violations of trade union and collective bargaining rights are dealt with by the General Labour Inspectorate as a matter of priority, and that, with the above-mentioned support of the Office, an effective information system is set up shortly to follow up on inspection activities in this area. The Committee trusts that the Government will provide full information in this respect, including the statistics requested in its previous comments.

Effective judicial proceedings. For many years, the Committee has expressed concern, along with the Committee on Freedom of Association, at the many complaints alleging the persistent slowness of judicial procedures in relation to anti-union discrimination and the high level of non-compliance with reinstatement orders. The Committee notes that the Government refers firstly to general initiatives aimed at expediting all judicial procedures relating to labour, which include: (i) the transformation of the labour and social security courts into jurisdictional bodies with several magistrates; (ii) the restructuring of the units that make up the Auxiliary Services Centre of the Labour Law Administration; (iii) implementation of digitalized measures and tools at various stages of proceedings; and (iv) the continuation of the examination by the Congress of the Republic of the Code of Labour Procedure developed by the Supreme Court of Justice. The Committee notes the information provided by the Government on the status of the proceedings of the 7,113 legal actions for reinstatement filed between 1 January 2020 and 9 April 2021 (6,980 pertaining to State employees, 133 pertaining to individual workers), which resulted in: (i) 131 withdrawals and dismissals; and (ii) 2,165 final decisions of reinstatement, of which 197 were implemented and 1,795 were subject to appeal. The Committee further notes the Government’s indication that the Attorney General’s Office, Ministry of Labour and Social Welfare (MTPS), Office of the Auditor General, Public Prosecutor’s Office, National Civil Service Office and the judiciary participated in working groups to identify mechanisms to improve implementation of reinstatement processes proposed by public sector workers. In light of the above, the Committee notes that: (i) the general statistics provided by the Government on the judicial treatment of reinstatement applications continue to indicate a significant backlog of cases pending before the courts and the persistence of a high number of reinstatement orders handed down by the courts that have not been complied with; and (ii) national and international trade union organizations continue to denounce, in the private and public sectors, numerous cases of anti-union discrimination and non-compliance with reinstatement orders. Regretting yet again the absence of specific information, the Committee urges once again the Government to take, as a matter of priority, actions to provide an effective judicial response to the cases of anti-union discrimination. In this regard, the Committee urges once again the Government to: (i) take measures as soon as possible, in coordination with all the competent authorities, to overcome the obstacles to effective compliance with the reinstatement orders handed down by the courts; and (ii) take the necessary steps to ensure that, in consultation with the social partners, new procedural rules are adopted so that all cases of anti-union discrimination are examined by the courts in summary proceedings and the respective court rulings are implemented rapidly. Noting that the draft Code of Labour Procedure is still being examined by the Congress of the Republic, the Committee recalls that the content of this text may benefit from the technical assistance of the Office. The Committee requests the Government to provide information on any progress in this respect.

Article 4. Promotion of collective bargaining. In its previous comments, the Committee noted with growing concern that the already extremely low number of collective agreements agreed and approved in the country continues to decline. In light of this situation, the Committee requested the Government to make use, with the support of the technical cooperation programme developed by the Office, of the National Tripartite Committee on Labour Relations and Freedom of Association (hereinafter the National Tripartite Committee) to examine with the social partners the obstacles, both legislative and practical, to the effective promotion of collective bargaining so that it is able to take measures to promote collective bargaining at all levels. In this regard, the Committee expressed the firm hope that the agreement of August 2018 concerning the principles on which the reform of the labour legislation should be based will soon be reflected in the adoption of legislation in the very near future.

The Committee notes the Government’s information that: (i) the legislative reforms requested by the Committee concerning freedom of association and collective bargaining are part of the work plan of the National Tripartite Committee and its Labour Policy and Legislation Subcommittee, and have resulted in meetings of the National Tripartite Committee with the Subcommittee; (ii) the support of the Office has been requested for a workshop on collective bargaining that will be held by the end of the year; and (iii) with the support of the Office, a campaign on decent work for the agricultural sector is being developed, which includes the themes of freedom of association and collective bargaining. The Committee further notes that, according to data provided by the Government in the information attached to document GB/343/INS/7 submitted to the Governing Body at its October–November 2021 session, 12 collective labour agreements were signed and approved during 2020 and 11 agreements between 1 January and 13 September 2021.

The Committee regrets to note that the number of signed collective agreements remains very low and that no progress has been made to overcome the legislative and practical obstacles to the effective realization of the right to collective bargaining in the country. While referring to its comments concerning the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) and the Rural Workers’ Organisations Convention, 1975 (No. 141) on the need for the Government to effect the legislative reforms that have been requested for many years to bring the legislation into conformity with the ratified Conventions concerning freedom of association and collective bargaining, the Committee once again urges the Government to take tangible measures to effectively promote collective bargaining at all levels. Recalling that the Government has the technical assistance of the Office, the Committee hopes to receive information on progress made in this respect.

Articles 4 and 6. Promotion of collective bargaining in the public sector. In its previous comment, the Committee requested the Government to facilitate the process of the approval of collective agreements in the public sector. In light of allegations that the Public Prosecutor’s Office was legally challenging the benefits granted through a series of collective agreements, the Committee also requested the Government to take all possible steps to promote the negotiated, consensual settlement of any disputes that arise regarding the supposedly excessive nature of certain clauses in collective agreements in the public sector. In its previous comments, the Committee also encouraged the Government’s efforts to ensure that collective bargaining in the public sector takes place in a clear and balanced regulatory framework.

The Committee notes the Government’s indication that the subjects referred to above have been submitted to the Labour Policy and Legislation Subcommittee of the National Tripartite Committee and that they are part of its work plan. The Committee also notes the indications of the Public Prosecutor’s Office, that it takes due account of the fundamental right to collective bargaining while ensuring, through prior monitoring of the content of collective agreements in the public sector, respect for the rule of law. While taking due note of this information, the Committee notes that: (i) it does not have updated information on the various decisions to approve public sector collective agreements and their time lines; (ii) as noted in Case No. 3179 examined by the Committee on Freedom of Association (393rd Report of the Committee, March 2021), legal challenges on the validity of certain clauses of the collective agreement of the health sector are ongoing; (iii) the trade union organizations continue to question the grounds for not approving certain collective agreements, decisions which, according to the Government, are due to the need to remove certain unlawful clauses from the agreements in question; and (iv) no new information has been received from the Government to strengthen the regulatory framework of public sector collective bargaining. In light of the above, the Committee requests the Government to provide information on: (i) the time lines for approving public sector collective agreements and the grounds for the decisions not to approve certain agreements; and (ii) the development of cases in which the validity of certain clauses of public sector collective agreements has been legally challenged. The Committee also reminds the Government that it may avail itself of the technical assistance of the Office to strengthen the regulatory framework of public sector collective bargaining.

