Guatemala

Section 7. Worker Rights

The law provides for the right of workers, with the exception of security force members, to form and join trade unions, conduct legal strikes, and bargain collectively. The law, however, places some restrictions on these rights. For example, legal recognition of an industrywide union requires that the membership constitute a majority of the workers in an industry and restricts union leadership to citizens. The law prohibits antiunion discrimination and employer interference in union activities and requires employers to reinstate workers dismissed for organizing union activities. A strike must have the support of the majority of a company’s workforce. Workers are not restricted to membership in one union or one industry.

The president and cabinet may suspend any strike deemed “gravely prejudicial to the country’s essential activities and public services.” The government defined “essential services” more broadly than international standards, thus denying the right to strike to a large number of public workers, such as those working in education, postal services, transport, and the production, transportation, and distribution of energy. Public employees may address grievances by means of conciliation for collective disputes and arbitration directly through the labor courts. For sectors considered essential, arbitration is compulsory if there is no agreement after 30 days of conciliation.

The law prohibits employer retaliation against workers engaged in legal strikes. If authorities do not recognize a strike as legal, employers may suspend or terminate workers for absence without leave. A factory or business owner is not obligated to negotiate a collective bargaining agreement unless at least 25 percent of workers in the factory or business are union members and request negotiations. Once a strike occurs, companies are required to close during negotiations. Strikes have been extremely rare, but work stoppages were common.

The government did not effectively enforce the law. Government institutions, such as the Ministry of Labor and the labor courts, did not effectively investigate, prosecute, or punish employers who violated freedom of association and collective bargaining laws or reinstate workers illegally dismissed for engaging in union activities. The Public Ministry was ineffective in responding to labor court referrals for criminal prosecution in cases where employers refused to comply with labor court orders. Inspectors often lacked vehicles or fuel to carry out inspections, and in some cases they failed to take effective action to gain access to worksites in response to employers’ refusal to permit labor inspectors access to facilities. Inspectors were encouraged to seek police assistance as required. Inspections were generally not comprehensive, and if complaint driven, focused on investigating the alleged violation, rather than attempting to maximize limited resources to determine compliance beyond the individual complaint. Penalties for labor law violations were inadequate and rarely enforced.

In June 2017 passage of Decree 07-2017 restored sanction authority to the Ministry of Labor. Business groups complained the shortened time frame to investigate and verify compliance with Ministry of Labor remediation orders resulted in more cases being referred to the labor courts, without an opportunity to conciliate. The ministry indicated it had collected 1.06 million quetzals in fines ($141,000), but the lack of information about the law’s implementation made it difficult to assess its impact on improving labor law enforcement.

The Special Prosecutor’s Unit for Crimes against Unionists within the Office of the Special Prosecutor for Human Rights in the Public Ministry was responsible for investigating attacks and threats against union members as well as for noncompliance with judicial orders in labor cases. Staffing for the unit has increased, but successful prosecutions remained a challenge. The government reported some 2,000 cases involving noncompliance with labor court orders were under investigation.

An ILO special representative continued to monitor the 2013 roadmap, which includes indicators on increased compliance with reinstatement orders, increased prosecution of perpetrators of violence against trade unionists, reforms to national legislation to conform to Convention 87, and unimpeded registration of trade unions. In November 2017 a tripartite agreement was reached at the ILO, which calls for the formation of a National Tripartite Commission on Labor Relations and Freedom of Association, which would monitor and facilitate implementation of the 2013 ILO roadmap and its 2015 indicators. The commission would report, annually to the governing board and publicly, on progress implementing the ILO roadmap until 2020. In addition to establishing the commission, the parties also committed to submitting to Congress a consensus legislative proposal that would address the long-standing ILO recommendations on freedom of association, collective bargaining, and the right to strike.

The tripartite commission was established in February, but a lack of consensus remained between employers and workers on legislation seeking to address long-standing ILO recommendations related to freedom of association, collective bargaining, and the right to strike, particularly in industry-wide unions. The Ministry of Government convened the Interagency Committee to Analyze Attacks Against Human Rights Defenders, including trade unionists, on a regular basis. NGO participants complained the ministry imposed restrictions on civil society participation in the committee and reduced working-level officials’ authorities to respond to attacks.

