Solicitud directa (CEACR) - Adopción: 2004, Publicación: 93ª reunión CIT (2005)

Convenio sobre la inspección del trabajo, 1947 (núm. 81) - Guatemala (Ratificación : 1952)

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

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

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

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

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

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

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

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

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

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

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