Minimum Wage Fixing Convention, 1970 (No. 131) - Guatemala (Ratification: 1988)

Observation (CEACR) - adopted 2016, published 106th ILC session (2017)

The Committee notes the observations of the International Trade Union Confederation (ITUC) received on 31 August 2016 alleging that the purpose of fixing minimum wages for the maquila industry is to reduce the production costs of enterprises in this sector. The ITUC also alleges that, according to the National Institute of Statistics, in 2015 the basket of essential goods (CBV) cost around 6,242 Guatemalan quetzals (GTQ), while the minimum wage for a woman worker employed in a maquila was GTQ2,450.95. In the opinion of the ITUC, the National Wage Commission, which is the tripartite body responsible for the concerted fixing of the minimum wage, does not promote agreements, which is why the determination of the minimum wage remains in the hands of the executive authorities in accordance with section 113 of the Labour Code. Furthermore, according to the ITUC, the situation is made worse by the high incidence of non-compliance with the labour legislation in relation to remuneration. The ITUC also alleges that the General Labour Inspectorate of Guatemala has neither the power to impose penalties nor any real possibility to carry out its inspection activities, especially in the agricultural sector. The Committee requests the Government to send its comments on this matter.

The Committee also notes the observations of the Guatemalan Union, Indigenous and Peasant Movement (MSICG), received on 5 September 2016, which reiterate the claims made in 2011.

Articles 3(1)(a) and 4(2) of the Convention. Criteria for determining the minimum wage. Consultation with representative organizations of employers and workers. In its previous comment, the Committee noted the observations made in 2011 by the MSICG, which allege systematic non-compliance with the requirements of the Convention through the widening of the gap between the minimum wage and the CBV, especially in the maquila sector, and the participation of organizations that are not representative organizations of workers in the National Wage Commission (CNS). While noting that the Government has not replied to these observations, the Committee recalls that, in accordance with Article 3(1)(a) of the Convention, in determining the level of minimum wages, account must be taken of, among other elements, the needs of workers and their families and the cost of living. The Committee also recalls that, under Article 4(2) of the Convention, representative organizations of employers and workers must be fully consulted in the establishment, operation and amendment of machinery whereby minimum wages can be fixed and adjusted from time to time. The Committee requests the Government to ensure compliance with these provisions of the Convention and to provide information on this subject.

Article 5. Adequate inspection. In previous comments, the Committee requested the Government to provide information on the measures aimed at strengthening the labour inspection services and ensuring the effective application of the relevant legislation, particularly with regard to indigenous and agricultural workers. The Committee notes the Government’s indication that in 2015 the General Labour Inspectorate carried out inspections in 88 apparel and textile enterprises certified by Decree No. 29-89: Act on the promotion and development of exports and maquila, in order to ascertain the payment of the minimum wage. According to the Government, these inspections found that 88.4 per cent of enterprises were in compliance with the minimum wage.

Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

Article 3 of the Convention. Criteria for determining the minimum wage. Further to its previous observation, the Committee notes the Government’s detailed explanations concerning the evolution of the national minimum wage during the period 2000–11 as compared to the evolution of the inflation rate, the cost of the basket of essential foodstuff (canasta básica alimenticia – CBA) and the cost of the basket of essential goods (canasta básica vital – CBV). The Government indicates that, whereas the minimum wage represents the remuneration of an individual worker, the CBA and the CBV are calculated on the basis of a typical household of 5.38 persons, which explains the gap between the respective figures. The Government adds, however, that considering that on average there are two employed persons in every household, the aggregate amount of the minimum wage received covers the basic needs of the household as reflected in the CBA and CBV indicators.

In this regard, the Committee notes the comments made by the Indigenous and Rural Workers Trade Union Movement of Guatemala for the Defence of Workers’ Rights (MSICG), alleging systematic non-compliance with the requirements of the Convention both in law and in practice. The MSICG denounces the establishment of a lower minimum wage rate applicable to the maquilla industry as being discriminatory. The trade union organization also refers to large-scale problems of non-payment of the minimum wage, the widening gap between the minimum wage and the CBV, and the participation of non-representative workers’ organizations in the National Wages Commission (CNS). The Committee requests the Government to transmit any comments it may wish to make in response to the observations of the MSICG.

