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Part II of the Convention (Engagement and recruitment and migrant workers), Articles 5–19. Further to its previous comments, the Committee notes that the Government provides no new information concerning the ad hoc committee set up to ensure the protection of migrant workers and provide them with technical training. The Committee therefore requests the Government once again to: (i) provide further information on the negotiations held within this committee; (ii) provide information on the engagement and recruitment of migrant workers; and (iii) specify the number of these labour migrants, the types of plantations on which they are employed and their working conditions in the light of the comments made by the Trade Union of Workers of Guatemala (UNSITRAGUA) in 2003. Furthermore, the Committee requests the Government to refer to its comments made in 2008 under the Migration for Employment Convention (Revised), 1949 (No. 97), concerning private employment agencies.

Part IV (Wages), Articles 24–35. Further to its previous comments, the Committee notes the information provided by the Government concerning the methods for fixing minimum wages and the number of collective agreements concluded in the agricultural sector. It notes, in particular, the adoption of Government Agreement (Acuerdo Gubernativo) No. 398-2008 of 29 December 2008 fixing the minimum wage for the agricultural sector at 52 quetzales (around US$6) per day. The Committee requests the Government to keep the Office informed of any developments relating to the adjustment of minimum wage rates and would be particularly interested in receiving comparative statistical data, such as information on the average increase in the minimum wage rate over the last ten years in relation to movements in economic indicators, such as inflation, over the same period, to enable the Committee to assess changes in the purchasing power of plantation workers.

With regard to the comments made by UNSITRAGUA in 2003 concerning the payment of wages below the minimum rates, the Committee refers to the comments sent to the Government in 2007 under the Minimum Wage Fixing Convention, 1970 (No. 131), in which it noted that over half of workers in rural areas do not receive the wages, allowances and other supplements to which they are entitled and emphasized the importance of the inspection system in ensuring that the payment of the minimum wage is guaranteed in both law and practice. In this regard, the Committee notes the statistical data provided by the Government which reveal that, in 2006, nearly 40 per cent of undertakings inspected in the agricultural sector were not complying with the legislative provisions relating to the minimum wage. With regard to the comments made by UNSITRAGUA concerning the payment of wages based on workers’ productivity, the Committee notes that section 10 of the above Government Agreement concerns the promotion of wage systems linked to the productivity of workers. It recalls, as previously indicated in its comments sent to the Government in 2007 under Convention No. 131, that, with a view to preventing abuse, subjective assessments of the quantity and quality of work performed should not affect the right to the payment of a minimum wage as an equitable level of remuneration in return for work duly performed during a specified period. The Committee requests the Government to keep the Office informed of any developments relating to the establishment by agricultural undertakings of remuneration systems based on the productivity of workers.

Part V (Annual holidays with pay), Articles 36–42. Further to the comments made by UNSITRAGUA in 2003 concerning the failure by some employers to comply with the obligation to grant paid holidays and the practice of hiring temporary workers or workers paid on a piece-rate basis in order to avoid paying holidays, the Committee notes the information provided by the Government concerning the legislative provisions granting an annual holiday to workers. It recalls, however, that, even if the legislative provisions exist, they still need to be applied in a rigorous and effective manner. The Committee therefore requests the Government to refer to the comments sent to it in 2009 under the Holidays with Pay (Agriculture) Convention, 1952 (No. 101), concerning the system of inspection and supervision.

Part VII (Maternity protection), Articles 46–50. Further to its previous comments on this matter, the Committee requests the Government to refer to its comments under the Maternity Protection Convention (Revised), 1952 (No. 103).

Parts IX and X (Right to organise and collective bargaining. Freedom of association), Articles 54–70. The Committee requests the Government to refer to its comments made under the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). It also requests it to refer to the comments sent to it in 2007 under the Rural Workers’ Organisations Convention, 1975 (No. 141), concerning the implementation of a draft national policy on the provision of free assistance to workers wishing to form organizations. Finally, the Committee requests the Government to refer to the recommendations made by the Committee on Freedom of Association in Case No. 2609 concerning the events which took place on the premises of the Compañía de Desarrollo Bananero de Guatemala SA and to the allegations of anti-union acts committed against the Southern Banana Workers’ Union (SITRABANSUR) and to indicate the measures it intends to take to give effect to these recommendations.

