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Articles 1, paragraph 1, and 2, paragraph 1, of the Convention. Obligation to work overtime under threat of a penalty. The Committee notes the comments made by the Indigenous and Rural Workers Trade Union Movement of Guatemala, dated August 2008, containing information on the obligation to work overtime under the threat of a penalty in certain cases raised in its previous observations, as well as new allegations on the same subject in cases in the Office of the Attorney-General, the Directorate of Criminal Investigations and the National Forensic Science Institute (INACIF).

In its previous observation, the Committee indicated that, 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 observed, in relation to the allegations made previously by the Trade Union Confederation of Guatemala (UNSITRAGUA), that in certain cases refusal by workers in the public sector to work hours in excess of the normal working day can result in the loss of their job and that in the private sector there are cases of enterprises which set production targets for workers who have to work in excess of the ordinary hours of the working day in order to earn a survival wage. The Committee observed that in both 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. 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 minimal wage and to retain their employment, or for both reasons. The Committee considered that in such cases the work or service is imposed under the menace of a penalty. The Committee requested the Government to provide information on the measures adopted or envisaged to ensure compliance with the Convention in this respect.

The Committee notes the Government’s report in reply to the various questions raised and the Committee’s requests, which are addressed below.

1. Public sector: Justices of the peace – judicial bodies; national civil police; municipal water company (EMPAGUA) – municipality of the capital City of Guatemala.

(a). Justices of the peace. According to 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 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 requested the Government to provide information on the case, cited by UNSITRAGUA by way of illustration, of a worker dismissed for refusing to work 24 hours continuously (ruling No. 25-04, which found against the Supreme Court of Justice). The Committee also requested information on the other case cited by UNSITRAGUA (ruling identified as No. 566-2003, which found against the Ministry of Public Health and Social Assistance). In this latter case, the worker 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 had incurred dismissal “by failing to turn up for work on 23 September 2001 when he was due to work 24 hours in the day consecutively, with such failure being equivalent to three full working days”. The Committee noted the Government’s indication that both cases were awaiting a final ruling. The Committee requested the Government to provide copies of the rulings when they have been issued.

The Government indicates that it has requested the relevant information from the Supreme Court of Justice and will send it in due time. However, the Committee notes the information provided by the Indigenous and Rural Workers Trade Union Movement of Guatemala according to which, in the case of ruling No. 25-04, the Constitutional Court set aside the claim for the reinstatement of the worker and for payment of the overtime hours worked.

The Committee hopes that the Government will take the necessary measures to ensure that the requirement is not imposed to perform work in excess of the limits imposed by the legislation, with refusal being punished by the loss of employment. Such conditions constitute forced labour under the terms of the Convention. The Committee hopes that the Government will provide information on the progress achieved in ensuring compliance with the Convention.

(b). Employees of EMPAGUA. According to UNSITRAGUA, employees of EMPAGUA have to work for 24 consecutive hours, followed by 48 hours rest, with this work arrangement avoiding the payment of hours worked in excess of the normal working hours. Refusal to work under these conditions may give rise to dismissal and penal prosecution in view of the status of these workers as public employees. The Committee noted the comments made by the Union of Operators of Plants and Wells, Guardians of the Municipal Water Company and Allied Workers (SITOPGEMA) and requested the Government to provide information on the measures adopted in this respect.

The Government indicates that in June 2008 an arbitration award was handed down by the Sixth Labour and Social Insurance Court establishing a working week of 48 hours and that overtime hours shall be paid in accordance with the law. The Government adds that EMPAGUA has been warned that “working days may not exceed 12 hours in the day”.

In relation to this case, the Committee notes the information provided by the Indigenous and Rural Workers Trade Union Movement of Guatemala according to which the demand made by 103 EMPAGUA employees for failure to pay overtime hours was set aside in a ruling issued on 16 April 2008 by the Fifth Labour Court, and that an appeal was lodged against this ruling with the Third Chamber of the Labour and Social Appeal Court, under case No. J-371-2008.

The Committee hopes that the Government will provide information on developments relating to the case that is before the Court of Appeal and on the application of the working conditions envisaged in the arbitration award so that the performance may not be required of overtime hours under the threat of dismissal or penal persecution.

(c). Office of the Attorney-General, Directorate of Criminal Investigations and National Forensic Science Institute (INACIF). The Indigenous and Rural Workers Trade Union Movement referred in its comments to cases of the imposition of shifts of 32 continuous hours of work. Furthermore, according to the organization, in view of the volume of work, workers are required to work during rest days to be able to meet requirements to hand in reports. The workers are placed under pressure through the threat of dismissal in order to work shifts and complete tasks that it would be impossible to carry out within normal working hours. The Government has not replied to these new allegations.

The Committee hopes that the Government will provide information on the measures adopted or envisaged to protect this category of workers against the imposition of compulsory work outside normal working hours.

2. Private sector: Plantations. In its previous observations, the Committee noted UNSITRAGUA’s comments relating to cases of enterprises which set production targets for workers who, to earn a minimum wage, have to  work in excess of the ordinary hours of the working day, with the additional hours being unpaid.

In its report, the Government indicates that the objective of fixing the minimum wage on the basis of productivity is to give enterprises an incentive to pay more than the minimum wage. It adds that in banana plantations as a result the minimum wage is broadly exceeded and that the General Labour Inspectorate has intervened in banana ranches in cases denounced by the workers.

