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

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.