Part XI (Labour inspection), Articles 71–84. The Committee notes the statistics provided by the Government concerning the inspections carried out between 2005 and 2008 in the agricultural sector. It requests the Government to refer to its comments made under the Labour Inspection (Agriculture) Convention, 1969 (No. 129).

Part XII (Housing), Articles 85–88. The Committee notes that the Government has still not provided information on the minimum standards and specifications relating to the accommodation of workers on plantations, in accordance with Article 86 of the Convention. It once again requests the Government to indicate the measures taken or envisaged to give full effect to the provisions of the Convention on this matter.

Part XIII (Medical care), Articles 89–91. The Committee recalls its previous comments in which it noted that, under Government Agreement No. 359-91 of 4 July 1991, all enterprises and work centres employing more than 25 workers must set up health services. It notes that the Government has still not provided the information requested concerning the medical assistance given to workers in undertakings and other establishments classified as plantations employing 10–25 workers. The Committee therefore once again requests the Government to provide information in this regard and to indicate the measures taken or envisaged to encourage the provision of adequate medical services for plantation workers and members of their families.

Part V of the report form. Application in practice. The Committee would be grateful if the Government would continue providing general information on the application of the Convention in practice, including, for example: (i) official studies on the social and economic conditions prevailing on plantations; (ii) statistical information on the number of undertakings and workers covered by the Convention; (iii) copies of collective agreements applicable to this sector; and (iv) the number of employers’ and workers’ organizations in the sector, as well as any other information allowing the Committee to ascertain the extent to which plantation workers enjoy living and working conditions that are in conformity with the provisions of the Convention. Finally, it requests the Government to provide information on the importance of the plantation sector for the national economy, in particular in terms of its contribution to the gross domestic product, exports or the active population employed in this sector.

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Further to its previous direct request, the Committee notes the Government’s reply to the comments made by the Trade Union of Workers of Guatemala (UNSITRAGUA) regarding the application of the Convention. The Committee is bound to observe, however, that the Government’s remarks are very general and do not offer any concrete information in response to the specific points raised in the communications of UNSITRAGUA of 23 August and 1 September 2003, especially as regards Part IV (Wages) and Part V (Annual holidays with pay) of the Convention. It accordingly requests the Government to provide full particulars in this regard so as to enable the Committee to examine these points in greater detail at its next meeting.

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The Committee notes the Government’s report and the comments of 25 August and 1 September 2003 by the Trade Union of Workers of Guatemala (UNSITRAGUA) on the application of the Convention.

Part II (Engagement and recruitment of migrant workers), Articles 5 to 19 of the Convention. Recalling its comments of 2001 on Convention No. 97, the Committee notes the Government’s statement that an ad hoc committee has been set up to ensure the protection of migrant workers and provide them with technical training. The Government adds that the abovementioned committee is currently in negotiations with representatives of the Governments of Canada and the United States with a view to obtaining temporary agricultural jobs in those two countries. The Committee requests the Government to provide additional information on the activities of the above committee and to report on developments in the negotiations to obtain jobs abroad. The Committee further requests the Government to provide information on the engagement and recruitment of migrant workers, both national and foreign, and to indicate the number of these labour migrants, their working conditions and the types of plantations in which they are employed. The Committee notes that, according to UNSITRAGUA, the recruitment of temporary plantation workers is carried out as a rule by recruiters most of whom are not registered with or authorized by the Ministry of Labour and Social Security. The recruiters look for workers in indigenous communities located far away from the places of employment, where the workers have no roots and so do not seek job stability. Furthermore, the workers are transported standing in the bodywork of trucks which are totally unsafe. The Committee requests the Government to provide information in response to these allegations and to indicate the number of recruitment agencies that have been approved and the number of persons recruited by them.

