Labour Inspection Convention, 1947 (No. 81) - Guatemala (RATIFICATION: 1952)

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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).

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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.

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

The Committee notes the information provided by the Government in reply to its previous comments on Articles 5(a) of Convention No. 81 and 12(1) of Convention No. 129 (effective cooperation between the inspection services and other government services); Article 6 of Convention No. 81 (conditions of service of labour inspectors); and Article 17 of Convention No. 129 (association of labour inspectors in agriculture in the preventive control of new plant, new materials or substances and new methods of handling or processing products).

Article 3 of Convention No. 81 and Article 6 of Convention No. 129. Functions of labour inspectors. In its previous comment, the Committee requested the Government to take the necessary measures to enable labour inspectors to discharge effectively their primary duties. The Committee notes the Government’s indication that labour inspectors discharge their duties in accordance with the provisions set out in law (Government Decisions Nos 215-2012 and 284 A-2012 of 2012), confining their action to the duties that are specific to labour inspection. In this regard, the Committee notes the observations of the Autonomous Popular Trade Union Movement and Global Unions of Guatemala, received in 2017, on conciliation activities which prevent the effective discharge by inspectors of their inspection functions. The Committee requests the Government to provide information on the measures adopted or envisaged to ensure that the conciliation functions of labour inspectors do not hinder the effective discharge of the primary duties entrusted to labour inspectors under Article 3(1) of Convention No. 81 and Article 6(1) of Convention No. 129.

Article 7 of Convention No. 81 and Article 9(3) of Convention No. 129. Adequate training of labour inspectors. With reference to its previous comment on the adequate training of labour inspectors in relation to freedom of association and agriculture, the Committee notes the numerous training workshops for labour inspectors organized between 2014 and 2017, including on freedom of association and collective bargaining, occupational safety and health and the rights of agricultural workers. Moreover, with regard to the allegations made by the Trade Union of Workers of Guatemala (UNSITRAGUA), to which the Committee referred in its previous comment, on the generalized practice of the violation of occupational safety and health standards in the agricultural sector, the Committee notes the Government’s indication that the General Labour Inspectorate has initiated a strengthening process through the training of labour inspectors at the national level. While noting the observations of the Autonomous Popular Trade Union Movement and Global Unions of Guatemala, on the need for training of officials of the labour inspectorate on the reform of the Labour Code introduced by Decree No. 7 2017, the Committee also notes the Government’s indication that summonses were sent on seven occasions addressed to departmental delegates, labour supervisors and inspectors for training workshops and working sessions on Decree No. 7-2017 and its application. The Committee requests the Government to continue providing information on the adequate training of labour inspectors with a view to the effective application of the reform of the Labour Code of 2017, including the number of inspectors who have participated in training activities, and the duration and subject matter of such activities.

Articles 10, 11 and 16 of Convention No. 81 and Articles 14, 15 and 21 of Convention No. 129. Sufficient number of labour inspectors. Material means and facilities of transport. Frequency of inspections and thoroughness necessary to guarantee the effective application of the Conventions. With reference to its previous comments on the effect given to Articles 10, 11 and 16 of Convention No. 81 and Articles 14, 15 and 21 of Convention No. 129, the Committee notes the statistics provided by the Government on: (a) the number of labour inspectors and their geographical distribution (270 in 2015, 256 in 2016 and 227 in 2017) and the number of inspections (21,095, 17,257 and 16,083 in 2014, 2015 and 2016, respectively); (b) the regional distribution of the vehicles and motorcycles assigned to departmental directorates (80 in 2015, 66 in 2016 and 73 in 2017), as well as the budgets allocated to those departments for specific fiscal years (13,875,798 Guatemalan quetzals (GTQ) in 2014, GTQ14,932,722 in 2015, GTQ14,322,762 in 2016 and GTQ17,351,239 in 2017) and on the state of the equipment (2015–17); and (c) the workplans of the General Labour Inspectorate (2014–16). With regard in particular to the agricultural sector, the Government provides information on the inspections carried out between 2014 and 2017. The Government also indicates that the Ministry of Labour and Social Welfare has adopted various measures, including the Single Protocol for Labour Inspection, which is currently being disseminated, and the basic criteria for the scheduling of inspections in enterprises, so that inspections are undertaken as often and as thoroughly as necessary to ensure the effective application of the relevant legal provisions. In reply to the observations of the UNSITRAGUA on the effectiveness of the General Labour Inspectorate in ensuring compliance with labour standards respecting the payment of minimum wages to agricultural workers, the Committee notes the Government’s indication that the General Labour Inspectorate includes the verification of the payment of the minimum wage in force for agricultural activities in its focused and regionalized inspection plans and that the number of inspectors has been increased, which has made it possible to implement the inspection plans. Nevertheless, the Committee notes the observations of the Autonomous Popular Trade Union Movement and Global Unions of Guatemala, on the insufficient number of inspectors. The Committee requests the Government to provide information on the measures adopted or envisaged to ensure that enterprises are inspected as often and as thoroughly as is necessary to ensure the effective application of the relevant legal provisions, including the dissemination of the Single Protocol for Labour Inspection. Noting the decrease in the number of inspectors between 2015 and 2016 and again as reported in 2017 as well as the increase in the budget allocated to departmental directorates and municipal services by the General Labour Inspectorate, the Committee also requests the Government to continue providing information on the personnel of the labour inspection services in the annual report published by the central inspection authority, in accordance with Articles 20 and 21(b) of Convention No. 81. The Committee further requests the Government to provide information on whether as part of the regionalized plans there has been an increase in the number of inspectors assigned to the agriculture sector.

Article 15(c) of Convention No. 81 and Article 20(c) of Convention No. 129. Confidentiality of the source of any complaint. The Committee notes that section 281 of the Labour Code, as amended by Decree No. 7-2017, provides that inspectors shall benefit from the obligations and powers set out in the section, on condition that they have proper credentials indicating their identity, appointment and the objective of the inspection. In this regard, the Committee recalls that, under the terms of Article 15(c) of Convention No. 81 and Article 20(c) of Convention No. 129, labour inspectors shall treat as absolutely confidential the source of any complaint 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. The Committee requests the Government to provide information on the measures adopted or envisaged to ensure that inspectors are required, subject to any exceptions set out in the national legislation, to treat as absolutely confidential the source of any complaint 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.

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. In its previous comment, the Committee requested the Government to provide information on the harmonized notification system for industrial accidents and cases of occupational disease transmitted to the General Directorate of Social Welfare and the General Labour Inspectorate, and on the impact of such notification on the discharge of the preventive functions of the labour inspection services in agriculture. The Committee notes the Government’s indication that the system is still not operational. The Committee requests the Government to take measures to ensure that the harmonized system is operational in the near future for the notification of industrial accidents and cases of occupational disease.

Articles 20 and 21 of Convention No. 81 and Articles 26 and 27 of Convention No. 129. Annual labour inspection report. In its previous comment, the Committee requested the Government to take measures to give effect to Articles 20 and 21 of Convention No. 81 and Articles 26 and 27 of Convention No. 129. The Committee welcomes the publication and communication of a copy of the annual report for 2016 of the labour inspection services, which covers the following items set out in clauses (a), (b) and (d) of Articles 21 of Convention No. 81 and 27 of Convention No. 129:

(i) laws and regulations relevant to the work of the inspection service;

(ii) staff of the labour inspection service and distribution of labour inspectors by geographical area;

(iii) statistics of inspection visits, disaggregated by inspections undertaken within the context of operational plans and complaints, and the number of workers covered.

However, the Committee notes the observations of the Autonomous Popular Trade Union Movement and Global Unions of Guatemala, on the absence of an inspection register which would make it possible to identify cases of repeated violations. In this regard, the Committee notes that the annual report does not contain statistics of workplaces liable to inspection and the number of workers employed therein (clause (c) of Articles 21 and 27 of the Conventions), or statistics of violations (clause (e) of Articles 21 and 27 of the Conventions). Nevertheless, the Committee notes that the annual report contains information on the penalties imposed in 2016.