The Committee notes the statistics on the denunciations made to the labour inspectorate concerning the payment of the minimum wage. The Committee observes that all of the 11 denunciations made in 2007 were set aside. It further notes the effect that can be produced in terms of the application of the Convention by the relationship between the extension and duration of the working day, the payment of the minimum wage based on productivity and the threat of dismissal. The Committee hopes that the Government will provide information on the outcome of the denunciations made in 2008 (which were under examination when the report was sent) and that the Government will continue to provide information on the measures adopted to ensure that in the plantations sector work is not imposed in excess of normal working hours under the threat of dismissal.

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Articles 1(1) and 2(1) of the Convention. Obligation to do
overtime under threat of a penalty

In its previous observation, the Committee indicated that, 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 observed, in relation to the allegations made by the Trade Union Confederation of Guatemala (UNSITRAGUA), that in certain cases refusal by workers in the public sector to work hours in excess of the normal working day can result in the termination of their contract and that in the private sector there are cases of enterprises which set production targets for workers who have to work in excess of the ordinary hours of the working day in order to earn a survival wage. The Committee observed that in both 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. 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 minimal wage and to retain their employment, or for both reasons. The Committee considered that in such cases the work or service is imposed under the menace of a penalty. The Committee requested the Government to provide information on the measures taken or envisaged to ensure compliance with the Convention in this respect.

The Committee notes the Government’s detailed report in reply to the various issues raised by UNSITRAGUA and the questions raised by the Committee, which are addressed below.

1. Public sector: Justices of the Peace – Judicial bodies; National Civil Police; Municipal Water Company (EMPAGUA) – Municipality of the Capital City of Guatemala. (a) Justices of the Peace. According to 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 requested the Government to provide information on the case, cited by UNSITRAGUA by way of illustration, of a worker dismissed for refusing to work 24 hours continuously (ruling No. 25-04, which found against the Supreme Court of Justice). The Committee also requested information on the other case cited by UNSITRAGUA (ruling identified as No. 566-2003, which found against the Ministry of Public Health and Social Assistance). In this latter case, the worker 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 had 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”. The Committee notes that, according to the Government’s indications in its report, both cases are awaiting a final ruling. The Committee requests that the Government provide copies of the rulings when they have been issued.

(b) Employees of EMPAGUA. According to UNISITRAGUA, employees of EMPAGUA have to work for 24 consecutive hours, followed by 48 hours rest, with this work arrangement avoiding the payment of hours worked outside the normal working hours. Refusal to work under these conditions may give rise to dismissal and penal prosecution in view of the status of these workers as public employees. The Committee notes the comments provided by the Union of Operators of Plants, Wells and Guardians of the Municipal Water Company and Allied Workers (SITOPGEMA). With regard to the conditions and limits on the working of overtime, the Committee refers to its observations on the application of the Hours of Work (Industry) Convention, 1919 (No. 1). The Committee also refers to the discussion in the General Survey of 2007 on the eradication of forced labour, paragraphs 132 and 133. The Committee requests the Government to provide information on the measures taken to ensure that this practice does not amount to “forced or compulsory labour”.

(c) National Civil Police. 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 a penalty prevents the officer from gaining promotion. In this regard, the Government indicates that, under the terms of Ministerial Accord 301-97 issuing rules governing holidays, leave and rest periods for the national police, the granting of any type of holidays, leave and rest periods is always subordinate to the needs of the service as assessed by those empowered to grant such leave. The Committee also notes the report of the Subdirectorate General of Public Security, National Police of Guatemala, concerning the suspension of rest periods, leave and the organization of shifts in the national police, which was provided by the Government, indicating that holidays, leave and rest periods have only been suspended at certain periods (for example, the national holidays at the end of the year) or in cases in which public security may be at risk, and that in all cases shift work consists of eight hours’ work followed by eight hours’ rest. The Government also provided a report with documentation indicating the dates on which rest periods and holidays were suspended in 2004, 2005 and 2006.

The Committee takes due note of this information. Under these circumstances, the Committee hopes that the Government will ensure that in practice, irrespective of the organization of hours of work required for the necessities of the service, abuse will be avoided in measures to suspend holidays and rest periods, which may result in practices that can be assimilated to forced labour.

(d) State employees (category 029). In 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.

The Committee previously noted 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 employment relationships, but rather civil contracts, for which reason these workers do not have the status of workers, but of providers of services. In its latest report, the Government indicates that in view of these special characteristics there is no dependent relationship under this type of contract and no limitation on working hours, adding that such contracts are of an exceptional and temporary nature. In this respect, the Committee observed that the Convention applies to any type of legal relationship, and even in the absence of a legal relationship, and consequently affords protection against the imposition of forced labour in any labour relationship, including those which do not arise out of a contract of employment. The Committee further notes that the allegations referred to the undue use of such contracts to cover functions that are intrinsically permanent, thereby avoiding employment protection. The Committee hopes that the Government will provide information on the measures adopted or envisaged to protect this category of workers against the imposition of compulsory labour outside the normal working day.

2. Private sector: Plantations. In its previous observations, the Committee noted UNSITRAGUA’s comments relating to cases of enterprises which set production targets for workers who, 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 UNSITRAGUA, “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 referred by way of illustration 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 piece work 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 in which it was indicated that in Guatemala “hourly workers and administrators sometimes work over 60 hours (a week)” and that “workers exceeded the maximum number of overtime hours”.

