Observation (CEACR) - adoptée 2009, publiée 99ème session CIT (2010)

The Committee notes the Government’s report for the period ending 1 September 2008 and the numerous documents attached, sent to the ILO on 25 September 2008. It also notes the comments made on 31 August 2008 by the Indigenous and Rural Workers Trade Union Movement of Guatemala for the Defence of Workers’ Rights (MSICG) concerning the application of the Convention, sent to the Government by the ILO on 17 September 2008. Referring to its 2007 observation concerning in particular the comments made by the Trade Union Confederation of Guatemala (UNSITRAGUA) in 2004, the Committee also notes the Government’s replies to these comments, the content of the collective agreement on conditions of work (“the collective agreement”) concluded between the Ministry of Labour and Social Security (MTPS) and the trade union of employees of that Ministry (SIGEMITRAB), approved by MTPS resolution No. 078-2008 of 9 April 2008, as well as the analysis of the situation relating to labour inspection carried out by the ILO in September 2008 at the request of the MTPS, and the action plan drawn up in November 2008 for the implementation of the recommendations arising from the analysis.

The Committee notes that the comments made by the MSICG largely echo those made by UNSITRAGUA and concern the precarious status, conditions of service and conditions of work of labour inspectors, as well as the impact of this precariousness on the conduct of labour inspectors when performing their duties in relation to their obligations.

The MSICG also reports pay inequalities between inspectors in the category of “professional assistant” and those in the category of “chief technician” to the detriment of the latter; the non payment of overtime; the lack of transport facilities available to labour inspectors and the failure to reimburse their travelling expenses; the lack of human resources within the inspectorate and the confinement of certain inspectors to administrative tasks and measures prohibiting them from performing certain inspection duties defined by law; the lack of initial training and subsequent training in the course of employment for inspectors; and the derisory size of the labour inspectorate’s budget and the number of inspections it carries out.

The Committee notes with interest that the collective agreement and the action plan drawn up between the Government and the ILO to improve the labour inspection system provide for measures designed to address to a large extent the concerns expressed by UNSITRAGUA and the MSICG, particularly those relating to the structure of the labour inspectorate and its tripartite aspect; the composition and qualifications of labour inspectors, as well as their conditions of service; the inspection methods; the procedure for taking legal action in the case of violations and the application of penalties; and the exchange of information for the purpose of preparing registers for use by the labour inspectorate.

Articles 4, 5(a) and 19 of the Convention. Structure of the labour inspectorate and tripartism. The Committee notes that, with a view to ensuring better coordination of labour inspection, the action plan drawn up by the Government and the ILO envisages that the services responsible for supervising general conditions of work and occupational safety and health will be merged and integrated into a single service under the supervision of the General Labour Inspectorate (IGT). It is recommended that this body should strengthen its role as a central authority, in particular by planning labour inspection activities across the entire territory and ensuring that inspections are no longer carried out solely in response to a complaint but are programmed in a proactive manner. It is also envisaged that the distribution of duties between inspectors will be reviewed, in particular supervisory duties and those related to conciliation in labour disputes, and that inspectors will be relieved of those duties which interfere with the effective discharge of those defined in Article 3(1) of the Convention. The reforms envisaged also include developing the tripartite nature of labour inspection. Under the action plan, this should be achieved through the consultation of the social partners within the Tripartite Committee on International Affairs and, in particular, through the creation of a national information campaign on the role of the labour inspectorate.

