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Protection of Wages Convention, 1949 (No. 95) - Guatemala (RATIFICATION: 1952)

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The Committee notes the information provided by the Government, which answers the points raised in its previous direct request and has no further matters to raise in this regard.

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Article 1 of the Convention. Definition of wages. In its previous comments, the Committee noted the observations made by the Indigenous and Rural Workers’ Trade Union Movement of Guatemala (MSICG) alleging widespread contractual practices aimed at disguising an employment relationship or concealing that the amounts paid to workers in exchange for their work are actually wages, with the consequent loss of protection of wages. The Committee notes that the Government has not responded to these general allegations. In this context, the Committee wishes to recall that the purpose of Article 1 of the Convention is to guarantee that the real earnings of workers, however termed or reckoned, are fully protected under national law, and that the obligations deriving from the Convention with respect to the protection of workers’ wages cannot be bypassed by mere terminological subterfuges, but require the extended and bona fide coverage by national legislation of labour remuneration whatever form it takes (see General Survey on protection of wages, 2003, paragraph 64).
Article 3. Payment of wages in legal tender. In its previous comments, the Committee asked the Government to supply more detailed information on the application in practice of section 90(3) of the Labour Code, which provides that the prohibition of the payment of wages in full or in part in the form of goods, vouchers or coupons, or in any other form alleged to represent legal tender, does not include the provision of vouchers, coupons or any other similar means of paying wages, provided that at the end of each pay period the employer exchanges these tokens for the exact equivalent in legal currency. While noting the absence of information on this point in the Government’s report, the Committee recalls that, in accordance with Article 3 of the Convention, wages payable in money shall be paid only in legal tender, and payment in the form of promissory notes, vouchers or coupons, or in any other form alleged to represent legal tender, shall be prohibited. The Committee requests the Government to supply information on the application in practice of the above provision of the Labour Code in light of the requirements of this Article of the Convention.
Article 8. Deductions from wages in the form of fines. In its previous comments, the Committee noted the observations made by the Confederation of Workers of Guatemala (CGTG), which allege that the penalties imposed on public employees in the form of wage deductions by the General Comptroller are of a confiscatory nature because they do not take into account the employee’s capacity to pay. The Committee notes the Government’s indication in its reply that in Case No. 2810-2014 of the Constitutional Court the confiscatory nature of such fines was recognized and it was therefore decided to amend certain subsections of section 39 of the Basic Act on the Office of the Comptroller, which establish the salary percentages used as a basis for calculating the amounts of fines.

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Articles 8 and 12 of the Convention. Deductions in the form of disciplinary sanctions – Final settlement of wages upon termination of employment. The Committee notes the comments of the General Confederation of Workers of Guatemala (CGTG), which were received on 30 August 2013 and transmitted to the Government on 18 September 2013, concerning the application of the Convention. The CGTG refers to deductions from wages in the form of fines imposed to public employees by audit authorities and alleges that such fines are often unjustified, unfair and do not take into account the employee’s capacity to pay, therefore resembling more like confiscatory measures. In addition, the CGTG refers to problems experienced by private security guards who are often dismissed without receiving the amounts due to them such as severance pay. The Committee requests the Government to transmit any comments it may wish to make in reply to the observations of the CGTG. The Government is also requested to reply to the comments made previously by the Indigenous and Rural Workers Trade Union Movement of Guatemala (MSISG) as well as to the Committee’s pending comments regarding the application of Articles 3 (payment of wages in legal tender), 4 (payment of wages in kind) and 7 (works stores) of the Convention.

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Articles 1 and 3 of the Convention. Scope – Definition of wages – Method of payment. The Committee notes the observations made by the Indigenous and Rural Workers Trade Union Movement of Guatemala (MSICG) in a communication of 31 August 2012 on the application of the Convention. In its observations, the MSICG alleges widespread hiring practices that consist, among other things, of disguising an employment relationship as a commercial relationship, under which workers are required to submit invoices so that their remuneration can be treated as a professional fee and not as a wage. According to the MSICG, the safeguards provided in labour law do not apply to commercial relationships. Furthermore, the filing of a wage claim or other complaint can lead to immediate termination of the relationship, and judicial proceedings cannot ensure the protection of workers’ rights in such circumstances.
Referring to the application of the statutory safeguards concerning wage attachment, the MSICG points out the consequences of wages being paid not in cash or by bank cheque or the equivalent, but by bank transfer. Since these bank deposits are not recorded as wage payments, the total amount of the wage may be attached unless the worker proves to the court that the deposits in his/her account correspond to wage payments. Furthermore, according to the MSICG, in most cases, the worker receives neither a statement showing the date of the deposit nor a payslip showing the wage and any deductions, and the General Labour Inspectorate does not check that these documents are sent to the workers. In its observations, the MSICG also asserts that the Government is devising practices whereby the amounts made over to workers in exchange for their labour need not be recorded as wages, which has implications for the calculation of other benefits based on the wage, such as social security benefits and compensation. Lastly, the MSICG asserts that the Government has taken no measures to bring the legislation into line with the Convention on the points the Committee raised in its previous direct request concerning, in particular, the payment of wages in the form of promissory notes or vouchers, and the partial payment of wages in kind. The Committee requests the Government to provide any comments it may wish to make in response to the MSICG’s observations.