The Committee notes the Governments’ detailed reply on these issues in its latest report. With regard to the situation in the El Real and El Atlántico ranches in the municipality of Morales, the unions of the workers in both ranches, with the advice of the legal commission of UNSITRAGUA, have for the past three years been negotiating a collective accord on working conditions, including the form of remuneration, based on the provisions of the Labour Code. According to the Government’s indications, in most of these banana ranches agreement has been reached on the calculation of remuneration based on wage tables which provide for piece work or daily rates. When workers agree to work overtime following the working day of eight hours, the mixed day of seven hours and night work of six hours, they are paid 50 per cent higher than the normal wage. The Government adds that daily working hours are applicable irrespective of the form of pay agreed by workers and employers. Furthermore, it indicates that in the case of the El Real and El Atlántico ranches the wage paid is around Q. 2,500.00 and that the minimum wage is Q. 1,273.80 (1 US dollar = 7.5 quetzales). The Committee notes with interest that a commission to address disputes on banana ranches has been established. The Committee takes due note of this information and hopes that the Government will continue to provide information on the measures adopted to ensure that work outside normal working hours is not imposed under the menace of dismissal in the plantations sector. The Committee requests the Government to provide information on the activities of the commission to address disputes in banana ranches.

Article 25. The Committee notes with interest the statistics provided by the Government in its report on the complaints received which are considered to be complaints of forced labour in view of the failure to provide pay and the withholding of basic and additional remuneration. The Committee hopes that the Government will provide information on the outcome of these prosecutions, with an indication of the type of penalty imposed in cases found to constitute forced labour.

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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.

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The Committee notes the comments made by the International Confederation of Free Trade Unions (ICFTU) on the application of the Convention, provided on 10 January 2002 and forwarded to the Government on 28 January 2002. The Committee also notes the comments made by the Trade Union Confederation of Guatemala (UNSITRAGUA), which were provided by the Government with its report in September 2002. The same comments were received directly from UNSITRAGUA in November 2002. The Committee notes the Government’s reply to the issue raised by UNSITRAGUA, but notes that the Government has not provided any information on the issue of the trafficking in persons, referred to by the ICFTU in its comments.

1.  Trafficking in persons

In its comments, the ICFTU indicates that, although the Constitution prohibits forced labour, the practice exists of the trafficking in persons, and particularly children, for the purposes of prostitution. It alleges 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. The Government has not provided information on these matters. The Committee urges the Government to take the necessary measures to protect children against trafficking and forced prostitution and that it will reply to the serious issues raised by the ICFTU.

2.  Unpaid work performed after normal working
hours in the public and private sectors

  Justices of the Peace

The Committee notes 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 the justice 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. Accord No. 31-2000, issued under the Civil Service Act respecting the judiciary (Decree No. 48-99) does not contain provisions respecting the payment of overtime hours. In addition, failure to perform such shifts constitutes an offence liable to be punished by dismissal."

  Plantations

UNSITRAGUA also refers 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 piece-work is not subject to working hours, in violation of the provisions that are in force."

The Committee notes the reports on the corporate responsibility of Chiquita Brands International of 2000 and 2001. In both reports, it is stated that in Guatemala "hourly workers and administrators sometimes work over 60 hours" and that "workers exceeded the maximum number of overtime hours". The Committee notes these figures with concern but at the same time appreciates the transparency of the information contained in the reports, which have their origin in the investigations carried out by Chiquita in the context of its voluntary undertaking regarding the social responsibility of the enterprise in its efforts to comply with Labour Standard SA8000.

  State employees

UNSITRAGUA also refers 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 products 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 alleges 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.

The Committee notes the Government’s reply concerning the matters raised by UNSITRAGUA. With regard to the situation of employees of Justices of the Peace, the Government states that this type of work is "governed by the provisions of the Labour Code in section 125" and that in this respect there exist "internal rules of the Supreme Court of Justice". The Committee notes that section 125 of the Labour Code lays down the obligation of the executive authorities to determine the manner in which provisions on working hours shall be applied "to transport, communication and all other enterprises in which the work has very special characteristics or is of a continuous nature". The Committee hopes that the Government will indicate whether the legislation applicable to the auxiliary personnel of Justices of the Peace is the Civil Service Act respecting the judiciary (Decree No. 48-99) and its regulations, Accord No. 31-2000 or whether it is the provisions of the Labour Code.

The Government has not provided information on the other matters raised by UNSITRAGUA, namely the situation of workers who have to work outside the normal working hours to earn the minimum wage, for whom the additional hours worked are not paid. Nor has the Government referred to the situation of state employees in category 029.

  Unpaid work performed after the normal working day
  and the definition of forced labour for the purposes
  of the Convention

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 of Justices of the Peace and state employees in category 029, refusal to perform work in addition to the normal hours of work may give rise to loss of employment. In 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 performance of work or a service for which remuneration is not received. In all these cases, the worker has the possibility to "free her or himself" from such imposition but only by leaving the job or accepting dismissal as a sanction for refusing to perform unpaid work.

