Labour Clauses (Public Contracts) Convention, 1949 (No. 94) - Guatemala (Ratification: 1952)

Observation (CEACR) - adopted 2024, published 113rd ILC session (2025)

Articles 2 and 5 of the Convention. Insertion of labour clauses in public contracts. Enforcement measures. The Committee recalls that, for several years, it has been requesting the Government to provide information on the measures adopted to ensure that bidders in public calls to tender are properly informed about the content of the labour clauses that should be contained in public contracts, for example, by publishing a notice relating to the specifications, as prescribed in Article 2(4) of the Convention. The Committee considers that accurately informing bidders of the scope and content of the labour clauses remains crucial, given that neither the Act of 1992 nor the Regulations of 1992 on public contracts contain an explicit reference to labour clauses of the type provided for by the Convention. Further, the obligation to include such clauses arises from the Ministerial Decision of 21 November 1985, adopting the model labour clauses to be included in the contracts concluded by the public authorities which, according to the Government’s information, remains in force. The Committee notes with deep concern that the Government indicates that no legislative initiatives have been adopted recently in relation to the application of the Convention and no judicial decisions have been adopted to improve the application of the Convention. In addition, after confirming that the Ministerial Decision of 1985 remains in force, the Government’s report does not refer to the contracts that contain the clauses and the measures adopted with a view to ensuring compliance with these contracts. The Committee observes that the labour contract models distributed by the Government and used by various ministries do not correspond to the type of public contracts with labour clauses referred to by the Convention, namely contracts concluded by the public authorities that involve the expenditure of funds by a public authority, the employment of workers by the other party to the contract and a contract that is a contract for public works or the supply of services (Article 1 of the Convention). The Committee therefore once again reiterates its request to the Government to, without delay, take all necessary measures to give full effect to the requirements of the Convention, including those contained in Article 2(4) of the Convention. The Committee also urges the Government to provide: (i) copies of contracts concluded by public authorities which contain the model labour clauses required by the Ministerial Decision of 21 November 1985; and (ii) documented information on measures to ensure compliance with the labour clauses contained in contracts concluded by public authorities, as required by the Convention, including information on the number and nature of the violations reported and the penalties imposed.

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

Articles 2 and 5 of the Convention. Insertion of labour clauses in public contracts. Enforcement measures. In response to the Committee’s previous comments, the Government indicates that it will coordinate with the competent authorities in order to ensure that the working conditions of contracted persons carrying out public works for which an enterprise has made a bid are not inferior to those established by law. The Government also refers to the audits carried out by the General State Comptroller of contracts concluded by public authorities. In its previous comment, the Committee emphasized the importance of ensuring that bidders in public calls to tender are aware of the scope and content of labour clauses, especially in view of the absence of an explicit reference to labour clauses in the Public Procurement Act and its implementing regulations. The Committee notes the adoption of Decree No. 9-2015 of 16 November 2015 issuing amendments to the Public Procurement Act, and Government Decision No. 122 2016 of 15 June 2016 issuing regulations under the Public Procurement Act. The Committee observes that there continues to be no explicit reference to labour clauses in these texts. The Committee once again asks the Government to take all appropriate measures to give full effect to the requirements of Article 2(4) of the Convention. In addition, the Committee once again asks the Government to provide: (i) copies of contracts concluded by public authorities which contain the model labour clauses required by the Ministerial Decision of 21 November 1985; and (ii) documented information on measures to ensure compliance with the labour clauses contained in contracts concluded by public authorities, as required by the Convention, including information on adequate inspection and effective sanctions.

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

Articles 2 and 5 of the Convention. Insertion of labour clauses in public contracts – Enforcement measures. Further to its previous comment, the Committee notes with interest the Government’s statement that the Ministerial Agreement of 21 November 1985 approving model labour clauses to be included in contracts concluded by public authorities is still in effect. The Committee recalls that for a number of years it has been requesting the Government to provide information on the measures taken to ensure that persons tendering for public contracts are aware of the terms of these labour clauses, for instance by advertising specifications, as required under Article 2(4) of the Convention. The Committee considers that informing tenderers of the exact scope and content of labour clauses is all the more important as neither the Public Procurement Act of 1992 nor the Public Procurement Regulations of 1992 contains any express reference to labour clauses. In the absence of any reply on this point, the Committee once more asks the Government to take all appropriate measures to give full effect to the requirements of Article 2(4) of the Convention. In addition, the Committee asks the Government to transmit together with its next report: (i) copies of public contracts containing the model labour clauses prescribed by the Ministerial Agreement of 1985; and (ii) documented information on measures to ensure compliance with the labour clauses, including adequate inspection and effective sanctions.

