Labour Inspection (Agriculture) Convention, 1969 (No. 129) - Guatemala (RATIFICATION: 1994)

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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.

Article 12(1) of the Convention. Inter-institutional cooperation for the enforcement of legal provisions relating to the conditions of work and protection of workers in agriculture. In its previous comments, the Committee noted the conclusion by the Ministry of Labour and Social Welfare (MTPS) and the Guatemalan Social Security Institute (IGSS) of an inter-institutional agreement for joint inspections, which are to give priority to areas which, according to a preliminary study, show a higher incidence of problems in worker–employer relations, social insurance, occupational safety and health and compliance with labour provisions in general, with emphasis on the payment of IGSS contributions. It requested the Government to provide information on the results of such joint inspections, particularly with regard to agricultural undertakings. The Government indicates that the IGSS has adhered to this agreement, under the terms of which it provides the General Labour Inspectorate, within the first five days of each month, with a list of enterprises which have not complied with or are in arrears with the payment of their corresponding contributions. It adds that with regard to the banana sector, the MTPS has established a dialogue forum in the department of Izabal with a view to maintaining productivity and social peace in the sector, to resolve the issue of the contributions that have to be paid to the IGSS. Within this framework, establishments in the sector are being inspected jointly by the MTPS and the IGSS. The Committee asks the Government to provide information on the results of these inspections in relation to the application of legal provisions relating to conditions of work and the protection of workers while engaged in their work, such as occupational safety and health provisions, working time, wages, and the employment of women and young persons.

Articles 17 and 19(1). Association of labour inspectors in agriculture in the preventive control of new plants, new materials or substances. Notification to labour inspectors of occupational accidents and cases of occupational disease. In its previous comments, the Committee noted that the electronic labour information system (SIL), which is available to the General Labour Inspectorate, will serve as a database for compiling data, including notifications of occupational accidents and cases of occupational disease in agriculture, and is to be supplemented in accordance with the instructions issued by the General Directorate of Social Welfare, with ILO technical assistance. It requested that the Government provide information on the progress achieved in the implementation of the register of occupational accidents and cases of occupational disease and its availability to labour inspectors in the various regions of the country. The Government indicates that, as envisaged in Ministerial Decision No. 191-2010, the MTPS, through the General Directorate of Social Welfare and the Department for Occupational Safety, provides employers with electronic forms for the notification of occupational accidents and cases of occupational disease, while the harmonized system of the General Directorate of Social Welfare and the General Labour Inspectorate is being improved. The Committee requests the Government to specify the cases and the manner in which the labour inspection services in agriculture are associated in the preventive control of new plant, new materials or substances and new methods of handling or processing products which appear likely to constitute a threat to health or safety. It also asks the Government to report on the entry into operation of the harmonized notification system for the General Directorate of Social Welfare and the General Labour Inspectorate, as well as the impact of the notification of occupational accidents and cases of occupational disease on the discharge of their preventive function by inspection services in agriculture.

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The Committee also refers to its comments under the Labour Inspection Convention, 1947 (No. 81), in so far as they are also concerned with the application of the present Convention.

The Committee notes the observations of the Guatemalan Union, Indigenous and Peasant Movement (MSICG), received on 3 September 2014. In this respect, the Committee refers to its comments under Convention No. 81. It further notes the observations made by the Trade Union of Workers of Guatemala (UNSITRAGUA), received by the Office on 22 October 2014. The Committee requests that the Government provide its comments on this subject.

Articles 6(1)(a)–(b) and (2), 21, 23, 24 and 27(e). Inspection of working and living conditions in agricultural undertakings, advisory services provided by inspectors and frequency of inspections. In its previous comments, the Committee requested that the Government provide information on the inspections carried out, including in banana plantations, and their results, including supervision of compliance with the legal provisions on freedom of association. The Government indicates that in 2013 the first plan of focused and regional inspections was implemented, as a consequence of which 54,989 interventions were carried out, of which 36,884 were performed by the inspection unit and 18,105 by the conciliation unit. In the course of these interventions, verification was obtained separately in respect of payment of the minimum wage, social security registration, and the worst forms of child labour in various sectors, including the agricultural sector. Interventions were carried out in 1,561 agricultural, export and maquiladora (in export processing zones) enterprises, during which ten young persons between 14 and 17 years of age and no children under this age were identified. From the information provided by the Government in its report, it appears that this plan is aligned with the operations undertaken in support of the national policy on food security to verify compliance with the payment of minimum wages and other statutory benefits in agricultural and agro-exporting undertakings. However, the Committee considers that the information provided does not provide a clear idea of inspection activities, and particularly inspections carried out by labour inspectors in agricultural undertakings. The Committee once again requests the Government to provide information on the inspections carried out and the information and advisory activities specifically undertaken in agricultural undertakings (including banana plantations), as part of the ordinary plan, including with reference to the enforcement of provisions on freedom of association, with an indication of the number of inspections carried out by inspectors in undertakings, the violations reported and the respective legislation, and the penalties imposed. It also requests the Government to provide information on the number and situation of agricultural undertakings liable to inspection (Article 14(a)(i)) and the number and categories of workers in those undertakings (Article 14(a)(ii)), the criteria used for planning inspections in agricultural undertakings and the measures adopted to ensure that they are carried out with the necessary thoroughness and frequency to ensure compliance with the respective legal provisions, as required by Article 21 of the Convention.

Article 9(3). Requirement of specific training for labour inspectors in agriculture. In its previous comments, the Committee requested that the Government take the necessary measures without delay to ensure that labour inspectors in agriculture receive initial training and specific further training suited to the duties they perform and which cover the human, environmental and technical aspects of their work. The Government has provided information on the training organized for inspectors at the national level between 2010 and 2013. From this information, the Committee observes that only one training activity on the use and application of the inspection protocol for agriculture was organized in the city of Guatemala; 21 inspectors from various delegations participated in this training between 26 and 27 July 2010. The Committee therefore once again requests that the Government adopt relevant measures to ensure that labour inspectors receive initial training and the opportunity for further training during the course of their employment which is suited to the discharge of their duties in agriculture, and which takes into account developments in technology and working methods (risks of accidents and pathologies inherent, in particular, to the use of machinery and tools and the handling of chemical products and substances).