The Committee notes the vulnerability of workers who in theory have the choice of not working beyond normal working hours, but for whom in practice the choice is not a real one in view of their need to earn at least the minimum wage and retain employment. This then results in the performance of unpaid work or services. The Committee considers that in such cases the work or service is imposed through the exploitation of the worker’s vulnerability, under the threat of a penalty, namely dismissal or remuneration below the minimum wage rate.

In relation to this matter, the Committee also refers to its 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."

The Committee hopes that the Government will take the necessary measures to ensure that unpaid work is not exacted from workers paid on a piece-work basis, auxiliary employees of Justices of the Peace and state employees in category 029, by means of the exploitation of their vulnerability, and that the Government will provide information on the measures adopted or envisaged to ensure compliance with the Convention in this respect.

3. The Committee notes the report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, Mission to Guatemala (E/CN.4/2003/90/Add.2, 10 February 2003). The Special Rapporteur points 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 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.

4.  Article 25 of the Convention. In its previous observation, the Committee requested the Government to provide information on the measures adopted to ensure the rapidity of the judicial processes and inquiries undertaken concerning the exaction of compulsory labour in cases where the Attorney-General of the Republic has issued a decision concerning the responsibility of persons against whom the appropriate judicial action had not been taken. In its report, the Government indicates that it has accelerated the administrative and legal proceedings. The Committee hopes that the Government will provide a copy of judicial or administrative decisions punishing the exaction of forced labour.

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The Committee notes that the Government’s report contains no reply to previous comments. It hopes that the next report will include full information on the following matters raised in its previous direct request:

1. Article 2, paragraph 1, of the Convention. Legal definition of forced labour. With reference to its previous direct requests related to the definition of "forced labour", the Committee notes the Government’s statement that it is not necessary to introduce explicitly in the law the definition of forced labour, since the definition contained in Article 2 of the Convention has been incorporated into the statutory law of the country through the relevant provisions of the Constitution and therefore forms part of the minimum rights which shall be enjoyed by all workers in Guatemala. Having regard to the Government’s statement, the Committee requests the Government to supplement the information provided, with an indication of the manner in which the persons concerned are informed about the general prohibition of forced labour and the definition of forced labour set out in the Convention, so that they are informed about what actions are forbidden.

2. Article 2, paragraph 2(b). Normal civic obligations of citizens. The Committee has previously noted that article 135 of the National Constitution lays down that it is the right and duty of Guatemalan nationals to work for civic, cultural, moral, economic and social development. The Committee notes the Government’s explanations in this respect. In order to enable it to make a better assessment of the situation, the Committee requests the Government to provide information on all laws and regulations adopted under this provision, particularly with regard to social service. It notes that if a law on civic service were to be adopted, the Government would immediately transmit the text.

3. Article 2, paragraph 2(c). The Committee notes the text of Government Agreement 975-84, issuing regulations respecting prison centres, which was transmitted by the Government with its report under Convention No. 105. The Committee notes with interest that section 37 of the regulations provides that detainees awaiting trial are not obliged to work, but that they may do so and are encouraged to do so.

4. Article 2, paragraph 2(d). Cases of emergency. The Committee has previously noted that section 13 of the Public Order Act of 1965 with respect to the state of emergency provides that the Executive may order the services or assistance of persons to maintain the smooth functioning of services of public utility, or of services the operation of which is considered necessary. The Committee once again requests the Government to provide information on the effect given in practice to this provision and on any regulations or other legal texts adopted on this basis. It also requests the Government to indicate the conditions under which section 15 of the same Act is applied, which empowers the President of the Republic to restrict freedom of movement and requires individuals to provide such assistance and cooperation as may be necessary to ensure more effective control of the areas affected in the event of a public disaster.

5. Article 2, paragraph 2(e). Minor services. The Committee has previously noted the information provided by the Government to the effect that certain services of common interest, such as work to improve sewers, drainage and the clearance of refuse have been performed in the framework of the "Food for Work" programme by members of certain communities in coordination with the local authorities. The Committee once again requests the Government to provide information on the activities carried out under the "Food for Work" programme, and particularly on the number of persons involved, the type of work actually performed and the measures taken to guarantee the voluntary nature of participation by the persons concerned.

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The Committee notes that the Government’s report contains no reply to previous comments. It must therefore repeat its previous observation on the following points:

1. The Committee referred in its previous observation to the recommendation of the committee set up by the Governing Body to examine a representation against Guatemala under article 24 of the Constitution. That committee recommended the repeal of Legislative Decree No. 19-86, which provided for the compulsory enlistment of hundreds of thousands of people in so-called Civil Self-Defence Patrols (PACs) and Voluntary Civil Defence Committees (CVDCs).

2. Referring also to its observation under the Abolition of Forced Labour Convention, 1957 (No. 105), the Committee notes with satisfaction the repeal of Decree No. 19-86 by Decree No. 143-96, which came into force on 30 December 1996.

3. The Committee also notes with interest that the abovementioned civil defence committees have been demobilized and disarmed, under international control, in the framework of the peace agreements signed by the Government. From this point of view, the Committee therefore notes that the Government has taken measures to give effect to the conclusions of the Governing Body at its 267th Session in relation to the abovementioned representation.

