Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

The Committee takes note of the Government’s detailed report for the period ending on 1 September 2006 containing information in reply to observations of October 2002 and August 2004 by the Trade Union Confederation of Guatemala (UNSITRAGUA), accompanied by abundant documentation. It also takes note of the new comments by UNSITRAGUA received at the Office on 21 November 2005, and of comments made on 7 September 2005 by the World Confederation of Labour (WCL, now International Trade Union Confederation – ITUC).

The observations by UNSITRAGUA again address the impact of labour inspectors’ conditions of service (inadequate pay, limited career prospects) and conditions of work (insufficient transport facilities and office equipment) on their tendency to depart from the ethical principles that should govern the performance of their duties. In carrying out visits, inspectors are inclined to show some indulgence towards persons, generally employers, who provide them with the transport facilities they need for travel. UNSITRAGUA further asserts that the inspectors are victims of influence peddling which diverts them from the purposes of their work. It cites instances of former labour inspectors transferring to the private sector and using their ties with former colleagues still in service to obtain favours from them for the enterprises for which they work. Their unstable economic position leads some inspectors to maintain personal relations with employers and accept gifts from them in exchange for information about the date of a forthcoming inspection visit, or assurances of impunity. Procedures for complaints of wrongful dismissal are slow and marked by a blatant lack of resolve, as inspectors more often than not encourage the workers concerned to accept the arrangements proposed by the employer, with no regard for equity, or else forego their rights. Labour inspectors appear to treat their profession as a mere temporary occupation pending more lucrative employment in the private sector.

The abovementioned organization is also of the view that the lack of training for inspectors in subjects pertaining to international labour Conventions, and their lack of experience in enforcing the legislation, account for the fact that they are unable to identify abuses that are not covered by the legislation and bring them to the attention of the competent authorities, as required by Article 3, paragraph 1(c), of the Convention.

Lastly, UNSITRAGUA asserts that some labour inspectors who have been reported for interfering in trade union matters remain unpunished.

1. Articles 6 and 15(a). Need to improve the conditions of service of labour inspectors in order to secure observance of the ethical principles of the profession. According to the Government, the national Constitution establishes that public employees and officials serve the State and not any political party. In comparison to the pay scales of other workers with a similar level of training and responsibility, the remuneration of inspectors is within the average. After considerable efforts to improve matters, an increase of 300 quetzales a month was to apply from July 2006. The Government supplements the above information with texts on the composition of the remuneration and allowances of labour inspectors and other categories of public servants. The Government nevertheless considers that inspectors cannot be accused of seeking better pay conditions in the private sector.

As to the allegation that inspectors lack probity in the performance of their duties, the Government states that the reports drawn up by inspectors can be communicated to those concerned in accordance with the procedure established in the Code of Civil and Commercial Procedure, but that the reports are fully valid until shown to be false or biased. An inspector found guilty of false or biased reporting is subject to penal or civil sanctions, or even dismissal, pursuant to statutory procedures.

With regard to the allegation of interference in trade union affairs, the Government states that the case went to trial and the inspector was acquitted on the grounds that he had acted within the law. This can also be seen from internal correspondence between the Ministry’s Human Resources Director and the Subdirectorate of International Relations.

While taking due note of this information, the Committee again asks the Government to ensure that the legislation is supplemented by provisions that expressly forbid inspectors to have any interest whatsoever, whether direct or indirect, in the workplaces under their supervision, including any form of social or material advantage the inspector might draw himself or indirectly through a third party. It would be grateful if the Government would provide information on all progress made in this respect and to send copies of any documents attesting to the application, in practice, of the procedure dismissing a labour inspector on grounds of conduct that is contrary to the provisions of Article 15(a) of the Convention.

Referring to paragraphs 209 to 216 of its General Survey of 2006 on labour inspection, the Committee points out to the Government that in order to attract and retain qualified inspection staff, it is necessary to provide them with a level of remuneration and career prospects that are commensurate with the importance and complexity of their duties, and to ensure that they are independent of improper external influences.