Application of the Convention in practice. Maquila sector. In its previous comments, having noted with concern that the unionization rate in the sector was below 1 per cent and that the approval of only one collective agreement covering a maquila (export processing) enterprise was known in recent years, the Committee requested the Government to take specific initiatives to promote collective bargaining in the maquila sector. The Committee notes the Government’s indication that: (i) from 1 January 2020 to 17 May 2021, the MTPS recorded three applications for registration of trade unions of the maquila sector, two of which resulted in comments (“previos”) of the labour administration and one, received on 6 May, which was waiting to be examined; (ii) a collective agreement of an enterprise in the maquila sector was approved in 2020; (iii) the MTPS regularly conducts training on labour rights, including collective rights, particularly aimed at women maquila workers; and (iv) the Maquila Coordination Committee, which brings together institutions and organizations that develop actions for women workers in the clothing and textile industry, has been strengthened. While noting this information, the Committee regrets to note that collective rights are still barely exercised in the maquila sector and that there is an absence of initiatives effectively focused on promoting them. The Committee therefore urges the Government to take specific initiatives to promote freedom of association and collective bargaining in the maquila sector and requests it to provide information in this respect.

Application of the Convention in municipal authorities. In its previous comments, in view of the large number of allegations of violations of the Convention in various municipalities in the country, the Committee expressed its concern at the information that both labour inspections and court decisions are often insufficient to resolve situations involving violations of the Convention, especially in relation to cases of anti-union dismissals of municipal workers. The Committee notes that: (i) the General Labour Inspectorate participated in dialogue forums following the dismissal of municipal union workers; and (ii) the National Association of Municipalities of the Republic of Guatemala affirms its support of fundamental labour rights but states that it must obtain the consensus of the country’s 340 municipalities in order to be able to participate in dialogue forums. The Committee also regrets to note that the 2021 observations of the national trade union organizations once again denounce many cases of violation of the Convention involving the leaders and members of municipal workers’ trade unions. The Committee therefore once again urges the Government to take all necessary measures, including the adoption of legislation if necessary, to ensure the application of the Convention in the municipalities. The Committee requests the Government to keep it informed of any progress achieved in this respect.

Tripartite dispute settlement in relation to freedom of association and collective bargaining. In its previous comment, the Committee emphasized the important role that the Subcommittee on Mediation and Dispute Settlement of the National Tripartite Committee can play in a context of numerous allegations of anti-union discrimination and noted that the technical cooperation programme developed by the Office provides for its strengthening. The Committee notes from document GB/343/INS/7 that: (i) in 2020, members of the Subcommittee on Mediation and Dispute Settlement participated, with the support of the Office, in a distance training course of the International Training Centre of the ILO on conciliation and mediation of labour disputes, as well as an international event on social dialogue in 2021; (ii) in 2020, the Subcommittee held six ordinary sessions at which two requests for the examination of cases were received and declared admissible; (iii) from 1 January to 16 September 2021, the Subcommittee held one ordinary session at which one request for the examination of a case was received but it has not yet been declared admissible; and (iv) in the period under review, no mediation or dispute settlement meetings were held. While it considers that the restrictions as a result of the COVID-19 pandemic may have had an impact on the activities of the Subcommittee, the Committee regrets to note the lack of meetings held by the Subcommittee on Mediation and Dispute Settlement to settle certain disputes. The Committee expresses the firm hope that the Government will be able to provide information in the near future on the tangible contribution of this Subcommittee to the resolution of collective conflicts and the strengthening of social dialogue in the country.

Regretting that, despite the existence of the National Tripartite Committee and the technical assistance provided by the Office, no tangible progress has been made in the last three years, the Committee recalls that it falls to the Government to take decisions necessary for the fulfilment of the State’s international commitments made through the ratification of international labour conventions. The Committee therefore urges the Government to take the necessary measures to remedy as soon as possible the serious violations of the Convention that the Committee has been noting for many years.

[The Government is asked to reply in full to the present comments in 2023.]

The Committee takes note of the supplementary information provided by the Government in light of the decision adopted by the Governing Body at it 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 in 2020, as well as on the basis of the information at its disposal in 2019.

The Committee notes that the Government’s report does not reply to the 2014 observations of the Trade Union of Workers of Guatemala (UNSITRAGUA) regarding: the engagement and recruitment of agricultural workers; wages; payment of overtime hours; annual paid holiday; registration with the Guatemalan Institute of Social Security (IGSS); migrant workers; health and safety conditions; housing and food; and child labour and labour inspection. The Committee once again requests the Government to provide its comments in this regard.

Part II of the Convention. Engagement and recruitment and migrant workers. Articles 5–19 of the Convention. The Committee notes the adoption of the Agricultural Policy 2016-2020, which includes focal points, guidelines and actions aimed at, inter alia, commercial producers. According to the typology of producers established by the Ministry of Agriculture, Livestock and Food based on the size of the farms that they occupy and their socio-economic conditions, three per cent of agricultural producers are classed as commercial producers and occupy 65 per cent of arable land. The Committee notes that, according to the 2016 National Employment and Income Survey (ENEI) of the Guatemalan National Institute of Statistics (INE), 28.8 per cent of employment in the country is in the agricultural sector, 89.5 per cent of whom are men and 10.4 per cent are women. Furthermore, the agricultural sector has the highest percentage of persons in informal employment (36.9 per cent). The Committee observes, however, that this statistical data does not indicate which of these workers work on plantations. Noting that the Government does not provide information on this part of the Convention, the Committee once again requests it to provide detailed and updated information on the measures taken to give full effect to Articles 5 to 19 of the Convention, and information on the national policies adopted recently, including the Agricultural Policy 2016-2020, which cover the plantation sector, and their impact on the living and working conditions of workers in the sector.