Article 15(1)(b) and (2). Transport facilities and reimbursement of travel expenses to inspectors. In its previous comments, the Committee requested that the Government describe the transport facilities assigned specifically to labour inspectors in agriculture and the procedure for reimbursing the travel expenses necessary for the performance of their duties. The Committee notes that the Government has not provided any information on the transport facilities available at the labour inspectorate. However, it notes that the Government indicates that priority has been given to covering, among other items, the travel expenses and fuel of inspectors. With reference to the payment of travel expenses, the Committee notes that this is done on a case-by-case basis through the submission of a duly completed form to the supervisor, who in turn forwards it to the departmental delegate, who then forwards it to the general labour inspector or the departmental director for their signature. The general labour inspector or the departmental director, as appropriate, returns the form on the following working day. Once signed by the inspector’s superior, payment is sent to the Accounts Department of the Financial Administration Unit of the Ministry of Labour and Social Welfare. The Committee once again requests the Government to describe the transport facilities available to labour inspectors for the performance of their duties in agriculture and their geographical distribution.

Articles 26 and 27. Annual report on the work of the labour inspection services in agriculture. The Committee notes that the Government has not provided the annual report. The Committee urges the Government to ensure that the central inspection authority adopts the necessary measures for the publication and communication to the ILO, within the time limits set out in Article 26, of an annual report on the work of the labour inspection services in agriculture, either as a separate report or as part of its general annual report, containing the information required by Article 27. The Committee invites the Government to consider the possibility, if necessary, of having recourse to the technical assistance of the Office for this purpose.

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

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The Committee notes the comments made by the Indigenous and Rural Workers’ Trade Union Movement of Guatemala (MSICG), sent to the Government by the Office on 15 September 2010. The Committee asks the Government to refer to its comments under the Labour Inspection Convention, 1947 (No. 81), in so far as they also concern the application of this Convention. The MSICG asserts that the Ministry of Labour and Social Welfare has refused to supervise compliance with the legislation in more than 90 plantations about which there have been complaints, or to establish coordination with the organization for that purpose. The MSICG also alleges that the Ministry has refused to carry out visits to verify the violations of freedom of association and other labour rights, such as payment of minimum wages, that the organization has itself reported since 2008 in connection with 71 plantations. The MSICG further alleges that the Ministry published the whereabouts of the offending workplaces and some of the issues which were to be checked. According to the MSICG, in most cases the inspectors did not visit the plantations, and when they did, they met only with the employers.

Articles 3, 4, 6(1)(a) and (b), 9(3), 15 and 21, 27(d) and (e). Supervision of working and living conditions in agricultural undertakings, training of labour inspectors in agriculture, financial resources and transport facilities available to inspectors in agriculture. The Committee notes the tables pertaining to the operational plans for ex officio inspection visits conducted in plantations located in various jurisdictions in the period 2009–11. It notes with interest that owing to the food crisis prevailing in some departments in Guatemala, the labour inspectorate devised a programme for support to the national food security policy, which consisted of operations to verify compliance with the law in agricultural and agro-export undertakings, the aim being to secure their compliance with the requirement to pay the minimum wage and other statutory benefits so that workers and their families are able to afford the basic food basket. It also notes a number of operational plans showing schedules of inspection visits for the agricultural sector which appear to pertain to the period 2008–10. The Committee would be grateful if the Government would provide general information on inspections carried out for the purposes of supervision and provision of technical information and advice in agricultural undertakings including banana plantations, and the results of these visits, including supervision of compliance with the legal provisions pertaining to freedom of association, the penalties imposed and their execution. The Committee also once again asks the Government to indicate whether labour inspectors have verified the evolution in working conditions in the agricultural undertakings covered by the collective labour agreements sent to the Office, which expired in 2008 and 2009.

The Committee requests the Government to provide information on the results of the operations conducted in support of the national food security policy, specifying the contraventions reported and the penalties imposed. Lastly, the Committee would be grateful if the Government would specify the criteria taken into account in scheduling regular inspection visits to agricultural undertakings and would indicate the frequency with which scheduled regular visits are carried out in one and the same undertaking, and the scope of such visits.

With regard to its comments of 2009 on special training for inspectors in agriculture, the Committee notes the Government’s statement that the purpose of the training activities is to provide inspectors with varied training as part of a diploma course, the training being provided with the cooperation and support of a foundation and other institutions. The Government also mentions a masters course in the administration of human resources and labour legislation, which ended in 2009 and which was organized thanks to an agreement concluded with the Universidad Galileo de Guatemala. The Committee notes that according to the table included in the Government’s report, the one-day training courses organized for labour inspectors between August 2009 and January 2010 covered the following topics, in particular: the basics of administration; work ethics; service to users, mercantile law and notarial law.

With regard to the financial and material resources available to inspectors in agriculture, the Committee observes that the General Labour Inspectorate has to apply to the Ministry’s financial authorities for the resources, official vehicles and fuel needed for each inspection campaign.

The Committee stresses that the specific nature of work in the agricultural sector involves specific risks for the workers (for example, risks related to the handling and use of chemicals and agricultural machinery), and requires special skills that labour inspectors must be able to acquire or perfect through appropriate training (Article 9(3)), transport facilities that take account of the distance and remote location of agricultural undertakings, and adequate equipment for measurement and analysis (Article 15). The Committee requests the Government to adopt the necessary measurements without delay to ensure that labour inspectors in agriculture receive initial training and further training suited to the duties they perform and which covers the human, environmental and technical aspects of their work, and requests it to report to the Office any progress made in this regard. It would also be grateful if the Government would: (i) describe the transport facilities assigned specifically to labour inspectors in agriculture (indicating their geographical distribution); (ii) explain the procedure for refunding to labour inspectors in agriculture the travel costs incurred in the performance of their duties and to provide a copy of the relevant claim form. The Committee again asks the Government to send any documents illustrating the manner in which inspection visits are carried out in agricultural undertakings (standard form, records of inspections, etc.).

Articles 6(1)(a), 12(1), 15 and 16(1)(c)(iii). Inter-institutional cooperation in the area of preventive control. The Committee notes that the Ministry of Labour and Social Welfare and the Guatemalan Social Security Institute (IGSS) have signed an inter-institutional agreement for joint inspections. The agreement provides that the schedule of joint inspection visits shall be set giving priority to areas which, according to a preliminary study, show a higher incidence of problems in worker–employer relations, social welfare, occupational safety and health and compliance with labour provisions in general, with an emphasis on the payment of IGSS contributions. Noting that approval from the Board of the IGSS was required in order to execute the agreement, the Committee requests the Government to indicate whether such approval was obtained. Furthermore, the Committee would be grateful if the Government would provide specific quantitative information on the joint inspection visits eventually held in this context, particularly in agricultural undertakings, indicating the number of undertakings concerned, the number of workers they employ, and the contraventions reported (indicating the legal provisions concerned).

