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

Direct Request (CEACR) - adopted 2014, published 104th ILC session (2015)

The Committee notes the observations from the Trade Union of Plant and Well Operators and Guards of the Municipal Water Company and Allied Workers (SITOPGEMA) and the General Confederation of Workers of Guatemala (CGTG), which were received on 13 March 2014 and 1 September 2014, respectively.

Articles 2 and 6 of the Convention. Work in excess of normal hours of work. Overtime hours. In its previous comment, the Committee had noted that the CGTG and the Guatemalan Trade Union, Indigenous and Campesino Movement (MSICG) alleged excessive hours of work and non-payment of overtime in the maquila (export processing), transport and private security sectors. The Committee notes the information in the Government’s report on labour inspection operations carried out in the maquila industry in 2013 and 2014, as a result of which 636 new cases of labour rights violations in the industry were referred to the labour inspectorate in 2014, which have to go through all the administrative channels. Furthermore, the Committee notes the Government’s list of 1,801 pending cases brought before the first-instance labour courts of the Department of Guatemala between 2012 and June 2014, and also the list of pending cases brought before the first-instance courts of the Republic of Guatemala between 2012 and June 2014; both lists relate to enterprises in the maquila, transport and private security sectors. While noting this information, the Committee observes that the CGTG reiterates its allegation that violations relating to hours of work and the payment of overtime in the maquila sector are continuing. The Committee requests the Government to send its observations on this matter and to continue taking steps to give full effect to the Convention.

In addition, the Committee recalls that it previously asked the Government to send detailed information on the execution of the court ruling ordering the retroactive payment of overtime worked by the employees of the Municipal Water Company of Guatemala City (EMPAGUA). The Committee notes the Government’s statement that the Fifth Labour and Social Security Court handed down a decision on 16 June 2014 instructing the Auxiliary Services Centre of the judiciary to take action, with a view to providing information on the follow-up to the payment order, and that the court is currently waiting for SITOPGEMA to send a document accrediting the decision-making status of the new members of the SITOPGEMA executive committee. The Committee hopes that the final settlement of all the amounts due to the EMPAGUA workers will take place soon and requests the Government to keep it informed of any new developments in this respect.

Observation (CEACR) - adopted 2013, published 103rd ILC session (2014)

Articles 2 and 6 of the Convention. Work in excess of normal hours of work. Overtime hours. The Committee notes the Government’s explanations in response to the comments made previously by the Indigenous and Rural Workers’ Trade Union Movement of Guatemala (MSICG) concerning excessive hours of work in the maquila (export processing) sector. The Government indicates that, under sections 59 and 60 of the Labour Code, the internal work rules of every enterprise must include, amongst others, detailed particulars on working time. The Government adds that all internal work rules need to be previously approved by the labour inspectorate and such approval is denied when regulations are not in conformity with article 102(g) of the Constitution establishing limits to hours of work. The Committee notes that, according to information supplied by the Government, there have been very few cases of non-compliance with working time legislation in the maquila industry confirmed by court decisions in 2012–13, while a number of cases are still pending. The Committee notes, in this connection, the communication of the General Confederation of Workers of Guatemala (CGTG), received on 30 August 2013 and transmitted to the Government on 18 September 2013, which lists more than a dozen maquila enterprises which allegedly require their employees to work more than eight hours per day without overtime pay. The CGTG also refers to similar problems observed in the transport sector and in private security enterprises. Given the seriousness and extent of the alleged infringements, which are similar to those on which the Committee has been commenting under the Forced Labour Convention, 1930 (No. 29), the Committee asks the Government to continue to provide information on the manner in which the application of the Convention is enforced in the maquila sector, including labour inspection results, copies of relevant court decisions and a list of cases still pending identifying the number of workers involved for each pending case. The Committee also requests the Government to provide any comments it may wish to make in response to the observations of the CGTG.

