Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

1. The Committee notes the communication from the Trade Union of Civil Aviation Workers (USTAC), received on 18 September 2006, alleging discrimination based on pregnancy against workers recruited under heading 29 of the national budget and the Government’s reply, dated 4 December 2006. It also notes a communication from the Guatemalan Trade Union Movement and indigenous and peasant farmers’ organizations listing 14 trade unions, federations and confederations participating in the communication, received on 27 August 2007. The communication alleges discrimination in the case of the “Faith and Joy” Association and also in the “heading 29” case referred to above.

2. Discrimination based on pregnancy: pregnancy testing and dismissals. In its previous comments, the Committee referred to communications from the Trade Union Confederation of Guatemala (UNSITRAGUA) and the International Confederation of Free Trade Unions (ICFTU, now International Trade Union Confederation)), concerning the administration of pregnancy tests and dismissal on the ground of pregnancy, especially in export processing enterprises (maquiladoras). The Committee notes that, according to the report, the labour inspectorate has not received any complaints relating to the imposition of pregnancy tests as a condition for obtaining or keeping a job. The Government refers to a study entitled “Analysis of gender-based discrimination against women at work, especially in the textile and export processing industries” conducted in the context of the Cumple y gana (Apply and win) programme, with the collaboration of the State Department of the United States. According to this analysis, no pregnancy testing has been reported in clothing and textile enterprises but there is still a high percentage of dismissals among pregnant workers which employers claim to be based on other grounds. The Committee recalls, as it has done on other occasions, that the lack of complaints of discrimination on the ground of pregnancy with regard to obtaining or keeping a job does not mean that this type of discrimination does not exist in practice, and the various communications and the study referred to by the Government indicate that there are problems in this respect. The Committee requests the Government to renew its efforts to tackle discrimination on the ground of pregnancy with regard to obtaining or keeping a job and to strengthen the protection afforded to pregnant workers so that dismissals due to pregnancy which are suggested to be on other grounds cannot occur, and to keep it informed in this respect.

3. Social partners. The Committee notes the activities of the Department for the Promotion of Working Women, including raising awareness of the prohibition on imposing pregnancy tests on workers, and that this work is being carried out in conjunction with the trade unions and will also be done with the employers. The Committee invites the Government to take effective steps in consultation with the social partners to eliminate all forms of discrimination on the ground of pregnancy and to keep it informed in this respect.

4. Communication from the USTAC. In its communication, the USTAC alleges that contracts drawn up pursuant to “heading 29” constitute a form of modern exploitation, since instead of being paid wages or salaries, workers receive monthly fees through a contract which is nearly always for one actual year of work, without any type of social security coverage. It indicates that this type of hiring has made it possible to dismiss pregnant women and make illegal arrangements whereby they are requested to leave their employment at the enterprise while they give birth, to be hired again subsequently. During the intervening period they receive no income and are not covered in terms of social security or medical expenses. In other cases, women workers have been told that if they become pregnant they will be dismissed. The USTAC states that the authorities do not observe the rehiring orders issued by the Labour Inspectorate and that this violation of dignified and decent work occurs not only in the Department of Civil Aviation but throughout the public service. It notes the Government’s statement, in its reply to the communication, that the State of Guatemala concludes administrative contracts with individuals for technical or professional services under “heading 29”, which includes fees for technical or professional services provided by employees without tenure assigned to the service of an executive unit of the State. The Government emphasizes that persons hired under this heading are not employees of the State or public servants since they receive fees, not salaries. It states that some of the women whose contracts were terminated by mutual agreement were rehired and that in other cases the workers’ contracts were terminated on grounds that were unconnected with pregnancy.

5. The Committee cannot ignore the communications referred to in paragraph 2 of this observation, alleging discrimination on the ground of pregnancy, or the analysis referred to by the Government, according to which some sectors contain a high percentage of pregnant women who are dismissed allegedly on grounds other than pregnancy. This information suggests that the problem of dismissals based on pregnancy is part of a wider problem which calls for vigorous structural measures to tackle it. With regard to the case about which the USTAC makes its allegations, it is the State itself which terminates the contracts of pregnant women. Emphasizing the fact that dismissal on the ground of pregnancy constitutes sex-based discrimination, the Committee requests the Government to take all possible steps to ensure that “heading 29” is not used in such a way that women hired under it are discriminated against due to pregnancy, and to keep it informed in this respect. The Committee requests the Government to adopt vigorous measures in this respect since, given that the public sector is concerned, the employer is the State, which has the obligation and the possibility of applying the Convention directly, and to keep it informed in this respect.

6. The Committee notes the numerous activities carried out by various Government bodies to promote the participation and education of women, especially the Department for the Promotion of Working Women, including coordination with the export processing industry dispute prevention body to raise awareness of labour rights in that sector. The Committee requests the Government to continue providing information in this respect.

7. Discrimination based on race. Indigenous peoples. The Committee notes that the Vice-Presidency of the Republic of Guatemala conducted an “Analysis of Discrimination and Racism in Guatemala”, published in 2006, containing a study of the type of public policies needed for eliminating the mechanisms of racism and discrimination prevailing in the country. It notes that, according to the report, such mechanisms play an important role in the severe impact of socio-economic inequalities on indigenous peoples. Noting that the five-volume analysis was not attached to the report, the Committee requests the Government to send a copy and to keep it informed of the follow-up measures taken as a result of the analysis.

The Committee is raising other matters in a request addressed directly to the Government.