Part IV (Wages), Articles 24 to 35. The Committee notes that, according to UNSITRAGUA, there are instances in the banana sector of enterprises setting production targets for their workers which are remunerated by the minimum wage. Furthermore, the workers have to exceed the normal working day in order to meet the targets and obtain the minimum wage. If they fall short of the target (because they have worked at a normal pace and kept to the regular eight-hour working day), they are paid only for what they have produced and the wage they receive is lower than the statutory minimum wage rate.

UNSITRAGUA further alleges that in the sugar-cane plantations of the municipality of La Gomera (Escuintla), workers are made to work 13 hours a day for a wage of 6 quetzales per tonne of cut sugar cane. It alleges similar practices in the coffee plantations of San Pedro Necta (Huehuetenango), where for a 14-hour day workers are paid 10 quetzales per quintal of coffee harvested. Furthermore, in both the above cases the workers are not protected by the Guatemalan Institute of Social Security, are not provided with accommodation and are not paid for their weekly rest day. This is compounded by the recurrent practice of tampering with the scales used to weigh the coffee and the sugar cane in order to pay the workers even less.

The Committee requests the Government to provide information in response to the above allegations. It reminds the Government that, where the method for determining minimum wages is based essentially on piecework, great care must be taken to ensure that workers can earn enough to maintain an adequate standard of living and that their output (and hence their pay) is not unduly restricted by circumstances that are unrelated to their own efforts.

Drawing attention to its comments of 2003 on Convention No. 131, the Committee requests the Government to provide information on the minimum wage rates applying to plantation workers, and to supply reports of labour inspections carried out in this sector to supervise compliance with minimum wages. The Committee also requests the Government to indicate the number of plantation workers who are covered by statutory minimum wages and the number of those subject to minimum wages set by collective agreement.

Part V (Annual holidays with pay), Articles 36 to 42. The Committee notes that, according to UNSITRAGUA, many agricultural enterprises do not comply with the obligation to grant paid annual holidays, or fail to comply in full by counting non-working days in reckoning holiday due. Furthermore, in most cases the bonus created by the Government in Decree No. 37-2001 is excluded from the payment made for holidays. UNSITRAGUA further alleges that banana, cardamom, coffee and African palm plantations hire temporary workers or pay workers on a piece-rate basis in order to avoid paying holidays. The Committee requests the Government to respond to these allegations in its next report.

Part VII (Maternity protection), Articles 46 to 50. The Committee recalls its comments concerning Convention No. 103, and again expresses the hope that the Government will take the necessary measures to bring the legislation on maternity protection into full conformity with the provisions of the Convention, particularly regarding the mandatory nature of post-natal leave and the entitlement to cash benefits and medical care during maternity leave. The Committee notes that according to the Government, studies are being conducted with a view to extending maternity benefits to six regions in the interior of the country which at present have no such services. The Committee requests the Government to report on all developments in this area and to indicate any other measures adopted or envisaged to ensure maternity protection in plantations.

Parts IX and X (Right to organize and collective bargaining; freedom of association), Articles 54 to 70. Please refer to the Committee’s comments of 2003 on Conventions Nos. 98 and 87. The Committee recalls its comments of 2002 on Convention No. 141, in which it requested the Government to specify the manner in which policies and reforms were encouraged to facilitate the establishment of trade union organizations for all agricultural workers. The Committee hopes that the Government will respond to this point in its next report.

Part XI (Labour inspection), Articles 71 to 84. The Committee notes that the Labour Statistics Bulletin of 2000, published by the Ministry of Labour and Social Security, contains no information on labour inspection in plantations. It requests the Government to provide statistical information on inspections carried out in plantations, including contraventions of labour standards (for instance, working time, wages, health and safety and the employment of minors) and the penalties imposed. The Committee reminds the Government of its observations of 2002 on Conventions Nos. 81 and 129, particularly the comments made by two workers’ organizations on the status, duties and working conditions of labour inspectors. The Committee hopes that the Government will respond to these observations in its next report.

