VI. RESPONSE OF THE GUATEMALAN GOVERNMENT
There's deficiency and impunity in the administration of labor justice.
The Ministry of Labor has criticized us for taking over their role, but it's not true. We exist because the ministry doesn't function well.
This report describes the statutory and practical sex discrimination that domestic workers and maquila line operators endure on a daily basis. In the case of domestic workers, this is in large part due to discrimination in legal protection. Despite its obligations under international law and specific commitments made in the peace accords, the Guatemalan government has failed to rectify this discrimination. The labor code does, however, guarantee domestic workers some rights, and provides for extensive protections for maquila line operators. Human Rights Watch has identified three critical inadequacies in the Guatemalan response to gender-specific labor rights violations. First, the government has demonstrated a lack of due diligence in monitoring labor rights conditions and enforcing the labor code. Second, sanctions for labor rights infractions were until recently so inadequate as to fail to provide an effective disincentive to would-be violators of the law. Last, the lack of coordination among state institutions obstructs even the most modest attempts to protect worker rights.
Article 103 of the Guatemalan Constitution establishes the tutelaridad, or protective nature, of labor law in Guatemala.398 Under the labor code, the Ministry of Labor is charged with enforcing labor legislation following the guiding principle of "protection:" a responsibility to engage in the active protection of worker rights, not simply to serve as an impartial arbiter between the employer and the employee. In its last paragraph, Article 106 provides that in cases of doubt over the interpretation or scope of legal, regulatory, or contractual matters in labor affairs, "the interpretation will be made in the manner most favorable for the workers."
In addition to calling for specific reforms to labor legislation in Guatemala, the Social and Economic Agreement in the peace accords committed the government to take steps to "decentralize and expand labour inspection services, strengthening the capacity to monitor compliance with the labour norms of domestic law and those derived from the international labour agreements ratified by Guatemala, paying particular attention to monitoring compliance with the labour rights of women, migrant and temporary agricultural workers, household workers, minors, the elderly, the disabled and other workers who are in a more vulnerable and unprotected situation."399 Despite these promises, the monitoring and enforcement capacity of the labor ministry remains weak.
Workers who have suffered violations of their rights can go to the Ministry of Labor's Inspectorate for assistance. The Inspectorate comprises of three divisions: Conciliation, Visitations, and Mediation. Workers who have been fired and seek either to be rehired or to obtain their legal severance pay report to Conciliation; workers with on-the-job complaints go to the Visitation division. The Mediation division, according to Roberto de León, the general secretary of the Inspectorate, handles the most complex cases, specifically those involving public sector employees.400
The system is not adequately tailored to detect gender-specific labor rights violations. The Inspectorate does conduct predetermined ex oficio investigations on a regular basis. Roberto de León stated that the Inspectorate had conducted 1,700 ex oficio visits between January and June 2000 alone, a significant increase over previous years.401 However, self-initiated independent investigations by individual inspectors are not common. Indeed, the minister of labor told Human Rights Watch that self-initiated investigations must be approved at the ministerial level.402 The ministry makes little or no use of what could be a powerful tool in the protection of workers' rights. The use of pregnancy testing and questions about reproductive status on application forms in the maquila sector are examples. Every official we spoke with was aware of these practices, including the minister of labor, and everyone agreed that these are "totally illegal, without a doubt."403 Labor Magistrate Beatriz de Barreda categorically stated that the labor ministry could open an investigation into these practices if it so chose. 404 However, in an interview with Human Rights Watch, Minister of Labor Alfaro dismissed the idea, saying "I don't think we are into that level of detail."405
When a worker goes to Conciliation to lodge a complaint about alleged violations such as unjust dismissal or failure to pay severance money, the assigned inspector will summon the employer to seek an administrative solution to the conflict. If the employer fails to appear after three summonses, the inspector concludes his or her participation in the matter with a report. Until recently, and while Human Rights Watch conducted this investigation, the worker was solely responsible for pursuing the case in the labor courts beyond this point. In July 2000, Minister of Labor Alfaro announced the creation of the Workers' Defense Office (Procuraduría de Defensa del Trabajador) within the ministry to provide legal aid to workers with no financial resources who have been fired without just cause.409 As a rule, the office only accepts cases in which the severance pay due the worker is calculated at Q5,000 (U.S. $667) or less, but it does accept all cases, regardless of the amount of severance pay, involving pregnant or breastfeeding workers, minors, or senior citizens.410 As of February 2001, the Workers' Defense Office had received 670 cases; of these, 150 cases had been resolved or dropped, while the remaining 520 cases were still being processed.411
In the Visitation division, workers can lodge complaints about on-going, on-the-job abuses. The receiving inspector is supposed to advise the employer of the report, and give the employer a certain number of days to comply with his or her obligations. The inspector may use his or her discretion in determining the length of time.412 The inspector may also conduct an unannounced visit to the work site. During this visit, the inspector will call the worker who submitted the complaint to conduct what one inspector called "a direct hearing" between employee and employer.413 If the employer fails to comply within the specified amount of time, the case is remanded to the legal section of the Inspectorate, which has the obligation of pursuing the case in court on behalf of the worker.
