Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

The Committee notes the Government’s report received on 25 September 2008 and the numerous documents attached. It notes in particular the analysis of the labour inspection system carried out by the ILO in 2008 and the resulting action plan drawn up to improve its operation.

Articles 6 and 14 of the Convention. Human resources allocated to labour inspection activities in agricultural undertakings. Number and qualifications. Number of men and women inspectors in relation to the number of agricultural undertakings liable to inspection (Article 14). According to the Government, the number of inspectors carrying out their duties in the agricultural sector is not sufficient, but efforts are being made to ensure that each regional office covers all agricultural undertakings through the introduction of programmed inspections with a view to enforcing the labour legislation and checking all the documents required concerning conditions of work (payment of the minimum wage, bonuses and compensation), as well as the implementation of health and safety measures (in particular the obligation to provide workers with the necessary equipment to prevent industrial accidents and occupational diseases). The Committee would be grateful if the Government would provide a copy of the texts on which these checks in agricultural undertakings are based, as well as a copy of any relevant document illustrating their application in practice (model form, inspection report, etc.).

Appropriate training of men and women inspectors in agriculture and the updating of their technical skills (Article 9). Further to its previous comments concerning the usefulness of specific training for inspectors responsible for enforcing the legal provisions on conditions of work in agriculture, the Committee notes that, according to the Government, such training is provided by the Occupational Safety and Health Department of the General Directorate of Social Welfare for inspectors from the regional offices of the General Labour Inspectorate (IGT) carrying out inspections in agricultural undertakings. The training focuses on safety measures relating to installations and operations carried out during the stage preceding the export of goods, as well as protective equipment for agricultural workers. The Committee requests the Government to provide detailed information in its next report on the frequency, content and duration of this type of training, as well as the number of participants. It requests it to keep the ILO informed of the follow-up to the 2008 action plan which resulted from the analysis carried out by the ILO in terms of the ongoing training, including distance learning, of inspectors working in the agricultural sector through the conclusion of agreements with technical institutions and universities.

Article 6. Duties entrusted to labour inspectors. Paragraph 1(a). Conditions of work in agricultural undertakings producing for multinational agri‑food enterprises. In reply to the Committee’s previous comments concerning the denial of rights of workers in these undertakings, according to the information provided by the Trade Union Confederation of Guatemala (UNSITRAGUA), in particular concerning hours of work and the payment of overtime, the Government indicates that the IGT has made efforts to ensure that in all subregional or regional offices labour inspectors carry out programmed inspections in undertakings in which they have reason to believe that the conditions of work are contrary to the legislation in force and harmful to the workers. The Committee also notes the texts provided of collective agreements regulating the remuneration of overtime concluded within various agri-food undertakings. Noting this information with interest, the Committee nonetheless wishes to remind the Government that, under Article 21 of the Convention, agricultural undertakings should be inspected as often and as thoroughly as is necessary and that, under Article 20(c), inspectors should treat as absolutely confidential the source of any complaint and give no intimation to the employer or his representative that a visit of inspection was made in consequence of the receipt of such a complaint. However, to be able to respect this obligation of confidentiality effectively, it is essential that both employers and workers are convinced of the possibility of any undertaking being inspected at any time and not exclusively in response to a complaint. This is the only way to avoid drawing the employer or his representative’s attention to the link which may exist between an inspection and a complaint. By focusing their inspection activities only on undertakings which have been reported or are the subject of a complaint, labour inspectors are unable to hide this link and therefore expose the person making the complaint to the risk of reprisals by the employer. For this reason, it is essential that measures are taken to ensure that inspections of agricultural undertakings are also carried out routinely in as many agricultural undertakings as possible. The Committee would be grateful if the Government would therefore take measures to ensure that inspections in agricultural undertakings are carried out not only in response to a complaint, but also routinely based on an appropriate schedule. It requests the Government to take prompt measures to that end and to provide in its next report a copy of any relevant document, as well as any statistics available concerning the type of inspections carried out during the period covered by the report.

Noting that the collective labour agreements sent to the Office expired in 2008 and 2009, the Committee requests the Government to provide information on the developments with regard to conditions of work in the agricultural undertakings covered by the agreements which have expired.

Paragraphs 2 and 3. Duties relating to the conditions of life of the families of agricultural workers and compatibility of further duties entrusted to labour inspectors with inspection duties. The Committee would be grateful if the Government would provide statistical and other information concerning the activities of labour inspectors with regard to the families of agricultural workers and the results of those activities. It also requests it to provide information on the manner in which it is ensured, as indicated in its report, that the duties entrusted to labour inspectors in addition to those defined in Article 3(1)(a), (b) and (c) do not interfere with the discharge of those duties.

Articles 8 and 20. Need to improve the conditions of service of labour inspectors to enable them to respect the ethical principles of their profession. Drawing the Government’s attention to its comments under the Labour Inspection Convention, 1947 (No. 81) (under Article 6) on the same subject, the Committee would be grateful if it would take measures to ensure that labour inspectors carrying out their duties in the agricultural sector benefit from conditions of service (remuneration, career prospects, consideration in which they are held by the public authorities, etc.) such that they are above any attempt to bypass the ethical principles of integrity and impartiality inherent in their profession and if it would provide information on the progress made in that regard.

