Observation (CEACR) - adopted 2004, published 93rd ILC session (2005)

Hours of Work (Industry) Convention, 1919 (No. 1) - Guatemala (Ratification: 1988)

The Committee notes the communication received in July 2004 from the Trade Union of Workers of Operators of Plants, Wells and Guards of the Municipal Water Company and its Annexes (SITOPGEMA) of Guatemala City. This communication was sent to the Government, which has not made any reply to date.

Article 6 of the Convention. Additional hours. SITOPGEMA asserts that the municipality imposes on the workers of this undertaking a schedule consisting of working 24 hours in succession before each rest period of 48 hours, making a total working week of 72 hours. However, article 102(g) of the Constitution of the Republic states that normal working hours are eight hours per day and 44 hours per week. In addition, Order No. 106 adopted on 8 October 1974 by the municipality of Guatemala and the regulations concerning the staff of the municipality of Guatemala of 28 July 1978 fix the normal length of the working week for municipal workers at 40 hours. The 32 hours per week worked beyond this 40-hour limit therefore constitute overtime and should be remunerated as such. However, the municipality of Guatemala has stopped paying overtime while maintaining the abovementioned schedule. SITOPGEMA concludes that this practice constitutes a violation of the Convention.

As the Committee understands it, the weekly hours of work in the municipal water utility of Guatemala City (EMPAGUA) are unevenly distributed over the week, amounting to 72 hours one week followed by 48 hours the following week, inasmuch as the workers concerned alternate 24 hours of work with 48 hours of rest.

Conditions and limits for overtime. Apart from cases of accidents, urgent work or force majeure, the Convention regulates the cases in which permanent or temporary exceptions may be granted to the rules it lays down with regard to hours of work, namely eight hours per day (nine hours if the weekly hours of work are unevenly distributed) and 48 hours per week. Permanent exceptions are authorized in cases of preparatory or complementary work which must necessarily be carried out outside normal working hours or for categories of persons whose work is essentially intermittent. Temporary exceptions are allowed to enable undertakings to deal with exceptional cases of pressure of work.

The Committee requests the Government to provide information on the type of work carried out by the EMPAGUA factory and well operators and to indicate whether the schedules mentioned by SITOPGEMA are habitual or exceptional. In any case, the public authority regulations establishing permanent or temporary exceptions must be adopted after consultation with the employers’ and workers’ organizations. The Committee requests the Government to indicate whether such consultations took place.

By Order No. 106 of 8 October 1974, the municipality of Guatemala adopted the framework agreement and the regulations for fixing the length of the working week at a maximum of 40 hours. The framework agreement states that normal working hours are 40 hours per week and eight hours per day (section 1). Hours worked beyond these limits constitute overtime (section 3). Section 4 of the regulations states that EMPAGUA may adopt the working week not exceeding 40 hours from Monday to Friday in accordance with the governing internal rules of operation. The Committee requests the Government to indicate whether any effect has been given to the aforementioned section.

In addition, section 75 of the regulations concerning the staff of the municipality of Guatemala of 28 July 1978 allow overtime to be worked where required by the needs of the service, up to a maximum of four hours per day, except in cases of force majeure. Under Article 6, paragraph 2, of the Convention, the maximum number of additional hours which can be authorized in each case must be specified. In its previous comments regarding section 122 of the Labour Code, the Committee considered that the employment of workers for four additional hours per day without any restriction (for example, a monthly or annual limit) went far beyond the exceptions authorized by the Convention. The Committee requests the Government to indicate the measures taken to ensure that the number of additional hours authorized is subject to a reasonable monthly or annual limit.

Remuneration for overtime. SITOPGEMA alleges that the overtime worked by EMPAGUA employees is not remunerated. Under section 77 of the regulations fixing the length of a working week at a maximum of 40 hours, additional hours are paid at the regular rate, unless worked on weekly rest days or holidays. However, under Article 6, paragraph 2, of the Convention, additional hours must not only be paid but be subject to a rate of pay which is at least 25 per cent higher than the regular rate. The Committee requests the Government to indicate the measures taken to ensure that additional hours are paid at the rate laid down by the Convention.

The Government is also asked to reply to the points raised by the Committee in its observation of 2003 on the application of the Convention.

Finally, the Committee refers to its comments under the application of Convention No. 29.