4. The Committee notes that the Government’s reports do not contain any information with regard to the application of Article 25 of the Convention. The Committee notes in this respect that the Governing Body stated in its conclusions that "persons accused of having exacted forced labour have benefited from impunity in cases where the Attorney-General of the Republic of Guatemala has issued a decision concerning their responsibility and that the appropriate judicial action has not been taken against them". The Governing Body therefore urged the Government "to ensure the rapidity of the judicial processes and inquiries undertaken concerning the exaction of compulsory labour and to guarantee the imposition of penalties and their strict enforcement". The Committee believes that it is necessary to recall once again that in accordance with Article 25 of the Convention, the illegal exaction of forced or compulsory labour shall be punishable as a penal offence, and it shall be an obligation on any Member ratifying the Convention to ensure that the penalties imposed by law are really adequate and are strictly enforced. The Committee therefore requests the Government to provide information in its next report on the measures which it has taken to give effect to the above recommendations so that it can examine the manner in which these points have been followed up.

The Committee is also addressing a request directly to the Government on certain points.

The Committee hopes that the Government will make every effort to take the necessary action in the very near future.

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The Committee notes that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the following matters raised in its previous direct request.

1.  Article 2, paragraph 1, of the Convention. Legal definition of forced labour.  With reference to its previous direct requests related to the definition of "forced labour", the Committee notes the Government’s statement that it is not necessary to introduce explicitly in the law the definition of forced labour, since the definition contained in Article 2 of the Convention has been incorporated into the statutory law of the country through the relevant provisions of the Constitution and therefore forms part of the minimum rights which shall be enjoyed by all workers in Guatemala. Having regard to the Government’s statement, the Committee requests the Government to supplement the information provided, with an indication of the manner in which the persons concerned are informed about the general prohibition of forced labour and the definition of forced labour set out in the Convention, so that they are informed about what actions are forbidden.

2.  Article 2, paragraph 2(b). Normal civic obligations of citizens.  The Committee has previously noted that article 135 of the National Constitution lays down that it is the right and duty of Guatemalan nationals to work for civic, cultural, moral, economic and social development. The Committee notes the Government’s explanations in this respect. In order to enable it to make a better assessment of the situation, the Committee requests the Government to provide information on all laws and regulations adopted under this provision, particularly with regard to social service. It notes that if a law on civic service were to be adopted, the Government would immediately transmit the text.

3.  Article 2, paragraph 2(c).  The Committee notes the text of Government Agreement 975-84, issuing regulations respecting prison centres, which was transmitted by the Government with its report under Convention No. 105. The Committee notes with interest that section 37 of the regulations provides that detainees awaiting trial are not obliged to work, but that they may do so and are encouraged to do so.

4.  Article 2, paragraph 2(d). Cases of emergency.  The Committee has previously noted that section 13 of the Public Order Act of 1965 with respect to the state of emergency provides that the Executive may order the services or assistance of persons to maintain the smooth functioning of services of public utility, or of services the operation of which is considered necessary. The Committee once again requests the Government to provide information on the effect given in practice to this provision and on any regulations or other legal texts adopted on this basis. It also requests the Government to indicate the conditions under which section 15 of the same Act is applied, which empowers the President of the Republic to restrict freedom of movement and requires individuals to provide such assistance and cooperation as may be necessary to ensure more effective control of the areas affected in the event of a public disaster.

5.  Article 2, paragraph 2(e). Minor services.  The Committee has previously noted the information provided by the Government to the effect that certain services of common interest, such as work to improve sewers, drainage and the clearance of refuse have been performed in the framework of the "Food for Work" programme by members of certain communities in coordination with the local authorities. The Committee once again requests the Government to provide information on the activities carried out under the "Food for Work" programme, and particularly on the number of persons involved, the type of work actually performed and the measures taken to guarantee the voluntary nature of participation by the persons concerned.

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The Committee notes that no report has been received from the Government. It must therefore repeat its previous observation on the following points:

1.  The Committee referred in its previous observation to the recommendation of the committee set up by the Governing Body to examine a representation against Guatemala under article 24 of the Constitution. That committee recommended the repeal of Legislative Decree No. 19-86, which provided for the compulsory enlistment of hundreds of thousands of people in so-called Civil Self-Defence Patrols (PACs) and Voluntary Civil Defence Committees (CVDCs).

2.  Referring also to its observation under the Abolition of Forced Labour Convention, 1957 (No. 105), the Committee notes with satisfaction the repeal of Decree No. 19-86 by Decree No. 143-96, which came into force on 30 December 1996.

3.  The Committee also notes with interest that the abovementioned civil defence committees have been demobilized and disarmed, under international control, in the framework of the peace agreements signed by the Government. From this point of view, the Committee therefore notes that the Government has taken measures to give effect to the conclusions of the Governing Body at its 267th Session in relation to the abovementioned representation.

4.  The Committee notes that the Government’s reports do not contain any information with regard to the application of Article 25 of the Convention. The Committee notes in this respect that the Governing Body stated in its conclusions that "persons accused of having exacted forced labour have benefited from impunity in cases where the Attorney-General of the Republic of Guatemala has issued a decision concerning their responsibility and that the appropriate judicial action has not been taken against them". The Governing Body therefore urged the Government "to ensure the rapidity of the judicial processes and inquiries undertaken concerning the exaction of compulsory labour and to guarantee the imposition of penalties and their strict enforcement". The Committee believes that it is necessary to recall once again that in accordance with Article 25 of the Convention, the illegal exaction of forced or compulsory labour shall be punishable as a penal offence, and it shall be an obligation on any Member ratifying the Convention to ensure that the penalties imposed by law are really adequate and are strictly enforced. The Committee therefore requests the Government to provide information in its next report on the measures which it has taken to give effect to the above recommendations so that it can examine the manner in which these points have been followed up.