Moreover, with reference to its previous comment on Article 14 of Convention No. 81 and Article 19(1) of Convention No. 129, the Committee notes that the annual report does not contain statistics of cases of occupational disease (clause (g) of Articles 21 and 27 of the Conventions), and that the statistics of employment accidents (clause (f) of Articles 21 and 27 of the Conventions) only refer to the action taken on complaints, without the Government providing information on the type of accidents. The Committee also notes that the annual report does not contain information on the agricultural sector and recalls that, in accordance with Article 26(1) of Convention No. 129, the annual report on the work of the inspection services in agriculture may be published either as a separate report or as part of its general annual report. Taking due note of the publication and communication to the ILO of the annual report on the work of the inspection services for 2016, the Committee requests the Government to take into account its comments on the content of the annual report for 2017, which will be published and communicated to the ILO in accordance with Articles 20 and 26 of Conventions Nos 81 and 129, respectively, and contain the information referred to in clauses (a) to (g) of Article 21 of Convention No. 81 and clauses (a) to (g) of Article 27 of Convention No. 129.

Specific matters relating to labour inspection in agriculture

Article 16(2) of Convention No. 129. Entry into the private home of the operator of an agricultural undertaking with the prior consent of the operator or with a special authorization issued by the competent authority. The Committee notes that section 281 of the Labour Code has been amended following the adoption of Decree No. 7-2017. As amended, section 281 provides that labour inspectors are authorized to enter buildings that are being used as a house, a private residence or accommodation, with the prior authorization of the court which has found that activities are being carried out in such places as an undertaking or workplace. The Committee notes the allegation of the Autonomous Popular Trade Union Movement and Global Unions of Guatemala that this amendment is contrary to the provisions of Article 16 of Convention No. 129, as it limits the work of inspectors in the agricultural sector, a sector where activities are frequently carried out in accommodation and houses as undertakings or workplaces. In this regard, the Committee recalls that, in accordance with Article 16(2) of Convention No. 129, labour inspectors shall not enter the private home of the operator of the agricultural undertaking except with the consent of the operator or with a special authorization issued by the competent authority.

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

The Committee notes the observations of the Autonomous Popular Trade Union Movement and Global Unions of Guatemala, received on 30 August 2017, on the legislative reform examined below and on the resources, functions and training of labour inspectors.

The Committee notes the Government’s indication in its report that the Labour Code (Decree No. 1441) has been amended by Decree No. 7-2017 promulgated by the Congress of the Republic, and published on 6 April 2017.

Article 12(1)(a) of Convention No. 81 and Article 16(1)(a) of Convention No. 129. Authorization for labour inspectors to enter at any hour of the day or night any workplace liable to inspection. The Committee notes that section 281(a) of the Labour Code, as amended by Decree No. 7-2017, limits the entry of inspectors into any workplace liable to inspection to the workday, in accordance with internal workplace rules or the authorization issued by the Ministry of Labour and Social Welfare. The Committee also notes that the previous wording of section 281 empowered inspectors to visit workplaces at different hours of the day and night, if work was carried out at that time. In this regard, the Committee notes the observations of the Autonomous Popular Trade Union Movement and Global Unions of Guatemala, according to which the legislative reform enables employers to restrict the entry of inspectors to the hours of the working day, which are established by internal workplace rules, even though many complaints concerning violations of labour law are related to overtime work or work performed outside the usual hours, often at night. Recalling that pursuant to Article 12(1)(a) of Convention No. 81 and Article 16(1)(a) of Convention No. 129, labour inspectors provided with proper credentials shall be empowered to enter freely and without previous notice any workplace liable to inspection at any hour of the day or night, the Committee requests the Government to adopt the necessary measures to ensure full compliance with these provisions.

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. The Committee notes that section 281 of the Labour Code, as amended by Decree No. 7-2017, provides that labour inspectors shall provide credentials indicating their identity, their appointment and the objective of the inspection, in order to benefit from the obligations and powers set out in the Labour Code. However, the Committee notes that the legislation does not provide for an exception to the requirement of the notification of the presence of inspectors through the provision of credentials indicating their identity and appointment, while Article 12(2) of Convention No. 81 and Article 16(3) of Convention No. 129 provide that inspectors shall notify the employer or her/his representative of their presence, unless they consider that such a notification may be prejudicial to the performance of their duties. The Committee requests the Government to take the necessary measures to ensure that inspectors have the power to omit to notify their presence to the employer or her/his representative if they consider that such notification may be prejudicial to the performance of their duties, in accordance with paragraph 2 of Article 12 of Convention No. 81 and paragraph 3 of Article 16 of Convention No. 129.

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 observe, legal provisions enforceable by labour inspectors. With reference to its previous comment on the process of imposing penalties for violations of labour legislation, the Committee notes with interest that Decree No. 7-2017 amends sections 271, 272 and 281 of the Labour Code and provides that labour inspectors shall be empowered to adopt the measures listed in paragraph (f) of section 281, including the power to initiate the process of imposing administrative penalties through compliance orders for violations of labour provisions or the obstruction of labour inspectors, and the power to order the cessation of work in cases of serious or imminent risk to workers’ safety and health. Decree No. 7-2017, through the amendment of section 415 of the Labour Code and the introduction of sections 417 and 418, recognizes the capacity of the Ministry of Labour and Social Welfare, through the General Labour Inspectorate, to take direct action to promote and remedy violations of the labour and social welfare legislation through administrative action or, failing that, the initiation of administrative proceedings. Taking due note of the legislative reform of 2017, the Committee requests the Government to provide information on the application in practice of the new provisions respecting the powers of labour inspectors to take measures listed in paragraph (f) of section 281 of the Labour Code, as amended by Decree 7 2017, including to impose penalties or prohibitory orders. In this regard, the Committee requests the Government to provide detailed information on the compliance orders on violations of labour provisions issued by labour inspectors, and the action proposed through proceedings, if administrative measures have failed to produce results.

Article 18 of Convention No. 81 and Article 24 of Convention No. 129. Obstruction of labour inspectors in the performance of their duties. Adequate and effectively enforced penalties. With reference to its previous comment on the obstruction of labour inspectors in the performance of their duties, the Committee notes with interest that sections 269 and 271(3) of the Labour Code, as amended by Decree No. 7-2017, provide that: (a) in the event that the employer or her/his representatives or workers or trade unions and their representatives, refuse to collaborate with the inspection services to verify compliance with labour provisions for which violations may be penalized with fines, the procedure for penalizing the person responsible shall be commenced and the process of inspection continued; (b) the obstruction of the process of inspection by the employer or her or his representatives, or by workers or trade unions or their representatives, within the meaning of section 281 of the Labour Code, shall constitute an offence subject to penalties. Moreover, with reference to the need for sufficiently dissuasive penalties that are effectively enforced, the Committee notes that section 272 of the Labour Code, as amended by Decree No. 7-2017, sets out the criteria and the procedure for the imposition of penalties by departmental delegates of the General Labour Inspectorate. However, the Committee notes the observations of the Autonomous Popular Trade Union Movement and Global Unions of Guatemala, alleging that inspectors do not in practice apply the penalties set out in the law because the Ministry of Labour and Social Welfare has not adopted the necessary administrative measures for this purpose. Taking due note of the legislative reform of 2017, the Committee requests the Government to provide its comments on the observations of the Autonomous Popular Trade Union Movement and Global Unions of Guatemala, and to provide detailed information on the number of penalties imposed, including the amounts of fines.

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

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Referring to its observation, the Committee wishes to raise the following additional points.