Despite these efforts, the country did not demonstrate measurable progress in the effective enforcement of its labor laws, particularly those related to freedom of association and collective bargaining. The ILO noted the need for additional urgent action in several areas related to the roadmap, including investigation and prosecution of perpetrators of trade union violence; the adoption of protection measures for union officials; passage of legislative reforms to remove obstacles to freedom of association and the right to strike; and raising awareness of the rights to freedom of association and collective bargaining, particularly in the apparel and textile industries. The ILO also called for greater compliance with reinstatement orders in cases of antiunion dismissals. Based in large part on the 2017 tripartite agreement, the ILO Governing Body closed the case in November.

Violence and threats against trade unionists and labor activists remained serious problems, with four killings of trade unionists, 20 documented threats, and two violent attacks reported during the year. Authorities did not thoroughly investigate most acts of violence and threats, and by often discarding trade union activity as a motive from the outset of the investigation, allowed these acts to go unprosecuted. Several labor leaders reported death threats and other acts of intimidation. The Public Ministry reported one conviction during the year related to a trade unionist killed in 2012.

Procedural hurdles, union formation restrictions, and impunity for employers refusing to receive or ignoring court orders limited freedom of association and collective bargaining. Government statistics on attempted union registrations indicated most registrations were initially rejected, and when they were issued, it was done outside the legally established period. In addition credentials of union leaders were regularly rejected and delayed. As a result union members were left without additional protections against antiunion retaliation.

Employers routinely resisted union formation attempts, delayed or only partially complied with agreements resulting from direct negotiations, and ignored judicial rulings requiring the employer to negotiate with recognized unions. There were credible reports of retaliation by employers against workers who tried to exercise their rights, including numerous complaints filed with the Ministry of Labor and the Public Ministry alleging employer retaliation for union activity. Common practices included termination and harassment of workers who attempted to form unions, creation of illegal company-supported unions to counter legally established unions, blacklisting of union organizers, and threats of factory closures. Local unions reported businesses used fraudulent bankruptcies, ownership substitution, and reincorporation of companies to circumvent legal obligations to recognize newly formed or established unions, despite legal restrictions on such practices.

The law prohibits all forms of forced or compulsory labor. The government failed to enforce the law effectively in some cases. Reports persisted of men and women subjected to forced labor in agriculture and domestic service. Penalties were inadequate and rarely enforced. Criminal penalties for forced labor range from eight to 18 years’ imprisonment. The government had specialized police and prosecutors handle cases of human trafficking, including forced labor, although local experts reported some prosecutors lacked adequate training. In July 2017 the Public Ministry arrested two sisters who forced six children to beg in the streets for money. The case remained pending at year’s end. There were also other reports of forced child labor (see section 7.c.).

Also see the Department of State’s Trafficking in Persons Report at www.state.gov/j/tip/rls/tiprpt/.

The law bars employment of minors younger than age 14, although it allows the Ministry of Labor to authorize children younger than age 14 to work in exceptional cases. The ministry’s inspectorate reported it did not authorize any exceptions during the year. The law prohibits persons younger than age 18 from working in places that serve alcoholic beverages, in unhealthy or dangerous conditions, at night, or beyond the number of hours permitted. The legal workday for persons younger than age 14 is six hours; for persons ages 14 to 17, the legal workday is seven hours.

The Ministry of Labor’s Child Worker Protection Unit is responsible for enforcing restrictions on child labor and educating minors, their parents, and employers on the rights of minors. Penalties were not sufficient to deter violations. The government did not effectively enforce the law, a situation exacerbated by the weakness of the labor inspection and labor court systems. The government devoted insufficient resources to prevention programs.

Child labor was a widespread problem. The NGO Conrad Project Association of the Cross estimated the workforce included approximately one million children ages five to 17. Most child labor occurred in rural indigenous areas of extreme poverty. The informal and agricultural sectors regularly employed children younger than age 14, usually in small family enterprises, including in the production of broccoli, coffee, corn, fireworks, gravel, and sugar. Indigenous children also worked in street sales and as shoe shiners and bricklayer assistants.