The practice of calling the worker before her employer in a quasi hearing has some troubling aspects. These hearings reflect the overarching emphasis of the labor ministry on conciliation and extrajudicial mechanisms for resolving labor conflicts. Unfortunately, the practice presupposes that the worker will be free to contest openly her employer as if they were equal parties to a negotiation when, in fact, the at-work power dynamic clearly favors the employer. Furthermore, this practice exposes the worker to employer retaliation, and may, in some cases, ultimately serve as a disincentive to other workers. The message is that any attempt to defend one's rights will only put an individual in a worse situation.
Guatemalan Institute for Social Security
The Guatemalan Institute for Social Security (IGSS) was created in 1946 as an autonomous entity with the purpose of "providing minimum protection to the whole population of the country."425 This social security system functions as a public health care system for contributing employees. IGSS provides services and benefits not only in cases of work-related accidents and illnesses, but also general health care and maternity care, as well as disability care and payments.426 Employers with more than three employees have an obligation to register those workers with IGSS, contribute the employer percentage, and deduct the employee contribution each pay period.427
The IGSS can neither impose fines directly nor take any action against employers who fail to comply with IGSS regulations. In cases in which the inspector verifies an infraction, such as the failure of the employer to register workers with the IGSS, the Institute has the obligation to lodge a formal legal complaint. The IGSS official explained that this obligation is rarely pursued. "It takes too much time. We try to reach a conciliation, an extrajudicial resolution." According to the official, the Inspectorate receives an average of ten complaints every month from maquila workers about their inability to get a medical certificate. He claimed most are resolved in favor of the worker. He explained that the last complaint the IGSS Inspectorate lodged in the labor courts was in 1992. "They haven't summoned us yet."434
According to several lawyers and the labor magistrate, employers use several tactics to delay judicial proceedings indefinitely. Chief among these are claims of inability to attend the hearings due to illness (which can be filed up to three times) and allegations of incompetence of the judge to hear the case. This latter charge is routinely filed, regardless of the case or the appointed judge. Once filed, "the judge must give it due process. This is filed only to delay the process," according to labor magistrate de Barreda. 440 Lawyers for employers will file these motions at every step in the process, including appeals, every time causing "another stagnation of months," according to Auyón. 441
As this report was finalized, the Guatemalan Congress adopted a series of reforms to the labor code. These reforms attempt to redress a situation in which sanctions for infractions of the labor code were so minimal that they provided no disincentive to employers. Until the May 2001 reforms were adopted, the labor code established fines that were so low that it was far easier for employers to violate the law and pay the fine than take the necessary measures to protect workers' rights. For example, the labor code stipulated a fine of Q500-Q2500 (U.S. $67-U.S. $333) for a violation of any article referring to salaries, workdays, rest periods, etc. Health and safety violations gave rise to a Q250-1,250 (U.S. $33-U.S. $167) fine. The May 2001 reforms establish a range of minimum wage amounts per type of infraction, rather than absolute quantities of money. Thus, an infraction of legislation related to salaries, workdays, and rest periods, is subject to a fine between three and twelve monthly minimum wages for non-agricultural activities.444 The same reforms give the Ministry of Labor the authority to directly apply and collect fines for infractions of the labor code.445 These welcome reforms conform to the government's long-standing commitment acquired in the 1996 peace accords to temalan government undertook to "promote, in the course of 1996, legal and regulatory changes to enforce the labour laws and severely penalize violations, including violations in respect to the minimum wage, non-payment, withholding and delays in wages, occupational hygiene and safety and the work environment."446 The reforms came at a time when the United States had threatened to remove Guatemala's benefits under two separate preferential trade agreements-GSP and CBTPA-unless, among other steps, the government did not reform the labor code.
The ineffectiveness of state institutions in responding to labor rights violations is due in part to lack of coordination among them. This is especially true for violations in the maquila sector, where the Ministry of Labor, the IGSS, and the Ministry of Economy have important roles. The Guatemalan state now counts on several bodies charged with defending women's rights and overseeing state policies on gender equity. These entities could also have a role to play in monitoring gender-specific labor rights violations and the overall state response.
