Observation (CEACR) - adoptée 2003, publiée 92ème session CIT (2004)

The Committee notes the comments made by the International Confederation of Free Trade Unions (ICFTU) on the application of the Convention, provided on 10 January 2002 and forwarded to the Government on 28 January 2002. The Committee also notes the comments made by the Trade Union Confederation of Guatemala (UNSITRAGUA), which were provided by the Government with its report in September 2002. The same comments were received directly from UNSITRAGUA in November 2002. The Committee notes the Government’s reply to the issue raised by UNSITRAGUA, but notes that the Government has not provided any information on the issue of the trafficking in persons, referred to by the ICFTU in its comments.

1.  Trafficking in persons

In its comments, the ICFTU indicates that, although the Constitution prohibits forced labour, the practice exists of the trafficking in persons, and particularly children, for the purposes of prostitution. It alleges that most of the children who are victims of trafficking come from Guatemala’s neighbouring countries and that this situation is evident in the frontier regions with Mexico and El Salvador. The Government has not provided information on these matters. The Committee urges the Government to take the necessary measures to protect children against trafficking and forced prostitution and that it will reply to the serious issues raised by the ICFTU.

2.  Unpaid work performed after normal working
hours in the public and private sectors

  Justices of the Peace

The Committee notes that according to the comments made by UNSITRAGUA: "In most of the towns of the country, there is only one Justice of the Peace who has to be on duty 24 hours a day, every day of the year. The auxiliary staff of the justice of the peace have to cover shifts by rotation as additional work supplementing their ordinary working day. The shifts worked on public holidays, Saturdays and Sundays are compensated with time off, but the shifts worked after the completion of the ordinary working day are not compensated in time off nor are they paid. Accord No. 31-2000, issued under the Civil Service Act respecting the judiciary (Decree No. 48-99) does not contain provisions respecting the payment of overtime hours. In addition, failure to perform such shifts constitutes an offence liable to be punished by dismissal."

  Plantations

UNSITRAGUA also refers to cases of enterprises which set production targets for workers who, in order to earn the minimum wage, have to work in excess of the ordinary hours of the working day, with the additional hours being unpaid. According to the above organization "such cases are occurring with greater frequency in ranches producing bananas as independent producers for the multinational fruit company in the United States known as Chiquita, which is present in the ranches in the municipality of Morales in the department of Izabal and on the southern coast of Guatemala". It also refers as an example to the "El Real and El Atlántico ranches in the district of Bogos in the municipality of Morales in the department of Izabal, where the employers refuse to negotiate unless it is first accepted that piece-work is not subject to working hours, in violation of the provisions that are in force."

The Committee notes the reports on the corporate responsibility of Chiquita Brands International of 2000 and 2001. In both reports, it is stated that in Guatemala "hourly workers and administrators sometimes work over 60 hours" and that "workers exceeded the maximum number of overtime hours". The Committee notes these figures with concern but at the same time appreciates the transparency of the information contained in the reports, which have their origin in the investigations carried out by Chiquita in the context of its voluntary undertaking regarding the social responsibility of the enterprise in its efforts to comply with Labour Standard SA8000.

  State employees

UNSITRAGUA also refers to the situation of state employees belonging to the category 029. The classification of state employees is determined by the budgetary category to which they belong. The category 029 was established to allow the recruitment of skilled professional and technical personnel for specific products and periods, without such workers obtaining the status of public employees. Contracts are renewed when sufficient funds are allocated and these workers do not have the right to benefits to which permanent employees are entitled. UNSITRAGUA alleges that workers contracted under this system are not paid for the hours worked in excess of the normal working day, that refusal to work these hours affects the evaluation of their performance and could result in the termination of the contract, with no liability for the State.

The Committee notes the Government’s reply concerning the matters raised by UNSITRAGUA. With regard to the situation of employees of Justices of the Peace, the Government states that this type of work is "governed by the provisions of the Labour Code in section 125" and that in this respect there exist "internal rules of the Supreme Court of Justice". The Committee notes that section 125 of the Labour Code lays down the obligation of the executive authorities to determine the manner in which provisions on working hours shall be applied "to transport, communication and all other enterprises in which the work has very special characteristics or is of a continuous nature". The Committee hopes that the Government will indicate whether the legislation applicable to the auxiliary personnel of Justices of the Peace is the Civil Service Act respecting the judiciary (Decree No. 48-99) and its regulations, Accord No. 31-2000 or whether it is the provisions of the Labour Code.

The Government has not provided information on the other matters raised by UNSITRAGUA, namely the situation of workers who have to work outside the normal working hours to earn the minimum wage, for whom the additional hours worked are not paid. Nor has the Government referred to the situation of state employees in category 029.

  Unpaid work performed after the normal working day
  and the definition of forced labour for the purposes
  of the Convention

For the purposes of the Convention, the expression "forced or compulsory labour" means all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered her or himself voluntarily.

The Committee notes that in the cases of employees of Justices of the Peace and state employees in category 029, refusal to perform work in addition to the normal hours of work may give rise to loss of employment. In cases of enterprises which determine pay by setting performance targets, the obligation to work beyond the normal working hours is based on the need to be able to earn the minimum wage. In all these cases, the common denominator is the performance of work or a service for which remuneration is not received. In all these cases, the worker has the possibility to "free her or himself" from such imposition but only by leaving the job or accepting dismissal as a sanction for refusing to perform unpaid work.

The Committee notes the vulnerability of workers who in theory have the choice of not working beyond normal working hours, but for whom in practice the choice is not a real one in view of their need to earn at least the minimum wage and retain employment. This then results in the performance of unpaid work or services. The Committee considers that in such cases the work or service is imposed through the exploitation of the worker’s vulnerability, under the threat of a penalty, namely dismissal or remuneration below the minimum wage rate.

In relation to this matter, the Committee also refers to its General Survey of 1958 on Conventions Nos. 26 and 99 on minimum wage fixing, in paragraph 92 of which it indicated that "where a minimum wage system is based primarily on piece rates, great care needs to be exercised to ensure that, under normal conditions, a worker can earn enough to be able to maintain an adequate standard of living, and that his output, and consequently his earnings, are not unduly limited by conditions independent of his own efforts."

The Committee hopes that the Government will take the necessary measures to ensure that unpaid work is not exacted from workers paid on a piece-work basis, auxiliary employees of Justices of the Peace and state employees in category 029, by means of the exploitation of their vulnerability, and that the Government will provide information on the measures adopted or envisaged to ensure compliance with the Convention in this respect.

3. The Committee notes the report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, Mission to Guatemala (E/CN.4/2003/90/Add.2, 10 February 2003). The Special Rapporteur points out that practices persist "whereby indigenous workers are recruited and moved away to work in traditional and new plantations, as well as other ways of recruiting temporary labour at wages falling below the legal minima, without social security coverage or respect for basic rules relating to pay, security of employment or working conditions". The Committee hopes that the Government will provide information on the practices of recruitment (enganche) and the removal of workers, and other forms of recruiting indigenous labour.

4.  Article 25 of the Convention. In its previous observation, the Committee requested the Government to provide information on the measures adopted to ensure the rapidity of the judicial processes and inquiries undertaken concerning the exaction of compulsory labour in cases where the Attorney-General of the Republic has issued a decision concerning the responsibility of persons against whom the appropriate judicial action had not been taken. In its report, the Government indicates that it has accelerated the administrative and legal proceedings. The Committee hopes that the Government will provide a copy of judicial or administrative decisions punishing the exaction of forced labour.