In addition, the Committee notes the information provided by the Government concerning the latest developments in the case brought before the courts by the Trade Union of Workers of Operators of Plants, Wells and Guards of the Municipal Water Company (SITOPGEMA) with respect to the failure of the Municipal Water Company of Guatemala City (EMPAGUA) to pay its employees for long overtime hours. The Government confirms that both the Supreme Court, in its decision of 18 September 2009, and the Constitutional Court in its decision of 28 July 2011 have upheld the decision of the Court of Appeal in favour of the SITOPGEMA and therefore the decision for the retroactive payment of overtime hours worked should now be properly executed. The Committee accordingly requests the Government to provide in its next report detailed information on the final settlement of all the amounts due to the workers of EMPAGUA.

[The Government is asked to reply in detail to the present comments in 2014.]

Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

Articles 2 and 6 of the Convention. Work in excess of normal hours of work – Overtime hours. The Committee notes the observations made by the Trade Union of Plant and Well Operators and Guards of the Municipal Water Company and Allied Workers (SITOPGEMA), made in a communication received on 2 October 2012 and transmitted to the Government on 12 October 2012, concerning the application of the Convention. It notes that these observations follow up on those previously made by SITOPGEMA concerning the situation of workers at the Municipal Water Company of Guatemala City (EMPAGUA), who alternate work periods of 24 consecutive hours with rest periods of 48 consecutive hours without being paid for the overtime that they work. SITOPGEMA points out that decision No. 1088-2004-561 of 16 April 2008 of the labour and social insurance tribunal, which rejected the demand made by the workers concerned and to which the Committee referred in its observation of 2008, has since been overturned by the appeal court and the other courts concerned, and so the right of these workers to be paid for the overtime worked is thus recognized definitively. However, the union adds that new procedures for implementing this decision and calculating the exact amounts owed are being examined in the national courts and consequently the demand first put forward by SITOPGEMA more than ten years ago has still not been settled. The Committee requests the Government to provide any comments that it wishes to make in response to the observations made by SITOPGEMA and to reply in detail to its observation of 2009.

The Committee also notes the observations made by the Indigenous and Rural Workers’ Trade Union Movement of Guatemala (MSICG), in a communication received on 10 September 2012 and transmitted to the Government on 28 September 2012, which refer to the Forced Labour Convention, 1930 (No. 29), but also have some relevance with regard to the application of Convention No. 1. The MSICG states, in particular, that textile industry employees in the maquila (export processing) sector are obliged to work more than 12 hours a day, without the labour inspection services taking any steps to prevent employers from imposing working days whose length exceeds legal limits. The Committee requests the Government to provide any comments it wishes to make in reply to the observations of the MSICG.

Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

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 Operators of Plants and Wells, Guards of the Municipal Water Company and its Annexes (SITOPGEMA), the Committee notes the Government’s indications concerning the nature, scope and conditions governing the adoption of the internal rules for the work in an enterprise. It also notes the indications that the Municipal Water Company of the City of Guatemala (EMPAGUA) is an enterprise which has to provide an essential service on a continuous basis and that it is therefore necessary to ensure the presence of the personnel responsible for the production, maintenance and distribution of water. Noting that the rules were adopted by consensus between the employer and the workers, the Committee nevertheless notes that the rules provide for a working day of 24 hours followed by 48 hours of rest for career workers not subject to limitations on the ordinary working day, which means a working week that may be as long as 72 hours. The Committee is bound to recall once again 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 therefore once again requests the Government to take the necessary measures without further delay to ensure that hours in excess of normal hours of work are limited to the cases envisaged by the Convention. It requests the Government to keep the Office informed of any developments in this respect and recalls that it may, if it so wishes, avail itself of the technical assistance of the ILO, through its Subregional Office in San José, in relation to the measures to be envisaged to give full effect to the provisions of the Convention.

