Título Noveno. Organización Administrativa de Trabajo

The Ministry of Labor and Social Welfare is responsible for the direction, study and dispatch of all matters relating to labor and to social welfare and must oversee the development, improvement and application of all legal provisions referring to these matters, which are not within the jurisdiction of the tribunals, principally those whose direct object is to establish and harmonize the relations between employers and workers.

Said Ministry and the Guatemalan Institute of Social Security must coordinate their action in matters of social welfare, subject to what is provided by the organic law of the latter and its regulations.

The matters referred to in the preceding article are within the exclusive jurisdiction of the authorities created by this Code, and any other authorities are obligated to provide them with the cooperation and assistance that those authorities request from them.

Consequently, the decisions issued by the Ministry of Labor and Social Welfare or its dependencies may only be challenged through the following appeals:

a)Application for revocation, which must be filed in writing before the administrative dependency of the aforementioned Ministry, within the term of forty-eight hours following notification of the decision, with the respective office required to immediately forward the proceedings to the Ministry of Labor and Social Welfare. The Ministry must decide within the non-extendable term of eight days, revoking, confirming or modifying the appealed decision. The respective time limit shall begin to run from the day following the day on which the proceedings are received; and

b)Motion for reconsideration, in the case of decisions originally issued by the Ministry. Such appeal shall be processed and decided within the same terms indicated in the preceding subparagraph.

Upon expiration of the eight-day term without the Ministry having issued its decision, the governmental avenue shall be deemed exhausted and the applications for revocation or motions for reconsideration, as applicable, shall be deemed decided adversely.

The Ministry of Labor and Social Welfare has the following dependencies:

a)*Administrative Department of Labor, whose head must be a Guatemalan of those covered by Article 6 of the Constitution and an Attorney of the Tribunals specialized in labor matters;

b)General Labor Inspectorate, whose holder must have the same qualifications indicated in the preceding subparagraph;

c)National Wage Commission, composed of the public officials determined by the respective Regulation; and,

d)Such others as determined by the regulation or regulations issued by the Executive Branch, by means of an agreement issued through said Ministry.

The offices referred to in the preceding article, in addition to the powers that this Code assigns to them, must carry out those determined by their respective Internal Work Regulations.

The General Labor Inspectorate, through its corps of inspectors and social workers, shall ensure that employers, workers and trade union organizations comply with and respect the laws, collective agreements and regulations governing working conditions and social welfare in force or to be issued in the future.

Direct and conciliatory settlements executed before labor inspectors or social workers, once approved by the Inspector General of Labor or by the Deputy Inspector General of Labor, shall have the character of an enforceable title.

In matters processed before the administrative labor authorities, interested parties do not need the intervention of an attorney, but if they seek to be advised, only attorneys and trade union leaders may act as such; as to the latter, they may only advise members of their respective trade unions to which they belong, a circumstance they shall prove before the respective office, and exclusively in matters whose amount does not exceed three hundred quetzales.

The provisions contained in Article 323 shall also govern where interested parties have themselves represented in their proceedings before the administrative labor authorities, but the fact that members of the personnel of an enterprise appear to act on its behalf must be considered as direct action by the respective employer.

The General Labor Inspectorate has the character of Technical Adviser to the respective Ministry and, for this purpose, must answer all consultations addressed to it by the other dependencies thereof, the employers or the workers, on the manner in which the legal provisions within its jurisdiction must be applied.

The Inspectorate must publish in the official organ of the Ministry of Labor and Social Welfare, or failing that, in one of the newspapers of widest circulation throughout the Republic, the consultations it answers or any decisions issued by the labor and social welfare authorities, whenever it deems it advisable, so that they may serve as a guide or orientation in the respective matters.

The General Labor Inspectorate shall be considered a party to every individual or collective dispute of a legal nature involving minor workers or workers whose employment relationship has ended without due payment of compensation, benefits and back wages; or involving actions to protect the maternity of women workers, unless with respect to the latter the Guatemalan Institute of Social Security appears as a party.

Furthermore, within its function of ensuring strict observance of labor and social welfare laws and regulations, it is obligated to promote or carry out the processing and completion of proceedings for labor offenses reported by labor inspectors and social workers and to seek the application of the corresponding sanctions to offenders.