Noting that the Government has not replied to the request the Committee made in 2009 regarding inspectors’ participation in preventive controls, the Committee again asks the Government to send with its next report copies of the relevant legal provisions together with any other document relating to this matter, including statistics, and of the recommendations made by the IGSS, the measures ordered and the court proceedings initiated in this context.

Article 19(1). Notification to labour inspectors of occupational accidents and cases of occupational disease. The Committee notes with interest that since 2010 the General Labour Inspectorate has had an electronic labour information system (SIL), in which all the particulars of employers are recorded. According to the Government, this is to serve as a base for compiling data, including notifications of occupational accidents and cases of occupational disease in agriculture, and is to be supplemented in accordance with instructions issued by the General Directorate of Social Welfare, with technical advice from the ILO. The Committee requests the Government to provide information on all progress made in setting up the register of occupational accidents and cases of occupational disease and in making it available to labour inspectors in the various regions of the country so that they may use it as a basis in performing their preventive duties.

Articles 26 and 27. Annual report on the work of the labour inspection services in agriculture. The Committee notes that the annual labour inspection report has not been sent. It requests the Government to provide information on the impact of the SIL and the register of enterprises on the efforts made by the central authority to comply with its obligation under Articles 26 and 27 to publish, as a separate report or as part of its general annual report, and to communicate to the Office, an annual report on the work of the labour inspection services in agriculture, within the time limit prescribed under Article 26, and which contains information on each and every one of the items listed at Article 27. The Committee draws the Government’s attention to the useful guidance contained in the Labour Inspection (Agriculture) Recommendation, 1969 (No. 133), as to the amount of detail and the presentation of the information to be included in the annual inspection report.

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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) for the defence of workers’ rights 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 received on 25 September 2008 and the numerous documents attached. It notes in particular the analysis of the labour inspection system carried out by the ILO in 2008 and the resulting action plan drawn up to improve its operation.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Also referring to its observation, the Committee requests the Government to supply additional information on the following points.

Article 17 of the Convention. Preventive controls in agricultural undertakings. The Committee once again requests the Government to indicate whether and in what cases provision is made, in accordance with this provision of the Convention, for the association of the labour inspection services in agriculture in the preventive control of new plant, new materials or substances and new methods of handling or processing products which appear likely to constitute a threat to health or safety.

Article 19, paragraph 1. Notification of occupational accidents and cases of occupational disease to labour inspectors. The Committee recalls that, under the terms of this provision, the labour inspectorate shall be notified of occupational accidents and cases of occupational disease in such cases and in such manner as may be prescribed by national laws or regulations. With reference to its general observation of 1996 concerning the notification and registration of occupational accidents and diseases, the Committee draws the Government’s attention to the fact that one of the aims of the notification of accidents and cases of occupational disease to the labour inspectorate is to enable the latter to better identify high-risk agricultural enterprises and activities and to contribute to the establishment and implementation of a suitable policy for the prevention and elimination of the causes involved. In this sector, specific occupational risks exist, such as those connected with the operation of certain installations, the use and handling of phytosanitary products which are dangerous for health and the environment, pathologies transmitted by animals, or risks arising from insect bites and stings. The preventive role of the labour inspectorate may take the form of various activities, including information campaigns for employers, agricultural workers and the members of their families living on the agricultural premises, on these risks and the means of avoiding them and, at an individual level, by orders to the employer responsible for taking measures to this end on pain of penalties and by monitoring the implementation of these orders. Whenever the inspector is informed of an accident or the occurrence of a case of occupational disease in an enterprise placed under his control, his role is to ensure that the employer complies with his legal obligations with respect to the worker affected or, in the event of a worker’s death, with regard to his dependants. The Committee therefore requests the Government to take measures as soon as possible to ensure that the legislation is supplemented in such a way that the cases and manner in which the labour inspectorate is to be notified of occupational accidents and cases of occupational disease are defined, and to keep the Office informed.

Articles 25, 26 and 27. Periodic reports and annual report on the work of the labour inspectorate. With reference to its observation under Convention No. 81, the Committee hopes that the measures adopted in the context of the “Centroamérica cumple y gana” project will be used to facilitate the production of periodic reports on the work of local inspection offices in agricultural undertakings, as provided for by Article 25, and that these reports will enable the central inspection authority to publish and send, in accordance with Article 26, an annual report on the work of the inspection services in agriculture, either as a separate report or as part of its general report, and that this report will contain the information required by Article 27. In this respect, the Committee reminds the Government of the guidance provided by Part IV of Recommendation No. 81 on how the information required by Article 27 can be presented to good effect.

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The Committee notes the Government’s detailed report for the period ending on 1 September 2006, containing information in reply to its previous comments, particularly with regard to the comments made by the Trade Union Confederation of Guatemala (UNSITRAGUA) in October 2002 and August 2004, and also by the National Federation of State Workers’ Unions of Guatemala (FENASTEG) in October 2002. The Committee also notes the documents attached as appendices to the report.

1. Articles 8 and 20(a) of the Convention. Need to improve the conditions of service of labour inspectors with a view to respecting the professional code of ethics. Since this issue also concerns the application of Convention No. 81, the Committee invites the Government to refer to its comments under Articles 6 and 15(a) of this Convention.

2. Articles 15 and 16, paragraph 1(c)(iii). Reinforcing technical investigation equipment and instruments for inspectors in agriculture. The Committee notes that, in reply to the comments from UNSITRAGUA concerning the lack of suitable equipment for taking and analysing samples of products handled in agricultural undertakings, the Government states that labour inspectors have the support of the Social Security Institute for this purpose, and this, it claims, remedies the deficiencies of the labour inspectorate in this field. The Committee requests the Government to indicate: (i) the practical arrangements for this cooperation, i.e. indicate the geographical distribution of the competent structures of the Social Security Institute; (ii) by whom and by what means samples of products, chemicals or pesticides handled and used in agricultural undertakings are taken; (iii) within what deadlines and in what manner the inspectors concerned are notified of the results of the analyses undertaken; (iv) whether the Social Security Institute makes relevant recommendations in cases of reported irregularities which might constitute a danger for workers; and (v) if applicable, the measures taken by the labour inspectorate as follow-up. The Government is also requested to send copies of any relevant documents.

3. Article 9. Suitable training for labour inspectors in agriculture. Improvement of technical skills. Since UNSITRAGUA considers that inspectors also lack the necessary training to exercise their powers in the field of technical and scientific investigations, the Government has supplied information of a general nature on the training of labour inspectors as a whole. The Committee notes this information, but considers that efforts should be made to improve the particular skills necessary for inspecting conditions of work in agriculture which expose workers, their family members and the environment to specific risks. Recent information has highlighted the adverse effects on both workers and the general public of products used for treatment in banana plantations in certain countries. It is important that the labour inspectorate, which has free access to agricultural undertakings and which has legal powers with respect to the control of products and substances, should be able to play its role fully in this regard. The Committee therefore requests the Government to take measures as quickly as possible to provide labour inspectors in agriculture with adequate skills and to keep the Office informed.