The Committee is addressing a request directly to the Government on other matters.

The Committee hopes that the Government will make every effort to take the necessary action in the very near future.

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The Committee notes the information provided by the Government in its reports and the attached texts.

1. Article 2, paragraph 1, of the Convention. Legal definition of forced labour. With reference to its previous direct requests related to the definition of "forced labour", the Committee notes the Government's statement that it is not necessary to introduce explicitly in the law the definition of forced labour, since the definition contained in Article 2 of the Convention has been incorporated into the statutory law of the country through the relevant provisions of the Constitution and therefore forms part of the minimum rights which shall be enjoyed by all workers in Guatemala. Having regard to the Government's statement, the Committee requests the Government to supplement the information provided, with an indication of the manner in which the persons concerned are informed about the general prohibition of forced labour and the definition of forced labour set out in the Convention, so that they are informed about what actions are forbidden.

2. Article 2, paragraph 2(b). Normal civic obligations of citizens. The Committee has previously noted that article 135 of the National Constitution lays down that it is the right and duty of Guatemalan nationals to work for civic, cultural, moral, economic and social development. The Committee notes the Government's explanations in this respect. In order to enable it to make a better assessment of the situation, the Committee requests the Government to provide information on all laws and regulations adopted under this provision, particularly with regard to social service. It notes that if a law on civic service were to be adopted, the Government would immediately transmit the text.

3. Article 2, paragraph 2(c). The Committee notes the text of Government Agreement 975-84, issuing regulations respecting prison centres, which was transmitted by the Government with its report under Convention No. 105. The Committee notes with interest that section 37 of the regulations provides that detainees awaiting trial are not obliged to work, but that they may do so and are encouraged to do so.

4. Article 2, paragraph 2(d). Cases of emergency. The Committee has previously noted that section 13 of the Public Order Act of 1965 with respect to the state of emergency provides that the Executive may order the services or assistance of persons to maintain the smooth functioning of services of public utility, or of services the operation of which is considered necessary. The Committee once again requests the Government to provide information on the effect given in practice to this provision and on any regulations or other legal texts adopted on this basis. It also requests the Government to indicate the conditions under which section 15 of the same Act is applied, which empowers the President of the Republic to restrict freedom of movement and requires individuals to provide such assistance and cooperation as may be necessary to ensure more effective control of the areas affected in the event of a public disaster.

5. Article 2, paragraph 2(e). Minor services. The Committee has previously noted the information provided by the Government to the effect that certain services of common interest, such as work to improve sewers, drainage and the clearance of refuse have been performed in the framework of the "Food for Work" programme by members of certain communities in coordination with the local authorities. The Committee once again requests the Government to provide information on the activities carried out under the "Food for Work" programme, and particularly on the number of persons involved, the type of work actually performed and the measures taken to guarantee the voluntary nature of participation by the persons concerned.

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1. The Committee notes the Government's reports.

2. The Committee referred in its previous observation to the recommendation of the committee set up by the Governing Body to examine a representation against Guatemala under article 24 of the Constitution. That committee recommended the repeal of Legislative Decree No. 19-86, which provided for the compulsory enlistment of hundreds of thousands of people in so-called Civil Self-Defence Patrols (PACs) and Voluntary Civil Defence Committees (CVDCs).

3. Referring also to its observation under the Abolition of Forced Labour Convention, 1957 (No. 105), the Committee notes with satisfaction the repeal of Decree No. 19-86 by Decree No. 143-96, which came into force on 30 December 1996.

4. The Committee also notes with interest that the abovementioned civil defence committees have been demobilized and disarmed, under international control, in the framework of the peace agreements signed by the Government. From this point of view, the Committee therefore notes that the Government has taken measures to give effect to the conclusions of the Governing Body at its 267th Session in relation to the abovementioned representation.

5. The Committee notes that the Government's reports do not contain any information with regard to the application of Article 25 of the Convention. The Committee notes in this respect that the Governing Body stated in its conclusions that "persons accused of having exacted forced labour have benefited from impunity in cases where the Attorney General of the Republic of Guatemala has issued a decision concerning their responsibility and that the appropriate judicial action has not been taken against them". The Governing Body therefore urged the Government "to ensure the rapidity of the judicial processes and inquiries undertaken concerning the exaction of compulsory labour and to guarantee the imposition of penalties and their strict enforcement". The Committee believes that it is necessary to recall once again that in accordance with Article 25 of the Convention, the illegal exaction of forced or compulsory labour shall be punishable as a penal offence, and it shall be an obligation on any Member ratifying the Convention to ensure that the penalties imposed by law are really adequate and are strictly enforced. The Committee therefore requests the Government to provide information in its next report on the measures which it has taken to give effect to the above recommendations so that it can examine the manner in which these points have been followed up.

The Committee is addressing a request directly to the Government on other matters.

