Observation (CEACR) - adopted 2004, published 93rd ILC session (2005)

Forced Labour Convention, 1930 (No. 29) - Guatemala (Ratification: 1989)

The Committee notes the comments made by the Trade Union Confederation of Guatemala (UNSITRAGUA), on 24 May and 25 August 2004, and by the Trade Union of workers of Operators of Plants, Wells and Guards of the Municipal Water Company on 19 May 2004. These comments were forwarded to the Government on 13 July and 8 September 2004, so that it may make the comments thereon that it considers appropriate. Comments made by UNSITRAGUA on 2 and 3 November have been forwarded to the Government and will be examined by theCommittee at its next session.

I. Imposition of work to be performed outside normal working hours in the public and private sectors under the menace of a penalty

(a) Public sector. Justices of the Peace - Judicial bodies. 1. In its previous observation, the Committee noted that, according to the comments made by UNSITRAGUA: "In most of the towns of the country, there is only one Justice of the Peace who has to be on duty 24 hours a day, every day of the year. The auxiliary staff of justices of the peace have to cover shifts by rotation as additional work supplementing their ordinary working day. The shifts worked on public holidays, Saturdays and Sundays are compensated with time off, but the shifts worked after the completion of the ordinary working day are not compensated in time off nor are they paid. Failure to perform such shifts constitutes an offence liable to be punished by dismissal." The Committee discusses this further in paragraph 9 hereof.

Municipal Water Company (EMPAGUA). Municipality of the Capital City of Guatemala. 2. In the case of EMPAGUA workers, they have to work 24 continuous hours, followed by 48 hours of rest. In the view of UNSITRAGUA, this organization of work avoids the payment of the hours worked outside the ordinary working day and failure to work such hours can lead to dismissal and even penal proceedings as the workers concerned have the status of public officials. With regard to the conditions and limits relating to the performance of overtime hours, the Committee refers to its observation on the Hours of Work (Industry) Convention, 1919 (No. 1). It also refers to paragraphs 123, 142 et seq. and 317 of its 2004 General Survey on the working time Conventions in which it indicates that taking into account the spirit of the Conventions (Nos. 1 and 30) and in the light of the preparatory work, it is appropriate to conclude that the competent authorities cannot have unlimited discretion in regard to the establishment of specific limits to the total number of additional hours, and that such limits must be "reasonable" and they must be prescribed in line with the general goal of the instruments, namely to establish the eight-hour day as a legal standard of hours of work in order to provide protection against undue fatigue. The Committee further indicates that the regulation of hours of work is also necessary from the "human rights" perspective of limiting the maximum length of working hours. In addition, it underlines the importance of consultations with the organization of workers and employers to determine the permanent and temporary exceptions to the principle of the eight-hour day.

National civil police. 3. According to UNSITRAGUA, officers of the national civil police are often subjected to the total suspension of rest periods and leave, compelled to work in shifts outside the normal working day, without remuneration and under the menace of penalties, including penal sanctions in the case of failure to comply with such instructions. In cases in which a penalty other than dismissal is imposed, in accordance with the rules of the institution, such penalty prevents the officer from gaining promotion.

State employees (category 029). 4. In its previous comments, UNSITRAGUA also referred to the situation of state employees belonging to the category 029. The classification of state employees is determined by the budgetary category to which they belong. The category 029 was established to allow the recruitment of skilled professional and technical personnel for specific tasks and periods, without such workers obtaining the status of public employees. Contracts are renewed when sufficient funds are allocated and these workers do not have the right to benefits to which permanent employees are entitled. UNSITRAGUA alleged that workers contracted under this system are not paid for the hours worked in excess of the normal working day, that refusal to work these hours affects the evaluation of their performance and could result in the termination of the contract, with no liability for the State.

5. The Committee notes the Government’s reply according to which "the contracts of persons providing personal services are assigned in financial terms to category 029 of the general budget of the nation and do not constitute labour relations, but rather civil contracts, for which reason these workers do not have the status of workers, but of providers of services. The Government adds that if the persons concerned consider that their legal relationship with the State of Guatemala is a labour relationship, they should initiate legal proceedings to have it recognized as such". In this regard, the Committee observes that the type of legal relationship, including the absence of a legal relationship, has no impact in relation to the application of the Convention, which affords protection against the imposition of forced labour in any labour relationship, including those which do not arise out of a contract of employment.

(b) Private sector. Plantations. 6. In its previous observation, the Committee also noted UNSITRAGUA’s comments relating to cases of enterprises which set production targets for workers who, in order to earn the minimum wage, have to work in excess of the ordinary hours of the working day, with the additional hours being unpaid. According to the above organization, "such cases are occurring with greater frequency in ranches producing bananas as independent producers for the multinational fruit company in the United States known as Chiquita, which is present in the ranches in the municipality of Morales in the department of Izabal and on the southern coast of Guatemala". It also refers as an example to the "El Real and El Atlántico ranches in the district of Bogos in the municipality of Morales in the department of Izabal, where the employers refuse to negotiate unless it is first accepted that piecework is not subject to [ordinary] working hours, in violation of the provisions that are in force". The Committee further noted the reports on the corporate responsibility of Chiquita Brands International indicating that in Guatemala "hourly workers and administrators sometimes work over 60 hours (a week)" and that "workers exceeded the maximum number of overtime hours".