The Ministry of Economy has far greater coercive power than the labor ministry in cases involving maquilas. Under Decree 29-89 that regulates the maquila sector, the Department of Industrial Policy in the Ministry of Economy is authorized to cancel benefits in the event of non-compliance with national law. 447 Everyone agrees that managers in the maquila sector are far more concerned with the scrutiny of the Department of Industrial Policy than with that of the Ministry of Labor. The department's head, Nora González M., explained that "the labor ministry goes [to a maquila] and doesn't find the information, the economy ministry asks for the information, and gets it." 448 Indeed, the secretary general of the labor ministry's Inspectorate acknowledged that "their power of persuasion is greater than ours."449 Even though the threat of sanctions is greater, the Ministry of Economy has in fact only cancelled benefits six times since 1990.450
Coordination between the labor ministry and IGSS has also been difficult. "There's a certain atomization, certain jealousy between the Ministry of Labor and IGSS. There should be more collaboration between them, but there isn't. Those who come out losing are the workers," according to Pedro Barán, legal advisor to the women's project at CALDH.454 Apparently, an agreement existed years ago to facilitate coordination of efforts between the two institutions, but now "there is no information sharing, in other words, there's no coordination," said an official in the IGSS Inspectorate.455
CALDH proved the catalyst for initiating a dialogue among these institutions. In February 1999, the NGO organized the "Coordinating Body" (Instancia Coordinadora), an informal mechanism for promoting coordination not only among state institutions, but also with NGOs. The Instancia includes the Ministry of Labor (Inspectorate, Health and Safety, and the Working Woman's Unit), IGSS (Inspectorate, Health and Safety), Ministry of Economy (Department of Industrial Policy), Immigration Department, Human Rights Ombudsman's Office (Education Department), GRUFEPROMEFAM, AMES, CEADEL and COVERCO. The ILO and MINUGUA participate as observers. While all members applaud the effort, few concrete measures have resulted. For example, the Instancia has proposed a system in which the Ministry of Economy would send information about newly established maquilas to the IGSS Inspectorate every month. This would facilitate the ability of IGSS to ensure compliance with registration of workers and contributions. There is, however, no formal agreement yet, and therefore no information is currently being shared.456
396 Human Rights Watch interview, Augusto Salazar, national coordinator, FESTRAS, Guatemala City, June 9, 2000.
397 Human Rights Watch interview, Kenneth Kim, project coordinator, COVERCO, Guatemala City, June 1, 2000.
398 Constitution of the Republic, Article 103: "The laws that regulate relations between employer and work [sic] are conciliatory, protective of the workers and will attend to all the pertinent economic and social factors."
399 Social and Economic Agreement, Article 26(d).
400 Human Rights Watch interview, Roberto de León, secretary general, Labor Inspectorate, Guatemala City, June 22, 2000.
401 Ibid. According to de León, the Inspectorate conducted 431 ex oficio investigations in 1999 and 516 in 1998.
402 Human Rights Watch interview, Juan Francisco Alfaro Mijangos, minister of labor, Guatemala City, June 23, 2000.
403 Human Rights Watch interview, Berta Hilda de Alcántara, director, Working Women's Unit, Guatemala City, June 21, 2000.
404 Human Rights Watch interview, Beatriz de León de Barreda, labor magistrate, Guatemala City, June 22, 2000.
405 Human Rights Watch interview, Juan Francisco Alfaro Mijangos, minister of labor, Guatemala City, June 23, 2000.
407 Labor code, Article 27.
408 Labor code, Article 61(a).
409 "Ministerio de Trabajo inaugura procuraduría de defensa del trabajador" ("Ministry of Labor inaugurates a workers' defense office"), Siglo Veintiuno, July 14, 2000.
410 Communication (fax) from Carmen Yolanda Monges Galván, Asistente General del Ministro (General Assistant to the Minister), Ministry of Labor, dated February 23, 2001, Of. 134-2001 CYN/slo.
412 Labor Code, Article 281(l).
413 Human Rights Watch interview, anonymous labor inspector, Guatemala City, June 13, 2000.
414 Human Rights Watch interview, anonymous labor inspector, Guatemala City, June 13, 2000.
415 Human Rights Watch interview, Berta Hilda de Alcántara, director, Working Women's Unit, Guatemala City, June 21, 2000.