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

The Committee notes that, in its report, the Government responds essentially to the observations previously made by the Trade Union of Workers of Guatemala (UNSITRAGUA) concerning different types of labour contracts, a matter which is not addressed by the Convention. The Committee also notes that, in response to its previous comments, the Government limits itself to indicating that it is for each body that is party to a public contract to choose whether to insert or not to insert labour clauses into this contract, but that under no circumstances is it possible to waive social rights, in accordance with section 12 of the Labour Code and articles 102 to 113 of the Constitution.

The Committee is once again obliged to recall the obligations imposed by the Convention. Even if, as the Government indicates, the social legislation, in particular the Labour Code, is applicable to workers employed within the framework of public works contracts, it is imperative that public contracts contain the labour clauses envisaged by the Convention. The inclusion of such clauses ensures to the workers concerned wages, hours of work and other conditions of labour which are not less favourable than the most favourable conditions provided for in accordance with one of the three formulas envisaged by the Convention, namely by collective agreement, by arbitration award or by national laws or regulations. The protection of workers is thus ensured in cases where the legislation sets forth only minimum labour conditions likely to be exceeded by general collective or sectoral agreements. The Committee insists on the importance of complying with this principle, given the risk of social dumping linked to the severe competition between enterprises for public works contracts.

In this regard, the Committee recalls that it noted with satisfaction, in a 1987 observation, the adoption of the Ministerial Agreement of 21 November 1985 approving a model of labour clauses to be included in contracts concluded by the public authorities. The Committee asks the Government to indicate whether this Ministerial Agreement is still in force. If it is not, the Committee strongly hopes that the Government will, without delay, take the necessary measures to ensure the application of the Convention, and asks it to keep the Committee informed of any developments in this regard.

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

The Committee takes note of the Government’s report and of the observations by the Trade Union Federation of Public Employees of Guatemala (FENASTEG) and the Trade Union of Workers of Guatemala (UNSITRAGUA). The Committee notes that, although the above organizations mention Convention No. 94, among others, their observations provide no information enabling the Committee to ascertain whether there have been any breaches of its provisions.

The Committee observes that the Government’s report provides information on public administration personnel but does not reply to its previous comments. The Committee points out that the Convention applies to public contracts involving the employment of workers by the other party to the contract (Article 1, paragraph (1)(b)(ii), of the Convention), and that labour contracts between the public authority and its employees are outside the scope of the Convention. The Committee further points out that the purpose of including labour clauses in public contracts is to ensure compliance with socially acceptable standards in work done on the public sector’s behalf and to combat the intense competition involved in the bidding for such contracts, which may be an incentive for employers to economize on labour costs.

The Committee again requests the Government to provide, in accordance with Article 6 and Part V of the report form, all available information on the practical effect given to the Convention, such as: (i) copies of public contracts containing labour clauses; (ii) the measures adopted to ensure that persons tendering for public contracts are aware of the terms of the labour clauses; (iii) statistical information on the number of contracts and the workers covered by the legislation; (iv) the work of the bodies responsible for supervising labour clauses (infringements recorded, sanctions imposed, etc.); and any other information relevant to the application of the provisions of the Convention.

Observation (CEACR) - adopted 2001, published 90th ILC session (2002)

The Committee notes the information provided by the Government, and particularly the copies of the reports of the General Labour Inspectorate. The Committee hopes that the Government will continue providing similar information in future reports.

With reference to its previous comments concerning the application of Article 2, paragraph 4, of the Convention, the Committee regrets to note that the Government has not replied to the questions that it has been raising for a number of years. The Committee recalls that in its previous comments it noted that the competent public authority was required to take the appropriate steps to advertise specifications of conditions of work or any other measures necessary to ensure that persons offering and tendering for contracts are aware of the terms of the clauses, in accordance with Governmental Agreement No. 51 of 17 September 1981, as amended, and it requested the Government to provide information on the measures taken in practice.