7. The Government’s report does not contain information on these issues and is confined to indicating that the general labour inspectorate is responsible for authorizing the hiring of rural workers.

8. In its latest comments, UNSITRAGUA alleges that the Ministry of Labour has not carried out, nor even tried to carry out, an investigation through the general labour inspectorate to identify cases and independent producer enterprises in which payment on a piece-work basis, or the imposition of production targets, are being used as mechanisms to extend normal working ours without additional remuneration. In relation to this matter, the Committee refers to its observation on the application of the Labour Inspection (Agriculture) Convention, 1969 (No. 129). It also refers to the General Survey of 1958 on Conventions Nos. 26 and 99 on minimum wage fixing, in paragraph 92 of which it indicated that "where a minimum wage system is based primarily on piece rates, great care needs to be exercised to ensure that, under normal conditions, a worker can earn enough to be able to maintain an adequate standard of living, and that his output, and consequently his earnings, are not unduly limited by conditions independent of his own efforts".

Compulsory work performed outside normal working hours and the definition of forced labour for the purposes of the Convention. 9. The Committee notes the information on cases of workers who have been dismissed for refusing to work 24 hours continuously for a judicial body and for the Ministry of Public Health and Social Assistance. In its latest comments, UNSITRAGUA refers, by way of illustration, to the case of a worker dismissed for refusing to continue the shift, which was the subject of decisions by the First and Third Chambers of the Labour and Social Insurance Court of Appeal (Case No. 353-2003 and ruling No. 25-2004). The Committee notes that the Government’s report does not contain information on this case and requests it to provide a copy of the court decisions. UNSITRAGUA has also provided information on the case of a worker at Health Centre Four, Zone 7, in Guatemala City, who was dismissed on 4 April 2002. Decision No. 9158 of 8 November 2002, of the Ministry of Public Health and Social Assistance, indicates that he was dismissed for failure to turn up on three complete working days in the same month. The Fifth Chamber of the Labour and Social Insurance Court found that the worker incurred dismissal "by failing to turn up for work on 23 September 2001 when he was due to work 24 hours of the day consecutively, with such failure being equivalent to three full working days." UNSITRAGUA adds that the Third Chamber of the Labour and Social Insurance Court of Appeal is currently examining the appeal lodged against this decision (Ruling No. 566-2003).

10. For the purposes of the Convention, the expression "forced or compulsory labour" means all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered her or himself voluntarily. The Committee notes that, in the cases of employees in the public sector, refusal to perform work in addition to the normal hours of work gives rise to loss of employment. In the private sector, in the cases of enterprises which determine pay by setting performance targets, the obligation to work beyond the normal working hours is based on the need to be able to earn the minimum wage. In all these cases, the common denominator is the imposition of work or a service and the worker has the possibility to "free her or himself" from such imposition only by leaving the job or accepting dismissal as a sanction for refusing to perform such work.

The Committee noted in its observation last year on these issues that, in theory, workers have the choice of not working beyond normal working hours, but their choice is not real in practice in view of their need to earn at least the minimum wage or to retain their employment, or for both reasons. The Committee considers that in such cases the work or service is imposed under the threat of a penalty. The Committee hopes that the Government will provide information on the measures taken to ensure compliance with the Convention in this respect.

II. Practices of recruitment (enganche) and the removal of workers, and other forms of recruiting indigenous labour. 11. In its previous observation, the Committee noted the report on the mission to Guatemala of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people (E/CN.4/2003/90/Add.2, of 10 February 2003). The Special Rapporteur pointed out that practices persist "whereby indigenous workers are recruited and moved away to work in traditional and new plantations, as well as other ways of recruiting temporary labour at wages falling below the legal minima, without social security coverage or respect for basic rules relating to pay, security of employment or working conditions". The Government’s report refers to article 4 of the political Constitution, which provides that no one may be subjected to servitude or any other condition, which is prejudicial to their dignity. The Committee hopes that the Government will provide information on the practices of recruitment (enganche) and the removal of workers, and other forms of recruiting indigenous labour, and on the measures adopted or envisaged to ensure compliance with the National Constitution and the Convention. The Committee also refers to its previous observations on the Indigenous and Tribal Peoples Convention, 1989 (No. 169).

III. Trafficking in persons. 12. In its previous observation, the Committee noted that, according to comments made by the International Confederation of Free Trade Unions (ICFTU), although the Constitution prohibits forced labour, the practice of the trafficking in persons exists, and particularly children, for the purposes of prostitution. The ICFTU alleged that most of the children who are victims of trafficking come from Guatemala’s neighbouring countries and that this situation is evident in the frontier regions with Mexico and El Salvador. In this respect, the Committee considers that the problem of trafficking of children may be examined more specifically in the context of the Worst Forms of Child Labour Convention, 1999 (No. 182), and refers to its comments under this Convention.