Part IV (Wages). Articles 24–35. The Committee notes the adoption of Government Decision No. 250-2020 of 30 December 2020, which establishes the daily minimum wage in the agricultural sector at 90.16 quetzals (approximately US$12) per day. The Committee also refers to its comments from 2019 on the application of the Forced Labour Convention, 1930 (No. 29), in which it noted that, in its 2019 annual report, the UN Office of the High Commissioner in Guatemala highlighted that several workers on plantations in the Northern Transversal Strip had reported the use of illegal contractors who charge workers to be hired, high production goals, and payment of less than the minimum wage (A/HRC/40/3/Add.1, 28 January 2019, paragraph 76). The Committee requests the Government to take measures to ensure that the social partners are consulted regularly on matters affecting the implementation of the Convention. The Government is also requested to provide detailed and updated information on the manner in which the representatives of the employers’ and workers’ organizations concerned were consulted with regard to the determination of the minimum wage in 2020, as required by Article 24 of the Convention. The Committee also requests the Government to provide information on the manner in which it ensures that workers in the plantation sector receive at least the established minimum wage, including information on the number and results of inspections conducted with regard to the payment of the minimum wage on plantations.

Part XI (Labour inspection). Articles 71–84. In its previous comments, the Committee referred to its 2014 comments made under the Labour Inspection (Agriculture) Convention, 1969 (No. 129) and noted the observations of workers’ organizations denouncing the Government’s failure to supervise compliance with labour legislation on dozens of plantations. The Committee also noted the extensive use of child labour on coffee, sugar cane, cardamom and cotton plantations, and requested the Government to provide detailed information on the specific measures taken to supervise and control the working conditions of under-aged workers on plantations. In this regard, the Committee notes that the Universal Period Review (UPR) Working Group of the UN Human Rights Council, in its 2017 report, indicated that, despite the reduction in child labour, the Committee on Economic, Social and Cultural Rights had reiterated its concern about the continuing economic exploitation of children in sectors such as agriculture (A/HRC/WG.6/28/GTM/2, paragraph 70). In this regard, the Committee observes that, according to the 2016 National Employment and Income Survey of the INE, the agricultural sector has the highest percentage of child labour (58.8 per cent) with a greater number of boys engaged than girls. The Committee further notes the statistical data provided by the Government which indicate that 1,290 labour inspections were conducted between 2018 and 2019. The Committee observes, however, that only inspections under the heading “sugar and African palm” refer, in general, to those conducted on plantations and that these related to the verification of the payment of the minimum wage, end-of-year bonuses, and annual bonuses, as well worker-employer documentation and health and safety measures. The Committee also notes that the Ministry of Labour and Social Security published, in 2017, a single protocol on procedures for the labour inspection system, which includes a procedure for the inspection and verification of the rights of agricultural workers, and which specifies the steps to be followed to conduct an inspection of an agricultural enterprise or plantation. The Committee also notes the information provided by the Government in its supplementary report regarding the measures taken with a view to mitigating the impact of the COVID-19 pandemic on the working and living conditions of workers. These measures include the adoption of Decree No. 13-2020, Act on the provision of economic relief for families from the impact of the COVID-19 pandemic, which establishes a fund for the protection of employment, and the creation of an electronic procedure for the registration, control and authorization of collective suspensions of employment contracts, by means of which employers have the authority to request the individual or collective suspension of employment contracts before the General Labour Inspectorate, and subsequently request the Ministry of the Economy to compensate the workers. The Government indicates that enterprises with an economic activity identified as the “manufacture of rubber products and agriculture” requested the suspension of the employment contracts of 69 and 168 workers, respectively. The Committee requests the Government to: (i) continue providing detailed statistical data on the inspections conducted on plantations, including the violations of labour laws reported, in accordance with Article 74(1)(a) of the Convention, and the penalties imposed; (ii) indicate the specific measures taken by the labour inspectorate to supervise and control the working conditions of under-aged plantation workers; (iii) provide detailed information on the impact of the single protocol on procedures for the labour inspection system on the inspections conducted on plantations, including disaggregated statistical information on inspections conducted on banana plantations. Lastly, the Committee requests the Government to supply information on the impact of the measures taken to mitigate the effects of the COVID-19 pandemic on the working and living conditions of plantation workers.

In order to provide a comprehensive view of the issues relating to the application of ratified Conventions on labour inspection, the Committee considers it appropriate to examine Conventions Nos 81 (labour inspection) and 129 (labour inspection in agriculture) together in a single comment.

The Committee notes the information provided by the Government in reply to its previous comments in relation to Article 7 of Convention No. 81 and Article 9(3) of Convention No. 129 (adequate training of labour inspectors) and Article 16 of Convention No. 81 and Article 21 of Convention No. 129 (inspection of workplaces as often and as thoroughly as necessary).

Articles 10 and 16 of Convention No. 81 and Articles 14 and 21 of Convention No. 129. Number of labour inspectors and inspections. Frequency of labour inspections. The Committee notes that, with reference to its previous comment concerning the personnel of the labour inspection services, the Government: (i) indicates that the labour inspection personnel of the General Labour Inspectorate cover both the agricultural and non-agricultural sectors; and (ii) provides information on the number of labour inspectors between 2017 and 2020 and on their geographical distribution, specifying that there were 219 inspectors in 2017, 208 in 2018, 203 in 2019 and 172 in 2020 at the national level. In this regard, the Committee notes from prior Government reports that the number of labour inspectors has declined even further since 2015, when the number was 270; it further notes that, according to the Government’s explanations, the reasons for the decrease in the number of labour inspectors include the promotion of certain inspectors to positions as departmental delegates and the unilateral termination of the employment relationship by inspectors, on the one hand, to benefit from the voluntary retirement package envisaged in the collective agreement on working conditions in force in the Ministry of Labour and Social Welfare (MTPS) and, on the other, to undertake activities related to their profession following the completion of their studies. The Committee also notes the Government’s indication that it is in the process of recruiting 14 labour inspectors for the delegation of the department of Guatemala and that it is planned to issue the call for the recruitment of another 14 labour inspectors for the departmental delegations in the interior of the country. With regard to the inspections carried out, the Committee notes that only the report on the work of the General Labour Inspectorate services for 2020 contains full information on the number of inspections undertaken in relation to operational plans, denunciations and scheduled inspections (18,916 inspections, including 761 inspections of agricultural undertakings). The Committee requests the Government to provide detailed information on the measures adopted or envisaged to continue increasing the number of labour inspectors, and for the retention of inspectors in the labour inspection services, in all the departmental delegations at the national level. The Committee also requests the Government to continue including information on the personnel of the labour inspection services and statistics on the inspections carried out (under operational plans, in response to denunciations and scheduled inspections), including in agricultural undertakings, in the annual reports on the work of the General Labour Inspectorate services, in accordance with Article 21(b) and (d) of Convention No. 81 and Article 27(b) and (d) of Convention No. 129. It also requests the Government to continue providing information on the geographical distribution of labour inspectors at the national level.