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1. Article 2, paragraph 1, of the Convention. The Committee has noted the provisions of the Constitution concerning freedom and equality and freedom of action and section 2 of Government Accord No. 828-84 which categorically prohibits acts of any nature whatsoever aimed at imposing the exaction of forced labour, as set forth in the Abolition of Forced Labour Convention, 1957 (No. 105). The Committee had also noted that none of the provisions defines forced labour in the terms of this Convention and, therefore, again requests the Government to contemplate adopting a provision which contains the "general prohibition of forced labour" together with a definition in line with that of the Convention.

2. Conscription by the army. The Committee has noted the information in respect of conscription of civilians by the army. The Committee also notes the information contained in the Government's report to the effect that national legislation clearly lays down that no other form of compulsory service other than that included in the Convention may be exacted by the army. The Committee recalls that a peace treaty has been established in Guatemala and requests the Government to inform it whether national military service for young people of a certain age is compulsory and the conditions under which it is carried out.

3. Article 2, paragraph 2(a). The Committee has previously noted the Act constituting the Army of Guatemala (Decree No. 62-90 of 10 January 1991). The Committee again requests the Government to transmit a copy of the texts of the Acts and Regulations relative to conscription, in particular, the texts which refer to duties assigned to new recruits and any other legislation which has been adopted in this respect.

4. Article 2, paragraph 2(b). The Committee has previously noted that article 135(c) of the National Constitution lays down that it is the right and duty of Guatemalan nationals "to work for the civic, cultural, moral, economic and social development of Guatemalan citizens". The Committee again requests the Government to provide information in respect of the practical application of this provision as well as the texts of laws and regulations adopted in this respect, in particular, as regards social services.

5. Article 2, paragraph 2(c). The Committee has previously noted that section 47 of the Penal Code lays down that prison labour is compulsory and that section 48 does not exonerate persons awaiting trial from prison labour. The Committee had referred to the explanations contained in paragraph 90 of the General Survey on the abolition of forced labour of 1979 and had recalled that the Convention stipulates that work can only be exacted from a prisoner as a consequence of a conviction and that persons who are in detention but have not been convicted should work on a purely voluntary basis, if they so desire. The Committee again requests the Government to inform it of any measures which have been adopted or envisaged to ensure observance of the Convention with regard to this point and to communicate a copy of the prison legislation in force. The Committee also requests the Government to state which authorities are empowered to impose prison sentences as laid down in section 45 of the Penal Code.

6. Article 2, paragraph 2(d). The Committee has previously noted that under section 13 of the Public Order Act of 1965 respecting a state of emergency, the Executive Power may order the services or assistance of persons, regardless of privilege or status, to maintain the smooth functioning of the public utility services or whose service or assistance is deemed necessary. The Committee also requests the Government to provide information in respect of the practical application of this provision and the Regulations which have been adopted in this respect. In addition to which, the Committee also requests the Government to indicate the circumstances in which effect has been given to section 15 of the Public Order Act which empowers the President of the Republic to restrict freedom of movement and requires individuals to provide such assistance and cooperation as may be necessary to ensure more effective control of the areas affected in the event of a public disaster.

7. Article 2, paragraph 2(e). The Committee has noted the Government's statement in its report to the effect that certain jobs are for the good of the Community, namely sewage works, drainage and cleaning, and are performed by members of certain communities in cooperation with the local authorities within the framework of the "Food for Work" programme. The Committee requests the Government to provide information in respect of the "Food for Work" programme which is under way and, in particular, the number of persons involved, the type of work being carried out and the guarantees provided to ensure that participation in this work is voluntary.

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The Committee recalls the conclusions reached by the Governing Body at its 267th Session (November 1996) following the recommendations of the committee set up to consider the representation made by the International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers' Associations (IUF) and Public Services International (PSI) under article 24 of the Constitution concerning the application of the present Convention and Convention No. 105. It notes that the Government's report does not contain the information requested by the Governing Body on the action taken in relation to its conclusions.

The Committee hopes the Government will deal in full in its next report with the application of Article 1(1), Article 2(1) and (2) and Article 25 of the Convention in this connection. The Committee recalls in particular the conclusion of the Governing Body as to compulsory labour exacted from hundreds of thousands of people under the guise of service in the so-called Civil Self-Defence Patrols (PACs) and Voluntary Civil Defence Committees (CVDCs), and the failure to impose penalties for the illegal exaction of such labour. It requests the Government to provide information on steps taken to make effective the prohibition of compulsory association with such bodies which is contained in article 34 of the Constitution, including the repeal of legislation such as Legislative Decree No. 19-86 and the results of judicial proceedings in these matters.

The Committee is addressing a request directly to the Government on other points.

[The Government is asked to report in detail in 1999.]

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The Committee notes the Government's first report.

Articles 1 and 2, paragraph 1.

1. The Committee notes the provisions of the Constitution concerning freedom and equality and freedom of action (articles 4 and 5) which provide, respectively, that no one may be subjected to slavery or to any other condition which impairs his dignity, and everyone has the right to do what is not prohibited by law. The Committee also notes that section 2 of Government Accord No. 828-84 categorically prohibits acts of any nature whatsoever aimed at imposing forced labour, as laid down in Convention No. 105. The Committee also notes that article 46 of the Constitution establishes the general principle that, with regard to human rights, the treaties and Conventions accepted and ratified by Guatemala take precedence over domestic law.

The Committee observes, however, that the prohibition laid down in Government Accord No. 828-84 is confined to the cases provided for in Convention No. 105. The Government explains that this is because Convention No. 105 was ratified by Guatemala before Convention No. 29. The Committee also observes that none of the provisions defines forced labour in the terms of the Convention.

