Por Sarah Castrillo
Coordinadora de Programas FUNPADEM
Guatemala has ratified an international regulatory framework towards improving labor rights compliance, which includes among its main topics employment, working conditions, wage and salary policies, occupational safety and health, and social protection. This legal framework aims to guide the legislative development of the countries regarding the strengthening and the design of national strategies and public policies in order to generate decent work and comply with the CAFTA – DR regulations.
Although progress has been made in terms of compliance with labor rights, the gap between ratification of these instruments and their effective implementation remains a challenge (OIT, s.f.). An active promotion of international labor standards and a strong support for public institutions responsible for protecting the rights of workers is necessary, specifically the Ministry of Labor and Social Security (MINTRAB).
It is very important to state that the last effort that has been developed to census and investigate statistical data on labor compliance was done in 2012, through the Public Opinion Study on Decent Work and Informal Economy, by the Association of Research and Social Studies (ASIES) which is not a governmental entity. According to this survey, the performance of the labor market has been characterized by high unemployment, non-compliance with labor guarantees and greater informality. This is decisive in explaining the growing inequality and the stagnation of income poverty. Furthermore, the Campesino Development Committee (CODECA) developed a study regarding “Labor situation of agricultural workers in Guatemala” in 2013 which provided, together with the ASIES study a set of very upsetting data regarding different topics that the CAFTA-DR agreement covers it also identifies:
Table n. 1: Information regarding labor rights violations according to CODECA and ASIES studies, 2013.
Minimum Wage (ASIES, 2012)
|The stipulated amount for the agricultural sector in 2018 is 2,992.37 quetzals per month (this amount is approximately $ 400 USD), including the salary bonus incentive implemented by the Guatemalan government (MINTRAB, 2018). However, the opinion study revealed that more than 90% of rural workers receive an amount considerably lower than the minimum wage required by law; and in the case of women, 97% earn below the minimum wage. This fieldwork also indicated that the “bonus 14”, equivalent to an extra salary at the end of The year, is a privilege of very few families; less than 10% of the people surveyed. This naturally contributes to the lack of development and resources to improve the live quality of those who live off agricultural activity, and hinders the efforts of reducing poverty and malnutrition. (Public Opinion Study on Decent Work and Informal Economy, ASIES, 2012)|
|Working hours (CODECA, 2013)||In Guatemala the labor legislation states that the ordinary working day corresponds to 8 hours daily/48 per week. Based on the study only 14% of farm employees work a maximum of eight hours a day; 70% indicated that work between 9 and 12 hours but without receiving the payment of extra hours. The remaining 16% claims to work more than 12 hours a day. The lack of rest hours and vacations are also recurrent.|
|Employment and Social Security (CODECA, 2013)||The study identifies that 36% of the total labor force in the sector is composed of women and children which according to the article 102 of the Guatemalan Constitution is forbidden. Also, it should be noted that 69% of the total number of farmworkers are indigenous people, who are the ones who are victims of the most labor rights violations since they usually have only verbal contracts (because of their very basic education, or their language barrier), which hinders its insertion in the Guatemalan Social Security system (IGSS). According to the Labor Code (Article 27), the work contract can be verbal in agricultural or livestock work or in temporary work that does not exceed 60 days, and that in case of conflict the burden of proof rests with the employer (Article 30).
Also 76% of field workers in the 14 departments sampled indicated that they didn’t had a formal written labor contract and an 90% indicated that they weren’t affiliated to social insurance at all.
|Freedom of association (CODECA, 2013)||Although the rights of freedom of association are stipulated clearly in the Guatemalan Constitution (in articles 34 and 102 respectively) the fact of not having labor contracts and not belonging to the Social Security system puts employers in an advantageous situation in which they can force, through threats of unjustified dismissal, workers who contemplate unions or associations.|
|Occupational health and safety
|This topic should be emphasized because of the imminent dangers in the agricultural industry. According to the study, 95% of farm workers indicate the absence of basic safety and hygiene measures to carry out their work with dignity. Poisonous animals, high temperatures, high-risk chemicals and lack of drinking water are just some of the problems they must live with on a daily basis.|
Source: CODECA and ASIES (2013)
On the other hand, the government is trying to strengthen labor rights compliance trough an Agricultural Policy Plan, which is composed by 4 main axes: (1) Increase in productivity and generation of surpluses in family farmers, men and women, in subsistence, subsistence and surplus; (2) Marketing, access to markets, norms and regulations; (3) Renewable natural resources and climate change; (4). Institutional management. (Agricultural Policy 2016-2020).