Part XII (Housing), Articles 85 to 88. The Committee notes that the Government has still not provided information on minimum standards and specifications of accommodation to be provided for plantation workers, as required by Article 86 of the Convention. The Committee requests the Government to indicate in its next report the measures taken or envisaged to bring the national legislation into full conformity with the provisions of the Convention in this respect.

Part XIII (Medical care), Articles 89 to 91. The Committee notes that the Government has not provided the information it requested in its previous comments concerning the medical assistance given to workers in plantation enterprises and work centres with more than ten but less than 25 employees. The Committee requests the Government to reply to this point and to indicate the measures adopted or envisaged to encourage the provision of adequate medical services for plantation workers and their families.

Part IV of the report form. The Committee requests the Government to provide general information in its next report on the practical application of the Convention, for instance: (i) official studies on social and economic conditions in plantations; (ii) statistical information on the number of enterprises and workers covered by the Convention; (iii) copies of collective agreements applying in this sector; (iv) the number of workers’ and employers’ organizations in the sector, and any other information allowing the Committee to ascertain whether plantation workers enjoy living and working conditions that are consistent with the provisions of the Convention. Lastly, the Committee asks the Government to provide additional information showing the importance of the plantation sector to the national economy, for instance in terms of gross domestic product, exports or the economically active population. 

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The Committee has noted the information provided by the Government in its report.

1. Part VII (Maternity protection). Article 48, paragraph 1. In its previous comments the Committee noted that maternity benefits are paid only in a number of departments in the country. The Committee observed that, according to the information provided by the Government in its report, maternity benefits continued to be paid only in a number of departments in the country. The Committee observes that the Government's report does not contain any kind of response to the question previously raised. The Committee again requests the Government to indicate clearly in which departments these benefits continue to be paid without becoming effective and, where applicable, the measures adopted to extend such benefits to the whole country.

Article 50, paragraph 1. The Committee notes the provisions of article 151, paragraph (c), according to which it is forbidden for employers to dismiss female workers who are pregnant or nursing mothers and benefit from immobility rights, apart from in justifiable cases resulting from a serious violation of the duties emanating from a contract, in accordance with article 77 of the Labour Code. In this respect, the Committee must point out that Article 50, paragraph 1 of the Convention stipulates that while a woman is absent from work on maternity leave in accordance with the provisions of Article 47, it shall not be lawful for her employer to give her notice of dismissal during such absence, or to give her notice of dismissal at such time that the notice would expire during such absence.

The Committee hopes that the Government will indicate in its next report the measures adopted or envisaged with a view to bringing the national legislation into full conformity with the above provisions of the Convention.

2. Part XII (Housing). Article 86. The Committee notes the statement made by the Government according to which the minimum standards and specifications established for the accommodation of plantation workers, although not formulated in writing, are based on the climate and mobility of the area together with the requirements of the regulations on habitation and safety. The Committee hopes that the Government will indicate in its next report the measures adopted or provided for in order to bring national legislation into full conformity with the provisions of the Convention in this respect.

Article 88. In its previous comments the Committee noted that accommodation is not provided in return for rent but as an additional benefit or economic advantage. The Committee notes the provisions of article 145 of the Labour Code, according to which agricultural workers have the right to accommodation which satisfies the conditions set by the hygiene regulations. This provision must be imposed by the Ministry of Labour and Social Services on employers who are able in economic terms to meet such an obligation. The Committee requests the Government to indicate in its next report the measures adopted or established for those houses in which employers are unable in economic terms to fulfil the obligation in question.

3. Part XIII (Medical care). Article 90. The Committee notes the statement made by the Government according to which the Guatemalan Social Security Institute provides technical assistance services. In addition, in certain collective agreements on working conditions this service is also provided by employers through individual doctors. The Committee requests the Government to indicate the nature of the assistance given to workers in plantation enterprises and work centres with more than ten but less than 25 employees.

Article 91. In its previous comments the Committee requested the Government to provide information on the situation in plantation areas with a view to eradicating or controlling prevalent endemic diseases. The Committee notes the statement made by the Government according to which specific measures in this respect have not been envisaged. The Committee requests the Government to provide information on the prevalence of endemic diseases in plantation areas.

