Hours of Work (Commerce and Offices) Convention, 1930 (No. 30) - Guatemala (RATIFICATION: 1961)

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Articles 2 and 6 of the Convention. Work in excess of normal hours of work – Overtime hours. The Committee notes the Government’s reply to the comments of the Indigenous and Rural Workers’ Trade Union Movement of Guatemala (MSICG) dated 10 September 2012, regarding allegedly excessive working hours imposed on the staff of the Public Prosecutor’s Office for Children and Young People, of the Guatemalan Social Security Institute and of the Institute of Public Criminal Defence. The Government indicates that while employees of the Public Prosecutor’s Office for Children and Young People carry out 24-hour shifts, they are not subject to forced labour, as their health and life are not affected and they have the right to compensatory rest in accordance with the law regulating the warning system Alba-Kenneth. The Government adds that, according to the Labour Division of the Public Prosecutor’s Office, the organization of work in shifts is necessary to ensure that children are protected and shifts are organized with fairness in order to comply with the relevant legislation. As regards the employees of the Guatemalan Social Security Institute and the Institute of Public Criminal Defence, the Government refers to the respective internal regulations and explains that work carried out in excess of the normal hours of work, when duly authorized, is remunerated as overtime work. Noting that the MSICG’s comments appear to refer especially to cases in which employees are de facto obliged to perform long overtime hours without always receiving extra pay, the Committee requests the Government to provide additional information on the manner in which working time legislation is effectively enforced in practice. The Committee also requests the Government to refer to the comments made under the Hours of Work (Industry) Convention, 1919 (No. 1), which addresses similar problems of excessively long hours of work and unpaid overtime in the industrial sector.

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Articles 2 and 6 of the Convention. Exceeding normal hours of work – Overtime. The Committee 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. The MSICG’s allegations specifically concern: the excessive working hours imposed on the staff of the Public Prosecutor’s Office for Children and Young People following the introduction of a missing child warning system; working time regulations pertaining to the employees of the Guatemalan Social Security Institute and the Institute of Public Criminal Defence; and the obligation on employees in some municipalities to do unpaid overtime for work of a political nature for the mayors of these communities. The Committee requests the Government to provide any comments it may wish to make in reply to the observations of the MSICG.

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Article 6 of the Convention. Overtime. Further to its previous comments on the observations submitted by the Trade Union Confederation of Guatemala (UNSITRAGUA) about the hours of work and overtime of judges and auxiliary staff of law courts, the Committee notes the information supplied by the Supreme Court of Justice that in the event of overtime or work done on weekly rest days or  holidays, the abovementioned personnel in all instances have compensatory rest (to be taken in the course of the following week), as provided in article 32 of the collective agreement on conditions of work concluded between the state judicial body and the union of its workers (STOJ), or else special remuneration. With regard to UNSITRAGUA’s observations on unpaid overtime, mainly in banks and in respect of certain categories of public employees engaged in office work, the Committee notes the information from the Government that the Ministry of Labour and Social Welfare has held consultations in a number of banking establishments. It is clear from these consultations and from communications sent by the representatives of a number of national banks that overtime is paid, or else the general labour inspectorate brings legal action to seek redress and obtain sanctions. The Committee asks the Government to refer to its comments under Convention No. 1 in which it noted serious and persistent problems in applying the Convention, particularly with regard to maximum daily hours of work.

Part V of the report form. Practical application. The Committee notes the detailed information sent by the Government on inspections carried out in the banking sector and in the judiciary for the period 2007–08. The Committee requests the Government to continue to provide general information on the manner in which the Convention is applied, including extracts of reports by the labour inspection services indicating the number or workers covered by the relevant legislation, the number of contraventions reported in the areas covered by the Convention and the penalties imposed, etc.

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The Committee notes the comments communicated by the Trade Union of Workers of Guatemala (UNSITRAGUA) on 2 June 2005 providing information on the categories of civil servants in the judicial system and auxiliary staff of law courts covered by, or excluded from, the scope of application of the Convention in accordance with the Law of Civil Servants in the Judicial System (Decree No. 48-99) and the Law on Judicial Career (Decree No. 41-99). The Committee hopes that the Government in its next report will reply to these observations as well as to two other observations communicated by UNSITRAGUA in October 2002 and August 2003 concerning unpaid or otherwise non-compensated overtime work, especially in bank offices and the judiciary. The Committee also hopes that the Government will provide a detailed response to the points raised in its previous observation concerning the application of the Convention.