Although the Guatemalan government is trying to strengthen labor rights compliance, its lack of financial and human resources and capabilities is hindering the process. In addition to the fact that there are no up-to-date statistics on labor matters, the human resources dedicated to the inspection and processing of labor fines can not cope with the amount of work that this topic represents (Guatemala has a total of 24 labor regional offices they only have 179 inspectors for 16.58 million people, which is very insufficient).
Among the main obstacles identified by the study “Tendency of employment” developed by ECLAC and ISEF in 2016; in the agricultural sector there are insufficient resources to carry out inspections in rural areas, such as lack of vehicles and fuel and delayed payment of travel expenses; as well as the insufficient information available to workers regarding their rights and the difficulty they have in identifying the employer.
The Guatemalan government promoted formal work by increasing MINTRAB’s budget (15.62%), and a substantial part of this increment was dedicated to strengthening the labor inspection department through the hiring of 100 new inspectors. However, they showed important gaps in knowledge and capacities to control labor rights, especially the rights of agricultural workers (OHCHR report, 2012). To this situation its important to add that the professional profile that the MINTRAB requires from an inspector is that they are law students or have a law degree, unfortunately this means that many of the inspectors have between 3 and 10 years of being part of the IGT without having completed their career.
In 2015 the Unique Protocol of the IGT was published, which includes special guidelines to verify the rights of agricultural workers, however, it is worth noting that the budget that MINTRAB received for its inspection department was reduced that same year. The issue of the sanctioning power of the IGT is also a problem since a ruling of the Constitutional Court of August 3, 2004, declared unconstitutional the power to impose administrative sanctions, attributed to the IGT for a reform of the Code of Conduct.
Also, even when the IGT can develop a sanctioning resolution it is not a binding one, the judicial court is the entity entitled to it. For this reason, the IGT must transfer the cases to the Labor Court to grant the final sentence; however, the labor court can reopen the case and carry out again the entire conciliation process that was previously carried out in the instances of the IGT. This generates a duplicity of functions, but also the substantial problem that is currently evident in labor matters which corresponds to the moratorium of the processes in the judicial process. Since the ordinary positions of judges in offices of unique competence in labor matters are insufficient for the workflow that this subject generates.
Table n.2: Ordinary seats of judges in the offices of unique competence in labor matters according to instance between 2005 – 2010.
|Instance and competence||2005||2006||2007||2008||2009||2010|
Source: Own elaboration based on the information provided by the National Center for Judicial Documentation and Analysis (CENADOJ)
Based on all the information previously displayed it is easy to state that the Guatemalan government is trying very hard to increase labor law compliance, nevertheless, the actual country conditions are impeding it.
ASIES. (2012). Estudio de opinión pública sobre trabajo decente y economía informal. July 20, 2018, de ASIES Website: https://s3.amazonaws.com/asies-books/books/estudio-de-opini–n-p–blica-asies-2012-final.pdf
CODECA. (2013). Situación laboral de trabajadores/as agrícolas en Guatemala. July 30, 2018, de CODECA Website: https://www.servindi.org/pdf/situacion_laboral.pdf
FIDA. (2016). Tendencia del empleo agropecuario en Guatemala. Juy 22, 2018, de CEDAL Sitio web: https://repositorio.cepal.org/bitstream/handle/11362/40724/S1601055_es.pdf?sequence=1&isAllowed=y
Guatemalan Agriculture Ministry . (2016). Política Agropecuaria. July 18, 2018, de Guatemalan Agriculture Ministry Website: http://www.fao.org/fileadmin/user_upload/FAO-countries/Guatemala/Publicaciones/Poli%CC%81tica_Agropecuaria_-BAJA-.pdf
Natiana Gándara. (2017). Ganaderos y agro quieren menos impuestos, el debate entre SAT y el Congreso. 27 July 2018, de Prensa Libre; Website: https://www.prensalibre.com/economia/economia/modificacion-de-ley-genera-rechazo-fiscal