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Part X of the Convention. See the observation concerning Convention No. 87.

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1. Part VII (Maternity protection). Article 48, paragraph 1. In its previous comments the Committee noted that maternity benefits covered only certain departments of the country. It notes from the information in the Government's report that this is still the case. It again asks the Government to state which departments are covered by these benefits and what measures, if any, have been taken to extend them to the rest of the country.

Article 50, paragraph 1. The Committee notes the Government's statement that women workers may not be dismissed solely on grounds of pregnancy or nursing. It would be grateful if the Government would indicate the specific measures that have been adopted or are envisaged to make it unlawful for an employer to give a woman notice of dismissal during her absence on maternity leave or at such time that notice would expire during maternity leave.

2. Part XII (Housing). Article 86. In its previous direct request the Committee noted the provisions of section 24 of Decree No. 103-84 of 27 February 1984. It notes the Government's statement that advisory boards as required by this Article of the Convention have not been constituted. It asks the Government to indicate the minimum standards and specifications that have been laid down in respect of housing for plantation workers.

Article 88. The Committee notes the Government's statement that housing is not leased to workers but is an additional benefit or economic advantage. It asks the Government to state whether housing is part of remuneration and to indicate the manner of fixing the time allowed a worker who has been discharged to vacate his housing.

3. Part XIII (Medical care). Article 90. The Committee observes that under sections 1 and 3 of Decree No. 359-91 of 4 July 1991 referred to in the Government's report, all enterprises and work centres with more than 25 workers must set up health services. The Committee refers to the provisions of paragraph 2, Article 1 (revised), of the 1982 Protocol to the Plantations Convention, 1958 (which Guatemala has not yet ratified), under which Members ratifying the Convention may, after consulting the most representative workers' and employers' organizations concerned, exclude from the application of the Convention enterprises which cover not more than five hectares and which employ not more than ten workers at any time during a calendar year. The Committee asks the Government to indicate the standards prescribed in respect of medical services and to state the nature of the care provided in enterprises and work centres in plantations employing more than ten but less than 25 workers.

Article 91. With regard to measures taken in plantation areas to eradicate or control prevalent endemic diseases, and the consultations held in this connection with representatives of the employers' and workers' organizations concerned, the Committee notes the Government statement that no specific measures are envisaged. The Committee asks the Government to keep it informed of developments in this respect.

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Part X of the Convention: see the observation concerning Convention No. 87.

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With reference to its previous direct request, the Committee notes, from the report, that a tripartite commission has been set up to bring up to date and develop the Labour Code. It hopes that it will also be possible to take other measures to give effect to its comments, which read as follows:

1. Part VII (Maternity protection). Article 47, paragraph 3, of the Convention. The Committee notes with interest that section 19 of Decree No. 103-84 of 27 February 1984 to issue the regulations for the application of the Convention provides that the duration of maternity leave shall be that laid down by this provision of the Convention. It hopes that, in order to eliminate any ambiguity, the necessary measures will be taken to amend accordingly section 152 of the Labour Code, which provides for only 75 days of maternity leave.

Article 48, paragraph 1. The Committee notes that maternity benefits cover a number of departments of the country. It asks the Government to indicate the departments that are not yet covered and any measures taken to extend the scope of these benefits to the whole country.

Article 50, paragraph 1. The Committee notes from the report that the General Inspectorate of Labour ensures the application of this provision of the Convention, but points out the necessity, recognised by the Government, moreover, in an earlier report, of adopting specific measurs to declare it unlawful for an employer to give a woman notice of dismissal during her absence on maternity leave or at such time that notice would expire during such absence.

2. Part XII (Housing). The Committee takes note with interest of the information furnished by the Government on the application of this Part of the Convention, and particularly the adoption of provisions for this purpose in Decree No. 103-84. It asks the Government, however, to provide further information on the following points:

Article 86. It asks the Government to indicate the minimum standards and specifications that have been laid down in respect of housing for plantation workers and to provide information on any advisory bodies that may have been constituted to express opinions on matters connected with housing, as required by this Article of the Convention.

