Demande directe (CEACR) - adoptée 2007, publiée 97ème session CIT (2008)

The Committee refers the Government to its observation and draws its attention to the following points.

Articles 2 and 23 of the Convention. Scope of the labour inspection system. In its previous comments, the Committee asked the Government to indicate the branches of the economy of the category 029 workers whose contracts are renewed, according to the Trade Union Confederation of Guatemala (UNSITRAGUA), only if funds are available. UNSITRAGUA alleged that these workers do not have the statutory entitlements of permanent employees and are not paid for hours worked in excess of the normal working day. Once again, the Government’s only response is that these employees do not have the status of public employees or servants. It provides no information allowing the Committee to assess how supervision of the conditions of such workers employed in workplaces covered by the Convention is ensured. It accordingly repeats its request for information in this respect and asks the Government to take the necessary steps to extend to these workers, if this has not already been done, the protection of the inspection system established by the Convention.

Article 3, paragraph 1(b). Provision of information and advice to employers and workers. UNSITRAGUA objected that resolution LPR7ahd 6133‑2002 of 25 July 2002, by which the Labour Inspectorate refused to take a position on breaches by private enterprises of the regulations on overtime pay. It also alleged negligence on the part of the inspectorate in certain situations where its intervention was required. As to the first point, according to the Government the length of the ordinary working day, according to the Constitution, is six, seven or eight hours a day and 36, 42 or 44 hours a week depending on whether it falls in the night, combined or day period. All work done outside these periods must be duly remunerated as overtime. As to the shortcomings and negligence of the inspectorate alleged by UNSITRAGUA, the Government explains that the cases cited qualified as technical proceedings, requiring the assistance of a lawyer. Intervention by the Labour Inspectorate would not have been appropriate. According to the Government, the relevant resources were better used where they were needed. The Committee observes that the Government does not account for the inspectorate’s refusal to provide information and advice on the application of the working time regulations, or any information on investigations to clarify the alleged offences. It notes that section 289 of the Labour Code requires the General Labour Inspectorate to respond to consultations on the application of legal provisions falling within its competence, at the request either of other bodies of the Ministry, or of workers or employers, and to publish the consultations to serve as a reference in the areas concerned. The Government is asked to provide explanations as to why the Inspectorate refused to provide the advice requested, and to supply documents allowing an assessment of how effect is given in practice to the abovementioned provision of the Labour Code.

Article 15(c). Absolute confidentiality of the source of complaints and any link between a complaint and a visit of inspection. Further to its previous observation on this point, raised previously by UNSITRAGUA, the Committee notes that according to the Government, the principle of the confidentiality of the source of complaints is observed unless the worker decides otherwise.  The Government also states that confidentiality of personal data is guaranteed by article 30 of the National Constitution. However, it does not specify, as this provision of the Convention requires, the manner in which it is established that labour inspectors must refrain from intimating to the employer or his representative that a visit of inspection was made in consequence of the receipt of a complaint. The Committee requests the Government to provide information on the manner in which effect is given in law and in practice to this important aspect of the principle of confidentiality, the aim of which is to protect workers against reprisals by employers. If no measures have been taken to this end, it would be grateful if the Government would take the necessary steps rapidly and would keep the ILO duly informed. It hopes that the Government will not fail to provide copies of any decisions penalizing employers found to have taken reprisals, and copies of any documents showing the manner in which protection is ensured for workers threatened with dismissal for pointing out breaches of the legislation.

Articles 19, 20 and 21. Periodical reports and annual report on the functioning of the labour inspectorate. The Committee notes with interest that the Government has at last sent statistics on the number of enterprises in activity (between 1995 and 2004), the number of workers employed (between 2002 and 2004) and industrial accidents (for 2005). It also notes from information available at the ILO that the project “Centoamérica cumple y gana” has been extended to the regional labour administration offices, inter alia, through the installation of an electronic system for the purpose of inspection processing and follow up, and by providing the various offices with electronic equipment, computers and printers for the same purpose. The Committee hopes that the measures adopted in the context of the “Centoamérica cumple y gana” project will facilitate the production by the local inspection offices of periodical reports on the results of their work, as required by Article 19, and that these reports will enable the central inspection authority to prepare an annual report in accordance with Articles 20 and 21. It reminds the Government that guidelines are to be found in Part IV of Recommendation No. 81, on how the information required by Article 21 might be presented to good effect.