Furthermore, with regard to the observations made previously by the Trade Union Confederation of Guatemala (UNSITRAGUA) concerning daily hours of work, which may be in excess of 12 hours in certain enterprises that set productions targets but do not increase wages accordingly, the Committee notes the Government’s explanations according to which, on the one hand, the only sector which sets production targets is the textile sector which, in addition to applying the minimum wage, provides for an increase in the wage of 50 per cent where hours of work are in excess of those set out in the contract and, on the other, no complaint has been made on this subject to the labour inspectorate. Furthermore, with regard to the allegation that in certain industrial enterprises the staff responsible for security may alternate between periods of 24 hours of work and of rest and that the Minister of Labour authorizes collective agreements accepting these conditions, the Committee notes that, according to the Government’s report, the Ministry of Labour may not in any event authorize such irregular conditions, and that a procedure exists (Government Decision
No. 221-94 of 13 May 1994) for the negotiation, registration and denunciation of collective agreements relating to conditions of work in specific enterprises.

Finally, with regard to the amendments to be made to section 122 of the Labour Code, which provides that the working day including overtime hours may not exceed 12 hours, the Committee notes the Government’s indication that, in the context of the current draft legislative reform, the possibility of amending section 122 has not been addressed, but a discussion is envisaged on this matter in the Tripartite Commission for International Labour Affairs. The Committee therefore requests the Government to keep the Office informed of the outcome of these discussions and recalls that the employment of a worker for four additional hours in the day without any restriction (such as a monthly or annual limit) greatly exceeds the exemptions authorized by the Convention.

Furthermore, the Committee requests the Government to refer to the comment that it is making under the Forced Labour Convention, 1930 (No. 29).

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

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.]

Observation (CEACR) - adopted 2005, published 95th ILC session (2006)

The Committee notes the new comments of the Trade Union of Workers of Operators of Plants, Wells and Guards of the Municipal Water Company and its annexes (SITOPGEMA), dated 18 July 2005. These comments contain allegations concerning the procedure followed in the context of the legal action taken by the trade union to obtain payment of the overtime hours imposed upon workers by the municipal water enterprise of the city of Guatemala (EMPAGUA) and follow other comments made by the trade union organization received in July 2004 on the same subject, to which a reply has not yet been received. The Committee requests the Government to provide its observations in response to the comments of the SITOPGEMA and to reply in detail to the comments that it made in 2003 and 2004 concerning the application of the Convention.

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

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.

Observation (CEACR) - adopted 2003, published 92nd ILC session (2004)

1. Referring to the Government’s report and the information provided in reply to its previous comments, the Committee observes with regret continued failure to comply with the requirements of Article 6 of the Convention in that the Labour Code, section 122 of which provides that a working day including overtime must not exceed 12 hours, still does not determine the circumstances in which overtime may be worked and the maximum number of overtime hours which may be authorized in each instance. The Committee expresses the hope that the various committees consulted on the matter will soon be in the position to present their conclusions, and it urges the Government to make every effort to take the appropriate steps in the very near future.

2. The Committee notes the observation made by the Trade Union of Workers of Guatemala (UNSITRAGUA) in August 2003 and transmitted to the Government on 8 October 2003, maintaining that, although a number of undertakings fix production targets, which can only be reached by overtime work sometimes exceeding 12 hours per day, they pay the minimum wage or wages calculated on the basis of piece-work, as provided for under section 88(b) of the Labour Code. The Union further observes that in guarding and security services of industrial undertakings shifts of 24 hours alternate with rests of 24 hours and that the Labour Ministry authorizes collective agreements containing working conditions as described before.

The Committee invites the Government to comment on the observations communicated by UNSITRAGUA.

Observation (CEACR) - adopted 1998, published 87th ILC session (1999)

The Committee notes the Government's report and the information provided in reply to its previous direct request. The Committee's previous comments concerned in particular section 122 of the Labour Code, which provided that a working day including overtime could not exceed 12 hours. Noting that the Labour Code, as amended in 1995, reproduces this same provision, the Committee recalls once again that the exceptions envisaged by Article 6 of the Convention must remain within reasonable limits, and the authorization of up to four overtime hours a day without other guarantees, such as for example a monthly or an annual limit, considerably exceeds the exceptions authorized by the Convention and is resolutely contrary to the spirit in which it was drawn up. The Government states in its report that it envisages giving effect to the Committee's comments by taking the necessary measures to determine, after consultation with the representative organizations of employers and workers, the circumstances in which overtime hours may be worked and the maximum number of overtime hours which may be authorized in each case. The Committee hopes that such measures will be adopted in the near future and requests the Government to keep the ILO informed of any progress achieved in this respect.