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Article 3 of the Convention. Payment of wages in legal tender. The Committee has for the last ten years been drawing the Government’s attention to section 90 of the Labour Code which is not fully consistent with this Article of the Convention as it permits employers to issue promissory notes, vouchers and other similar means provided that at the end of each pay period the employer exchanges the said tokens for the exact equivalent in legal currency. Noting that the Government has once more failed to provide any new information in this respect, the Committee requests the Government to take all necessary measures without further delay in order to amend the relevant provision of the Labour Code and prohibit the payment of wages in the form of promissory notes in all circumstances.
Article 4. Partial payment of wages in kind. The Committee has also been commenting on the absence of a provision in the Labour Code expressly prohibiting wage payment in the form of liquor of high alcoholic content or of noxious drugs in any circumstances, as required under this Article of the Convention. Moreover, the Committee has been commenting on section 90 of the Labour Code which provides that any benefits in kind given to employees, other than agricultural workers, in return for their services will be deemed to make up 30 per cent of the total amount of wage payable, without however prescribing any conditions for such payments. In the absence of any new information on this point, the Committee again requests the Government to take appropriate action to ensure that the national legislation gives full effect to the requirements of Article 4 of the Convention.
Article 7(2). Works stores. In its previous comments, the Committee asked the Government to indicate any measures taken to ensure that goods and services in company stores are provided at fair and reasonable prices and that such stores are not operated for the purpose of securing profit. As the Government’s report is silent on this point, the Committee again requests the Government to specify how works stores are regulated in law and in practice, and to transmit sample copies of any collective agreements containing relevant clauses.
Articles 8 and 12. Deductions from wages. Payment of wages at regular intervals. The Committee notes the detailed explanations provided by the Government concerning a number of labour disputes, referred to in earlier communications of the Trade Union Confederation of Guatemala (UNSITRAGUA) concerning the timely payment of wages and deductions from wages. The Committee would be grateful if the Government would keep the Office informed of further developments with respect to those cases still pending before the courts and transmit copies of any relevant judicial decisions.

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The Committee notes the detailed information and the documents sent in the Government’s report in answer to the observations made by the Trade Union Confederation of Guatemala (UNSITRAGUA). It observes that most of the issues raised by UNSITRAGUA have been bought up in cases before the Committee on Freedom of Association.

In the dispute between UNSITRAGUA and Bocadeli de Guatemala S.A. concerning deductions from the wages of four employees, the Committee takes note of court decision No. 15-05 of 8 March 2005 upholding the decision to order repayment of the amounts improperly deducted from the wages of the employees and requesting the company to refrain from any deductions from wages other than those allowed by law. The Committee also notes that the dispute has been remitted to the court of first instance. The Committee requests the Government to keep it informed of any developments in this matter and provide copies of relevant court decisions.

The Committee notes the information sent by the Government in response to UNSITRAGUA’s observations regarding deductions from wages by the company la Comercial. It notes the Government’s statement that the International Affairs Unit of the Ministry of Labour has carried out an inquiry to ascertain whether the union’s complaint is well founded. The Government specifies that the court that heard the complaint found in favour of the employer and that the latter should be sending its comments to the Government shortly. The Committee requests the Government to report on any developments in this area.

With regard to the dispute between UNSITRAGUA and the coffee exporter CECILIA S.A. concerning the non-payment of the wages of 34 employees between February 2001 and October 2002, the Committee notes court decision No. 2003-2003 OF.. No. 1 of 4 November 2003, appended to the Government’s report, quashing the decision of the lower court and sending the dispute back to the court of origin. The Committee requests the Government to report on any developments in this matter and to provide copies of relevant court decisions.

The Committee further notes the Government’s information that the association Fe y Alegría failed to pay the minimum wages set by agreements Nos. 459-2002 and 765-2003, giving rise to a complaint which is currently being heard by the courts. The Committee requests the Government to report on any developments in this matter.