Article 88. The Committee asks the Government to indicate the measures taken to ensure that the conditions under which plantation workers are entitled to occupancy are not less favourable than those established by national custom or national legislation and also to indicate the manner of fixing the time allowed a worker who has been discharged to vacate his housing.

3. Part XIII (Medical care). Lastly, the Committee takes note of the information contained in the report with respect to this Part of the Convention. It notes with particular interest the adoption of certain provisions in the above-mentioned Decree No. 103-84. It asks the Government to provide further information on the following Articles of the Convention:

Article 90. The Committee asks the Government to indicate the standards prescribed in respect of medical services and to furnish information on the operation of these services, including information on the nature of the care provided, the premises and equipment available to these services and the numerical strength of the qualified personnel.

Article 91. It asks the Government to indicate the measures taken in plantation areas with a view to eradicating or controlling prevalent endemic diseases and to furnish information on the consultations held in this connection with representatives of the employers' and workers' organisations concerned.

The Committee requests the Government to indicate any progress achieved in this respect.

It also requests it to supply copies of inspection reports.

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Part X of the Convention. See the observation concerning Convention No. 87, as follows:

The Committee notes with interest the establishment of the "Tripartite Committee to Update and Develop the Labour Code" which will put forward proposed amendments to the current Labour Code.

Without overlooking this positive development, the Committee emphasises the need to bring the whole of Guatemalan legislation into conformity with the Convention, and in particular the following sections of the Labour Code of 16 August 1961:

- section 211(a) and (b) on the strict supervision of trade union activities by the Government;

- section 207 on the impossibility for unions to take part in politics;

- section 226(a) on the dissolution of trade unions that have taken part in matters concerning electoral or party politics;

- section 223(b) which confines to Guatemalans the possibility of being elected to trade union office;

- section 241(c) which lays down the obligation to obtain a majority of two-thirds of the workers in the enterprise or production centre for the calling of a strike;

- section 222(f) and (m) which requires a majority of two-thirds of the members of a trade union for the calling of a strike;

- sections 243(a) and 249 which prohibit strikes or work stoppages by agricultural workers at harvest time, with a few exceptions;

- sections 243(d) and 249 which prohibit strikes or work stoppages by workers in enterprises or services in which the Government considers that a suspension of their work would seriously affect the national economy;

- section 255 which provides for the possibility of calling upon the national police to ensure the continuation of work in the event of an illegal strike;

- section 257 which provides for the detention and trial of offenders;

- section 390(2) under which a sentence of from one to five years' imprisonment can be imposed on those who carry out acts intended not only to cause sabotage and destruction (which, indeed, do not lie within the scope of the protection provided by the Convention), but also to paralyse or disturb the functioning of enterprises contributing to the development of the national economy, with a view to jeopardising national production.

The Committee once again recalls that: with regard to the election of trade union leaders, provisions to the effect that they shall be nationals of the country should be relaxed in order to enable foreign workers to obtain access to trade union office, at least after a reasonable period of residence in the host country; that, with regard to the prohibition of political activities, the legislation should permit trade unions to participate in public institutions with the task of improving the cultural, economic and social conditions of the workers; and that, with regard to the exercise of the right to strike, limitations and prohibitions are only compatible with the Convention in respect of essential services in the strict sense of the term, that is where their interruption due to a strike would endanger the life, personal safety or health of the whole or part of the population, or in the event of an acute national crisis.

However, the Committee notes with interest the information supplied by the Government within the context of Case No. 1459 before the Committee on Freedom of Association (see the 259th Report of the Committee on Freedom of Association, paragraphs 275 to 306, approved by the Governing Body at its 241st Session (November 1988)) according to which the Ministry of Labour and Social Security has taken the initiative of proposing amendments to a number of sections of the Labour Code, which will be examined by the legislative body in the near future.

The Committee once again urges the Government to inform it as soon as possible of the measures that have been adopted or are envisaged in order to bring the whole of the legislation into conformity with the provisions of the Convention.