4. Improvement of means of communication for labour inspectors in relation to indigenous peoples. With regard to the issue raised by UNSITRAGUA concerning inspectors’ lack of knowledge not only of the languages but also of the customs of indigenous peoples and the resulting difficulties of communication for the performance of their duties in the agricultural undertakings of the regions concerned, the Committee notes with satisfaction that, following the reduction in the language training programmes of the Mayan Languages Academy which were launched for officials in 2004, an agreement has been reached with the authorities of the Kaqchikel linguistic community for the provision of this teaching and the teaching of other important aspects of Mayan culture. Some regional offices now have staff who speak the language of their area of activity and three-year postgraduate study programmes were launched in 2006 for officials of the Ministry of Labour. Moreover, in conformity with Decree No. 19-2003, the Ministry of Labour added to the job descriptions of various labour inspection posts the requirement of sufficient linguistic competence to be able to communicate with the populations of the areas in which they are required to perform their duties. These skills are taken into account for transfers and promotions.

5. Articles 18, 22, 23 and 24. Role of labour inspectors in agriculture in the prosecution and sanction of contraventions. Referring also to its comments under Convention No. 81 (Articles 13, 17 and 18), the Committee would be grateful if the Government would indicate the manner in which effect is given to the abovementioned provisions of the Convention to encourage agricultural employers to observe the legal provisions relating to conditions of work and the protection of workers.

6. Conditions of work in agricultural undertakings producing for multinational agri-food enterprises. In its previous comments, the Committee noted the information supplied by UNSITRAGUA to the effect that the legal provisions on the length of the working day did not apply in the abovementioned enterprises. The organization referred to conditions of work which resembled forced labour, with overtime imposed on workers to reach production targets not being paid. According to UNSITRAGUA, the Ministry of Labour has given full latitude to the employers concerned, in the context of collective bargaining, to exempt piecework from the scope of the legislation concerning overtime and the labour inspectorate refused, by resolution LPR/ahd 6133-2002 of 25 July 2002, to express an opinion on the matter. The complaint UNSITRAGUA filed against this resolution with the Ministry of Labour and Social Welfare on 19 September 2002 had no effect, and forced labour continues to be practised with impunity, meeting with indifference on the part of the labour inspection services. In its comments of 2004, UNSITRAGUA pointed out that the Ministry of Labour neither ordered nor even planned to order an investigation into the cases it referred to.

According to the Government, contrary to the allegations made by UNSITRAGUA, a committee composed of a labour inspector and a deputy labour inspector was established to deal with disputes in banana plantations. It also points out that the trade unions of the undertakings concerned have been negotiating a collective agreement on conditions of work for three years, with the support of the UNSITRAGUA legal department and with action on the part of the deputy labour inspector. The form of remuneration has been negotiated by the parties. Under section 88 of the Labour Code, remuneration can be according to unit of time, by item or according to participation in profits, etc. According to the Government, working hours in excess of eight hours during the day, seven hours in a combined period and six hours at night are duly paid. It considers that the allegation of forced labour is therefore unfounded. The Committee would be grateful if the Government would ensure that inspection visits are as frequent as possible in all enterprises where conditions of work contrary to the national legislation are suspected and supply all relevant information and copies of collective agreements concluded in undertakings which produce for multinational enterprises in the agri-food sector.

The Committee is raising a number of other matters in a direct request to the Government.

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Referring to its observation under the Convention, the Committee draws the Government’s attention to the following points:

Article 6, paragraph 1(c) of the Convention. According to the Government, labour inspectors are responsible for enforcing labour standards, but are not authorized to propose changes to the legislation. The Committee nevertheless draws its attention to the potential capacity of labour inspectors to draw attention to specific situations which are not covered by legal provisions, but which would need to be corrected. It would therefore be grateful if the Government would take measures to give effect to the above provision under which the functions of labour inspection should include bringing to the notice of the competent authority defects or abuses not specifically covered by existing legal provisions.

Article 6, paragraph 3. According to the Government, the impartiality of labour inspectors is ensured by section 281(j) of the Labour Code, under which reports of offences drawn up by inspectors are considered valid until proven otherwise, with labour inspectors being liable personally if partiality for one party is proven. The Committee emphasizes that the above provision is not intended specifically to cover intentional acts by inspectors, but also and particularly an accumulation of duties which might be incompatible with their duty of impartiality and authority in their relations with employers and workers. The Government is therefore requested to indicate the measures taken or envisaged with a view to ensuring that the duties entrusted to labour inspectors, other than those set out in Article 6, paragraphs 1 and 2, of the Convention, do not prejudice the impartial discharge of their duties.

Article 13. The Committee notes that, according to the Government, the only subjects currently under discussion in the Tripartite Committee on International Labour Affairs are focused on the amendment of the Labour Code. The Committee requests it to provide full information on the consultations held in this body on the provisions of the Code which deal with the areas covered by labour inspection in agriculture and on their outcome.

Articles 14 and 21. Noting the information provided in reply to its previous comments on the number of inspection staff and inspections carried out, the Committee notes the absence of data relating to the number of agricultural enterprises liable to inspection and the number of workers employed therein. In the absence of such data, it is impossible to evaluate whether the human resources available are adequate to achieve the objectives set out by the Convention. The Committee therefore requests the Government to ensure that relevant information is supplied regularly in future annual inspection reports.

Article 16

Paragraph 1(a) and (b). The Committee refers to its comments relating to Article 12, paragraph 1(a) and (b), of Convention No. 81 and asks the Government to keep the ILO informed of the measures taken or envisaged with a view to authorizing labour inspectors to: (a) enter agricultural workplaces freely and without prior notice at any hour of the day or night; and (b) enter by day any premises covered by subparagraph (b), without taking into consideration the ordinary hours of work in these establishments.

Paragraph 2. The Committee requests the Government to inform the ILO of the measures taken or envisaged to give effect to this provision, under which labour inspectors should not be authorized to enter the private home of the operator of the agricultural enterprise, as established in subparagraph (a) or (b) of paragraph 1 of Article 16, except with the consent of the operator or with a special authorization issued by the competent authority.

Paragraph 3. The Government is requested to indicate the manner in which effect is given to this provision, under which labour inspectors, on the occasion of an inspection visit, shall notify the employer or her or his representative, and the workers or their representatives, of their presence, unless they consider that such a notification may be prejudicial to the effectiveness of the inspection.