Moreover, the Committee understands that in September 2011 a Bill on the indexation of the minimum wage was introduced before the National Parliament providing for the annual readjustment of the minimum wage to reflect the evolution of the CBV in the same period. The Committee requests the Government to keep the Office informed of any developments in this regard.

Article 5. Adequate inspection. Further to its previous observation on the need to rigorously and effectively enforce the minimum wage legislation, particularly in the agricultural sector, the Committee notes that in his fourth follow-up report to the National Policy of the Government of Guatemala on Food and Nutrition Security, the Human Rights Ombudsman made special reference to the failure to apply the national minimum wage with respect to indigenous workers and agricultural workers. The Committee also notes the conclusions of the UN Special Rapporteur on the right to food from his 2009 country visit to Guatemala (see Doc. A/HRC/13/33/Add.4, paragraphs 28–30), according to which 50.1 per cent of workers currently receive a salary that is below the legally established minimum wage while the labour inspectorate is significantly under-resourced and unable to monitor compliance with labour legislation. Noting the persistent widespread violations of the minimum wage legislation in rural areas, the Committee requests the Government to provide additional information on any measures taken or envisaged with a view to reinforcing the labour inspection services and ensuring the effective application of the relevant legislation, particularly with regard to indigenous and agricultural workers.

Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

The Committee notes the information provided by the Government in response to the comments made by the Trade Union Confederation of Guatemala (UNSITRAGUA) in October and November 2004. The Committee regrets the delay by the Government in reacting to these observations and must request further information on certain points.

1. With regard to the current level of minimum wage rates, the Committee notes the Government’s reply to the observations made by UNSITRAGUA, in which it indicates that the cost of a household basket of essential goods (Canasta Básica Vital – CBV), according to the information of the National Institute for Statistics for the month of March 2006, was 2,725 quetzal (around US$371) for a family of five persons. As, according to the Institute, in each family an average of two members have a job, the Government considers that the current level of the minimum wage in effect represents an overall purchasing power which enables workers to meet their most essential needs. The Government adds that the minimum wage has always fulfilled its nutritional objective and is adjusted to the socio-economic situation of the country. While noting the Government’s explanations on this point, the Committee observes that the objective of a minimum wage system, as a social protection and poverty reduction measure, can only be met if the rate of the minimum wage is sufficient to cover the needs of workers and their families – and not only their nutritional needs. It also recalls the requirement of consultation with the social partners at all stages of the process of determining the minimum wage, including the collection of data and the carrying out of studies for the information of the minimum wage-fixing authorities. The Committee considers that the manifest and considerable differences which persist between the Government and the trade union movement concerning the calculation of the minimum subsistence needs of a household should be the subject of effective consultations held in good faith with a view to determining a minimum wage rate that is really adequate for the essential needs of workers. The Committee requests the Government to indicate how it intends to give effect to these observations and to keep it informed of progress with regard to the adjustment of minimum wage rates. It would also be particularly interested in receiving comparative statistical data, such as information on the average increase in minimum wage rates over the past ten years in relation to movements in economic indicators, such as inflation, over the same period.

2. With regard to the problems related to the payment of wages under the minimum rate, particularly in the agricultural sector, the Committee notes the Government’s indication that failure to apply the provisions respecting minimum wages results in liability to a financial penalty envisaged by the law and that workers can therefore denounce failure to comply with legislative provisions to the competent administrative or judicial authorities. In this respect, the Committee is bound to note that, over and above the legal framework for the prevention and penalization of infringements of the legislation on minimum wages, it is necessary for the legislation to be applied in a rigorous and effective manner. Indeed, the Committee understands that over half of workers in rural areas do not receive the wages, allowances and other supplements to which they are entitled. In these circumstances, the Committee would expect the Government to provide detailed information, including statistics, on the activities of the inspection services – particularly in the agricultural sector – demonstrating the number of inspections carried out, the nature of the infringements reported and the sanctions applied, as well as any court decisions relating to the payment of minimum wages. The Committee also recalls that it has made a similar request for practical information, supported by the relevant documents, in its observation on the application of the Labour Inspection Convention, 1947 (No. 81).