416 Human Rights Watch interviews, José Antonio Recinos and César Augusto Prera, prosecutors, Labor Inspectorate, Guatemala City, June 22, 2000, and Roberto de León, secretary general, Labor Inspectorate, Guatemala City, June 22, 2000.
417 Human Rights Watch interview, Berta Hilda de Alcántara, director, Working Women's Unit, Guatemala City, June 21, 2000.
418 Human Rights Watch interview, anonymous labor inspector, Guatemala City, June 13, 2000.
419 Human Rights Watch interview, anonymous labor inspector, Guatemala City, June 13, 2000.
420 Human Rights Watch interview, Pedro Barán, lawyer, CALDH, Guatemala City, June 20, 2000.
421 Human Rights Watch interview, Roberto de León, secretary general, Labor Inspectorate, Guatemala City, June 22, 2000.
422 Human Rights Watch interview, Misrahí Iram Aben Auyón B., lawyer, CENTRACAP, Guatemala City, June 7, 2000.
423 Human Rights Watch interview, José Antonio Recinos and César Augusto Prera, prosecutors, Ministry of Labor, Guatemala City, June 20, 2000.
424 Human Rights Watch interview, anonymous labor inspector, Guatemala City, June 13, 2000.
425 Organic Law of the Guatemalan Institute for Social Security, Decree No. 295, October 30, 1946, preamble.
426 Organic Law, Chapter IV, Article 28. Children of employees are covered up to five years of age. Unlike their male counterparts, female employees affiliated with IGSS cannot extend the coverage to their spouses.
427 Labor Code, Article 102. This article actually stipulates only that employers with three or more employees must maintain records in keeping with IGSS regulations. However, it is cited as the source for the rule that only these employers must register their employees with IGSS.
428 Organic Law, Chapter VII, Article 50.
429 Human Rights Watch interview, anonymous IGSS official, Guatemala City, June 23, 2000.
432 Human Rights Watch interview, Carmen López de Cáceres, director, ILO Project for Women Working in the Maquila Sector, Guatemala City, June 2, 2000.
433 Human Rights Watch interview, anonymous IGSS official, Guatemala City, June 23, 2000.
434 Human Rights Watch interview, anonymous IGSS official, Guatemala City, June 23, 2000.
435 Human Rights Watch interview, José Antonio Recinos and César Augusto Prera, prosecutors, Ministry of Labor, Guatemala City, June 20, 2000.
436 Human Rights Watch interview, Augusto Salazar, national coordinator, FESTRAS, Guatemala City, June 9, 2000.
437 Labor Code, Articles 269-272, 281 (l).
438 Human Rights Watch interview, Beatriz de León de Barreda, labor magistrate, Guatemala City, June 22, 2000.
439 Human Rights Watch interview, Pedro Barán, CALDH lawyer, Guatemala City, May 29, 2000.
440 Human Rights Watch interview, Beatriz de León de Barreda, labor magistrate, Guatemala City, June 22, 2000.
441 Human Rights Watch interview, Misrahí Iram Aben Auyón B., lawyer for CENTRACAP, Guatemala City, June 7, 2000.
442 Human Rights Watch interview, Beatriz de León de Barreda, labor magistrate, Guatemala City, June 22, 2000.
443 Of the other cases, two were resolved without going to court, one was resolved in court through arbitration by the judge, and nine were outstanding.
444 Decree Number 18-2001, Reforms to the Labor Code Decree Number 1441, adopted May 14, 2001, Article 17.
445 Ibid., Article 15.
446 Social and Economic Agreement, Article 26(c).
447 Decree 29-89, Article 43 (f).
448 Human Rights Watch interview, Nora González M., director, Department of Industrial Policy, Ministry of Economy, Guatemala City, June 21, 2000.
449 Human Rights Watch interview, Roberto de León, secretary general, Labor Inspectorate, Guatemala City, June 22, 2000.
450 Communication (email) from Nora González M., director, Department of Industrial Policy, Ministry of Economy, dated March 1, 2001.
451 Human Rights Watch interview, Roberto de León, secretary general, Labor Inspectorate, Guatemala City, June 22, 2000.
452 Human Rights Watch interview, Nora González M., director, Department of Industrial Policy, Ministry of Economy, Guatemala City, June 21, 2000.
453 Communication (email) from Nora González M., director, Department of Industrial Policy, Ministry of Economy, dated March 1, 2001.
454 Human Rights Watch interview, Pedro Barán, lawyer, CALDH, Guatemala City, June 20, 2000.
455 Human Rights Watch interview, anonymous IGSS official, Guatemala City, June 23, 2000.