Article 14 of Convention No. 81 and Article 19(1) of Convention No. 129. Notification to the labour inspectorate of industrial accidents and cases of occupational disease. With reference to its previous comments on the adoption of measures for the operation of the harmonized system for the notification of industrial accidents and cases of occupational disease to the labour inspectorate, the Government indicates that: (i) employers notify the MTPS, through the Department of Occupational Safety and Health (OSH), of reports of industrial accidents and occupational diseases, in accordance with Ministerial Decision No. 191-2010; (ii) to facilitate the submission of these reports by employers, the MTPS has created, on the website of the Department of OSH, a space containing a single form to report industrial accidents, which has now resulted in a subregister of industrial accidents; and (iii) the MTPS does not have a harmonized register bringing together the information of the General Labour Inspectorate and the Department of OSH. In this regard, the Committee notes that, according to the report on the work of the General Labour Inspectorate services for 2020, the General Labour Inspectorate does not keep a register of industrial accidents or occupational diseases, as that is the responsibility of the Department of OSH of the General Directorate of Social Welfare. The Committee also notes that, according to the statistics provided by the Government, the number of industrial accidents reported by employers to the MTPS has tended to rise between 2017 and 2020. Noting the absence of information on this subject, the Committee requests the Government to specify whether in practice employers also submit reports to the MTPS on cases of occupational disease, as envisaged by Ministerial Decision No. 191-2010 and, if so, whether it has a register of such reports. The Committee also requests the Government to adopt specific measures to ensure that the labour inspection services receive or have access to notifications of industrial accidents and cases of occupational diseases provided by employers to the MTPS under the terms of the above Ministerial Decision, in accordance with Article 14 of Convention No. 81 and Article 19(1) of Convention No. 129. Finally, the Committee requests the Government to explain the reasons leading to the reporting of a rise in the number of industrial accidents by employers to the MTPS between 2017 and 2020.

Article 15(c) of Convention No. 81 and Article 20(c) of Convention No. 129. Confidentiality of the source of any complaint and that a visit of inspection was made in consequence of the receipt of such a complaint. The Committee notes that, in reply to its request for information on the measures adopted to ensure that inspectors are required to treat as confidential the source of any complaint, the Government indicates that: (i) under the terms of section 281(g) of the Labour Code, departmental delegates and labour inspectors are criminally, civilly and administratively liable for any unlawful acts, particularly if they divulge data obtained through their inspections or controls, and may even be terminated; and (ii) the legislation therefore limits the freedom of labour inspectors to divulge the identity of a complainant who indicates that the complaint is to remain anonymous, in which case the name of the complainant is not included in the file. Noting that the information provided by the Government does not allow the conclusion that full effect is given to the requirements of Article 15(c) of Convention No. 81 and Article 20(c) of Convention No. 129, the Committee requests the Government to indicate whether specific legislative or other measures have been adopted to ensure that labour inspectors are required to treat as absolutely confidential the source of any complaint, including in cases in which the complainant does not request that the complaint be treated anonymously, and shall give no intimation to the employer or his or her representative that a visit of inspection was made in consequence of the receipt of such a complaint, in accordance with Article 15(c) of Convention No. 81 and Article 20(c) of Convention No. 129.

Article 18 of Convention No. 81 and Article 24 of Convention No. 129. Adequate and effectively enforced penalties. With reference to its request for information on the penalties imposed by the labour inspectorate and their numbers, the Committee notes the information provided by the Government on the number of penalties imposed and the amount of the fines paid in each departmental delegation between 2018 and 2020. The Government also provides information on the number of cases in which it was found that the labour inspectorate was obstructed in its work between 2017 and 2020 in the departmental delegations of Guatemala and Sacatepéquez. The Committee notes that the annual report on the work of the General Labour Inspectorate services for 2020 contains information on the number of violations identified and the penalties imposed by the labour inspectorate. The Committee requests the Government to continue including statistics of the violations identified and penalties imposed, including in agricultural undertakings, in the annual reports on the work of the General Labour Inspectorate services, in accordance with Article 21(e) of Convention No. 81 and Article 27(e) of Convention No. 129. The Committee also requests it to provide differentiated information on the penalties imposed at the national level for violations of legal provisions that are enforceable by labour inspectors and penalties in cases of the obstruction of labour inspectors in the discharge of their duties.

The Committee also notes that the Government reports the adoption in 2017 and 2018, respectively, of the instruction creating the register of labour and social welfare violations of the General Labour Inspectorate (Ministerial Decision No. 285-2017, as amended by Ministerial Decision No. 332-2020). The Committee requests the Government to provide detailed information on: (i) the creation and operation of the register of labour and social welfare violations of the General Labour Inspectorate; and (ii) the impact that the register and the implementation of the instruction respecting the imposition of penalties by the General Labour Inspectorate has had on the effective enforcement of the penalties imposed in cases of violations of the legal provisions enforceable by labour inspectors and in cases of the obstruction of inspectors in the discharge of their duties.

