Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

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

Articles 2 and 6 of the Convention. Work in excess of normal hours of work – Overtime hours. Further to its previous comments relating to the observations made by the Trade Union of Workers of Operators of Plants, Wells and Guards of the Municipal Water Company and its Annexes (SITOPGEMA), the Committee notes ruling No. 1088-2004-561 of the labour and social insurance tribunal of 16 April 2008. The ruling sets aside the union’s claim for the payment of overtime hours on the basis of the decision of the municipal council of 18 December 1995 approving the internal work rules for staff not subject to limitations on the ordinary daily hours of work of the Municipal Water Company of the City of Guatemala (EMPAGUA). The Committee also notes the indication by the administration of the EMPAGUA that the above decision provides for a working day of 24 hours followed by 48 hours of rest for career workers not subject to limitations on ordinary daily hours of work, or 72 hours of work a week. In this respect, the Committee is bound to recall that the Convention establishes a double cumulative limit, namely eight hours in the day and 48 hours in the week. It only allows exemptions from these maximum limits in restricted and well-defined circumstances, namely: (i) the distribution of hours of work over the week (Article 2(b)); (ii) the averaging of hours of work over a period of three weeks in the case of shift work (Article 2(c)); (iii) processes that are necessarily carried on continuously within the limit of 56 hours in the week (Article 4); (iv) the averaging of hours of work in exceptional cases (Article 5); and (v) permanent exceptions (preparatory, complementary or intermittent work) and temporary exceptions (exceptional cases of pressure of work) (Article 6). The Committee also wishes to refer to paragraphs 85 to 168 of the General Survey that it published in 2005 on Conventions Nos 1 and 30 relating to hours of work, which provide a detailed analysis of the requirements of the Convention in relation to the distribution of hours of work and authorized exemptions. The Committee requests the Government to indicate whether employers’ and workers’ organizations were consulted before the adoption of above-referenced work the rules by the public authority, in accordance with Article 6, paragraph 2, of the Convention, and it urges the Government to revise any rules providing for working days of 24 hours, which are manifestly contrary to the most elementary principles of this Convention.

Furthermore, with regard to the observations made in August 2003 by the Trade Union Confederation of Guatemala (UNSITRAGUA), the Committee notes that the Government’s report does not contain any reply. It recalls that, according to these observations, a number of enterprises set production targets which can only be achieved by working days that are sometimes in excess of 12 hours, but which nevertheless pay the minimum wage or a wage calculated on a piecework basis, in accordance with section 88(b) of the Labour Code. The union also pointed out that in industrial enterprises staff responsible for security could alternate between periods of 24 hours of work and of rest and that the Minister of Labour authorized collective agreements accepting these conditions. The Committee requests the Government to provide information on the current situation and any observations that it deems pertinent in this respect.

Finally, the Committee notes that section 122 of the Labour Code, which provides that the working day including overtime hours may not exceed 12 hours, has still not been amended and that it does not determine the circumstances in which overtime hours may be performed, nor the maximum number of overtime hours that may be authorized in each case. The Committee notes with regret that the question of the harmonization of section 122 of the Labour Code with the provisions of the Convention has been raised for many years without any progress being noted. In this respect, the Committee recalls that in a previous report the Government indicated that the Tripartite Subcommittee on Legal Reforms was due to discuss the amendments to be made to this provision of the Labour Code. The Committee requests the Government to provide information on the conclusions of the Subcommittee. It hopes that the necessary measures will be taken without further delay to bring section 122 of the Labour Code into full conformity with the provisions of the Convention.

[The Government is asked to reply in detail to the present comments in 2009.]