An estimated 39,000 children, primarily indigenous girls, worked as domestic servants and were often vulnerable to physical and sexual abuse. In the Mexican border area, there were reports of forced child labor in municipal dumps and in street begging.

Also see the Department of Labor’s Findings on the Worst Forms of Child Labor at www.dol.gov/ilab/reports/child-labor/findings/ .

The law explicitly prohibits discrimination with respect to employment or occupation based on race, color, sex, religion, political opinion, national origin or citizenship, age, and disability. The government did not effectively enforce the law and related regulations.

Discrimination in employment and occupation occurred. Anecdotally, wage discrimination based on race and sex occurred often in rural areas.

e. Acceptable Conditions of Work

The law sets national minimum wages for agricultural and nonagricultural work and for work in garment factories. The minimum wage for agricultural and nonagricultural work and for work in export-sector-regime factories did not meet the minimum food budget for a family of five. Minimum wage earners are due a mandatory monthly bonus of 250 quetzals ($33), and salaried workers receive two mandatory yearly bonuses (a Christmas bonus and a “14th month” bonus), each equivalent to one month’s salary.

The legal workweek is 48 hours with at least one paid 24-hour rest period. Workers are not to work more than 12 hours a day. The law provides for 12 paid annual holidays and paid vacation of 15 days after one year’s work. Daily and weekly maximum hour limits do not apply to domestic workers. Workers in the formal sector receive the standard pay for a day’s work for official annual holidays. Time-and-a-half pay is required for overtime work, and the law prohibits excessive compulsory overtime.

The government sets occupational health and safety standards that were inadequate, not current for all industries, and poorly enforced. The law does not provide for the right of workers to remove themselves from situations that endangered health or safety without jeopardy to their employment.

The Ministry of Labor conducted inspections to monitor compliance with minimum wage law provisions but often lacked the necessary vehicles or fuel to enable inspectors to enforce the law, especially in the agricultural and informal sectors. The ministry did not employ a sufficient number of labor inspectors to deter violations, and many of them performed conciliation or administrative duties rather than clearly defined inspection duties.

Labor inspectors reported uncovering numerous instances of overtime abuse, but effective enforcement was undermined due to inadequate fines and labor courts’ reluctance to use compulsory measures, such as increased fines and referrals to the criminal courts, to obtain compliance. Other factors contributing to the lack of effective enforcement included labor court inefficiencies, employer refusal to permit labor inspectors to enter facilities or provide access to payroll records and other documentation, and inspectors’ lack of follow-up inspections in the face of such refusals. Labor inspectors were not authorized to sanction employers but had to refer alleged violations to the labor courts. Due to inefficient and lengthy court proceedings, the resolution of cases was often delayed, in many instances for several years. Employers failing to provide a safe workplace were rarely sanctioned, and legislation requiring companies with more than 50 employees to provide onsite medical facilities for their workers was not enforced.

Trade union leaders and human rights groups reported employers required workers to work overtime without legally mandated premium pay. Management often manipulated employer-provided transportation to worksites to force employees to work overtime, especially in export processing zones located in isolated areas with limited transportation alternatives. Noncompliance with minimum wage provisions in the agricultural and informal sectors was widespread. Advocacy groups estimated the vast majority of workers in rural areas who engaged in daylong employment did not receive the wages, benefits, or social security allocations required by law. Many employers in the agricultural sector reportedly conditioned payment of the minimum daily wage on excessive production quotas that workers generally were unable to meet. In order to meet the quota, workers felt compelled to work extra hours, sometimes bringing family members, including children, to help with the work. Because of having to work beyond the maximum allowed hours per day, workers received less than the minimum wage for the day and did not receive the required overtime pay. According to ILO statistics, 74 percent of the workforce worked in the informal sector and outside the basic protections afforded by law.

Local unions highlighted and protested violations by employers who failed to pay employer and employee contributions to the national social security system despite employee contribution deductions from workers’ paychecks. These violations, particularly common in export and agricultural industries, resulted in limiting or denying employees’ access to the public health system and reducing or underpaying workers’ pension benefits during their retirement years.

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