Articles 20 and 21 of Convention No. 81 and Articles 26 and 27 of Convention No. 129. Annual report on the work of the inspection services. With reference to its previous comments, the Committee notes that the Government has supplied the reports on the work of the General Labour Inspectorate services for 2017, 2018, 2019 and 2020, published on the website of the MTPS, which include information on the work of the labour inspection services in agriculture. The Committee notes in particular that the 2020 report contains information on the items enumerated in clauses (a) (laws and regulations relevant to the work of the inspection service), (b) (staff of the labour inspection service), (d) (statistics of inspection visits) and (e) (statistics of violations and penalties imposed) of Article 21 of Convention No. 81 and Article 27 of Convention No. 129. The Committee requests the Government to adopt the necessary measures to ensure that future annual reports on the work of the inspection services continue to cover consistently the subjects contained in the report on the work of the General Labour Inspectorate services for 2020 and that they also cover the following subjects: statistics of workplaces liable to inspection and the number of workers employed therein (Article 21(c) of Convention No. 81 and Article 27(c) of Convention No. 129); statistics of industrial accidents (Article 21(f) of Convention No. 81 and Article 27(f) of Convention No. 129); and statistics of occupational diseases (Article 21(g) of Convention No. 81 and Article 27(g) of Convention No. 129).

Article 3 of the Convention. Right of all rural workers to establish organizations of their own choosing without previous authorization. In its previous comment, the Committee requested the Government to provide statistics on the number of rural workers’ unions and associations existing in the country, and the number of their members. The Committee notes with concern the Government’s indication that: (i) of the 725 organizations of rural workers registered by the Ministry of Labour and Social Welfare, nine have legal personalities that are currently valid, while the legal personalities of the other 716 have lapsed; and (ii) only 0.79 per cent of the rural economically active population belongs to any type of union (the Committee observes that it is not specified whether this percentage of unionized rural workers refers specifically to the members of unions with a currently valid legal personality, or whether it also includes workers who are members of organizations for which the legal personality has lapsed).

The Committee emphasizes that compliance with Article 3 of the Convention presupposes in the first place the elimination of legislative obstacles that may impede the freedom of rural workers to establish trade unions. The Committee recalls in this regard the comments that it has been making for many years in the context of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), concerning the need to amend section 215(c) of the Labour Code, which requires a membership of “50 per cent plus one” of the workers in a sector to establish a sectoral trade union. The Committee also recalls in this context that it noted with concern the indications by the trade union confederations that the combination of: (i) the fact that it is impossible to create sectoral unions as a result of the requirements of section 215(c); and (ii) that it is impossible in small enterprises, which account for almost all companies in Guatemala, to assemble the 20 workers required by section 216 of the Labour Code for the establishment of a union, which means that the great majority of workers in the country do not have access to the right to union membership. The Committee notes in this regard that the rural sector is generally characterized by a high incidence of small enterprises, which makes it particularly important to remove legislative obstacles to the possibility of establishing sectoral unions in agriculture. Recalling that Paragraph 8 of the Rural Workers’ Organisations Recommendation, 1975 (No. 149), specifically emphasizes that the relevant laws and regulations should be fully adapted to the special needs of rural areas in relation to requirements regarding minimum membership for the establishment of organizations, the Committee urges the Government to take the necessary measures in the near future to amend the requirements relating to the establishment of sectoral unions set out in section 215(c) of the Labour Code in accordance with the Conventions ratified by Guatemala, and to facilitate and extend the possibilities for the establishment of unions that cover workers in several enterprises in the rural sector. The Committee hopes to be able to note tangible progress in this regard in the near future and requests the Government to provide the corresponding information.

In response to serious allegations of anti-union practices in the agricultural sector, the Committee also previously requested the Government to provide information on the action taken by the labour inspectorate to ensure that rural workers are freely able to exercise their right to organize. The Committee notes the Government’s indications in this regard that: (i) as rural workers enjoy the same trade union rights as other workers, the General Labour Inspectorate (IGT) applies the same general measures in the rural sector, and particularly the special procedure for investigations into freedom of association and collective bargaining and the procedure relating to cases of social dialogue in labour matters; (ii) similarly, it is the responsibility of the General Labour Inspectorate, in both the rural and other sectors, to ensure the employment security of the trade union leaders appointed by the members of their organizations; (iii) on this basis, the General Labour Inspectorate systematically includes freedom of association and collective bargaining in its inspection plans for agricultural enterprises and plantations; (iv) between 2016 and 21 May 2021, the General Labour Inspectorate received 246 complaints from trade unions in the rural sector; and (v) during the same period, the General Labour Inspectorate assisted 11 dialogue forums in the rural sector (ten forums in the same enterprise and one forum for several enterprises in the same area) and registered the establishment of 83 ad hoc workers’ committees in rural enterprises (temporary committees composed of a maximum of three workers governed by section 374 of the Labour Code, through which workers and employers can resolve differences).

The Committee also notes the Government’s indication that the inspection of working conditions in the rural sector gives rise to specific challenges and difficulties, including the seasonality of work and contracts, linguistic barriers with indigenous workers, difficulties of access to certain enterprises or plantations in remote locations and/or guarded by security personnel and the weak trade union organization in the sector. The Committee notes in this regard that, among the good inspection practices emphasized by the Government, it is envisaged that inspectors will coordinate inspections with any unions or ad hoc committees that may exist, based on a prior risk assessment with a view to avoiding any reprisals against workers’ representatives. Lastly, the Committee notes that the action of the General Labour Inspectorate in the rural sector is currently supported by the Office through the implementation of the cooperation project on “Supporting respect for the working conditions of workers in the agro-export sector in Guatemala”.

The Committee takes due note of this information and observes that it shows that the General Labour Inspectorate has clearly identified the substantial difficulties relating to the protection of the exercise of trade union rights in the rural sector. In light of the above, the Committee requests the Government to provide further information on the specific action and interventions of the General Labour Inspectorate in relation to freedom of association in the rural sector (with an indication in particular of the number of complaints lodged concerning the exercise of trade union rights and the related decisions, as well as the number of trade union leaders registered so that they benefit from employment security). Recalling that Guatemala has also ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), the Labour Inspection (Agriculture) Convention, 1969 (No. 129), and the Plantations Convention, 1958 (No. 110), the Committee also requests the Government to proceed with an assessment of the measures and tools to reinforce the effectiveness of action by the General Labour Inspectorate and other relevant public authorities to prevent and resolve situations of anti-union discrimination in the rural sector. The Committee emphasizes the importance of this assessment involving substantive dialogue with the organizations of workers and employers concerned, and reminds the Government that it may avail itself of ILO technical assistance, particularly through the projects “Supporting respect for the working conditions of workers in the agro-export sector in Guatemala” and “Strengthening of the National Tripartite Committee on Labour Relations and Freedom of Association in Guatemala for the effective application of international labour standards”. The Committee requests the Government to provide information on the progress made in this regard.