Articles 7, 9 and 10. Composition and qualifications of inspection staff. The above action plan and the collective agreement provide for the establishment of a specific selection procedure for candidates for the occupation of labour inspector based on minimum technical conditions and a system of career progression and classification. Furthermore, with a view to the rational redistribution of duties among inspectors, the action plan envisages the gradual strengthening of inspection staff assigned to enforcing the legislation on conditions of work and the protection of workers while engaged in their work. With regard to training, according to the Government, in the majority of cases, the training of inspectors depends on the opportunities offered for training. As an example it mentions the training sessions offered by the ILO Subregional Office and the regional and international cooperation agencies. The Government indicates that the MTPS is responsible for providing training for its officials for the purposes of carrying out their duties and applying the principles relating to public labour policy and that the action plan provides for initial training programmes and subsequent training in the course of employment to be agreed upon with technical institutes and universities to update the technical skills of inspectors, including by means of distance learning. A programme dealing specifically with occupational safety and health is to be created. The Committee notes a provision in the collective agreement designed to encourage MTPS officials to develop their skills on a voluntary basis by providing for the continued payment of wages for up to 40 days in the case of training (section 34.1 of the agreement).

Article 6. Conditions of service of labour inspectors and professional code of ethics. Like UNSITRAGUA in 2004, the MSICG heavily criticizes the disciplinary and dismissal procedures applied in the event of professional misconduct under the Civil Service Act. The organizations allege unilateral decisions relating to suspension or final dismissal, the arbitrary nature, in practice, of the definition of professional misconduct by the competent authority and the denial of the presumption of innocence and call for the establishment of a defence mechanism providing for the right to appeal against verbal or written warnings as well as guarantees protecting labour inspectors from the immediate effects of dismissal decisions through the right to reinstatement and payment of wages.

The Committee notes that the collective agreement contains numerous provisions on the administrative career system, the selection and promotion conditions, the conditions relating to transfers, the reassessment of posts and the duties and salaries of all public servants. Its implementation should result in an adjustment of the conditions of service of labour inspectors and all other public servants employed within the Ministry. The provisions relating to the disciplinary rules seem to address the concerns of the trade union organizations relating to the presumption of innocence and the right of defence and appeal by providing, in particular, for the participation of the SIGEMITRAB Executive Committee in the defence procedure for the public servants concerned.

Furthermore, the collective agreement provides for the granting of advances to cover the professional travelling expenses incurred by labour inspectors and their reimbursement. The Committee notes that a specific recommendation to that end is also included in the action plan. Given the period of validity of the collective agreement, the wage increase provided for under section 37 of the agreement for public servants employed within the Ministry of Labour should have started to take effect in April 2009 with a view to full implementation the following year.

In reply to the allegations of UNSITRAGUA concerning the lack of probity of certain labour inspectors, the Government indicates that the supervision of the conduct of labour inspectors has been strengthened, including in their carrying out of inspections, by means of a supervisory programme targeting regional and subregional inspection offices. It points out that directors have been given instructions to strengthen the supervision of labour inspectors and mentions the preparation of an information and dissemination campaign targeting the public in general and workers in particular, the aim of which is to encourage people to report any suspicion of public servants of the Ministry of Labour having a direct or indirect interest in the matters within their remit and to allow the application of the disciplinary procedures provided for under the Civil Service Act and the collective agreement.

Article 12, paragraph 1, Articles 13, 15(c), 16 and 19. Method and performance of inspections. The Committee notes that the action plan provides for the planning of activities at the national level and cooperation to that end with the Guatemalan Social Security Institute (IGSS). Furthermore, it provides for the preparation of procedural manuals and technical manuals, checklists, registers, inspection report forms and the use of notifications. The performance of programmed inspections will ensure the presence of inspectors in workplaces no longer solely in response to complaints (which is the case in 90 per cent of inspections according to the analysis), but also in the interests of prevention and dissuasion, while preventing untimely inspections of the same workplace by different units. This will ensure better respect of the obligation of confidentiality relating to complaints since the visit of an inspector in a workplace will no longer be systematically perceived by the employer as the result of a complaint. The Committee also notes that, in the context of the “Cumple y Gana” project, a practical guide to inspection procedures was published in October 2008. This guide covers, in particular, the ethical principles of inspection.