Articles 12, 15 and 16, paragraph 1(c)(iii). Cooperation of the Guatemalan Social Security Institute (IGSS) and higher education establishments with the labour inspectorate. Cooperation relating to preventive control of new plant and dangerous materials or substances used and handled in agricultural undertakings. In reply to the Committee’s request concerning the association of inspectors in this preventive function, the Government indicates that, where the IGT is informed of the geographical extension of the activities carried out by an agricultural undertaking, a team of inspectors who are experts in health and safety is immediately appointed by the competent regional office to carry out a visual inspection and issue the relevant instructions. The Committee also notes that, according to the Government, health and safety technicians from the Ministry of Labour and Social Welfare use suitable tools to analyse the harmful or toxic materials or substances and make recommendations to the employer on this matter, including with regard to protective equipment for workers. In the event that the technical inspection means of the IGSS prove insufficient, the analysis of products and substances is entrusted, for the purposes of obtaining advice and recommendations, either to a university institution (chemistry and pharmacology faculty) or to the National Institute of Forensic Medicine for advice and recommendations on the safe use of these products, materials and substances. The IGSS provides support to the inspection services in all departments of the Republic and samples of substances, materials and products taken by labour inspectors during inspections are transmitted to the competent laboratory of the IGSS for analysis. According to the Government, the IGSS responds within ten working days with any recommendations that are necessary to protect the health and safety of workers exposed to these substances and products. The labour inspectorate then carries out automatic inspections to ensure that these recommendations have been implemented and any employer responsible who fails to comply with any warnings issued by the inspector is liable to prosecution. While taking due note of this information, the Committee would be grateful if the Government would provide with its next report a copy of the legal provisions governing the cooperation procedures described above, as well as any other relevant documents or statistics.

Cooperation relating to the exchange of information and the keeping of registers. Further to the analysis of labour inspection carried out which noted a confusion between the respective activities and functions of the inspectors of the Ministry of Labour and Social Welfare and the IGSS inspectors, as well as the poor coordination between their activities, the Government indicates that cooperation has been established between these two institutions, which has resulted in particular in the exchange of information in the context of a project in the textile industry. While taking due note of this information, the Committee requests the Government to specify the action taken in the agricultural sector under the 2008 action plan with regard to the conclusion of coordination agreements between the inspection services of the IGSS and the IGT through regular meetings, as well as with regard to the conclusion of an agreement on the planning and implementation of joint activities and the exchange of information. The Committee would also be grateful if the Government would provide a copy of any legal text or any other relevant document, as well as statistics on the activities carried out by the two institutions.

Noting that the action plan also provides for the establishment of cooperation between the labour inspectorate and the tax authorities and Registrar of companies with a view to creating a specific labour inspection database, the Committee requests the Government to indicate any developments in this regard and to provide a copy of any legal text or any other relevant document.

Article 19, paragraph 1. Notification of occupational accidents and cases of occupational disease to labour inspectors. In reply to the Committee’s 2007 direct request concerning the need to supplement the legislation with provisions defining cases and the manner in which the labour inspectorate shall be notified of occupational accidents and cases of occupational disease, the Government expresses its political will to take relevant steps. In this regard, it refers to a cooperation project between the IGSS and the IGT relating to the notification of occupational accidents and diseases through the post or by electronic mail and provides a document relating to such cooperation in the textile industry, as well as draft regulations on the notification by workers of occupational accidents and diseases to the labour inspectorate in accordance with Conventions Nos 81 and 129. The Committee takes due note of this information and requests the Government to provide information in its next report on the measures already taken and implemented in practice to improve the system of notification to the labour inspectorate of occupational accidents and cases of occupational disease in agricultural undertakings. It would be grateful if it would provide a copy of any legal text adopted in this regard, as well as any other relevant documents and any statistics available.

Referring to the 2008 action plan, the Committee would be grateful if the Government would also specify the action taken to give effect to the recommendation to establish a computer system to facilitate the use of IGSS data to create a national register of notifications of occupational accidents and cases of occupational disease.

Articles 22, 23 and 24. Role of labour inspectors in the prosecution of violations committed by agricultural employers. The Committee notes that, according to the Government, inspectors refer to the labour and social security tribunals cases of violations of the labour legislation identified during their inspections. In the light of its observation under Convention No. 81 concerning the prosecution and punishment of violations, the Committee requests the Government to provide information concerning the agricultural sector.

Articles 25, 26 and 27. Periodical reports and annual report on the work of the labour inspectorate. The Committee notes with interest the information provided by the Government concerning the laws and regulations covered by the labour inspectorate and the regional distribution of inspection staff, as well as the statistical tables on the agricultural undertakings liable to inspection; the number of persons working in those undertakings; inspection visits; violations committed and penalties imposed; occupational accidents and their causes and occupational diseases and their causes. It also notes the statistical tables attached to the report on the cases dealt with by the inspection and conciliation sections of the various regional offices. Noting the lack of information on the number and distribution of labour inspectors carrying out their duties in agricultural undertakings, the Committee requests the Government to provide this information in its next report.

Furthermore, the Committee cannot over-emphasize the need for the Government to take measures, in the context of the 2008 action plan, to ensure that an annual labour inspection report containing up to date information on the matters listed in Article 27 is published rapidly and a copy sent to the ILO within the period prescribed by Article 26. The Committee reminds the Government that, in accordance with Article 26(1), the report may be drawn up either as a separate report or as part of a general annual inspection report.