Articles 6 and 15(a) of the Convention. Conditions of service and code of conduct for labour inspectors. In relation to the Committee’s previous comments on the drawing up of draft regulations both for the Ministry of Labour and Social Welfare (MTPS) and the general labour inspectorate and the reclassification of posts and salaries, the Government indicates that this reclassification and the awarding of competitive, up-to-date salaries to the staff of the Ministry improved their performance. The Committee asks the Government to clarify the conditions of service for labour inspectors, following the agreement signed on 3 July 2013 concerning conditions of service at the MTPS, and to provide a comparison with officials in the same category who perform similar duties, for example in the tax administration.

Articles 5(a), 12(1)(a) and 18. Cooperation between the inspection services and the police regarding the free access of labour inspectors to workplaces liable to inspection; penalties for obstructing labour inspectors in the course of their duties. As regards the measures taken or contemplated to raise the awareness of the police concerning the importance of collaboration with the labour inspectorate with a view to ensuring access for labour inspectors to workplaces liable to inspection and guaranteeing their protection when their lives or safety are at risk in the course of their duties, the Committee notes that the inter-institutional agreement on procedures to follow in the event of resistance to the work of labour inspectors, signed between the Ministry of the Interior and the MTPS. The Committee notes with interest the tables of data relating to the training workshops given to National Civil Police (PNC) members concerning the assistance to be given to labour inspectors, and also the copy of the inspection records attesting the presence of PNC members in support of labour inspectors. The Committee requests the Government to continue providing information on the abovementioned cooperation, including on its impact in the event of obstruction of labour inspectors in the course of their duties, and on the penalties imposed on persons who are guilty of obstruction.

Articles 11 and 16. Financial and material resources of labour inspection and coverage of inspection needs. With regard to the Committee’s previous comments concerning a review of the material needs of the inspectorate aimed at determining an appropriate budget for its effective operation, the Government indicates that the inspectorate needs, particularly in departmental directorates, up to date computing equipment, scanners, new furniture and Internet connections. The Committee requests the Government to provide information on the measures taken to meet the material needs of the departmental directorates, and also to reinforce the labour inspectorate’s transport facilities.

Article 18. Adequate penalties. The Committee requests that the Government indicate the measures taken to ensure the deterrent effect of the penalties established for violations of the legal provisions enforceable by labour inspectors and for obstruction of inspectors in the course of their duties.

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The Committee notes the observations from the Guatemalan Union, Indigenous and Peasant Movement (MSICG), received on 3 September 2014, concerning the application of the Convention. It observes in particular that the MSICG alleges the use of labour inspectors by the Ministry of Labour and Social Welfare (MTPS) to persecute and penalize the trade unions. The Committee requests that the Government send its comments on this matter.

The Committee notes the report of the ILO mission, headed by the Director of the International Labour Standards Department, on the follow-up to the roadmap adopted by the Government in consultation with the social partners in the country, with a view to expediting the implementation of the Memorandum of Understanding concluded on 26 March 2013 between the Workers’ group of the ILO Governing Body and the Government of Guatemala.

Articles 3, 10 and 16 of the Convention. Duties of labour inspectors; human resources matched to inspection needs. With regard to the request for information on the number of inspectors currently in service, the Committee notes the Government’s indication that there are 261 inspectors in the country, 55 of whom are assigned to the central departmental office in the department of Guatemala, with 33 fully employed in the inspection section and 22 working exclusively in the conciliation section. The remaining 206 inspectors are divided between the other 21 departmental offices, each of which has between three and 19 inspectors, whose time is evenly divided between the inspection and conciliation sections. The Committee also notes that the MTPS, under section 49 of the agreement of 3 July 2013 concerning its conditions of service, undertook to create 100 “professional assistant II” posts specializing in labour inspection in 2013 and 100 more in 2014, and to draw up a budget for this restructuring and creation of posts for approval by the Ministry of Finance and the National Civil Service Office. While noting with interest the Government’s efforts to increase the number of inspectors, the Committee requests the Government to clarify whether the “professional assistant II” posts specializing in labour inspection were actually created and budgeted for, what their duties entail and how they are distributed geographically.

As regards the measures adopted or contemplated to separate the duties of control and conciliation and to relieve labour inspectors of duties other than those provided for in Article 3(1) of the Convention, the Committee notes the measures proposed by the Government, in a plan of work due to be executed in September 2014, to define the duties of staff involved in the handling of files. The Committee trusts that the measures that the Government plans to adopt will enable labour inspectors to be relieved of duties other than those assigned under the terms of the Convention, so that they can devote themselves to the performance of the duties defined in Article 3(1) of the Convention. The Committee requests the Government to provide information on any developments in this respect.

Lastly, as regards the request for information on the work of the special labour inspection unit in the maquila (export processing) sector and its results, the Committee observes that, according to the tables included in the Government’s report, the unit’s work in the Guatemala central departmental office focused on cases involving complaints in both 2013 and 2014. The Committee recalls that workplaces must be inspected as often and as thoroughly as is necessary to ensure the effective application of the relevant legal provisions. The Committee requests the Government to ensure full compliance with the provisions of Article 16 of the Convention.

Articles 5(a), 20, 21 and 24. 1. Establishment of a register of enterprises. Cooperation needed to establish a register of enterprises; drawing up of the annual inspection report. The Committee notes with interest the signature in 2012 of the “Inter-institutional cooperation framework agreement” concerning the exchange of information between the MTPS, the Ministry of the Economy and the Tax Administration Supervisory Authority, an agreement which was also signed by the Guatemalan Social Security Institute (IGSS) in 2013. The Government also points out that the website of the MTPS provides access to information contained in the National Business Register, the main function of which is the registration of all national and foreign companies, their respective legal representatives, commercial enterprises, individual traders and any modifications relating to these bodies. Emphasizing, as it did in its 2006 General Survey on labour inspection and its 2009 general observation, the importance of the availability of a register of workplaces and enterprises liable to inspection containing data on the number and categories of men and women workers employed therein, the Committee hopes that the Government will make use of inter-institutional cooperation with the abovementioned bodies to establish and periodically update such a register, and asks it to supply information on any progress made in this respect.

2. Annual inspection report. The Committee recalls that it has been making comments for many years on the need to publish and send to the ILO an annual report on the work of the inspection services, in accordance with Articles 20 and 21 of the Convention. The Committee notes the Government’s indication that the 2013 annual report of the labour inspectorate was in the process of being approved and would be published on the MTPS website in September 2014. The Committee observes that the website currently shows statistics for national operations conducted by the labour inspectorate during the first few months of 2014 and the cases handled by it, in the conciliation and inspection sections, between January and 23 July 2014, and also on actions undertaken in the capital city. The Committee trusts that an annual report on the work of the inspection services, containing information on all the subjects specified in Article 21(a)–(g), will be published and sent to the ILO in the very near future, in accordance with Article 20. The Committee reminds the Government that it may avail itself of technical assistance from the Office if it wishes.

Articles 5(a), 17, 18 and 21(e). Effective cooperation between the labour inspection services and the judicial authorities. Effective application of penalties. In its previous comments, the Committee asked the Government to provide information on the measures taken to implement the recommendation made in the roadmap referred to above to establish an administrative procedure that would once again allow the labour inspectorate to impose penalties, subject to a right of appeal for employers. The Government reports that, as part of the implementation of the roadmap, the tripartite constituents held extensive discussions at the end of 2013 on the way ahead for the process of imposing penalties for labour law violations. It adds that, in view of the divergences in opinion, the Minister called an end to the discussions and sent the related documentation, on 23 January 2014, to the National Congress for examination with a view to a decision. The Committee observes that, in accordance with the indications made to the ILO mission in September 2014, the Labour Commission of Congress issued a favourable opinion on Bill No. 4703 reforming the Labour Code.

The Committee also notes that the MSICG objects to the abovementioned Bill.