Articles 17 and 18. Legislation relating to the prosecution of violations and the application of penalties. Referring to its previous observation in which it mentioned the point of view expressed in 2005 by the former World Confederation of Labour (WCL) concerning the power of inspectors to impose administrative sanctions on those responsible for violations, the Committee notes the documents provided in reply by the Government (including a copy of the documentation relating to legal proceedings initiated by a labour inspector against an enterprise which had committed a violation and settled by an appeal body pursuant to a ruling of the Constitutional Court), as well as the provisions of the action plan concerning the future developments in this regard. The Committee notes that, as previously pointed out by the Government, following ruling Nos 898-2001 and 1014-2001 of the Constitutional Court, the provision of Decree No. 18-2001 which authorized the General Labour Inspectorate to impose fines directly on employers who have committed a violation has been repealed on the grounds that it is unconstitutional and that this power is assigned to the courts under articles 103 and 203 of the National Constitution and section 135 of the Act on the judicial system.

The Committee notes that one of the recommendations arising from the analysis of labour inspection is to envisage the possibility of defining, by means of consultations held within the Tripartite Committee on International Labour Standards, an administrative procedure allowing the General Labour Inspectorate to impose penalties subject to a right of appeal for employers. The action plan includes this recommendation but mentions the consultation of the Constitutional Court on the legal point raised rather than the consultation of the social partners. This solution would have the merit of speeding up the implementation of rulings and strengthening the authority and credibility of the labour inspectorate. Furthermore, in many cases, the immediate application of a fine would be more effective than lengthy proceedings in encouraging compliance with the legal provisions. It is also envisaged that the legislation will be supplemented with a legal provision defining the specific offence of obstruction of labour inspectors in the performance of their duties and establishing the penalty to which those responsible shall be liable. In this regard, the Committee refers to the opinion formulated in its 2007 observation.

Article 11. Material working conditions of labour inspectors. Referring to its 2007 observation in which it noted the improvements pointed out by the Government in this regard (in particular, provisions facilitating the reimbursement of inspectors’ professional travelling expenses and the granting of advances for that purpose), the Committee notes the Government’s announcement of a thorough review of the material needs of the inspectorate carried out to provide the competent authorities with objective information to take into account in determining an appropriate budget for its effective operation. It notes with interest that the Ministry of Labour and Social Security has to that end taken steps to establish closer links with the other bodies of the executive authority and the legislative authority and that this exercise has facilitated the development of an operational plan for 2009 demonstrating the importance of labour inspection and emphasizing the need to increase its resources.

Article 5(a), Article 10, paragraph 1(a)(i), and Article 21(c), (f) and (g). Register of enterprises, exchange of information and statistics. The Committee notes that the analysis carried out of the labour inspection situation has highlighted the lack of a register of enterprises and that a recommendation has been made in that regard. The recommendation has been included in the action plan, which provides for the creation of a register at the national level within the Ministry based on the register developed and used by the IGSS. The Government has provided a copy of a draft cooperation agreement between the MTPS and the IGSS on the exchange of information relating to occupational safety and health in the textile industry, and the action plan provides for an agreement on the exchange of relevant data between the MTPS, the tax authorities and the registrar of companies.

The Committee requests the Government to provide information in its next report on the measures implemented under the collective agreement and the action plan with regard to the matters mentioned above, as well as a copy of any relevant text or draft text, and to indicate to the Office any difficulties encountered.

Further to its previous comments, the Committee also requests the Government once again to provide a copy of the legal provisions in force concerning the mechanism to compensate labour inspectors for overtime.

Furthermore, the Committee would be grateful if the Government would provide information in reply to the allegation made by the MSICG concerning the wage discrimination against inspectors in the category of “chief technicians”.

Finally, noting the statistics on inspection activities provided by the Government with its report, the Committee requests the Government to indicate whether the measures defined in the action plan to strengthen the labour inspection system have been taken to enable the central authority to publish and transmit to the ILO as soon as possible an annual report as required under Articles 20 and 21 of the Convention.