Direct Request (CEACR) - adopted 2012, published 102nd ILC session (2013)

Migration for Employment Convention (Revised), 1949 (No. 97) - Guatemala (Ratification: 1952)

Article 1 of the Convention. Information on national policies, laws and regulations. The Committee notes the Government’s reference to the formulation of the General Foreign Policy Framework of Guatemala, which constitutes a response to the needs of the Guatemalan community abroad and seeks to establish a comprehensive migration policy that complies fully with human rights. Within this framework the Government will seek new opportunities for workers abroad and in new productive sectors. Accordingly, the purpose of the Working Subcommittee on Labour Mobility is to facilitate and complement efforts in the public sector, the private sector and civil society to increase possibilities of formal employment and improve the conditions of work of Guatemalans interested in working abroad. The Committee also notes the statistics supplied by the Government which indicate that in the period 2009–11 2,245 work permits were issued to foreigners (1,380 (61.5 per cent) for men and 561 (25 per cent) for women, with 13 per cent unspecified in the database). More than 60 per cent of migrant workers originate from Latin America (330 from Colombia, 107 from Peru and 241 from El Salvador). The immigration rate for persons of Asian origin was also significant (17.7 per cent). According to the statistics, migrant workers are mainly found in industry (35.2 per cent), commerce (14.3 per cent), and transport, warehousing and communications (11.7 per cent). Moreover, the statistics show that most foreign workers are hired as managerial staff and company managers (seven out of ten permits issued) or as professionals (two out of ten permits issued). As regards Guatemalan migrants for employment, the Committee notes the growth in migration to Canada. In 2003 a total of 215 workers emigrated to Canada, while 3,858 emigrated in the first few months of 2012. As regards emigration to Mexico, the Government indicates that a total of 35,000 Guatemalan men and their family members emigrate each year to take up temporary work on coffee, sugar cane and papaya plantations or in cleaning or construction services. The Committee requests the Government to continue to provide information on migration policies which have been adopted, including on measures taken to ensure their implementation in practice and their impact on the application of the provisions of the Convention. The Committee also requests the Government to continue to provide statistics, disaggregated by sex, sector of activity and country of origin, on the number of migrant workers resident in Guatemala, and any such information available with respect to Guatemalan workers resident abroad.

Information on general agreements and special arrangements. The Committee notes that as part of the General Foreign Policy Framework, the Government will reinforce channels of communication and cooperation with the competent authorities of countries of destination and transit for Guatemalan workers. Accordingly, the Committee notes the collaboration between Guatemalan consulates and the Canadian and Mexican authorities to ensure respect for the rights of Guatemalan workers. The Government also plans to increase such cooperation with Canada, particularly with regard to the recruitment and selection process in the context of programmes for temporary migration and also with entities in the United States. The Committee further notes the negotiations between Guatemala and Mexico with regard to issuing a migration form for cross-border workers. The Committee requests the Government to provide information on specific agreements concluded with other States, with a view to providing protection for migrant workers, and the numbers of workers covered by such agreements. The Government is also requested to indicate whether the Memorandum of Understanding with the Government of Mexico, to which the Government has referred to previously, has been signed and, if so, to provide a copy of it.

Articles 2 and 7. Services to assist migrant workers. The Committee notes with interest the establishment, by means of Decree No. 46-2007, of the Guatemalan National Council for Assistance to Migrants (CONAMIGUA), which coordinates, defines, supervises and inspects action and activities of state bodies aimed at providing protection, care and assistance for Guatemalan migrants and their families in Guatemala and also for immigrants located on the national territory. As part of the General Foreign Policy Framework, the Government also plans to adopt various measures aimed at assisting Guatemalans abroad, such as strengthening and expanding the Consular Service of Guatemala, including through the setting up of mobile consulates and a telephone helpline; supporting the reintegration of Guatemalan migrants who have returned to the country; and promoting recognition of studies undertaken abroad for the benefit of Guatemalan returnees and resident foreigners. The Working Subcommittee on Labour Mobility set up in October 2011 has drawn up a work plan through ten specialist groups in order to cater for workers in Canada and Mexico, for repatriated Guatemalan citizens and for foreigners in Guatemala. It is also working on the standardization of procedures for the recruitment of Guatemalans abroad and on the transparency of processes for the recruitment, transportation and repatriation of Guatemalans. It has also published information brochures. The Government also indicates that the National Employment Service is providing free services to all workers in general without discrimination. The Committee requests the Government to provide detailed information on the operation of CONAMIGUA and the Working Subcommittee on Labour Mobility and the specific measures adopted by these bodies with a view to the application of Article 2 of the Convention. The Committee also requests the Government to provide information on the activities for the protection of Guatemalan migrant workers abroad carried out by the Consular Service of Guatemala.

Article 3. Misleading propaganda. The Committee notes that in the context of the General Foreign Policy Framework it is planned to continue with the preventive information campaign on the risks of unauthorized migration and of involvement in travel for illicit purposes such as drug running, money laundering and the use of false documents (passports, visas), and also on the dangers of becoming victims of illicit trafficking of persons for labour and sexual exploitation. While emphasizing the importance of adopting specific measures to prevent migrants from being exposed to mistreatment, the Committee requests the Government to continue to provide information on the steps taken to provide migrants for employment with accurate information.

Article 4. Measures taken to facilitate the departure, journey and reception of migrants. The Committee notes that as part of the General Foreign Policy Framework, consular assistance to Guatemalans, particularly procedures for obtaining documentation, will be intensified. The Government also indicates that the Ministry of External Relations will provide support through consulates for the repatriation of workers and advise them on their safe return to their country of origin. The Committee requests the Government to continue to provide information on the measures taken to facilitate the departure, journey and reception of Guatemalan migrants for employment, including in the context of temporary migration programmes. The Government is also requested to state whether similar measures exist for foreign workers in Guatemala.

Article 6. Equal treatment. In its previous comments the Committee referred to the fact that section 13 of the Labour Code, read in conjunction with the Regulations governing authorization of the work of foreign nationals for private sector employers (Government Agreement No. 528-2003), prohibits employers from hiring less than 90 per cent of Guatemalan workers (only 10 per cent may be foreigners) and from paying Guatemalan workers less than 85 per cent of the total wage bill in the respective enterprises (15 per cent may be paid to foreign workers). While noting that, according to the statistical information mentioned above, seven out of ten foreign nationals are recruited as managers, directors, administrators, supervisors and general managers of enterprises to which, under section 13 of the Labour Code, this restriction does not apply, the Committee requests the Government to provide information on the application of these provisions in practice, particularly their impact on the number of foreigners hired and the remuneration that they receive, including any complaints of discrimination. The Committee also requests the Government to provide information on the application in practice of its policy and legislation concerning equality of treatment for nationals and migrant workers, particularly in relation to the matters covered by Article 6(1)(a)–(d) of the Convention. The Government is also requested to continue to provide information on the measures taken by the labour inspectorate and the judicial authorities in the event of non-compliance with the provisions of national law that give effect to Article 6.

Article 9. Remittances. The Committee notes with interest that section 1 of the Act concerning free currency exchange (Decree No. 94-2000) establishes the freedom to send remittances and make currency transfers. The Government indicates that the legislation does not prescribe any limits regarding the transfer of migrants’ earnings and savings.