Articles 4 to 6. Promotion of organizations of rural workers and their role in economic and social development. Recalling that the Convention also provides that the State shall further the development of organizations of rural workers and promote their participation through their organizations in economic and social development, the Committee previously requested the Government to provide information on: (i) the measures taken to facilitate the establishment and growth, on a voluntary basis, of strong and independent organizations of rural workers and their participation in the economic and social development process of the country; and (ii) the number of collective agreements in force in the rural sector and the number of workers covered. The Committee notes that the Government: (i) indicates that it is developing with the Office a campaign on decent work in the agricultural sector, which includes the subject of freedom of association; the campaign will be disseminated in various national languages, through social networks, broadcasts and information posters during the course of 2021; (ii) provides data on the action to promote economic activity in the rural sector undertaken by the Deputy Minister for the Development of Micro-, Small and Medium-sized Enterprises of the Ministry of the Economy and by the Ministry of Agriculture; and (iii) indicates that the Ministry of Labour does not have information on which collective agreements in force in the country cover workers in the rural sector.

The Committee notes the lack of information on the collective agreements in force in the rural sector, as collective bargaining is a fundamental means of action for associations of rural workers. The Committee also notes that the initiatives relating to the rural sector referred to by the Government consist essentially of capacity-building, but that information has not been provided on the social dialogue mechanisms through which associations of rural workers can participate in decision-making processes that affect them. In light of the above, the Committee requests the Government to: (i) reinforce information activities on and the promotion of freedom of association and collective bargaining through initiatives targeting the rural sector; (ii) compile the information available on the collective agreements in force that cover rural workers; and (iii) promote dialogue with the associations of rural workers, including those of self-employed workers and small producers, in mechanisms for the adoption of public decisions that affect them. Lastly, the Committee requests the Government to supplement the information provided on associations in the rural sector by providing further details on associations of self-employed workers and small producers, including information on solidarist associations (the number of associations and members, type of activities undertaken).

[The Government is asked to reply in full to the present comments in 2024.]

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 is proceeding with the examination of the application of the Convention on the basis of the supplementary information received from the Government in 2020, as well as on the basis of the information at its disposal in 2019.

The Committee notes the observations made by the Autonomous Popular Trade Union Movement and the Global Unions of Guatemala, received on 16 October 2020, which denounce the recruitment of nursing personnel through temporary contracts for professional services to perform work of a permanent nature, and the precarious working conditions of these workers. In particular, they report that these workers do not have access to the rights established for nursing personnel in the labour legislation relating to aspects such as holidays, access to benefits of the Guatemalan Social Security Institute, healthcare, maternity leave or breastfeeding breaks. They also report that, in the context of the COVID-19 pandemic, the nursing personnel under the aforementioned contractual arrangements who were infected with the virus did not receive medical assistance, and were required to go to work despite presenting symptoms of COVID-19. In addition, they highlight that they were not provided with personal protective equipment (PPE) and were refused access to COVID-19 testing. The workers’ organizations indicate that on 25 May 2020, they submitted an application for protection (amparo) to the Constitutional Court, which ordered the Ministry of Health to immediately adopt the necessary measures to issue PPE to all workers and to protect those workers considered to be high risk. The workers’ organizations also indicate that they submitted an application for protection (amparo) for the misuse of temporary contracts, for health sector services to carry out labour activities, with a proven relationship of permanent dependence. The workers’ organizations also denounce the initiation of dismissal proceedings as a reprisal against the workers who promoted and supported the submission for the above remedies. In addition, they denounce the significant salary differences between nursing personnel who perform the same functions but who are hired under different contractual terms or in different regions. Lastly, the workers’ organizations report that in the last four years, graduates of the nursing schools in Quiche, Cobán and Guatemala Capital have not received their academic certificates, which prevents them from accessing employment. Furthermore, they report the absence of adequate and sufficient protection measures in the context of the COVID-19 pandemic, including the lack of PPE and measures to minimize the risks to which workers are exposed. The Committee requests the Government to provide its reply in this regard.

COVID-19 pandemic. Measures adopted concerning public health. The Committee notes the detailed information provided by the Government in its supplementary report on the various public health measures adopted to address the effects of the COVID-19 pandemic. The Government indicates that on 16 March 2020, it issued Governmental Decree No. 5-2020 declaring a state of public disaster throughout the national territory as a result of the COVID-19 pandemic, which has subsequently been extended on several occasions. The Government indicates in its supplementary report that, in March 2020, the Plan to prevent, contain and respond to COVID-19 cases in Guatemala, developed by the Ministry of Public Health and Social Assistance (MSPAS), was approved. The measures in the Plan to be adopted to address the epidemiological threat posed by COVID-19 include ongoing training and active participation of personnel from the different levels of healthcare in the various coordination forums of the health sector and emergency response system, as well as the National Coordinating Body for Disaster Reduction (CONRED). The Committee invites the Government to provide up-to-date information in its following report on the impact of the pandemic on the implementation of national policies and programmes relating to nursing services and nursing personnel with a view to ensuring the objectives of the Convention.