3. With regard to a possible introduction of minimum remuneration rates based on productivity, which were denounced by UNSITRAGUA in its comments, the Committee notes the Government’s explanations that such a decision can only be taken in the National Wage Commission (CNS) with the participation of the social partners and that Government Agreement No. 640-2005, which determines minimum wage rates for 2006, does not provide for the payment of wages on the basis of the productivity of workers. The Committee observes that, with a view to preventing abuse, subjective assessments of the quantity and quality of work performed should not affect the right to the payment of a minimum wage as an equitable level of remuneration in return for work duly performed during a specified period. It requests the Government to keep it informed of any development in this field.

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

Further to its previous observation, the Committee notes that no reply has so far been received to the extensive comments made by the Trade Union of Workers of Guatemala (UNSITRAGUA) on 28 October and 16 November 2004, and which were communicated to the Government on 26 November and 1 December 2004 respectively.

1. According to the trade union organization, the current levels of minimum wage rates are not sufficient to cover even 50 per cent of the cost of the basic basket of essential consumer goods. UNSITRAGUA further alleges that, without taking into account inflation or the loss of purchasing power of the national currency, the existing gap between the minimum wage and the cost of a basic basket of essential goods is more than 110 per cent. In fact, according to the National Institute for Statistics, in September 2004, the cost of the basic basket of essential goods stood at 2,520 quetzal per month, whereas the minimum wages for agricultural and non-agricultural workers remained set at 1,158 and 1,190 quetzal per month respectively. UNSITRAGUA also refers to the meeting of the National Wages Commission, held in November 2004, in which it was decided not to recommend an increase of the minimum wage rates despite the calls of the workers’ representatives for a 40 per cent increase of those rates. The Committee recalls that one of the fundamental objectives of minimum wages is to ensure that workers have an income which can provide a satisfactory standard of living for them and their families and therefore minimum rates of pay should preserve their purchasing power in relation to essential needs such as food, clothing, housing, health, education, social security, hygiene and transport or leisure. The Committee wishes to emphasize that a minimum wage system loses much of its relevance if it is out of all relation to the economic and social realities of the country.

2. Moreover, UNSITRAGUA denounces the illegal practices of certain employers who pay sub-minimum wages, and gives the example of coffee plantation female workers and temporary workers performing piece work who are mostly concerned by such practices. The Committee notes, in this respect, that section 103 of the Labour Code requires that minimum wages be fixed in such a manner that the earnings of those remunerated on a piece-work basis or those engaged to perform a specific task are not prejudiced.

3. In addition, UNSITRAGUA refers to the Constitutional Court’s decision to suspend for a period of five months the application of Government Agreement No. 765-2003 setting the minimum wages for 2004. It also indicates that, on 26 October 2004, an agreement was concluded between the President and two employers’ organizations known as VESTEX and AGENXPRONT whereby it was decided not to increase the minimum wages in 2005 and to establish minimum wage rates based on productivity. According to UNSITRAGUA, setting production targets for the payment of minimum wages leads workers to work abnormally long hours while workers who do not manage to meet the target are paid at less than the statutory minimum rate. The trade union organization is of the view that productivity-based minimum wages may only serve employers’ interests and that they break with the idea of fixed, stable and concrete minimum wage rates to be replaced by changeable and indeterminate ones. UNSITRAGUA states that the adoption of productivity as the principal criterion for fixing minimum wages leads to constant and unlimited devaluation of work.

The Committee recalls in this connection that, due to the binding nature of minimum wages, these may not be subject to abatement for whatever reason such as, for instance, the non-fulfilment of production quotas or non-compliance with quality standards. The Committee has consistently pointed out that factors such as the quantity and the quality of the work performed should not affect the right to payment of a minimum wage, which should be the guarantee of a fair remuneration in return for work duly performed during a stated period. For these reasons also, where a minimum wage system is based primarily on piece rates, great care needs to be exercised to ensure that, under normal conditions, workers can earn enough to be able to maintain an adequate standard of living, and that their output, and consequently their earnings, are not unduly limited by conditions independent of their own efforts.

The Committee requests the Government to provide its observations on the matters raised in the above comments.