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1. The Government indicates that the Tripartite Subcommittee on Pending Legal Reforms will discuss a change of section 122 of the Labour Code with the aim of establishing the circumstances in which recourse may be made to up to four additional working hours per day. It, further, states that Government Decision No. 6-80 of 9 May 1980 limits the annual maximum of additional hours to 160, while section 122 of the Labour Code fixes the daily limit at 12 hours.

The Committee notes with concern that the harmonization of section 122 of the Labour Code with the requirements for exceptions, as provided for by the Convention, has been under consideration for many years without achieving any progress. It urges the Government to make every effort to bring its legislation into conformity with the Convention in this respect, and requests it to include in its next report information on the steps taken, including with regard to any administrative regulations which might permit even to exceed the 12-hour maximum.

2. Furthermore, the Committee refers to the observation of the Trade Union of Workers of Guatemala (UNSITRAGUA) of October 2002, stating that, according to Order No. 31-2000 of the Supreme Court, based on the Law of Civil Servants in the Judicial System (which is provided for under section 210 of the Constitution and section 193 of the Labour Code), certain categories of judges and auxiliary staff of law courts may be forced to perform shift work after a normal working day up to 24 hours per day without any compensation for overtime in time or in cash.

The Committee draws the attention to Article 1(1)(b) of the Convention. This provision extends the scope of the Convention to public establishments and administrative services in which the persons employed are mainly engaged in office work. Auxiliary staff, as far as engaged in the administration of justice, appear to be covered by the Convention, whereas judges rather seem to be not included. They might, however, also be exempted from the application of the Convention in case that, under national law, they are considered to be engaged in connection with the administration of public authority (Article 1(3)(b) of the Convention).

The Committee asks the Government to indicate the categories of staff of the judicial system, which it exempts from the application of the Convention. It, further, requests the Government to inform it on any measures appropriate to ensure that the requirements of the Convention are complied with also with regard to those persons of the staff who are covered by the Convention.

The Committee further takes note of a second observation made by UNSITRAGUA in August 2003 transmitted to the Government on 8 October 2003, which, in addition to the comments of October 2002, draws the attention to cases of unpaid overtime work, mainly occurring in bank offices, and to a special category of public employees, mainly engaged in office work, who, according to UNSITRAGUA’s observation, are deprived of their right to limited working hours because the State disregards their status as employees.

The Committee invites the Government to comment also on these latter observations of UNSITRAGUA.

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The Committee notes the Government's report and the information supplied in reply to its previous direct request. With reference to its comments on the application of the Hours of Work (Industry) Convention, 1919 (No. 1), the Committee recalls the need to modify section 122 of the Labour Code, which stipulates that a working day including additional hours may not exceed 12 hours. The Committee once more wishes to recall that the exceptions provided for under Article 7 of the Convention, must remain within reasonable limits, and that the authorization of four additional hours of work a day, without providing other guarantees, such as a monthly or annual limit, greatly exceeds the exceptions authorized by the Convention and is clearly contrary to the spirit in which the latter was drafted. The Government indicates in its report on the application of the Convention that, in response to the Committee's comments, it will take steps necessary to establish, after consultation with the employers' and workers' representative organizations, the circumstances in which recourse may be made to additional hours of work, and also the maximum number of additional hours which may be authorized in each case. The Committee hopes that these steps will be taken in the near future and requests the Government to keep the ILO informed of all progress achieved in this connection.

Furthermore, the Committee refers to its observation of 1981, in which it noted that the Government Decision No. 6-80 of 9 May 1980 gave effect to the provisions of the Convention by fixing a reasonable annual limit to the number of additional hours authorized. It reiterates its request for clarification of the legal situation resulting from the application of Decision No. 6-80, and of section 122 of the Labour Code to workers covered by the Convention.

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The Committee notes the information supplied by the Government in its report. It notes in particular the Government's indication that section 122 of the Labour Code establishes the cases in which the working day may be extended.

The Committee draws the Government's attention to the fact that it has addressed the above provision in its comments on Convention No. 1, and asks the Government to refer to them.

Furthermore, the Committee noted in 1981 the adoption of Government Decision No. 6-80 of 9 May 1980 containing regulations which it considered to be in conformity with the provisions of the Convention.

The Committee therefore asks the Government to clarify the legal situation by indicating to what extent Government Decision No. 6-80, and section 122 of the Labour Code apply to the workers covered by the Convention.