In this context, the Committee recalls (see 2006 General Survey on labour inspection, paragraphs 279–303) that the credibility of any inspectorate depends to a large extent not only on its ability to advise employers and workers on the most effective means of complying with the legal provisions within its remit but also on the existence of an enforcement mechanism. It is essential for maintaining the coherence of the inspection system with regard to its objectives that penalties imposed on offenders are sufficiently dissuasive and effectively applied, in accordance with Article 18 of the Convention. The Committee observes that the National Congress and the ILO International Labour Standards Department signed a Declaration of Intent, which provides for technical assistance in the preparation and drafting of labour legislation. The Committee expresses the hope that the Government will avail itself of technical assistance from the Office and trusts that any legislative measures adopted will take account of the principles above. The Committee asks the Government to provide information on any developments in this respect. The Committee also requests the Government to provide statistical information on infringements detected by labour inspectors, indicating the related legal provisions and the penalties imposed. It further requests the Government to indicate the measures adopted or planned with a view to facilitating effective cooperation between the labour inspection system and the justice system, with the aim of promoting due diligence and thorough treatment by the judiciary of labour inspection reports.

Articles 7, 13 and 14. Training for labour inspectors and control and prevention duties. In relation to the comments which it has been making on the application of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Committee emphasized in its previous comments the need for, inter alia, ILO technical assistance with regard to training for labour inspectors concerning freedom of association, and expressed the hope that this assistance would be provided in the near future. The Committee notes with interest that, with the assistance of the representative of the ILO Director-General in Guatemala and the ILO Subregional Office in San José, in 2013 three workshops on international labour standards were attended by 109 labour inspectors from all parts of the country; three workshops on the ILO and international labour standards were attended by 70 inspectors from various regions (50 from the north-west and 30 from the centre and south), and 11 training workshops on the detection and referral of cases of trafficking in persons in the light of national and international standards were attended by 288 labour inspectors from all parts of the country. The Committee asks the Government to continue taking steps to ensure that labour inspectors receive appropriate training for the effective performance of their duties.

Also in relation to its previous comments, the Committee further notes with interest the information in the Government’s report on the Labour Inspection (Agriculture) Convention, 1969 (No. 129), to the effect that, with the support of the Faculty of Medical Science of the University of San Carlos and the Cumple y Gana project, the first diploma refresher course in labour inspection and occupational safety and health was held, with the participation of 82 inspectors.

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

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The Committee takes note of the comments made by the Indigenous and Rural Workers Trade Union Movement of Guatemala (MSICG) in a communication of 30 August 2010, transmitted to the Government on 15 September 2010.

Articles 3, 10 and 16 of the Convention. Labour inspection system. The Committee takes note of the report of the high-level mission which visited Guatemala in May 2011 with regard to the application of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). In particular, it takes note with interest of the information provided by the General Labour Inspection according to which a special unit of the labour inspection has been set up in order to address issues related to the maquila sector. Inspections are taking place and the number of complaints has fallen even though there are still complaints in this sector. The economic benefits of enterprises (tax exoneration) can be revoked if violations of labour rights are observed. This has led to an improved supervision. Twenty-two investigations were carried out, benefits were withdrawn from four enterprises and 18 took measures to comply with labour laws following the indication by the Ministry of the Economy that they would no longer qualify for special benefits. The Committee requests the Government to continue to provide detailed information on the activities of the special unit of the Labour Inspectorate on the maquila sector and its results (number of visits, violations found with indications of the legal provisions concerned and action taken).

The Committee notes that, according to the MSICG, the inspectors do not perform their tasks adequately and their actions are not persuasive, while the data show that the budget of the Ministry of Labour and Social Welfare (MTPS) with regard to the Labour Inspectorate has been significantly reduced and that between 2009 and 2010 the number of inspectors employed fell from 197 to 185. The MSICG also denounces the fact that the duty of supervision of the labour inspectors has been replaced by the duty of conciliation and that it is common for inspectors to impose conciliation, a practice which has fostered impunity and weakened the effectiveness of the legislation, the application of which pertains to labour inspectors. According to the MSICG, the establishment of conciliation as a priority of the inspectorate, rather than supervision and verification of the facts reported, allows employers the necessary time to hide or plant evidence and may lead to the workers being deprived of the evidence necessary to lodge claims with the labour courts given that, in most cases, such evidence is to be found in documents, registers and situations that can only be verified by a labour inspector and to which the individual affected by the violation has no access. The MSICG also alleges that the inspectors display bias towards employers when performing their duties.

The Committee notes Circular No. 02-2011 issued by the General Labour Inspectorate and addressed to those inspectors performing conciliation duties, in which it is stated that once the conciliation mechanisms have been exhausted, the labour inspector has to fulfil his/her inspection functions. The Committee highlights that under section 281(e) of the Labour Code, labour inspectors must intervene with regard to any labour-related difficulties or disputes arising between employers and workers, or purely between employers or purely between workers, in order to prevent such difficulties or disputes from developing or to bring about an out-of-court settlement should they arise. According to the information provided by the Government, in 2010 the labour inspectors intervened in a total of 942 conciliation procedures relating to enterprises covered by the Promotion and Development of Export and Maquila Activities Act, while over the same period they carried out a total of 412 inspections targeting the same type of enterprise. Apparently, of these 412 visits, only 81 were carried out on the initiative on the General Labour Inspectorate, with the remaining 331 being performed as the result of denunciations.

The Committee refers the Government to paragraph 69 of its 2006 General Survey concerning labour inspection and yet again states that the primary duties of labour inspectors are complex and require time, resources, training and considerable freedom of action and movement, and that any further duties which may be entrusted to labour inspectors should 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. Noting moreover that the functions of dispute resolution are often incompatible with the function of controlling the strict application of the law, the Committee calls the Government’s attention also to Paragraph 8 of the Labour Inspection Recommendation, 1947 (No. 81), according to which the functions of labour inspectors should not include that of acting as conciliator or arbitrator in proceedings concerning labour disputes.

The Committee would be grateful if the Government would indicate the actual number of active labour inspectors and their geographical distribution, specifying how many of them perform duties within the scope of conciliation and the percentage of their working time that is devoted to this duty. The Committee would also be grateful if the Government would specify the criteria on the basis of which inspection visits are programmed.

The Committee requests the Government to indicate the measures adopted or envisaged both in law and in practice with the aim of dissociating the duty of supervision from that of conciliation and to relieve labour inspectors of duties other than those provided for in Article 3(1) of the Convention which could prejudice the authority and impartiality, including those relating to conciliation.

Articles 5(a), 12(1)(a) and 18. Free access of labour inspectors to workplaces liable to inspection, cooperation between the inspection services and the police, and penalties for obstructing labour inspectors in the performance of their duties. The Committee also notes that according to Ministerial Agreement No. 106-2011 issued by the MTPS in application of section 281(e) of the Labour Code, inspectors can request the assistance of the police should they be refused entry to workplaces, or should their lives and safety be in danger in certain circumstances such as: (i) when cases of under-age labour in circumstances considered to be the worst forms of child labour are denounced; (ii) in cases where the closure or possible closure of enterprises must be verified, in particular, those instigated by enterprises which enjoy the benefits provided for by the Promotion and Development of Export and Maquila Activities Act; (iii) when situations arise that, in the opinion of the General Inspector of Labour, the General Sub Inspectors of Labour or the departmental or municipal delegates of the Ministry, constitute emergencies; and (vi) more generally, when the circumstances require it. The Committee notes, however, that the final paragraph of section 4 of the aforementioned Agreement states that should the agents of the National Civil Police Force refuse to accompany the inspector, the General Inspector of Labour must forward a certified true copy of the report referring to this event to the Ministry of the Interior within three days of its receipt, for the purposes of the relevant legal proceedings. The Committee requests the Government to inform it of any measures adopted or envisaged with the aim of raising the awareness of the police concerning the importance of collaboration with the labour inspection services in the cases referred to with a view to guaranteeing access for labour inspectors to workplaces liable to inspection and to ensuring the protection of inspectors when their lives or safety are in danger within the framework of the exercise of their duties. The Committee would also be grateful if the Government would: (i) provide information on the impact of the cooperation of the police concerning compliance with labour legislation; (ii) transmit copies of inspection reports which refer to collaboration between police officers and labour inspectors in the exercise of their duties; (iii) specify the number of judgments handed down for obstructing labour inspectors in the performance of their duties and send copies of examples of such judgments.