Lastly, the Committee notes that the Government’s report provides no new information on the matters raised in its direct request of 2001. It accordingly asks the Government to send information in its next report concerning the application of Articles 3 (payment of wages in legal tender), 4 (partial payment of wages in kind), and 7 (company stores) of the Convention.

Parts III and V of the report form. The Committee notes the court decisions sent with the Government’s report. It would be grateful if the Government would continue to provide general information on the application of the Convention including, for instance, extracts of official reports by the labour inspection services containing information on the number and nature of infringements recorded, and on any practical difficulties encountered in implementing the Convention, etc.

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The Committee notes the comments on the application of the Convention submitted by the Trade Union Confederation of Guatemala (UNSITRAGUA) and forwarded to the Government on 19 December 2002. The Committee regrets that to date the Government has not provided any reply to these comments. The Committee has also been in receipt of new observations communicated by UNSITRAGUA on 4 September 2003. These comments have been transmitted to the Government on 14 October 2003 and the Committee will address them, together with any comments the Government may wish to make thereon, at its next session.

In its communication of 27 October 2002, UNSITRAGUA refers to the case of CECILIA S.A., a coffee-exporting company, which has allegedly retained the wages due to 34 unionized workers from February 2001 to October 2002. The organization reports that proceedings have been initiated for the recovery of the unpaid sums but fears that the company may persist in withholding the wages for years, especially in the state of impunity which prevails in the country in respect of labour matters.

The Committee requests the Government to inquire into these complaints and provide up-to-date information on the payment of the alleged wage debts. In any event, the Committee asks the Government to take all appropriate measures to guarantee that wages are paid in full and on time in accordance with the provisions of Article 12, paragraph 1, of the Convention.

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The Committee notes the Government’s report.

Article 3 of the Convention. The Committee notes that under section 90 of the Labour Code, the general obligation of the employer to pay wages exclusively in legal currency is not deemed to cover the issue of promissory notes, vouchers or any other similar means of settling labour remuneration, provided that at the end of each pay period the employer exchanges the said tokens for the exact equivalent in legal currency. The Committee is bound to observe, in this connection, that this provision is inconsistent with the terms of the Convention which explicitly prohibit such practices and require wages payable in money to be paid only in legal tender. Consequently, the Committee asks the Government to supply more detailed information on the practical application of the above provision.

Article 4. The Committee notes that the Labour Code contains no provision expressly prohibiting wage payment in the form of liquors of high alcoholic content or of noxious drugs in any circumstances, as set forth under this Article of the Convention. The Committee would appreciate the Government’s providing further clarifications on this point.

In addition, the Committee notes that section 90 of the Labour Code provides that any benefits in kind given to employees, other than agricultural workers, in return for their services shall be deemed to make up 30 per cent of the total amount of wage payable unless there is an agreement to the contrary, without however prescribing any conditions for such payments. Noting that the Convention calls in this respect for measures to ensure that allowances in kind are appropriate for the personal use and benefit of the worker and his/her family, and that the value attributed to such allowances is fair and reasonable, the Committee requests the Government to indicate the measures taken to give effect to this provision.

Article 7(2). The Committee asks the Government to indicate the measures taken to ensure that goods and services in works stores are provided at fair and reasonable prices and that such stores are not operated for the purpose of securing profit. Recalling the Government’s indication in an earlier report that these stores are in some cases governed by collective agreements, the Committee would be grateful if the Government could provide up-to-date information on the practice of works stores or services, including copies of some collective agreement provisions as examples.

Part V of the report form. The Committee hopes that the Government will continue to supply information on the measures taken to ensure the observance in practice of the legislation giving effect to the Convention, including for instance extracts of official reports or the results of labour inspection visits, especially with regard to the payment of wages to workers in rural areas.

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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 matter raised in its previous direct request.

The Committee noted that a draft Labour Code had received its first reading in the Congress of the Republic. The Committee hopes that the Government will supply a copy of the new Code when it is adopted.

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Point V of the report form. The Committee notes the information supplied by the Government in its report concerning the manner in which the Convention is applied.

The Committee also notes that a draft Labour Code has received its first reading in the Congress of the Republic. The Committee hopes that the Government will supply a copy of the new Code when it is adopted.

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The Committee notes with interest the detailed information supplied by the Government concerning the application of the Convention in practice and through the legislation. The Committee hopes that the Government will continue to transmit similar information in its future reports, as requested in point V of the report form.

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