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Other comments on C129

Observation
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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 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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