Articles 5(a), 20 and 21. Inter-institutional cooperation for the exchange of information, the register of enterprises and the annual inspection report. General observations 2009 and 2010. The Committee notes with interest that the Government signed the Inter-Institutional Framework Agreement on the exchange of information between the Ministry of the Economy and the Ministry of Labour and Social Welfare in the framework of Decree No. 29-89, the Promotion and Development of Export and Maquila Activities Act, allowing the exchange of information and thus facilitating supervision by the General Labour Inspectorate. The Committee also notes with interest that, according to the Government, thanks to the technical cooperation project “Cumple y Gana”, a registration system (SIL) was implemented at the General Labour Inspectorate involving the establishment as of 2010 of a register of commercial enterprises which enjoy the benefits granted by the Promotion and Development of Export and Maquila Activities Act which contains all the information required under Articles 20 and 21 of the present Convention. The Committee notes however that, although the Government has provided documents concerning the register of the enterprises covered by Decree No. 29-89, it has not sent the annual report on the work of the inspection services, despite the undertaking it made to this effect in its 2010 report. The Committee requests the Government to provide information on the impact of the creation of the register of enterprises on the efforts made by the central authority to fulfil its obligations under Articles 20 and 21 with a view to publishing and transmitting to the Office an annual report on the work of the inspection services under its control within the time period envisaged by Article 20 and containing information on each and every one of the points listed under Article 21. The Committee draws the attention of the Government to the useful guidelines set out in the Labour Inspection Recommendation, 1947 (No. 81), with regard to the details and presentation of the information that must be contained in the annual report on inspection. Referring to its 2009 comments, the Committee requests the Government to send information on developments concerning the agreement on the exchange of data between the MTPS, the tax authorities and the Chamber of Commerce.

Articles 6 and 15(a). Conditions of service of labour inspectors, and professional code of ethics. With regard to its 2009 comments, the Committee notes with interest that the MTPS requested the ILO to provide technical support with the aim of drawing up draft regulations both for the MTPS and the General Labour Inspectorate and a study on the reclassification of posts and salaries (with the intervention of the Civil Service Office). The Committee would be grateful if the Government would provide information on developments concerning the elaboration of the draft regulations as well as the results and eventual recommendations made in the study on the reclassification of posts and salaries of the labour inspectorate.

Furthermore, the Committee notes with interest Ministerial Agreement No. 118-2011 of the MTPS which contains the Code of Conduct of the General Labour Inspectorate. The Committee observes that this Code contains fundamental principles and duties which must be observed by labour inspectors in the exercise of their functions and the commitment made by the General Labour Inspectorate to: (i) establish employment conditions which recognize the value of its staff and encourage appropriate behaviour and an honest environment; (ii) organize and facilitate opportunities for vocational development and to improve the competences of its staff; (iii) foster a culture based on professional and ethical behaviour; and (iv) ensure that the actions of the inspectors are carried out on the basis of the ethical principles of honesty, neutrality, objectivity and fairness. The Committee also notes that this Code envisages the establishment or appointment by the MTPS of an administrative unit responsible for receiving and processing denunciations concerning failure to comply with the principles and values contained in the Code which must be decided upon by the General Labour Inspectorate. The Committee requests the Government to provide information on any measures adopted with the aim of implementing the undertakings referred to in the Code of Conduct relating to the specific conditions of service of labour inspectors. The Committee also requests the Government to specify how the independence of labour inspectors is guaranteed in the framework of the said Code.

Article 7. Training of labour inspectors. With reference to its comments under Convention No. 87, the Committee underlines that the technical assistance of the ILO is necessary, among other things, for the training of labour inspectors in the area of freedom of association and hopes that this assistance will be provided in the near future. The Committee requests the Government to keep the ILO informed of all progress made in this regard. The Committee would also be grateful if the Government would specify whether the training programmes for labour inspectors have been implemented, including the specific programme on occupational safety and health, which it had announced would be agreed on with the technical institutes and universities.

Articles 10, 11 and 16. Human resources, financial and material means of the labour inspectorate and coverage of supervision needs. In its 2009 comments the Committee took note of 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 be taken into account in determining an appropriate budget for its effective operation. The Committee requests the Government to send information on the results of the abovementioned review concerning the material needs of the labour inspectorate, as well as on the measures adopted or envisaged from a legal and practical point of view to meet those needs. Moreover, the Committee would be grateful if the Government would specify the impact of these measures on the strengthening of human resources (with regard to inspection staff numbers) and the means of action (mainly means of transport and office equipment).

Articles 17 and 18. Adequate penalties and their effective application. In its 2009 comments the Committee noted that the action plan drawn up by the Government and the ILO included the recommendation, arising from the analysis of the labour inspection, to envisage the possibility of defining an administrative procedure allowing the General Labour Inspectorate to impose penalties subject to a right of appeal for employers and to supplement the legislation with a legal provision defining the specific offence of obstruction of labour inspectors in the performance of their duties and establishing the corresponding fine. The Committee requests the Government to send information on the measures adopted or envisaged so as to implement this recommendation of the abovementioned action plan and to supplement the legislation in the manner described and on any difficulties encountered concerning its implementation.

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The Committee notes the information supplied by the Government in response to its previous comments, and the documents attached to the report. It also notes the communication of 30 August 2010 from the Indigenous and Rural Workers Trade Union Movement of Guatemala (MSICG) on the application of the Convention, sent by the ILO to the Government on 15 September 2010. The Committee will examine the Government’s report at its session of November–December 2011 together with any comments the Government may wish to make in reply to the matters raised by the MSICG.

[The Government is asked to reply in detail to the present comments in 2011.]

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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.

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The Committee refers the Government to its observation and draws its attention to the following points.

Articles 2 and 23 of the Convention. Scope of the labour inspection system. In its previous comments, the Committee asked the Government to indicate the branches of the economy of the category 029 workers whose contracts are renewed, according to the Trade Union Confederation of Guatemala (UNSITRAGUA), only if funds are available. UNSITRAGUA alleged that these workers do not have the statutory entitlements of permanent employees and are not paid for hours worked in excess of the normal working day. Once again, the Government’s only response is that these employees do not have the status of public employees or servants. It provides no information allowing the Committee to assess how supervision of the conditions of such workers employed in workplaces covered by the Convention is ensured. It accordingly repeats its request for information in this respect and asks the Government to take the necessary steps to extend to these workers, if this has not already been done, the protection of the inspection system established by the Convention.

Article 3, paragraph 1(b). Provision of information and advice to employers and workers. UNSITRAGUA objected that resolution LPR7ahd 6133‑2002 of 25 July 2002, by which the Labour Inspectorate refused to take a position on breaches by private enterprises of the regulations on overtime pay. It also alleged negligence on the part of the inspectorate in certain situations where its intervention was required. As to the first point, according to the Government the length of the ordinary working day, according to the Constitution, is six, seven or eight hours a day and 36, 42 or 44 hours a week depending on whether it falls in the night, combined or day period. All work done outside these periods must be duly remunerated as overtime. As to the shortcomings and negligence of the inspectorate alleged by UNSITRAGUA, the Government explains that the cases cited qualified as technical proceedings, requiring the assistance of a lawyer. Intervention by the Labour Inspectorate would not have been appropriate. According to the Government, the relevant resources were better used where they were needed. The Committee observes that the Government does not account for the inspectorate’s refusal to provide information and advice on the application of the working time regulations, or any information on investigations to clarify the alleged offences. It notes that section 289 of the Labour Code requires the General Labour Inspectorate to respond to consultations on the application of legal provisions falling within its competence, at the request either of other bodies of the Ministry, or of workers or employers, and to publish the consultations to serve as a reference in the areas concerned. The Government is asked to provide explanations as to why the Inspectorate refused to provide the advice requested, and to supply documents allowing an assessment of how effect is given in practice to the abovementioned provision of the Labour Code.