Article 2 of the Convention. National policy for nursing services and nursing personnel. The Committee notes the detailed information provided by the Government regarding the regulations on the nursing profession and the various studies conducted on the situation of health workers in the country, including nursing personnel. In particular, the Committee notes the reports provided by the Government regarding the evaluations carried out in 2005 and 2013 on achievement of the targets established in the National Plan for the development of human resources in health 2007–2015. The Committee also notes that the Government refers to the development of the Regional Plan of the nursing professionals’ group of Central America and the Caribbean 2018–2022. Its lines of action include: building the human resources of nursing personnel, improving the working conditions of nursing personnel and strengthening continuous and lifelong education for these workers. The Government indicates that such lines of action would be agreed upon by representatives of nursing associations and colleges affiliated with the International Council of Nurses (ICN) at a meeting to be held in Singapore in 2019. The Committee also notes the Government’s indication that, within the framework of the II Central American and Caribbean Summit on “the development of nursing in Central America, a collective project to improve health” organized in October 2017, a declaration was signed by nursing personnel representatives of the participating countries. The Government indicates that the declaration includes pillars of work relating to governance, vocational internships and training for human resources, working conditions of nursing personnel, technical cooperation projects between national nursing associations, professional nursing colleges and the International Council of Nurses, the implementation of strategies to strengthen work within nursing networks, and the regulation of national policy and law on nursing. The Government adds that participants in the II Regional Summit undertook to disseminate the declaration at the national level, follow up on the agreements, strengthen union organization and carry out studies on the situation of nursing personnel. In this connection, the Government reports the development of a study by the Nursing Services Development Unit of the MSPAS on the working conditions of nursing personnel in Guatemala. This study highlights that obstacles to improving the working conditions of nursing personnel comprise the insufficient number of nursing personnel in the country owing to the lack of funding for recruitment, the heavy workload of nursing personnel who perform functions that are not part of their jobs, the lack of unified salaries for nursing personnel, the absence of ongoing occupational safety and health programmes, and salaries that are not commensurate with the qualifications and responsibilities of the position. With respect to the activities of the Interinstitutional Council, the Government refers to the establishment of the National Observatory of Human Resources in Health in 2012 and the coordination of interinstitutional actions with a view to developing proposals on plans for the training for human resources in health. Furthermore, the Committee notes the approval in 2019 of the regulations for the nursing staff of the hospital network of the MSPAS. The objectives of the regulations include standardizing the nursing staff functions according to position and academic degree, strengthening the quality of nursing care in the country’s hospital network, and systematizing discussion forums for nurses for the comprehensive analysis of the development of the profession at the different levels of care. The Committee requests the Government to provide detailed and up-to-date information on the impact on nursing services and nursing personnel of the measures adopted within the framework of the 2018–2022 Regional Plan and the declaration adopted at the II Central American and Caribbean Summit on the development of nursing, as well as the new regulations for the nursing staff of the hospital network of the MSPAS. The Committee also requests the Government to provide up-to-date information on the consultations carried out with the employers’ and workers’ organizations concerned, where such organizations exist, with regard to the abovementioned measures (Article 2(3)).

Article 7. Occupational safety and health. The Committee notes the Government’s indication that, in May 2015, measures were adopted with a view to implementing safety and health policies for health workers in compliance with the goals set out in the Regional Plan for human resources in health. The Committee notes, however, that according to the assessment on achievement of this goal conducted by the interinstitutional committee for joint actions of the academic and health sectors, the level of achievement reached only 25 per cent. The Committee also notes the detailed information provided by the Government in its supplementary report on the safety and health measures taken in the context of the COVID-19 pandemic. The Government refers, inter alia, to the approval on 14 June 2020 of Governmental Agreement No. 79 of 2020, which complements the 2014 regulations on occupational safety and health, relating to the prevention and control of the spread of COVID-19 in all workplaces in the public or private sector in the country. The Agreement sets out the implementation of occupational safety and health measures that allow for safe working conditions to minimize the risk of infection. In this connection, it establishes a series of obligations for the employer, such as providing PPE for the prevention and control of the spread of COVID-19 in the workplace. The Government reports that in August 2020, the Department of Occupational Safety and Health carried out an initial operation in 18 private sector hospitals to monitor compliance with the obligations established in the Agreement.

In this context, the Committee recalls that nursing personnel who, given the specific characteristics of their work must be in close physical contact with their patients, are at high risk of becoming infected while treating patients with suspected or confirmed COVID-19, particularly when precautions to control the spread, including the use of PPE, are not strictly applied. In this respect, the Committee wishes to draw the Government’s attention to paragraph 49 of the Nursing Personnel Recommendation, 1977 (No. 157), which sets out that: “(1) All possible steps should be taken to ensure that nursing personnel are not exposed to special risks. Where exposure to special risks is unavoidable, measures should be taken to minimize it; (2) Measures such as the provision and use of protective clothing, immunization, shorter hours, more frequent rest breaks, temporary removal from the risk or longer annual holidays should be provided for in respect to nursing personnel regularly assigned to duties involving special risks so as to reduce their exposure to these risks; and (3) In addition, nursing personnel who are exposed to special risks should receive financial compensation. The Committee requests the Government to indicate whether the abovementioned measures adopted in 2015 and Governmental Agreement No. 79 of 2020 have been effective in the prevention and control of COVID in the workplace, and to provide detailed and up-to-date information on the continued application of safety measures, including: the provision of PPE and training on its proper use;, the provision of adequate breaks during shifts and limitation of excessive hours wherever possible, with a view to protecting the health and well-being of nursing personnel; and limiting, as far as possible, their risk of contracting COVID-19. In addition, it requests the Government to provide detailed and up-to-date information on the number and result of the checks carried out on compliance with Governmental Agreement No. 79 of 2020 concerning nursing personnel.

The Committee is raising other matters in a request addressed directly to the Government.

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 is proceeding with the examination of the application of the Convention on the basis of the supplementary information received from the Government in 2020, as well as on the basis of the information at its disposal in 2019.

Article 2(2)(a). Education and training. In response to its previous comments, the Committee notes the detailed information provided by the Government on the education and training system for nursing personnel implemented by various private and public universities, the different training cycles they provide (such as degrees, master degrees and specializations) and the number of graduates per year from those institutions. The Committee notes that, according to statistical information from the Ministry of Public Health and Social Assistance (MSPAS), 500 persons enrol each year in the National Nursing Schools, 15 per cent of whom drop out after the first year. The Government indicates that, within the framework of the 2018–2022 Regional Plan, the development of activities is planned to modernize the nursing profession with a view to building skills at professional and auxiliary level of those who work in the areas of health and the MSPAS hospitals, as well as in the Guatemalan Social Security Institute. The Government indicates that such activities will be implemented in cooperation with, inter alia, the National Nursing Council, the Association of Nurses of Guatemala and the College of Nursing Professionals. In addition, there are plans for joint efforts to ensure that nursing personnel of all levels can access lifelong education and to promote doctorates in nursing, which are currently only offered by a private university. The Committee also requests the Government to continue sending up-to-date detailed information on any measures taken or envisaged to provide nursing personnel with appropriate education and training for the performance of their functions, as well as the impact of these.

