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Other comments on C129

Observation
  1. 2021
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Direct Request
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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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