Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

Articles 1(1) and 2(1) of the Convention. Obligation to do
overtime under threat of a penalty

In its previous observation, the Committee indicated that, for the purposes of the Convention, the expression “forced or compulsory labour” means all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered her or himself voluntarily. The Committee observed, in relation to the allegations made by the Trade Union Confederation of Guatemala (UNSITRAGUA), that in certain cases refusal by workers in the public sector to work hours in excess of the normal working day can result in the termination of their contract and that in the private sector there are cases of enterprises which set production targets for workers who have to work in excess of the ordinary hours of the working day in order to earn a survival wage. The Committee observed that in both cases the common denominator is the imposition of work or a service and the worker has the possibility to “free her or himself” from such imposition only by leaving the job or accepting dismissal as a sanction for refusing to perform such work. In theory, workers have the choice of not working beyond normal working hours, but their choice is not real in practice in view of their need to earn, at least, the minimal wage and to retain their employment, or for both reasons. The Committee considered that in such cases the work or service is imposed under the menace of a penalty. The Committee requested the Government to provide information on the measures taken or envisaged to ensure compliance with the Convention in this respect.

The Committee notes the Government’s detailed report in reply to the various issues raised by UNSITRAGUA and the questions raised by the Committee, which are addressed below.

1. Public sector: Justices of the Peace – Judicial bodies; National Civil Police; Municipal Water Company (EMPAGUA) – Municipality of the Capital City of Guatemala. (a) Justices of the Peace. According to UNSITRAGUA, “in most of the towns of the country, there is only one Justice of the Peace who has to be on duty 24 hours a day, every day of the year. The auxiliary staff of Justices of the Peace have to cover shifts by rotation as additional work supplementing their ordinary working day. The shifts worked on public holidays, Saturdays and Sundays are compensated with time off, but the shifts worked after the completion of the ordinary working day are not compensated in time off, nor are they paid. Failure to perform such shifts constitutes an offence liable to be punished by dismissal”. The Committee requested the Government to provide information on the case, cited by UNSITRAGUA by way of illustration, of a worker dismissed for refusing to work 24 hours continuously (ruling No. 25-04, which found against the Supreme Court of Justice). The Committee also requested information on the other case cited by UNSITRAGUA (ruling identified as No. 566-2003, which found against the Ministry of Public Health and Social Assistance). In this latter case, the worker was dismissed for failure to turn up on three complete working days in the same month. The Fifth Chamber of the Labour and Social Insurance Court found that the worker had incurred dismissal “by failing to turn up for work on 23 September 2001 when he was due to work 24 hours of the day consecutively, with such failure being equivalent to three full working days”. The Committee notes that, according to the Government’s indications in its report, both cases are awaiting a final ruling. The Committee requests that the Government provide copies of the rulings when they have been issued.

(b) Employees of EMPAGUA. According to UNISITRAGUA, employees of EMPAGUA have to work for 24 consecutive hours, followed by 48 hours rest, with this work arrangement avoiding the payment of hours worked outside the normal working hours. Refusal to work under these conditions may give rise to dismissal and penal prosecution in view of the status of these workers as public employees. The Committee notes the comments provided by the Union of Operators of Plants, Wells and Guardians of the Municipal Water Company and Allied Workers (SITOPGEMA). With regard to the conditions and limits on the working of overtime, the Committee refers to its observations on the application of the Hours of Work (Industry) Convention, 1919 (No. 1). The Committee also refers to the discussion in the General Survey of 2007 on the eradication of forced labour, paragraphs 132 and 133. The Committee requests the Government to provide information on the measures taken to ensure that this practice does not amount to “forced or compulsory labour”.

(c) National Civil Police. According to UNSITRAGUA, officers of the National Civil Police are often subjected to the total suspension of rest periods and leave, compelled to work in shifts outside the normal working day, without remuneration and under the menace of penalties, including penal sanctions in the case of failure to comply with such instructions. In cases in which a penalty other than dismissal is imposed, in accordance with the rules of the institution, such a penalty prevents the officer from gaining promotion. In this regard, the Government indicates that, under the terms of Ministerial Accord 301-97 issuing rules governing holidays, leave and rest periods for the national police, the granting of any type of holidays, leave and rest periods is always subordinate to the needs of the service as assessed by those empowered to grant such leave. The Committee also notes the report of the Subdirectorate General of Public Security, National Police of Guatemala, concerning the suspension of rest periods, leave and the organization of shifts in the national police, which was provided by the Government, indicating that holidays, leave and rest periods have only been suspended at certain periods (for example, the national holidays at the end of the year) or in cases in which public security may be at risk, and that in all cases shift work consists of eight hours’ work followed by eight hours’ rest. The Government also provided a report with documentation indicating the dates on which rest periods and holidays were suspended in 2004, 2005 and 2006.