Article 2(2)(b). Remuneration of nursing personnel. In its previous comments, the Committee requested the Government to indicate the current status of the process of reclassification of wages for nursing personnel and to provide information on the outcome thereof. The Government indicates that in April 2019, the first phase of the process of reclassification of posts for permanent hiring of nursing graduates was initiated. The Government adds that the total number of nursing graduates working in MSPAS could not benefit from the first phase of reclassification of wages owing to budgetary constraints. Therefore, in the first phase, 410 nursing graduates benefited, while it is expected that the remaining nursing graduates, including nursing graduates hired in technical services (approximately 800), will benefit from the subsequent phases of the reclassification process. The Government also reports that 132 community, hospital and teaching members of nursing staff hired on temporary contracts were reclassified as permanent staff. In addition, the Government indicates that measures are envisaged to provide those working in the paramedic category with the opportunity to be promoted to other categories and to carry out nursing functions, which would improve the working conditions of such personnel. The Committee requests the Government to continue to provide detailed and up-to-date detailed information on the status of the process of reclassification of wages for nursing personnel and the outcome thereof.

Application in practice. The Committee notes the detailed information provided by the Government on the number of nursing personnel registered in different categories. It notes the Government’s indication in its supplementary report that, according to 2020 statistical information of the MSPAS, there are 4,730 nurses, 32,770 nursing assistants and 2,967 nursing technicians in the country. With regard to the migration of nursing personnel, the Committee notes that, according to the assessment of programmes on human resources in health conducted by the Pan American Health Organization and the World Health Organization, 32 per cent of health workers who emigrate from the country are part of nursing personnel. The above assessment shows that the main reasons are expectations for better pay and working conditions, as well as more opportunities for professional development. Lastly, the Committee notes the Government’s indication that, between March and July 2020, the General Labour Inspectorate received 136 complaints concerning nursing personnel, mostly from the department of Guatemala. The Government also indicates that the General Labour Inspectorate made it possible to submit complaints in order to prevent and control the spread of the virus in the country’s public and private sector workplaces, through the web page of the Ministry of Labour and Social Welfare, a telephone line and the various departmental offices of the General Labour Inspectorate. The Committee requests the Government to continue to provide detailed and up-to-date information on the manner in which the Convention is applied in practice, including statistical data on the number of nursing personnel – disaggregated by sex, age and region, sector of activity, training level and functions – and also statistics on the nursing personnel/population ratio, the number of persons enrolling in nursing schools and the number of persons leaving the profession each year, and copies of official reports or studies relating to nursing services. The Committee also requests the Government to continue to provide up-to-date information on any practical difficulties encountered in the application of the Convention, such as the shortage or migration of nursing personnel.

General level of collective bargaining in the country. In its previous comment, the Committee noted the observations made by trade union organizations denouncing the very low number of collective agreements signed in the country. In this regard, the Committee refers to its comments on the application of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

Article 5(a) of the Convention. Promotion of collective bargaining for all groups of workers in the branches of activity covered by the Convention. In its previous comment, after recalling the wide scope of application of the Convention, the Committee requested the Government to take the necessary measures to ensure that state employees with special civil contracts can exercise their right to organize and collective bargaining. The Committee notes that the Government: (i) indicates that, since 2018, the aforementioned categories of workers have been able to organize themselves in trade unions; (ii) forwards the information of the National Civil Service Office (ONSEC) on the ongoing efforts in the public sector to prevent the disguising of dependent employment relationships through the signature of service provision contracts, and on the corresponding rulings regarding reclassification issued by the Constitutional Court; and (iii) states that it has no knowledge of collective agreements applying to public sector workers with special civil contracts and, in particular, to workers employed under budget item 029.

The Committee also notes that, under the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), it was informed of the tripartite agreement of February 2018 aimed at aligning national legislation with the ILO Conventions ratified by Guatemala in the area of freedom of association, which includes the recognition of the trade union rights of public sector workers governed by temporary contracts and special schemes. As highlighted in its observations on Convention No. 87, the Committee hopes that the aforementioned tripartite agreement will be reflected in national legislation as soon as possible.

While it welcomes the progress made towards the recognition of the right to organize of state employees with special civil contracts, the Committee recalls that the present Convention applies to all contractual arrangements, and that the aforementioned workers should therefore be able to engage in collective bargaining to regulate their working and remuneration conditions. The Committee therefore requests the Government to take the necessary measures in this regard, and to provide information on the exercise in practice of the right to collective bargaining of the aforementioned categories of workers.

Comments adopted by the CEACR: Guatemala

Adopted by the CEACR in 2021

C081 - Observation (CEACR) - adopted 2021, published 110th ILC session (2022)

C087 - Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

C087 - Observation (CEACR) - adopted 2021, published 110th ILC session (2022)

Follow-up by the Governing Body of the progress achieved in the implementation of the technical cooperation programme “Strengthening of the National Tripartite Committee on Labour Relations and Freedom of Association in Guatemala for the effective application of international labour standards”

Legislative issues

Application of the Convention in practice

C098 - Observation (CEACR) - adopted 2021, published 110th ILC session (2022)

C110 - Observation (CEACR) - adopted 2021, published 110th ILC session (2022)

C129 - Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

C141 - Observation (CEACR) - adopted 2021, published 110th ILC session (2022)

C149 - Observation (CEACR) - adopted 2021, published 110th ILC session (2022)

C149 - Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

C154 - Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

Comments adopted by the CEACR: Guatemala

Display the list by:

Adopted by the CEACR in 2021

C081 - Observation (CEACR) - adopted 2021, published 110th ILC session (2022)

C087 - Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

C087 - Observation (CEACR) - adopted 2021, published 110th ILC session (2022)

Follow-up by the Governing Body of the progress achieved in the implementation of the technical cooperation programme “Strengthening of the National Tripartite Committee on Labour Relations and Freedom of Association in Guatemala for the effective application of international labour standards”

Legislative issues

Application of the Convention in practice

C098 - Observation (CEACR) - adopted 2021, published 110th ILC session (2022)

C110 - Observation (CEACR) - adopted 2021, published 110th ILC session (2022)

C129 - Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

C141 - Observation (CEACR) - adopted 2021, published 110th ILC session (2022)

C149 - Observation (CEACR) - adopted 2021, published 110th ILC session (2022)

C149 - Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

C154 - Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)