Labor inspectors who duly prove their identity, their appointment and the purpose of the inspection are authorities that have the obligations and powers expressed below:

a)To enter without prior notification into any labor establishment subject to inspection during working hours, in accordance with the internal work rules or the authorizations of the Ministry of Labor and Social Welfare, and to remain therein for the time necessary for the performance of their functions; such authorization does not empower them to enter buildings that are being used as a dwelling house, private residence or housing, except where, with prior authorization from a judge, it has been established that activities are carried out therein as an establishment or workplace.

b)To be accompanied on inspection visits by the experts and technicians of the Ministry of Labor and Social Welfare or of the Guatemalan Social Security Institute. When there is obstruction or refusal of their entry to the workplace, they may request the intervention or support of members of the National Civil Police to allow compliance with the inspection. Labor Inspectors act under their strictest liability. In duly justified cases the General Labor Inspectorate may request judicial authorization.

c)To carry out any inspection, examination or evidence procedure they consider necessary to verify that the legal provisions in force are correctly observed and in particular to:

1.To require information, alone or before witnesses, from the inspected party or the personnel of the workplace on any matter relating to the application of the legal provisions in force governing labor relations, as well as to demand the identification, or reason for their presence, of the persons who are found at the inspected workplace. Labor Inspectors must interview the workers without the presence or suggestion of the employers or their representatives, informing them that their statements shall be confidential, unless the workers request the presence of the latter.

2.To require the presence of the employer or its representatives or persons in charge, of the workers and of any subjects included in its scope of action, at the inspected center or at the public offices designated by the inspector. For such purpose, they must submit the required documentation and be accompanied by persons having full knowledge of the matters for which their presence was required.

3.To examine at the place where they are found, including electronic storage systems, the documentation and books of the company with relevance to verification of compliance with labor legislation, such as the report contained in Article 61 subparagraph a) of this Code, accounting, books, records, computer programs and files on magnetic media, official declarations, social security documents; payrolls and payment receipts for remuneration and non-waivable benefits; physical documents required by labor regulations in whatever form in which they are kept, and any others related to matters subject to the administrative file; to obtain copies and excerpts of the documents to attach them to the administrative file, as well as to require the submission of such documentation at the public offices designated for such purpose. In the case of accounting books, physical or electronic, they may only be reviewed with the prior authorization of the Labor and Social Welfare judge.

4.To take or remove samples of substances and materials used or handled in the establishment, to take measurements, obtain photographs, videos, image recordings, to draw sketches and plans, provided that the inspected employer or its representative is notified.

d)To collect and obtain information, data or background with relevance to the inspection function.

e)To draw up the record of presumed violation for obstruction of inspection work when an unjustified refusal or impediment to carrying out an inspection at a workplace or in specific areas thereof occurs, effected by the employer, its representative or dependents, whether or not workers of the company, by orders or directives thereof. The impediment may be direct or indirect, harming, hindering or delaying the work of the inspector so as not to allow compliance with the oversight, or by refusing to provide the necessary support.

f)To adopt, where appropriate, once the inspection procedures have been completed, any of the following measures:

1.To require the adoption of measures to promote the best and most adequate compliance with labor standards, granting a time limit of no more than eight (8) days within which compliance with what was required must be verified. In case of non-compliance, the relevant administrative sanctioning proceedings shall be initiated.

2.To require the inspected employer to carry out, within a reasonable time limit, such modifications as are necessary in the facilities, in the assembly or in the work method that ensure compliance with the provisions in force on health and safety at work.

3.To initiate the administrative sanctioning proceedings through the issuance of records of violation of labor standards or of violation for obstruction of inspection work.

4.To order the immediate stoppage or prohibition of works or tasks due to non-observance of the regulations on occupational risk prevention, where serious or imminent risk to the safety or health of the workers concurs.

5.All other measures derived from the legislation in force.

g)Departmental Delegates and Labor Inspectors shall be criminally, civilly and administratively liable for their actions outside the framework of the law, as well as for the damage and losses they cause by such actions, particularly when they disclose the data they obtain by reason of their inspections or visits, revealing industrial or commercial secrets learned by reason of their duties; when they record false facts in the records they draw up or in the reports they render; when they accept gifts from the employers or the workers or the trade unions; when they exceed the performance of their functions or in any other way seriously violate the duties of their office they must be immediately dismissed, without prejudice to any other corresponding criminal, civil or other liabilities.

With respect to the disclosure of the data they obtain by reason of their inspections or visits and of the industrial or commercial secrets of which they have knowledge, the prohibition referred to in the preceding paragraph subsists even after leaving the service.

h)For the performance of their functions Labor Inspectors may summon employers and workers to their offices and the latter are obliged to attend, provided that the respective summons expressly states the purpose of the proceeding. Failure to attend any summons constitutes a violation of the labor laws, giving rise to the inspection procedure and the sanctioning procedure for failure to attend the summons.

Any person may report to the inspectors or to the social workers any violation committed by employers or workers against the labor or social welfare laws.