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

The Committee notes the extensive comments received on 2 November and 17 November 2004 from the Trade Union of Workers of Guatemala (UNSITRAGUA) regarding the application of ratified Conventions Nos. 26, 99 and 131. The Committee requests the Government to transmit, with its next report, its observations in this regard so that it may examine the points raised in the above communication.

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

The Committee notes the Government’s detailed report and the comments made by the Trade Union of Workers of Guatemala (UNSITRAGUA), the Trade Union Federation of Public Employees of Guatemala (FENASTEG) and the Guatemalan Union of Workers (UGT).

Article 1, paragraphs 2 and 3, of the Convention. The Committee notes that the Government’s report replies in part to its previous request with regard to the situation of domestic workers and apprentices. In this connection, while recognizing the practical difficulties of establishing minimum wages for these groups of workers, the Committee recalls that the minimum wage system seeks in particular to protect the most vulnerable categories of workers and, in this respect, the necessary measures should be taken to extend the protection of minimum wages to the above categories. The Committee once again requests the Government to provide additional information on domestic workers and apprentices, and particularly statistics on the levels of their wages in comparison with minimum wages.

The Committee notes the allegations of UNSITRAGUA that private initiative has introduced various mechanisms to undermine the employment relationship, the most frequent instances being professional service contracts, piecework contracts and temporary service contracts. It adds that the common feature of these contracts is the denial of the employment relationship and the status as a worker of the person who is hired, resulting in the failure to apply labour legislation, particularly with regard to minimum wages. The Committee requests the Government to provide information on this matter and in particular on the measures adopted or envisaged to ensure that minimum wage provisions are applied in practice.

Article 2, paragraph 1. The Committee notes the observations of UNSITRAGUA that in the agricultural sector, and principally in the production of bananas, there are cases in which enterprises set production targets for their workers for the payment of the minimum wage. According to the organization, the workers have to work longer than normal hours of work to achieve this target and thereby obtain the minimum wage, and when they do not achieve the target (because they have worked at a normal rhythm for the eight-hour day applicable to them), they are only paid for what is produced, with the wage received being lower than the statutory minimum rate. UNSITRAGUA also alleges that the Ministry of Labour and Social Insurance has approved collective agreements relating to conditions of work establishing that work paid on a piecework basis and which is performed outside the ordinary working hours does not have to be paid at overtime rates. In such cases, according to the organization, the rates set for piecework imply that the minimum wage is not paid.

The Committee recalls that when a minimum wage system is based essentially on piecework, it should be ensured that, under normal conditions, a worker can earn a sufficient amount to achieve a decent standard of living (and in any case an amount that is at least comparable to the minimum wage) and that earnings should not be unduly restricted by conditions which are beyond the worker’s control. The Committee notes in this respect that section 103 of the Labour Code provides that the fixing of minimum wages shall be carried out adopting the necessary measures to ensure that workers whose earnings are based on piecework, the task or a set price are not prejudiced. The Committee requests the Government to provide information on these observations.

Article 3. The Committee notes the comments of UNSITRAGUA that minimum wages are not sufficient to cover even 50 per cent of the cost of the basket of essential goods. The UGT alleges that the cost of the basket of essential goods is not taken into account by employers or the Government, despite the fact that the information is provided by the National Statistical Institute. It adds that workers are currently paid the equivalent of 3.75 dollars a day for non-agricultural work and 3.43 dollars for agricultural work and that these wages do not cover the subsistence food needs of a family of five members. The Committee recalls that one of the fundamental objectives of minimum wages is to ensure that workers have an income which secures them a decent standard of living and that it should be able to cover the essential needs of food, clothing, housing, education and leisure, both for workers and their families. While emphasizing that the minimum wage loses its significance when it bears no relation to the economic and social realities of the country, the Committee requests the Government to indicate the impact of the current minimum wage on the purchasing power of workers for the basic basket of goods.

Article 5 and Part V of the report form. The Committee notes the statements by UNSITRAGUA that each increase in minimum wages has been followed by massive redundancies, illegal suspensions of workers and by failure to comply with the minimum wage, and that the Government has not been able to protect workers from these reactions by employers. The UGT alleges that minimum wages are not paid in practice, particularly in rural areas, in view of the vulnerability of rural workers, a high percentage of whom are indigenous and illiterate. The Committee requests the Government to provide information on these allegations and to indicate in its next report the measures adopted or envisaged to ensure that the wages that are paid in practice are not lower than the minimum wage rates.