The Committee requests the Government to consider the possibility of adopting a provision containing a general prohibition of forced labour, together with a definition in line with that of the Convention.

2. Forced recruitment by the army. The Committee notes the report of the Commission on Human Rights of the United Nations Economic and Social Council concerning the human rights situation in Guatemala (E/CN.4/1993/10), paragraph 51 of which contains information on the problems of forced recruitment by the army. According to this information, the army has continued to use force to arrest young males in the street and draft them into compulsory military service, in some cases without observing the legal requirements concerning the age of the draftees.

The Committee asks the Government to provide information on the measures taken or envisaged to prevent forced recruitment by the army, which is in breach of national laws and regulations on compulsory military service and of the Convention.

3. Civilian self-defence patrols (PAC). According to the Commission on Human Rights, the expert in charge of the report once again found ample confirmation of the largely non-voluntary character of the so-called civilian self-defence patrols (paragraph 54). Paragraph 68 of the same report indicates that "Many complaints are still being received about the pressure brought to bear by the leaders of these patrols, especially on indigenous minors and peasants, to make them join their ranks, pressure which often amounts to forced recruitment by means of threats and ill-treatment".

The Committee also notes the written statement submitted to the Commission on Human Rights by the organization "Human Rights Advocates" (E/CN.4/1993/NGO/33) alleging that "the Guatemalan civil defence forces, known as the civil patrols, are groups of peasants and villagers, almost always made up exclusively of indigenous Guatemalans, organized and controlled by the army with the purported goal of combating anti-Government guerillas". It adds that "Indigenous peasant are forced to serve in the patrols, often under threat of death" and that "Fathers who are unable to patrol must send their sons in their place, even if the sons are minors. In some cases, children as young as eight are forced to patrol, and many fatal accidents have resulted".

The Committee requests the Government, in order to ensure obervance of the Convention, to take the necessary measures to end these practices whereby persons, including minors, are subjected to forced labour, and to provide information on progress made towards this end.

Article 2, paragraph 2

1. Article 2, paragraph 2(a). The Committee notes the Act constituting the Army of Guatemala (Decree No. 62-90 of 10.1.91). The Committee asks the Government to provide a copy of the laws and regulations on compulsory military service, particularly those governing the tasks assigned to recruits. The Committee notes the information contained in the report of the Commission on Human Rights (E/CN.4/1993/10, paragraph 255) to the effect that the Bill on military and social service should be enacted by the National Congress as soon as possible. The Committee asks the Government to provide a copy of the Bill as soon as it becomes law.

2. Article 2, paragraph 2(b). Under articles 135(c) of the National Constitution the rights and duties of Guatemalan citizens include working for the civic, cultural, moral, economic and social development of the Guatemalans. The Committee asks the Government to provide information on the application in practice of this provision, and on the laws and regulations issued under it, particularly as regards social service.

3. Article 2, paragraph 2(c). The Committee notes that section 47 of the Penal Code provides that the work of prisoners is compulsory and that section 48 does not exempt prisoners awaiting trial from prison labour. The Committee refers to the explanations contained in paragraph 90 of its General Survey on the Abolition of Forced Labour of 1979 and recalls that work can only be exacted from a prisoner as a consequence of a conviction and that persons awaiting trial or persons detained without trial may work at their own request on a purely voluntary basis.

The Committee asks the Government to inform it of any measures that have been taken or are envisaged to ensure observance of the Convention on this point and to provide the existing prison legislation. It also asks the Government to state which authorities are empowered to impose the penalty of imprisonment provided for in section 45 of the Penal Code.

4. Article 2, paragraph 2(d). The Committee note that under section 13 of the Public Order Act of 1965 respecting the state of emrgency, the Executive may order the services or assistance of individuals, regardless of their privileges or status, for the purpose of maintaining the operation of public utility services or persons whose services or assistance are deemed necessary. So that the Committee may ascertain the scope of this provision and ensure that its application does not go beyond the cases of force majeure within the meaning of the Convention, the Committee asks the Government to provide information on the effect given to it in practice and the regulations issued under it.

The Committee also asks the Government to indicate the circumstances in which effect has been given to section 15 of the Public Order Act which empowers the President of the Republic to restrict freedom of movement and require individuals to provide such assistance and cooperation as may be necessary to ensure more effective control of the areas affected in the event of public disaster.

5. Article 2, paragraph 2(e). The Committee notes the indication in the Government's report that certain jobs which are for the good of the community in, for example, cleaning, sewage and water mains, which are performed in the framework of the "Food for Work" programme by the members of certain communities in cooperation with the local authorities.

In order that the Committee may ascertain that such jobs fall within the exception provided for in the Convention, it asks the Government to provide information on the "Food for Work" programmes currently under way, indicating in particular the number of persons involved, the type of work and the guarantees that participation in such work is voluntary.

6. Article 25. The Committee notes section 4 of Government Accord No. 828-84 which restricts the application of the appropriate legal sanctions to persons who infringe the provisions of Convention No. 105. The Committee asks the Government to take the necessary steps to incorporate in the legislation specific provisions on the sanctions to be applied in the event of unlawful exaction of forced or compulsory labour, in accordance with the provision of Article 25 of the Convention.