Article 15(c). Absolute confidentiality of the source of complaints and any link between a complaint and a visit of inspection. Further to its previous observation on this point, raised previously by UNSITRAGUA, the Committee notes that according to the Government, the principle of the confidentiality of the source of complaints is observed unless the worker decides otherwise.  The Government also states that confidentiality of personal data is guaranteed by article 30 of the National Constitution. However, it does not specify, as this provision of the Convention requires, the manner in which it is established that labour inspectors must refrain from intimating to the employer or his representative that a visit of inspection was made in consequence of the receipt of a complaint. The Committee requests the Government to provide information on the manner in which effect is given in law and in practice to this important aspect of the principle of confidentiality, the aim of which is to protect workers against reprisals by employers. If no measures have been taken to this end, it would be grateful if the Government would take the necessary steps rapidly and would keep the ILO duly informed. It hopes that the Government will not fail to provide copies of any decisions penalizing employers found to have taken reprisals, and copies of any documents showing the manner in which protection is ensured for workers threatened with dismissal for pointing out breaches of the legislation.

Articles 19, 20 and 21. Periodical reports and annual report on the functioning of the labour inspectorate. The Committee notes with interest that the Government has at last sent statistics on the number of enterprises in activity (between 1995 and 2004), the number of workers employed (between 2002 and 2004) and industrial accidents (for 2005). It also notes from information available at the ILO that the project “Centoamérica cumple y gana” has been extended to the regional labour administration offices, inter alia, through the installation of an electronic system for the purpose of inspection processing and follow up, and by providing the various offices with electronic equipment, computers and printers for the same purpose. The Committee hopes that the measures adopted in the context of the “Centoamérica cumple y gana” project will facilitate the production by the local inspection offices of periodical reports on the results of their work, as required by Article 19, and that these reports will enable the central inspection authority to prepare an annual report in accordance with Articles 20 and 21. It reminds the Government that guidelines are to be found in Part IV of Recommendation No. 81, on how the information required by Article 21 might be presented to good effect.

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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.

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Also referring to its observation, the Committee draws the Government’s attention to the following points.

Article 6 of the Convention. The Committee would be grateful if the Government would communicate a copy of the "Manual for the Labour Inspector", mentioned in its report.

Articles 10 and 16. Referring to its previous comments, the Committee notes that the general labour inspectorate is divided into two sections, one responsible for the supervision of labour centres and enterprises and the other for the settlement of disputes and the investigation of complaints relating to conditions of work. According to a document attached to the Government’s report on the implementation of Convention No. 129, there are 276 labour inspectors in the structures of the Ministry of Labour throughout the country. In 2003 and 2004, they dealt respectively with 4,601 and 2,098 complaints alleging violations of the labour legislation, each of them giving rise to a minimum of two inspections. The Committee notes that neither the number of industrial and commercial workplaces liable to inspection, nor that of the workers employed therein are provided, and that statistics on the number and frequency of inspection visits conducted for reasons other than complaints are also missing. The Government is requested to take measures to ensure that such data are also communicated to the ILO so that an assessment can be made of the level of coverage of the labour inspection system in relation to the needs.

Articles 12, paragraph 1(a) and (b). The Committee notes that, under section 281(a) of the Labour Code, labour inspectors are authorized to inspect workplaces at any hour of the day, and at night, where work is performed at night. The Government also indicates in its report, in relation to Article 15(a), that the initiative to inspect workplaces is not taken by inspectors, but is part of a hierarchical procedure, and that the workplaces to be inspected may, in the last resort, be determined by the general directorate. The Committee emphasizes the vital importance attached by the Convention to the right of inspectors to enter workplaces freely and without prior notice. It therefore requests the Government to ensure that measures are taken so that the right of inspectors to enter workplaces freely is not limited to the normal working hours of such workplaces. As highlighted by the Committee in its 1985 General Survey on labour inspection, it is important that inspectors also be allowed to exercise this right at times when workplaces are closed or machines are not in use, as certain technical controls of machines and equipment cannot be carried out when they are in use. Inspections outside official working hours also allow the supervision of the unlawful use of overtime work and illegal working conditions which may be imposed on clandestine workers (paragraphs 160 and 161).

Furthermore, the practice of making the choice of the final selection by the workplaces to be inspected subject to a final decision of the central authority is manifestly contrary to both the spirit and the wording of Article 12, the objective of which is to ensure the optimal effectiveness of inspections, for which reason paragraph 2 provides for the possibility for labour inspectors to refrain from notifying the employer or her or his representative of their presence in the workplace on the occasion of an inspection. The Committee requests the Government to ensure, in the light of paragraphs 158 and 159 of the General Survey, that measures are taken to bring the law and practice rapidly into conformity with the Convention, taking into account, where appropriate, the general orientations provided by the central labour inspection authority and any national labour inspection campaigns in specific fields.

Article 15(b). The Committee notes that section 281(k) of the Labour Code provides for the dismissal of any inspector who has accepted gifts from an employer, workers or trade unions. It notes that, in response to its request for further details concerning the control procedures ensuring that inspectors have no direct or indirect interest in the enterprises under their supervision, the Government refers to the selection procedure for the enterprises to be inspected, a subject that is covered in the comments on Article 12 above.

In the view of the Committee, although the prohibition from accepting gifts is part of the prohibition on inspectors from having any direct or indirect interest, as prescribed by the Convention, it is not sufficient to cover all the aspects of this prohibition. The concept of a direct or indirect interest in practice covers any form of social or material advantage which inspectors might obtain from the activity of the workplace under their supervision, directly themselves or indirectly through third persons (such as relatives). The above provision of the Labour Code is clearly not sufficiently broad to guarantee this level of detachment. It will therefore have to be supplemented in sufficiently clear terms for this purpose.

On the other hand, the Committee considers that not only is the selection by the central authority of the workplaces to be inspected contrary to the objective of the Convention, but it also does not constitute an obstacle in itself to inspectors having a direct or indirect interest in the workplaces to be inspected and, moreover, serves to delay the inspection, which may prejudice its relevance and effectiveness.

The Committee therefore requests the Government to take appropriate measures to ensure that the legislation complies fully with Article 15(a) of the Convention and to keep the ILO informed of any progress made in this regard.

Articles 20 and 21. The Committee notes that no annual inspection report has been received by the ILO. It invites the Government to refer to paragraphs 272 et seq. of its General Survey, in which it indicates the importance to be attached to the publication and communication to the ILO of such a report and to ensure that the central labour inspection authority rapidly meets its obligations in this regard. The Committee requests the Government to provide information on any progress made in this respect.

Labour inspection and child labour. Referring to its general observation of 1999, the Committee hopes that the Government will take necessary measures to increase the involvement of the labour inspectorate in combating child labour and that relevant information will be supplied in its next report and also, as soon as possible, in an annual labour inspection report.

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The Committee notes the Government’s report in partial reply to its previous comments, and particularly the points raised by the Trade Union Federation of State Workers Unions (FENASTEG) and the Trade Union Confederation of Guatemala (UNSITRAGUA).

In addition, the Committee notes the further comments on the application of the Convention submitted by UNSITRAGUA on 27 October 2002 and 25 August 2004, which were forwarded by the ILO to the Government on 18 December 2002 and 2 September 2004, respectively. The Government has not provided information in reply to these comments.

1. Articles 5(a) and 18 of the Convention. Inter-institutional cooperation for the effective application of appropriate penalties. The Committee notes in particular with interest the information supplied on the manner in which Decree No. 18-2001 ensures the effective application of appropriate sanctions for non-compliance with the legal provisions covered by labour inspection. The Committee notes that labour inspectors are now empowered to impose financial penalties and to fix their amount based on the gravity of the violation by multiplying the minimum wage by between two and 12 times. Moreover, the effective application of sanctions is ensured by the possibility for labour inspection to have orders of executory force made rapidly by judicial means. The Committee would be grateful if the Government would provide a copy of any court decision giving executory force to a penalty imposed by the labour inspection authority.