The Committee notes with interest the Labour Statistics Bulletin of 2000, published by the Ministry of Labour and Social Insurance, and the information contained therein, particularly with regard to labour inspections. The Committee also notes Government Agreement No. 459-2002 of 28 November 2002, establishing the levels of minimum wage rates for the agricultural and non-agricultural sectors, as from 1 January 2003. The Committee trusts that the Government will continue to provide information of a general nature on the application of the Convention in practice, for example the available statistics on the number and various categories of workers covered by the minimum wage regulations, the results of the inspections carried out (cases of violations reported, penalties imposed, etc.), and any other information on the application of the minimum wage provisions.

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

The Committee notes the information supplied by the Government in reply to its previous comments.

Article 1 of the Convention. The Committee notes the Government's statement to the effect that the system of minimum wages applies to all workers in the private sector, with the exception of domestic workers and apprentices. According to the Government, the reasons for the exclusion of domestic employees and apprentices are based on the nature sui generis of such services. Domestic workers are provided with accommodation, food and medicine, in addition to their wage. Apprentices, in addition to the training that they receive during their contract, are entitled to receive a wage which, in view of the training that is provided, may under the terms of the law be lower than the minimum wage.

The Committee requests the Government to provide detailed information on the legal texts which govern the fixing of the wages of domestic workers and apprentices, including data on the level of their wages in comparison with the rates fixed for minimum wages.

Article 2, paragraph 1, read in conjunction with Article 5 and point V of the report form. The Committee requests the Government to continue to provide general information on the application of the Convention in practice, including its application in the agricultural sector, relating to: (i) changes in the minimum wage rates applicable; (ii) available statistical data on the number and categories of workers covered by the minimum wage system; and (iii) the results of the inspections carried out (for example, the cases of violations reported, the penalties imposed, etc.).

Direct Request (CEACR) - adopted 1995, published 83rd ILC session (1996)

The Committee notes the information supplied by the Government in reply to its previous comments.

Article 4, paragraphs 2 and 3, of the Convention. The Committee notes from the Government's report that the organizations of employers and workers are invited to participate on an equal footing in the establishment of joint minimum wage commissions in the various sectors, in accordance with section 108 of the Labour Code, as well as in the National Wage Commission, in accordance with section 70 of Government Agreement No. 1319 of 9 April 1968. The Government adds that the above commissions, which participated in the minimum wage-fixing machinery in 1994, have been established and are in operation in accordance with the legal provisions that are in force. The Committee also notes that in the commerce and private education sectors, with the exception of the policy of free recruitment applicable in private education institutions in which the monthly grant is lower than a certain level, the minimum wage rates fixed in practice correspond to those which were recommended by the National Wage Commission. The Committee requests the Government to continue supplying information of this type.

Article 5 (in relation with point V of the report form). The Committee notes the information supplied by the Government concerning supervision and the financial sanctions applicable in the event of violations of the labour legislation. It requests the Government to supply specific information on the supervision of minimum wages and the sanctions applied including, for example, the number of violations reported by the labour inspection service and the sanctions imposed in this respect.

Direct Request (CEACR) - adopted 1995, published 82nd ILC session (1995)

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 following matters raised in its previous direct request:

Further to a previous direct request, the Committee noted the Government's indication relating to the comments made by the Coordinating Committee of Agricultural, Commercial, Industrial and Financial Associations (CACIF) that the Joint Minimum Wage Boards and the National Wage Board are consultative bodies of the Ministry of Labour and Social Providence but that their opinions do not bind the authority of labour which can fix minimum wage rates following its own criteria and taking other aspects into consideration. It recalls that Article 4, paragraphs 2 and 3, of the Convention requires the consultation and participation of the employers' and workers' organizations in the operation of the minimum wage-fixing machinery. The Committee noted the minimum wage rates fixed for different sectors during the reporting period and requests the Government to supply information for each of these sectors on the difference between the minimum wage rates recommended by the above-mentioned Boards and the rates actually fixed.