Further to its previous comments, the Committee trusts that the Government will not fail to provide a copy of the text mentioned in the report received in 2004, concerning the mechanism to compensate labour inspectors for overtime.

2. Articles 11 and 16. Need to improve the working conditions of inspectors so that they can supervise application of the legislation effectively, inter alia, by frequent inspection of workplaces. In response to UNSITRAGUA’s allegations, the Government states that despite a chaotic economic situation, the labour inspectorate carried out its functions through offices located in the 22 departments of the country, in accordance with the provisions of the regulations on the administrative decentralization of the Ministry of Labour and Social Security (Agreement No. 182-2000). The Government states that the Ministry having moved, inspectors working in the capital are now housed in spacious new offices with modern computer equipment. As for transport facilities, the Government indicates that the departmental offices and the central headquarters of the inspectorate have a fleet of some 20 vehicles to cover the most urgent needs. The Committee also takes note of Governmental Agreement No. 397-98 (settlement of travel allowances for personnel carrying out functions within the Executive and the decentralized and autonomous bodies of the Executive State), sent by the Government, allowing labour inspectors either an advance or a payment to cover their accommodation, food, transport and other related costs in the event of duty travel outside their ordinary place of work. The Committee notes with interest that for travel within the capital, Agreement No. 17“A”-2006 of 1 February 2006 of the Ministry of Labour and Social Security grants, in Guatemala City, an indemnity of 10 quetzales intramuros and, according to the Government, 28 quetzales for travel extramuros. It also notes with interest the documents showing settlement of the arrears of travel allowances.

The Committee nonetheless notes that, according to the statistical data for the period 2003–05, inspection visits were carried out for the most part as a result of complaints, as the work of the labour inspection services continues to focus mainly on procedures for the settlement of labour disputes. The Committee requests the Government to take all necessary steps to get the public authorities to accord the labour inspectorate priority commensurate with its social and economic purposes so that the resources allocated to it in forthcoming budgetary decisions by the State are sufficient to secure the staff and material resources necessary to its operation, in accordance with Article 3, paragraph 1, and Article 16. The Government is asked to provide information on any measures taken to this end and on the results obtained.

3. Article 7 and Article 3, paragraph 1(c). Training for inspectors enabling them to contribute to improving the legislation. In response to UNSITRAGUA’s objection that inspectors are insufficiently trained and lack the ability to identify voids in the legislation that need to be filled, the Government states that applicants for labour inspection posts must have completed four of the six years of study required to practice as a lawyer or a notary. In the Government’s view, this requirement ensures that the applicant has the necessary qualifications to become a labour inspector, including knowledge of international labour law. The Committee takes due note of this information. It nonetheless asks the Government to take steps to ensure, in accordance with Article 7, paragraph 3, that when they are recruited, labour inspectors receive adequate training for the performance of their duties, including training to enable them to identify gaps in the legislation and bring them to the notice of the competent authority. It hopes that the Government will not fail to provide information on progress made in this respect.

4. Articles 13, 17 and 18. Inspectors’ role in the punishment of offences. The WCL refers to discussions in a tripartite committee in 2005 in which the workers’ representatives pointed out the advisability of empowering labour inspectors to impose administrative sanctions, since the judicial authority intervenes only in the event of refusal to execute the sanction. The Government’s explanations on the matter indicate that Decree No. 18-2001 has been repealed as unconstitutional in respect of its provisions that empower the General Labour Inspectorate to impose sanctions. Since November 2004, this power has been vested in the judicial authorities of first instance. The Committee reminds the Government that, according to the Convention, the power to issue orders and the power to bring legal proceedings may both be exercised either directly by the inspectors or by other authorities at the request or recommendation of labour inspectors. The conditions for exercising these powers are defined in Articles 13 and 17. The Convention contains no provision specifying the authority competent to impose penalties. According to Article 18, penalties must be provided for by national laws or regulations and effectively applied. They must furthermore be adequate. The Committee would be grateful if the Government would provide copies of the texts governing the prosecution and punishment of breaches of the legislation on conditions of work and the protection of workers while engaged in their work, and of obstructions to the performance of labour inspectors’ duties.

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