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).