Article 17. The Committee requests the Government to take measures to determine the cases and the manner in which inspection services in agriculture should be associated in the preventive control of new plant, new materials or substances and new methods of handling or processing products which appear likely to constitute a threat to health or safety.

Article 18. The Government is asked to make sure that measures are taken to ensure that any defects noted by labour inspectors during inspections of a workplace, and any orders made under paragraph 2 of this Article, are, in accordance with paragraph 4, immediately made known to the employer and the representatives of the workers, and to keep the ILO informed of the measures adopted.

Article 19, paragraph 1. The Committee would be grateful if the Government would provide a copy of any legal provision, as well as the model of any relevant document, which requires the notification of occupational accidents and cases of occupational disease to the labour inspectorate.

Articles 26 and 27. No annual inspection report has been received by the ILO. The Government nevertheless indicates that statistics on inspection activities are currently being compiled, both for the capital and at the regional level. The Committee invites the Government to refer to paragraphs 272 and the following of its General Survey of 1985 on labour inspection concerning the national and international importance of an annual report as provided for by the above provisions of the Convention. It asks the Government to take this duly into account and to ensure that the central inspection authority is in a position to publish an annual inspection report containing the information required by Article 27 and to transmit a copy to the ILO within the established time limits.

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The Committee notes the Government’s report in response to its previous comments and the documentation attached. It also notes the observations of the Trade Union Confederation of Guatemala (UNSITRAGUA) submitted on 27 October 2002 and 25 August 2004, which were forwarded to the Government on 18 December 2002 and 2 September 2004 respectively.

Referring to its previous comments, the Committee notes the following points.

1. Language skills of inspectors necessary for their missions in certain agricultural regions. The Committee notes with satisfaction Decree No. 19-2003 issuing the National Languages Act. This Act is a very encouraging response to the point repeatedly raised by UNSITRAGUA, to which the Committee drew the Government’s attention, requesting it to take measures with a view to solving the language-related impediments to the discharge of inspection duties in agricultural undertakings in regions where Spanish is not understood by the indigenous populations. Indeed, in previous comments the Committee has considered it indispensable for labour inspectors to be able to interact sufficiently with the employers and agricultural workers concerned to ensure the effective discharge of their preventive and repressive duties. The objective of the above Act is the recognition, respect, promotion and development of the use of the languages of the Maya, Garifuna and Xinca peoples and to secure the use of these languages in the public and private sectors, as well as in educational, academic, social, economic, political and cultural circles. Pursuant to section 9 of the new Act, all legal provisions have to be translated by the Maya Languages Academy and disseminated in Maya, Garifuna and Xinca. Section 14 of the Act places the obligation upon the State to ensure that goods and services in the public sector are provided in the language of the linguistic community concerned and to promote this practice in the private sector. The Committee notes in particular that candidates for posts in the civil service should, pursuant to section 16, preferably have, in addition to Spanish, language skills facilitating the necessary interaction with the regional population. Measures are envisaged in the same section to achieve these objectives for the recruitment of public servants, in coordination with the Maya Languages Academy. The Committee notes with interest that, despite the financial difficulties involved in the application of this Act, the Ministry of Labour and Social Insurance has signed an agreement with the Maya Languages Academy, and courses in Quiché (one of the Maya languages) have already been commenced for the public servants concerned, including labour inspectors. The Committee requests the Government to continue to provide information on the measures adopted under the National Languages Act, and particularly on their impact on the effectiveness of the labour inspectorate.

2. Adequate training for labour inspectors in agriculture (Article 9, paragraph 3). The Committee notes with interest the strengthening of the skills of inspectors during their initial training in workshops and seminars covering, inter alia, agricultural workers. The Government is requested to provide detailed information on the periodicity of these training activities, their content and their impact on the functioning of labour inspection in agriculture. The Committee asks the Government to indicate whether inspectors subsequently benefit from further training in the course of their employment.

3. Transport facilities and arrangements for the reimbursement of the travel expenses of labour inspectors in agriculture (Article 15, paragraphs 1(b) and 2). The Committee notes the Government’s indication concerning the efforts made to provide labour inspectors with the necessary transport facilities and to grant travel allowances covering their travel expenses. The Committee asks the Government to provide details of the transport facilities allocated to labour inspectors operating in the agricultural sector and who, according to the Government, face particular difficulties in this regard. It also requests the Government to provide any relevant supporting documentation, including copies of provisions relating to the allocation of travel expenses.

4. Cooperation between labour inspection services and government institutions for the effective application of appropriate penalties (Articles 12 and 24). The Committee notes that the Government has not provided any information in its report on the measures necessary to ensure cooperation between inspection services and other competent government bodies for the effective application of appropriate sanctions. It notes that, under section 144 of the Labour Code, specific regulations are to be adopted for the agricultural sector in this regard. The Government is requested to provide copies of the regulations adopted under the provisions of section 144 and of any other text laying down the procedure for reporting offences relating to conditions of work in agricultural enterprises and the imposition of appropriate penalties.

The Committee also asks the Government to provide details on the manner in which it is ensured that the support of the competent public bodies is provided to labour inspectors, who are facing obstructions in the discharge of their duties in certain regions, such as the hostility of employers.

The Committee notes with interest that, under section 2 of Ministerial Order No. 364-2003 of 12 August 2003 establishing the Indigenous Peoples Department in the Ministry of Labour and Social Insurance, the labour inspectorate and the Office of the Labour Ombudsperson cooperate under the coordination of the new Department to ensure compliance with the rights of indigenous workers. The Committee requests the Government to provide information on the practical measures taken to give effect to this ministerial order, which involves labour inspection in agriculture.

Moreover, referring to the points raised in UNSITRAGUA’s further comments received by the ILO, the Committee notes the following.

5. Conditions of work in agricultural enterprises producing for multinational enterprises. UNSITRAGUA refers to cases of enterprises which set production targets for workers in such a way that, in order to earn the minimum wage, these workers have to work in excess of ordinary working hours, with the additional hours being unpaid. According to UNSITRAGUA, "such cases are occurring with greater frequency in agricultural concerns producing bananas as independent producers for the United States multinational fruit company Chiquita, operating in enterprises in the municipality of Morales, in the department of Izabal, and on the southern coast of Guatemala". UNSITRAGUA also refers by way of illustration to the "El Real and El Atlántico ranches in the district of Bogos, municipality of Morales, department of Izabal, where the employers refuse to negotiate unless it is first accepted that piecework is not subject to normal working hours, in violation of the provisions that are in force".