Direct Request (CEACR) - adopted 1993, published 80th ILC session (1993)

1. The Committee notes the information provided under Article 6, paragraph 1, of the Convention. It notes that in cases in which internal labour regulations are necessary for an enterprise or entity, it treats these aspects itself. The Committee wishes to point out that the permanent exceptions and temporary exemptions possible under this Article may only be granted through regulations made by public authority and cannot be left to the individual enterprise or entity.

2. Article 6, paragraph 2. The Committee notes from the Government's report that additional working hours beyond the normal working hours are voluntary and paid at an additional rate of 50 per cent. In its previous comment, the Committee had already noted that section 122 of the Labour Code authorized up to four additional hours of work per day. It had pointed out that the employment of a worker for four additional hours per day without any restriction (such as a monthly or annual limit) greatly exceeded the exceptions authorized by the Convention and was resolutely contrary to the spirit in which the Convention was drawn up.

The Committee requests the Government to take the necessary measures to determine, after consultation with the organizations of employers and workers concerned, the circumstances in which use may be made of additional hours and the maximum reasonable number of additional hours which may be authorized in each instance. It also requests the Government to supply information on the application of this provision of the Convention in the public sector.

The Committee notes from the Government's last report that the Ministry of Labour and Social Security is already initiating punctual reforms in which this aspect is included. It hopes that these reforms will soon be brought under way and asks to be informed about any progress made.

3. The Committee notes the information in the Government's report concerning Article 8.

4. Article 14. The Committee has noted the measures taken because of the crisis in the generation of electric energy, and that in the meantime the state of emergency and the rationing of electric energy have been suspended. It wishes to be informed whether the conditions concerning the adjustment of working hours have also been repealed.

Direct Request (CEACR) - adopted 1992, published 79th ILC session (1992)

The Committee notes that the Government's report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

The Committee notes the information supplied by the Government in its first report. It requests the Government to supply additional information on the following points:

Article 6, paragraph 1, of the Convention. Please supply full particulars on the regulations adopted under the terms of this provision of the Convention in both the private and public sectors.

Article 6, paragraph 2. The Committee notes that section 122 of the Labour Code authorises up to four additional hours of work per day. It points out that the employment of a worker for four additional hours per day without any restriction (such as a monthly or annual limit) greatly exceeds the exceptions authorised by the Convention and is resolutely contrary to the spirit in which the Convention was drawn up.

The Committee requests the Government to take the necessary measures to determine, after consultation with the organisations of employers and workers concerned, the circumstances in which use may be made of additional hours and the maximum reasonable number of additional hours which may be authorised in each instance. The Committee also requests the Government to supply information on the application of this provision of the Convention in the public sector.

Article 8, paragraph 1(a) and (b). Please supply information on the manner in which effect is given to these provisions of the Convention in the public and private sectors.

Direct Request (CEACR) - adopted 1991, published 78th ILC session (1991)

The Committee notes the information supplied by the Government in its first report. It requests the Government to supply additional information on the following points:

Article 6, paragraph 1, of the Convention. Please supply full particulars on the regulations adopted under the terms of this provision of the Convention in both the private and public sectors.

Article 6, paragraph 2. The Committee notes that section 122 of the Labour Code authorises up to four additional hours of work per day. It points out that the employment of a worker for four additional hours per day without any restriction (such as a monthly or annual limit) greatly exceeds the exceptions authorised by the Convention and is resolutely contrary to the spirit in which the Convention was drawn up.

The Committee requests the Government to take the necessary measures to determine, after consultation with the organisations of employers and workers concerned, the circumstances in which use may be made of additional hours and the maximum reasonable number of additional hours which may be authorised in each instance. The Committee also requests the Government to supply information on the application of this provision of the Convention in the public sector.

Article 8, paragraph 1(a) and (b). Please supply information on the manner in which effect is given to these provisions of the Convention in the public and private sectors.