2. Article 6. Status and conditions of service of labour inspection staff. Referring to the comments made by FENASTEG on the status of labour inspectors relating to the lack of stability of their employment, the level of their remuneration and their poor working conditions, and particularly the abusive working hours, the Committee notes that, according to the Government, labour inspectors are governed by the Civil Service Act, which ensures their stability. The Government states that, while overtime work by inspectors is not remunerated, a scheme is used to compensate for overtime through a rest period that is double the overtime worked. They are also granted financial and social benefits. The Committee requests the Government to provide a full copy of the legal provisions providing the basis for the compensation of overtime work and the other social benefits granted to inspection staff, as well as a copy of any document which illustrates their application in practice.

3. Article 11. Adequacy of resources for an effective labour inspection. With regard to FENASTEG’s comments on the insufficiency of resources, logistical means and transport facilities, and the level of remuneration of labour inspectors, which is further diminished by the failure to reimburse their professional travel expenses, the Government emphasizes that labour inspectors who are based in the premises of the Ministry of Labour and Social Security have modern, appropriate and well-equipped offices. The Ministry of Labour adds that means necessary for the performance of all of its functions, including labour inspection, are acquired frequently and that travel and incidental expenses are covered by allowances to inspectors, either in the form of advances or reimbursement afterwards. The Committee asks the Government to provide further information, particularly on the situation of external labour inspection services and offices, the quality and equipment of their offices, the transport facilities available to inspectors and the travel allowances granted to them. It asks the Government to provide copies of any relevant legal texts and any documents illustrating the effect given to them in practice.

4. Article 15(c). Obligation of confidentiality as to the source of complaints. With regard to the allegations of UNSITRAGUA concerning the incapacity of labour inspectors to protect workers from reprisals by the employer, the Government indicates that all the complaints made by workers are dealt with in the same manner by the labour inspection, including those relating to reprisals as a result of a denunciation of a violation of an employer’s obligations. The Committee is bound to emphasize in this regard that, pursuant to Article 15(c) of the Convention, labour inspectors should treat as absolutely confidential the source of any complaint bringing to their notice a defect or breach of legal provisions, subject to such exceptions as may be made by national legislation, and should give no intimation to the employer or her or his representative that a visit of inspection was made in consequence of the receipt of such a complaint. The Government is urged to take appropriate measures with a view to ensuring, both in law and practice, the confidentiality of sources of complaints in accordance with this provision, which is of crucial importance for the collaboration of workers during inspection visits. It is also requested to provide practical information, such as copies of decisions taken against employers who made use of reprisals or copies or extracts of decisions protecting workers threatened by dismissal in such circumstances. The Government is also asked to indicate any exceptional cases in which it is provided in the legislation that the obligation of confidentiality may be raised.

5. Article 3, paragraph 1(b). Provision by labour inspectors of technical information and advice on the application of the legislation. In its comments of October 2002, UNSITRAGUA 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. As the labour inspectorate, by decision No. LPR/ahd 6133-2002 dated 25 July 2002, refused to take a position on this matter, UNSITRAGUA appealed to the hierarchical authority, namely the Ministry of Labour and Social Security, on 19 September 2002 for this decision to be declared unlawful. As the appeal was unsuccessful, this forced labour practice has been continuing with impunity and the indifference of the competent labour inspectorates.

6. Scope of the labour inspection system. UNSITRAGUA moreover drew attention to the conditions of recruitment of state employees belonging to the budgetary category 029. It appears that this category was established to allow the recruitment of skilled professional and technical personnel for specific products and periods. These workers do not have the status of public employees and their contracts are renewed for as long as funds are available. The workers do not have the right to the statutory benefits to which permanent employees are entitled and are not paid for the hours worked in excess of the normal working day. The Committee asks the Government to indicate the branches of the economy in which category 029 workers are employed. If they are engaged in industrial or commercial activities, the Committee urges the Government to take the necessary measures to ensure that they are adequately protected by the labour inspection system.

7. In its observations of 2004, UNSITRAGUA reiterates and develops the questions previously raised and focuses in particular on issues relating to: the inadequate coverage of the labour inspectorate; the incompatibility of the status and conditions of service of labour inspectors with the principles of independence, impartiality, probity, discretion and confidentiality, which are indispensable for the proper performance of the functions of labour inspection; the inadequacy of the training of inspectors and their material conditions of work; the paucity of transport facilities and ineffectiveness of the measures to penalize violations of the labour legislation (Articles 2, 3, 6, 7, 11, 12, 15(a), 17 and 18).

The Committee requests the Government to provide any information that it considers appropriate with respect to the points repeatedly raised by UNSITRAGUA and to support such information with any relevant documentation.

The Committee is addressing a request directly to the Government on other points.

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Referring also to its observation, the Committee would be grateful if the Government would provide information on the following points.

Article 6 of the Convention. The Committee requests the Government to keep the ILO informed of developments relating to the draft conditions of service of labour inspectors announced in its report.

Articles 10 and 16. Noting the Government’s indication of an increase in the staff of the Labour Inspectorate during the year 2000 and of the establishment of a unit responsible for carrying out routine inspections, the Committee however notes that the statistics for inspections contained in the tables appended to the Government’s report of 3 September 2001 differ from those contained in the Labour Statistics Bulletin 2000, as well as from those in the report dated 28 August 2002. The Government is once again requested to provide full and precise information on the number and geographical distribution of labour inspectors by category, as well as statistics of inspections presented, if possible, in the manner recommended in points (c) to (d) of Part IV of Recommendation No. 81, which supplements the Convention.

Article 15(a). With reference to its previous comments, the Committee notes that, according to the Government, the supervisory procedures have been strengthened so as to ensure that labour inspectors do not have a direct or indirect interest in the enterprises under their supervision. The Committee requests the Government to describe these procedures and to provide a copy of any relevant text.

Articles 20 and 21. While noting the information contained in the Labour Statistics Bulletin 2000 relating to inspections and employment accidents, the Committee would be grateful if the Government would rapidly take measures to ensure the publication and communication to the ILO by the central labour inspection authority within the time limits set out in Article 20, of a general annual report on the work of the inspection services under its control, containing the information required on all the matters set out in Article 21.

Workplaces covered by the labour inspection system. The statistical tables of inspections show trade unions as a branch of activity in the same way as commercial and industrial workplaces. Inspections of them are carried out by labour inspectors, either upon request or automatically. The Committee would be grateful if the Government would indicate the nature and purpose of such inspections.

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The Committee notes the Government’s reports, the partial replies to its previous comments, the attached documents and the text of Decree No. 18-2001 amending the Labour Code. It also notes the communication by the Government on 19 September 2002 of the observations made by the National Federation of State Workers’ Unions (FENASTEG) and the Trade Union Confederation of Guatemala (UNSITRAGUA) concerning the application of the Convention. The Committee notes that the Government do not reply to the points raised by these observations.

According to FENASTEG, the public administration interferes in the functions of labour inspectors. Furthermore, inspectors are not assured of stability of employment and do not have at their disposal the necessary resources and materials for the performance of their duties. It deplores the failure to comply with procedures for the application of the penalties imposed for infringements of legal provisions, and the exclusion from the scope of labour inspection of conflicts between State employees and their employers.

In the view of UNSITRAGUA, labour inspectors should not be confined to the sole function of supervision and taking action in the event of infringements and should also discharge the functions of mediation and the education of employers. It adds that the means of transport available to labour inspectors are inadequate and their expenses for professional travel are not reimbursed. Considering the remuneration of labour inspectors as being inadequate and describing as forced labour the performance by the latter of their work without pay outside normal working hours, the trade union has also made observations along the same lines concerning the application by the Government of Conventions Nos. 29 and 105 on forced labour. Finally, according to the trade union, the labour inspectorate does not have the capacity to protect workers making complaints against any reprisals.