The Committee takes due note of this information. Under these circumstances, the Committee hopes that the Government will ensure that in practice, irrespective of the organization of hours of work required for the necessities of the service, abuse will be avoided in measures to suspend holidays and rest periods, which may result in practices that can be assimilated to forced labour.

(d) State employees (category 029). In previous comments, UNSITRAGUA also referred to the situation of state employees belonging to the category 029. The classification of state employees is determined by the budgetary category to which they belong. The category 029 was established to allow the recruitment of skilled professional and technical personnel for specific tasks and periods, without such workers obtaining the status of public employees. Contracts are renewed when sufficient funds are allocated and these workers do not have the right to benefits to which permanent employees are entitled. UNSITRAGUA alleged that workers contracted under this system are not paid for the hours worked in excess of the normal working day, that refusal to work these hours affects the evaluation of their performance and could result in the termination of the contract, with no liability for the State.

The Committee previously noted the Government’s reply, according to which “the contracts of persons providing personal services are assigned in financial terms to category 029 of the general budget of the nation and do not constitute employment relationships, but rather civil contracts, for which reason these workers do not have the status of workers, but of providers of services. In its latest report, the Government indicates that in view of these special characteristics there is no dependent relationship under this type of contract and no limitation on working hours, adding that such contracts are of an exceptional and temporary nature. In this respect, the Committee observed that the Convention applies to any type of legal relationship, and even in the absence of a legal relationship, and consequently affords protection against the imposition of forced labour in any labour relationship, including those which do not arise out of a contract of employment. The Committee further notes that the allegations referred to the undue use of such contracts to cover functions that are intrinsically permanent, thereby avoiding employment protection. The Committee hopes that the Government will provide information on the measures adopted or envisaged to protect this category of workers against the imposition of compulsory labour outside the normal working day.

2. Private sector: Plantations. In its previous observations, the Committee noted UNSITRAGUA’s comments relating to cases of enterprises which set production targets for workers who, to earn the minimum wage, have to work in excess of the ordinary hours of the working day, with the additional hours being unpaid. According to UNSITRAGUA, “such cases are occurring with greater frequency in ranches producing bananas as independent producers for the multinational fruit company in the United States known as Chiquita, which is present in the ranches in the municipality of Morales in the department of Izabal and on the southern coast of Guatemala”. It also referred by way of illustration to the “El Real and El Atlántico ranches in the district of Bogos, in the municipality of Morales in the department of Izabal, where the employers refuse to negotiate unless it is first accepted that piece work is not subject to (ordinary) working hours, in violation of the provisions that are in force”. The Committee further noted the reports on the corporate responsibility of Chiquita Brands International in which it was indicated that in Guatemala “hourly workers and administrators sometimes work over 60 hours (a week)” and that “workers exceeded the maximum number of overtime hours”.

The Committee notes the Governments’ detailed reply on these issues in its latest report. With regard to the situation in the El Real and El Atlántico ranches in the municipality of Morales, the unions of the workers in both ranches, with the advice of the legal commission of UNSITRAGUA, have for the past three years been negotiating a collective accord on working conditions, including the form of remuneration, based on the provisions of the Labour Code. According to the Government’s indications, in most of these banana ranches agreement has been reached on the calculation of remuneration based on wage tables which provide for piece work or daily rates. When workers agree to work overtime following the working day of eight hours, the mixed day of seven hours and night work of six hours, they are paid 50 per cent higher than the normal wage. The Government adds that daily working hours are applicable irrespective of the form of pay agreed by workers and employers. Furthermore, it indicates that in the case of the El Real and El Atlántico ranches the wage paid is around Q. 2,500.00 and that the minimum wage is Q. 1,273.80 (1 US dollar = 7.5 quetzales). The Committee notes with interest that a commission to address disputes on banana ranches has been established. The Committee takes due note of this information and hopes that the Government will continue to provide information on the measures adopted to ensure that work outside normal working hours is not imposed under the menace of dismissal in the plantations sector. The Committee requests the Government to provide information on the activities of the commission to address disputes in banana ranches.

Article 25. The Committee notes with interest the statistics provided by the Government in its report on the complaints received which are considered to be complaints of forced labour in view of the failure to provide pay and the withholding of basic and additional remuneration. The Committee hopes that the Government will provide information on the outcome of these prosecutions, with an indication of the type of penalty imposed in cases found to constitute forced labour.