In reports in 2000 and 2001 on the corporate responsibility of Chiquita Brands International, it is emphasized that in Guatemala "hourly workers and administrators sometimes work over 60 hours" and that "workers exceeded the maximum number of overtime hours".

According to UNSITRAGUA, the Ministry of Labour has given full latitude to the employers concerned, in the framework of collective agreements, to impose the exemption of piecework from the legislation on overtime work. The labour inspection is reported to have refused to take a position on the matter (Resolution No. LPR/ahd 6133-2002, dated 25 July 2002). UNSITRAGUA indicates that the appeal lodged by UNSITRAGUA with the Ministry of Labour and Social Insurance, as the hierarchical authority, on 19 September 2002, calling for this resolution to be declared unlawful, was not successful and the practice of forced labour has continued with impunity and the indifference of the labour inspection services.

In comments received in the ILO in August 2004, UNSITRAGUA indicates that the Ministry of Labour has not instigated or even envisaged an investigation by the labour inspectorate to verify the cases reported and control independent production enterprises which use a remuneration system based on piecework or impose production targets as a mechanism to extend ordinary daily working hours without remuneration.

6. Shortcomings of the labour inspection in system agriculture. The Committee notes that, in its comments received in August 2004 on the application of the present Convention, UNSITRAGUA deplores in particular the deficiencies of the labour inspection system in agriculture (insufficient coverage, lack of suitable training, particularly in the specific fields of occupational safety and health in agriculture, lack of the necessary equipment for inspections).

The Committee will examine at its next appropriate session the points raised in these observations, together with the Government’s next report, including any information and documents which the Government considers useful to submit in reply.

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

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Referring also to its observation, the Committee requests the Government to provide information on the following points.

Article 1(1) of the Convention. The Committee would be grateful if the Government would indicate whether there is a legal definition of "agricultural undertaking" for the purpose of the Convention and to provide a copy of any relevant text.

Articles 5(1)(c) and 6(1)(a) and (2). The Committee notes that, according to section 139 of the Labour Code, any woman or minor carrying out agricultural work with the consent of the employer is deemed to be bound by a contract of employment. The Committee would be grateful if the Government would indicate the manner in which labour inspectors monitor the conditions of work of minors and women, and to indicate whether this provision applies to members of a farmer’s family.

Article 6(1)(c). The Committee would be grateful if the Government would indicate whether the inspectors are required to bring defects or abuses not specifically covered by existing legal provisions to the notice of the competent authority and to submit proposals on improving legislation. The Government is requested to communicate copies of any relevant text.

Article 6(3). The Committee once again asks the Government to provide information as to how it ensures that the additional duties of labour inspectors in agriculture, other than those set out in paragraphs 1 and 2, do not prejudice in any way the authority and impartiality which are necessary to inspectors in their relations with employers and workers.

Article 12(1). The Committee asks the Government to indicate the body responsible for coordinating the safety and health activities of the inspection services in agriculture and of the other government services concerned.

Article 13. Noting that, according to the information supplied, collaboration between the agricultural inspection officials, employers and workers takes place through the tripartite Commission on International Labour Affairs, the Committee would be grateful if the Government would provide details of the questions relating to conditions of work in agriculture discussed by the Commission and the scope of any opinions issued.

Articles 14 and 21. Noting that there are about 200 competent inspectors for the agricultural sector, apart from technicians attached to the social security department of the Ministry of Labour carrying out inspections on occupational safety and hygiene, the Committee would be grateful if the Government would communicate information on the numbers, geographical distribution and distribution by category of labour inspectors in agriculture, as well as statistics on the agricultural undertakings liable to inspection and the number of inspection visits. The Government is also asked to indicate the impact of the efforts which it says it has made to extend the coverage of the labour inspection system to all the country’s regions and to establish the principle of at least one inspection per year for every agricultural undertaking.

Article 16(1)(a). Referring to its previous comments on this point, the Committee wishes to emphasize the importance of authorizing inspectors to enter agricultural undertakings liable to inspection at night, including when the undertakings in question are not normally expected to operate, in order to monitor illegal employment of workers outside normal working hours and to inspect the condition of machinery when not in use.

Article 16(1)(c)(i). According to section 281(m) of the Labour Code, labour inspectors are authorized to invite employers and workers to their offices for interview. The Committee asks the Government to indicate whether, in accordance with this provision of the Convention, labour inspectors during their inspection visits also have the right to interview the employer, workers or any other person in the undertaking, at the workplace, alone or in the presence of witnesses.

Article 16(2) and (3); Articles 17 and 18(4). Pursuant to its previous comments, the Committee once again asks the Government to indicate whether effect is given to each of these provisions and to communicate a copy of any relevant text.

Article 18(2)(b) and (3). The Committee requests the Government to communicate information on the manner in which it ensures that measures with immediate executory force can be ordered by the labour inspectors or at their request by the competent judicial or hierarchical authority in the event of imminent danger to health or safety.

Article 19(1). The Committee would be grateful if the Government would indicate the manner in which the labour inspectorate is notified of occupational accidents and cases of occupational diseases, and to provide a copy of any relevant texts, as appropriate.

Articles 26 and 27. The Committee notes the information contained in the 2002 Labour Statistics Bulletin. The Committee would be grateful if the Government would take steps to ensure that an annual report on the activities of the labour inspection service in agriculture is published regularly and communicated to the ILO by the central inspection authority.

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Referring also to its observation under Convention No. 81 on labour inspection in industrial and commercial establishments, the Committee takes note of the Government’s report, its partial responses to its previous comments, documents transmitted in the annexes, as well as the text of Decree No. 18-2001 amending the Labour Code. It also notes the comments made by the Trade Union Federation of Public Employees (FENASTEG) and by the Trade Union Workers of Guatemala (UNSITRAGUA), communicated by the Government in relation to the application of the present Convention and Convention No. 81. The Committee notes that the Government does not respond to the points raised by these organizations. Noting that its comments on Convention No. 81 concern, mutatis mutandis, the application of provisions of the present Convention, the Committee would be grateful to the Government if it would communicate relevant information on labour inspection in agriculture, and in particular on the following provisions of the Convention: Article 9, paragraph 3 (appropriate training for labour inspectors in agriculture); Article 15 (transport facilities and measures to reimburse labour inspectors in agriculture for travel expenses in rural areas); and Articles 12 and 24 (cooperation between inspection services in agriculture and government services).