The Committee requests the Government to provide information in future reports on any measures taken to ensure that persons offering and tendering for public contracts are aware of the terms of the labour clauses to be inserted in accordance with the Ministerial Agreement of 21 November 1985, as well as information on the application of the Convention in practice.

Direct Request (CEACR) - adopted 2000, published 89th ILC session (2001)

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 reads as follows:

The Committee notes the information supplied in the Government’s report.

Article 2(4) of the Convention.  In its previous comments, the Committee noted that the competent public authority was required to take the appropriate steps to advertise specifications or other measures necessary to ensure that persons offering and tendering for contracts are aware of the terms of the clauses in terms of Governmental Agreement No. 51 of 17 September 1981, as amended and asked the Government to supply information on the measures taken in practice.

The Committee requests the Government to include in future reports information on any measures taken to ensure that persons offering and tendering for public contracts are aware of the terms of the labour clauses to be inserted in accordance with the Ministerial Agreement of 21 November 1985, as well as information on the application of the Convention in practice.

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

The Committee notes the information supplied in the Government's report.

Article 2, paragraph 4, of the Convention. In its previous comments, the Committee noted that the competent public authority was required to take the appropriate steps to advertise specifications or other measures necessary to ensure that persons offering and tendering for contracts are aware of the terms of the clauses in terms of Governmental Agreement No. 51 of 17 September 1981, as amended and asked the Government to supply information on the measures taken in practice.

The Committee requests the Government to include in future reports information on any measures taken to ensure that persons offering and tendering for public contracts are aware of the terms of the labour clauses to be inserted in accordance with the Ministerial Agreement of 21 November 1985, as well as information on the application of the Convention in practice.

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:

Article 2, paragraph 4, of the Convention. With reference to its previous comments, the Committee noted that the competent public authority would take the appropriate steps to advertise specifications or other measures necessary to ensure that persons offering and tendering for contracts are aware of the terms of the clauses. The Committee would be grateful if the Government would supply information on the effect given in practice to these measures, since the information provided by the Government in its report merely reproduces the terms of section 3(3) of Governmental Agreement No. 51 of 17 September 1981, as amended by Governmental Agreement No. 1083-84. The Committee would also be grateful if the Government would give a general appreciation of the manner in which the Convention is applied including, for instance, information on the number of contracts and workers covered by the legislation, and the number and type of violations that have been reported, as requested in point V of the report form.

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

Article 2, paragraph 4, of the Convention. With reference to its previous comments, the Committee notes that the competent public authority will take the appropriate steps to advertise specifications or other measures necessary to ensure that persons offering and tendering for contracts are aware of the terms of the clauses. The Committee would be grateful if the Government would supply information on the effect given in practice to these measures, since the information provided by the Government in its report merely reproduces the terms of section 3(3) of Governmental Agreement No. 51 of 17 September 1981, as amended by Governmental Agreement No. 1083-84. The Committee would also be grateful if the Government would give a general appreciation of the manner in which the Convention is applied including, for instance, information on the number of contracts and workers covered by the legislation, and the number and type of violations that have been reported, as requested in point V of the report form.

Direct Request (CEACR) - adopted 1987, published 74th ILC session (1987)

With reference to its earlier observations, the Committee notes the adoption of the Ministerial Agreement of 21 November 1985 approving the Model Labour Clauses to be included in contracts concluded by the public authorities. The Committee would be grateful if the Government would supply in its next report full information concerning the practical application of the Convention, indicating in particular the measures adopted to ensure that persons tendering for public contracts are aware of the terms of the clauses in accordance with section 3, paragraph 3, of Decision No. 1083.84, in relation to Article 2, paragraph 4, of the Convention.

Observation (CEACR) - adopted 1987, published 74th ILC session (1987)

The Committee notes with satisfaction the adoption of the Ministerial Agreement of 21 November 1985 approving a model labour clause to be included in contracts concluded by the public authorities, thus applying Article 2, paragraph 3, of the Convention. The Committee would be grateful if the Government would supply the information asked in the request being addressed to it directly.