The Committee also noted the information on the number of workers covered by the minimum wages and on the proposed amendment of the Labour Code, revising, among others, the rates of fine. It hopes that the Government will continue providing information on the application in practice of the minimum wages, including, for example, the number of infringements noted by the labour inspectorate and that of sanctions imposed, in accordance with Article 5 and point V of the report form.

Direct Request (CEACR) - adopted 1994, published 81st ILC session (1994)

Further to its previous direct request, the Committee notes the Government's indication relating to the comments made by the Coordinating Committee of Agricultural, Commercial, Industrial and Financial Associations (CACIF) that the Joint Minimum Wage Boards and the National Wage Board are consultative bodies of the Ministry of Labour and Social Providence but that their opinions do not bind the authority of labour which can fix minimum wage rates following its own criteria and taking other aspects into consideration. It recalls that Article 4, paragraphs 2 and 3, of the Convention requires the consultation and participation of the employers' and workers' organizations in the operation of the minimum wage-fixing machinery. The Committee notes the minimum wage rates fixed for different sectors during the reporting period and requests the Government to supply information for each of these sectors on the difference between the minimum wage rates recommended by the above-mentioned Boards and the rates actually fixed.

The Committee also notes the information on the number of workers covered by the minimum wages and on the proposed amendment of the Labour Code, revising, among others, the rates of fine. It hopes that the Government will continue providing information on the application in practice of the minimum wages, including, for example, the number of infringements noted by the labour inspectorate and that of sanctions imposed, in accordance with Article 5 and point V of the report form.

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

The Committee notes the information contained in the Government's first report. The Committee requests the Government to supply information in its next report on the adoption of the draft Labour Code that is under examination and has received its first reading, and to transmit a copy of the Code when it is adopted.

Article 4, paragraphs 2 and 3. The Committee notes the comments of the Co-ordinating Committee of Agricultural, Commercial, Industrial and Financial Associations (CACIF), transmitted on 26 July 1990, stating that Congress was examining a Bill on wage policy and a Bill to amend the Labour Code by the addition of Decree No. 1537, both of which it considered to be in violation of this Convention and of Conventions Nos. 26 and 99. The Committee also notes the comments made by the Government, which were transmitted on 3 October 1990. In its comments, the Government states that the Congress of the Republic was indeed examining various Bills in its Labour Committee, including those mentioned by the CACIF. The examination of these Bills was not continued after the Minister of Labour and Social Insurance discussed them with various parliamentarians. In view of this information, the Committee considers that the CACIF's comments are no longer valid.

The Committee also notes the new comments transmitted by the CACIF on 25 September 1990 relating to Governmental Agreement No. 776-90, of 31 August 1990, fixing the minimum wage for agricultural and stock-rearing sectors. The CACIF considers that this Agreement violates the provisions of national law, in particular section 113 of the Labour Code, and the provisions of this Convention and of Conventions Nos. 26 and 99. The Government's observations on this question have not been received. It appears from the comments of the CACIF that the Government fixed the minimum wage for the agricultural and stock-rearing sectors at a higher amount than that proposed by the Joint Minimum Wage Board for Agriculture and Stock-Rearing. In conformity with sections 112 and 113 of the Labour Code, the minimum wage shall be determined on the basis of the reasoned recommendation made by the National Wage Board once it has received the reports of the respective joint boards. It is possible to infer from this that the National Wage Board may make recommendations that differ from the proposals of the joint boards. The CACIF's comments do not clearly state whether the recommendation made by the National Wage Board confirmed the proposal made by the Joint Minimum Wage Board for Agriculture and Stock-Rearing or not. The Committee therefore requests the Government to make observations in its next report on the CACIF's comments in this respect and to transmit a copy of the recommendation of the National Wage Board relating to the report made by the Joint Minimum Wage Board for Agriculture and Stock-Rearing.

Point V of the report form. With reference to the comments that it has made previously under Conventions Nos. 26 and 99, the Committee recalls that it requested information on the manner in which the Convention is applied in practice (the number of workers covered by the minimum wage system, extracts from the reports of the inspection services), as set out in point V of the report form. The Committee hopes that the Government will be able to supply this information in its next report.