Furthermore, the Committee takes note of a comment by UNSITRAGUA that labour inspectors in agriculture are confronted by a very specific difficulty in the exercise of their function, namely the inability to communicate with agricultural workers in certain regions who do not speak the national language. The Committee considers that it is indispensable for labour inspectors to be able to communicate in a sufficient manner with the employers and workers they cover to ensure a minimum effectiveness of their inspection visits, both of a preventive and enforcement nature, as well as in the provision of information and technical advice. It therefore requests the Government to take all necessary measures to resolve this linguistic problem, for example by supplying labour inspectors with interpreters or other appropriate means of communication and to transmit any relevant information regarding such measures to the Committee.

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

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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 reads as follows:

The Committee notes the Government’s report for the period ending June 1998. It requests the Government to provide further information on the following points:

Article 1(1) of the Convention.  The Committee asks the Government to indicate the specific provisions of the legislation of Guatemala that define the term "agricultural undertaking".

  Article 5(1)(a), (1)(b) and (1)(c).  The Committee requests the Government to provide information as to what extent effect has been given to the provisions of the Convention with respect to the categories of persons working in agricultural undertakings mentioned in Article 5, paragraphs 1(a), 1(b) and 1(c).

Article 6(1)(c).  Please indicate which provisions of the national legislation require labour inspectors to bring defects or abuses not specifically covered by existing legal provisions to the notice of the competent authority.

Article 6(3).  The Committee asks the Government to indicate what measures have been taken or envisaged in order to ensure that additional duties of labour inspectors, set forth by sections 54; 73; 75; 84; 85; 140; 141; 143; 212; 223; 227; 229; 288; 375; 376; 389; 394 and 408 of the Labour Code; section 1 of resolution No. 777-94 of the Government, dated 23 December 1994; and resolution No. 24-91 of the Ministry of Labour and Social Security, dated 21 August 1991, do not interfere with the effective discharge of primary duties of the labour inspection or prejudice in any way the authority and impartiality which are necessary to inspectors in their relations with employers and workers.

Article 7(3).  The Committee asks the Government to provide the following information: (i) indication of the exact place of the Department of Labour Inspection in Agriculture in the system of the General Labour Inspection - whether it is just another denomination of the Department of Agriculture within the General Sub-Inspectorate for the Guatemala Zone that is situated in the location of the General Direction of Labour or whether it is a separate body; (ii) information on the current number of General Sub-Inspectorates; and (iii) information on the current status of the National Department of the Inspection of the Agricultural Labour ("Departamento Nacional de Inspección de Trabajo Agropecuario"), and its place in the system of the General Labour Inspection.

Article 9(2).  The Committee asks the Government to provide details on the training opportunities for labour inspectors in the course of employment.

Article 10.  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 11.  The Committee asks the Government to indicate measures undertaken or envisaged in order to ensure that duly qualified national technical experts and national specialists are associated in the work of labour inspection in agriculture (in particular, on the level not of the Ministry, but in on-the-spot visits).

Article 12(1).  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"), 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 13.  Please provide information on the number and the frequency of training seminars, information visits and discussions for dissemination of information about labour rights and the concrete arrangements made by the Government in order to promote such collaboration.

Article 14.  The Committee asks the Government to indicate: (i) the total number of labour inspectors and the number of labour inspectors responsible for the supervision of agricultural undertakings; (ii) whether the ten inspectors assigned special functions should be counted toward the 60 inspectors located in the countryside; and (iii) the number, nature, size and situation of the agricultural undertakings liable to inspection and the number and classes of persons working in such undertakings.

Article 15(1).  Please provide specific information on the number of local offices and their equipment as well as on the measures taken or envisaged since the submission of the report in order to increase the number of transport facilities necessary for the performance of the duties of labour inspectors.

Article 16(1)(a).  The Committee notes that in accordance with paragraph (a) of section 281 of the Labour Code, labour inspectors have the right to visit workplaces of any nature at various hours of the day and during the night if the work is carried out during the night, with an exclusive purpose of supervision, set forth by section 278 of the Labour Code. Thus, it appears that under the legislation the inspector’s power of entry is significantly restricted because the labour inspectors are not authorized to visit workplaces during the night if the undertaking is not in operation. The Committee hopes that the Government would take all necessary steps in order to bring paragraph (a) of section 281 of the Labour Code into conformity with Article 16(1)(a), of the Convention.

Article 16(1)(b).  The Committee asks the Government to indicate how the national law gives effect to this provision.

Article 16(1)(c)(i).  Please indicate whether labour inspectors possess the right to interview, alone or in the presence of witnesses, the employer or any other person in the undertaking on any matters concerning the application of the legal provisions.

Article 16(1)(c)(ii).  Please indicate whether the legislation prescribes the keeping of books or registers relating to conditions of life and work of workers other than those mentioned in paragraph (b) of section 281 of the Labour Code and what legal provisions (if any) authorize labour inspectors to require the production of such documents.

Article 16(2).  The Committee asks the Government to indicate whether the legislation contains any such norms specifically addressed to labour inspectors; and to provide information about the practical application of this provision in the work of labour inspection in agriculture.

Article 16(3).  Please indicate whether the legislation gives effect to this provision.

Article 17.  The Committee asks the Government to indicate in which cases and under what conditions the labour inspection services in agriculture are associated in the preventive control referred to in this Article.

Article 18(4).  Please indicate whether the legislation of Guatemala contains a provision setting forth the procedure of notification of the representatives of the workers about defects noted by the inspector and about his respective orders.

Article 19(1).  The Committee asks the Government to provide information on the procedure and time-limits of notification to the General Labour Inspection of occupational accidents and cases of occupational disease.

Article 19(2).  Please describe the procedure of participation of labour inspectors in the investigation of the causes of the most serious occupational accidents and diseases and indication of measures taken or envisaged in order to adopt appropriate normative regulations.

Article 20(a).  Please provide information on the practical application of paragraph (a) of Article 20 of the Convention and, in particular, the criteria and the procedure for its enforcement.

Article 21.  The Committee asks the Government to provide specific information on the practical measures taken to ensure the effectiveness of the inspection of agricultural undertakings, indicating the frequency rate of inspection visits.

Article 26.  The Committee requests the Government to transmit a copy of the annual report within the time limit set forth by Article 26(3) of the Convention and describe the procedure for access to the report by an interested party.

Article 27.  The Committee asks the Government to take into consideration that annual reports published by the central inspection authority shall deal in particular with the subjects listed in Article 27 of the Convention, including, but not limited to, statistics of occupational accidents, including their causes and statistics of occupational diseases, including their causes (Article 27(f) and (g)).

The Committee also asks the Government to provide copies of the following documents mentioned in the report:

-  document establishing the prerequisites for the employment as labour inspector, determined by the National Office of the Civil Service;

-  agreement between the labour inspection and Human Rights Office ("Procuraduría de los Derechos Humanos") aimed at achieving more efficient cooperation in accompaniment of inspections; and

-  regulations on travelling allowances ("Reglamento de Viáticos").