Noting the Government’s indication of the existence of procedures for the payment of additional hours carried out by labour inspectors, the Committee would be grateful if it would provide a copy of any text and of any relevant documents or forms.

The Government is also requested to provide additional information on the manner in which effect is given in law and practice to Articles 6, 11 and 15 of the Convention concerning, respectively, the status and conditions of service of labour inspectors, the arrangements for the use of transport facilities and the reimbursement of travelling expenses for labour inspectors and; finally, the obligation of confidentiality with regard to the source of any complaint bringing to their notice a defect or breach of legal provisions.

Articles 5 and 18 of the Convention. The Committee notes with interest the new provisions introduced by Decree No. 18 of May 2001 amending sections 269 et seq. of the Labour Code establishing procedures for the imposition of penalties with a view to ensuring that they are effectively applied in cases of infringements that are duly reported by labour inspectors. Noting that these provisions usefully supplement section 281(c) of the Labour Code, under which labour inspectors are authorized to have recourse to public forces to bring to an end any resistance preventing them from discharging their functions, the Committee requests the Government to provide information on the application of this procedure in practice and on the progress achieved in the application of the legal provisions enforceable by labour inspectors.

The Committee is addressing a request directly to the Government on other matters.

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The Committee notes the Government’s report for 1999 and the attached documents. It notes with interest the information concerning the various types of coordination between the inspection services and other public bodies and institutions conducting similar activities. It notes in particular that the labour inspection service maintains coordination in regard to supervision of the legal provisions relating to occupational health and safety with the National Social Security Institute and that seminars for labour inspectors were given in 1998 by a delegation of the Argentine Ministry of Labour.

The Committee notes with interest that, according to information available at the ILO, the modernization of the labour administration is planned in the framework of the international cooperation and technical assistance project entitled Modernization of Labour Administrations in Central America (MATAC‑ILO). It hopes that the Government will supply information regularly on the progress of this project in regard to the application of the provisions of this Convention and that measures will be taken, in particular, to publish and communicate annual labour inspection reports in accordance with the form and content prescribed in Articles 20 and 21 of the Convention.

The Committee notes the information that the number of labour inspectors rose between 1998 and 1999. It notes, however, a considerable decrease in this number in comparison with the numbers given by the Government in its 1995 report. The Government is requested to supply details allowing the Committee to assess the current labour inspection staffing situation in the light of the criteria laid down in Article 10 to ensure in particular that inspections of workplaces are as frequent and thorough as laid down in Article 16.

The Committee notes that, according to the Government, the transport facilities allocated to the inspection service are inadequate for its needs and that a modernization unit has been set up within the Ministry to take measures aimed at improving the situation in this regard. Drawing the attention of the Government to the provisions of Article 11, the Committee would be grateful if it would supply information on the transport means and facilities as well as on any financial arrangements established or envisaged to reimburse labour inspectors for any travelling and incidental expenses they incur in the performance of their duties.

The Committee once again requests the Government to supply details on the manner in which effect is given to Article 15(a) which stipulates that labour inspectors shall be prohibited from having any direct or indirect interest in the undertakings under their supervision.

Noting the statistics on inspections provided by the Government, the Committee requests it to give further information on the frequency of routine inspections.

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The Committee notes the Government's report for the period ending 30 June 1997. It requests further information on a certain number of points.

Article 5 of the Convention. The Committee asks the Government: (i) to provide information on the particular forms of cooperation between the labour inspection and the Presidential Commission on Human Rights, the Human Rights Office (Procuraduría de los Derechos Humanos), the Office of the Public Prosecutor (Ministerio Público), the National Police (Policía Nacional), the General Directorate of Migration (Dirección General de Migración), and the Institute of Social Security; (ii) to indicate the measures that have been undertaken or are envisaged in order to ensure effective cooperation between the labour inspectorate and different government services in the area of prevention and supervision over the safety and health at work; and (iii) to indicate the body responsible for coordination of actions of inspection services and various governmental services in the area of safety and health at work.

Article 6. The Committee asks the Government to provide information enabling it to compare the average annual salary of labour inspectors with that of public officials and the average annual wage in Guatemala.

Article 7. The Committee asks the Government to provide details on the training opportunities for labour inspectors in the course of employment.

Article 8. Please provide information on the percentage of women appointed to the inspection staff in general and the relative percentage of women in higher grades of the labour inspection in particular.

Article 10. Please indicate whether there were any changes in the actual number of labour inspectors and their distribution among the capital and particular regions. Please also indicate whether ten new positions of labour inspectors, mentioned in the latest Government's report, have been established and what other measures have been undertaken or are envisaged in order to increase the number of labour inspectors.

Article 11. The Committee asks the Government to indicate the geographical distribution of cars and other means of transport furnished to labour inspectors in relation to the number of inspectors.

Article 15. The Committee asks the Government to provide information on the practical application of Article 15, paragraph (a) of the Convention and, in particular, on the criteria and the procedure for its enforcement.

Article 16. The Committee asks the Government to indicate: (i) the total number of workplaces liable to inspection; (ii) the number of workplaces inspected during the latest reporting period; and (iii) the usual period between two consecutive planned inspections at each single workplace.

Article 20. The Committee notes that no copy of the annual general report of the central inspection authority of Guatemala was received. The Committee asks the Government to provide a copy of such report within the time limits set forth by paragraph 3 of Article 20 of the Convention and to indicate the procedure for access to the report by an interested party.

Article 21. The Committee asks the Government to take into consideration that annual reports of the central inspection authority should deal in particular with the subjects listed in Article 21 of the Convention, including, but not limited to, statistics of industrial accidents and statistics of occupational diseases (Article 21(f) and (g)).

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The Committee notes the information contained in the Government's report, in particular as regards the number of labour inspectors (98 inspectors, of whom 55 are in the metropolitan area). It requests the Government to indicate whether these numbers are considered to be sufficient, taking into account that the Government carries out inspection visits according to a set programme, to ensure that workplaces are inspected as often and as thoroughly as is necessary (Articles 10 and 16 of the Convention).

The Committee further notes that even though no annual inspection report has been transmitted to the ILO, the introduction of a system of ex officio inspections will allow the supply of statistical data on the subjects referred to in Article 21(c), (f) and (g). The Committee underlines the importance of the compilation and publication of annual inspection reports as a means of ensuring the proper functioning of the system of labour inspection. It hopes that such an annual report containing all the information required by Article 21 will be regularly transmitted to the ILO within the time-limits set by Article 20.

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The Committee notes that the Government's report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

Article 20 of the Convention. The Committee hopes that annual reports on the activities of the labour inspection services will in future be provided within the time-limits set by the Convention.

Article 21. The Committee notes that, although the annual report on the activities of the inspection service for 1989 is concise and contains most of the required information, statistics of workplaces liable to inspection and the number of workers employed therein, industrial accidents and occupational diseases (points (c), (f) and (g)) are not included in the report. The Committee hopes that the necessary measures will be taken to ensure that these data are collected and included in the next annual report.

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The Committee notes that the Government's report on the Convention has not been received, although the annual inspection report for 1989 has been supplied. The Committee hopes that the Government will supply a report on the Convention for examination at its next session.

Article 20 of the Convention. The Committee hopes that annual reports on the activities of the labour inspection services will in future be provided within the time-limits set by the Convention.

Article 21. The Committee notes that, although the annual report on the activities of the inspection service for 1989 is concise and contains most of the required information, statistics of workplaces liable to inspection and the number of workers employed therein, industrial accidents and occupational diseases (points (c), (f) and (g)) are not included in the report. The Committee hopes that the necessary measures will be taken to ensure that these data are collected and included in the next annual report.

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Article 20 of the Convention. The Committee notes that the annual reports on the work of the labour inspection services for 1987 and 1988 have not been received by the International Labour Office. It expresses the hope that, in future, these reports will be published and transmitted within the time-limits laid down by this Article of the Convention.