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The Committee notes the Government's report for the period ending June 1998. It requests the Government to provide further information on the following points:

Article 1, paragraph 1, of the Convention. The Committee asks the Government to indicate the specific provisions of the legislation of Guatemala that define the term "agricultural undertaking".

Article 5, paragraphs 1(a), 1(b) and 1(c). The Committee requests the Government to provide information as to what extent effect has been given to the provisions of the Convention with respect to the categories of persons working in agricultural undertakings mentioned in Article 5, paragraphs 1(a), 1(b) and 1(c).

Article 6, paragraph 1(c). Please indicate which provisions of the national legislation require labour inspectors to bring defects or abuses not specifically covered by existing legal provisions to the notice of the competent authority.

Article 6, paragraph 3. The Committee asks the Government to indicate what measures have been taken or envisaged in order to ensure that additional duties of labour inspectors, set forth by articles 54; 73; 75; 84; 85; 140; 141; 143; 212; 223; 227; 229; 288; 375; 376; 389; 394 and 408 of the Labour Code; article 1 of resolution No. 777-94 of the Government, dated 23 December 1994; and resolution No. 24-91 of the Ministry of Labour and Social Security, dated 21 August 1991, do not interfere with the effective discharge of primary duties of the labour inspection or prejudice in any way the authority and impartiality which are necessary to inspectors in their relations with employers and workers.

Article 7, paragraph 3. The Committee asks the Government to provide the following information: (i) indication of the exact place of the Department of Labour Inspection in Agriculture in the system of the General Labour Inspection -- whether it is just another denomination of the Department of Agriculture within the General Sub-Inspectorate for the Guatemala Zone that is situated in the location of the General Direction of Labour or whether it is a separate body; (ii) information on the current number of General Sub-Inspectorates; and (iii) information on the current status of the National Department of the Inspection of the Agricultural Labour ("Departamento Nacional de Inspección de Trabajo Agropecuario"), and its place in the system of the General Labour Inspection.

Article 9, paragraph 2. The Committee asks the Government to provide details on the training opportunities for labour inspectors in the course of employment.

Article 10. 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 11. The Committee asks the Government to indicate measures undertaken or envisaged in order to ensure that duly qualified national technical experts and national specialists are associated in the work of labour inspection in agriculture (in particular, on the level not of the Ministry, but in on-the-spot visits).

Article 12, paragraph 1. 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"), 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 13. Please provide information on the number and the frequency of training seminars, information visits and discussions for dissemination of information about labour rights and the concrete arrangements made by the Government in order to promote such collaboration.

Article 14. The Committee asks the Government to indicate: (i) the total number of labour inspectors and the number of labour inspectors responsible for the supervision of agricultural undertakings; (ii) whether the ten inspectors assigned special functions should be counted toward the 60 inspectors located in the countryside; (iii) the number, nature, size and situation of the agricultural undertakings liable to inspection and the number and classes of persons working in such undertakings.

Article 15, paragraph 1. Please provide specific information on the number of local offices and their equipment as well as on the measures taken or envisaged since the submission of the report in order to increase the number of transport facilities necessary for the performance of the duties of labour inspectors.

Article 16, paragraph 1(a). The Committee notes that in accordance with paragraph (a) of article 281 of the Labour Code, labour inspectors have the right to visit workplaces of any nature at various hours of the day and during the night if the work is carried out during the night, with an exclusive purpose of supervision, set forth by article 278 of the Labour Code. Thus, it appears that under the legislation the inspector's power of entry is significantly restricted because the labour inspectors are not authorized to visit workplaces during the night if the undertaking is not in operation. The Committee hopes that the Government would take all necessary steps in order to bring paragraph (a) of article 281 of the Labour Code into conformity with Article 16, paragraph 1(a), of the Convention.

Article 16, paragraph 1(b). The Committee asks the Government to indicate how the national law gives effect to this provision.

Article 16, paragraph 1(c)(i). Please indicate whether labour inspectors possess the right to interview, alone or in the presence of witnesses, the employer or any other person in the undertaking on any matters concerning the application of the legal provisions.

Article 16, paragraph 1(c)(ii). Please indicate whether the legislation prescribes the keeping of books or registers relating to conditions of life and work of workers other than those mentioned in paragraph (b) of article 281 of the Labour Code and what legal provisions (if any) authorize labour inspectors to require the production of such documents.

Article 16, paragraph 2. The Committee asks the Government to indicate whether the legislation contains any such norms specifically addressed to labour inspectors; and to provide information about the practical application of this provision in the work of labour inspection in agriculture.

Article 16, paragraph 3. Please indicate whether the legislation gives effect to this provision.

Article 17. The Committee asks the Government to indicate in which cases and under what conditions the labour inspection services in agriculture are associated in the preventive control referred to in this Article.

Article 18, paragraph 4. Please indicate whether the legislation of Guatemala contains a provision setting forth the procedure of notification of the representatives of the workers about defects noted by the inspector and about his respective orders.

Article 19, paragraph 1. The Committee asks the Government to provide information on the procedure and time-limits of notification to the General Labour Inspection of occupational accidents and cases of occupational disease.

Article 19, paragraph 2. Please describe the procedure of participation of labour inspectors in the investigation of the causes of the most serious occupational accidents and diseases and indication of measures taken or envisaged in order to adopt appropriate normative regulations.

Article 20, paragraph (a). Please provide information on the practical application of paragraph (a) of Article 20 of the Convention and, in particular, the criteria and the procedure for its enforcement.

Article 21. The Committee asks the Government to provide specific information on the practical measures taken to ensure the effectiveness of the inspection of agricultural undertakings, indicating the frequency rate of inspection visits.

Article 26. The Committee requests the Government to transmit a copy of the annual report within the time-limit set forth by paragraph 3 of Article 26 of the Convention and describe the procedure for access to the report by an interested party.

Article 27. The Committee asks the Government to take into consideration that annual reports published by the central inspection authority shall deal in particular with the subjects listed in Article 27 of the Convention, including, but not limited to, statistics of occupational accidents, including their causes and statistics of occupational diseases, including their causes (Article 27(f) and (g)).

The Committee also asks the Government to provide copies of the following documents mentioned in the report:

-- document establishing the prerequisites for the employment as labour inspector, determined by the National Office of the Civil Service;

-- agreement between the labour inspection and Human Rights Office ("Procuraduría de los Derechos Humanos") aimed at achieving more efficient cooperation in accompaniment of inspections; and

-- regulations on travelling allowances ("Reglamento de Viáticos").