Observación (CEACR) - Adopción: 2009, Publicación: 99ª reunión CIT (2010)

Articles 1, paragraph 1, and 2, paragraph 1, of the Convention. Obligation to work overtime under threat of a penalty. The Committee notes the comments made by the Indigenous and Rural Workers Trade Union Movement of Guatemala, dated August 2008, containing information on the obligation to work overtime under the threat of a penalty in certain cases raised in its previous observations, as well as new allegations on the same subject in cases in the Office of the Attorney-General, the Directorate of Criminal Investigations and the National Forensic Science Institute (INACIF).

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 previously 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 loss of their job 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 adopted or envisaged to ensure compliance with the Convention in this respect.

The Committee notes the Government’s report in reply to the various questions raised and the Committee’s requests, 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 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 in the day consecutively, with such failure being equivalent to three full working days”. The Committee noted the Government’s indication that both cases were awaiting a final ruling. The Committee requested the Government to provide copies of the rulings when they have been issued.

The Government indicates that it has requested the relevant information from the Supreme Court of Justice and will send it in due time. However, the Committee notes the information provided by the Indigenous and Rural Workers Trade Union Movement of Guatemala according to which, in the case of ruling No. 25-04, the Constitutional Court set aside the claim for the reinstatement of the worker and for payment of the overtime hours worked.

The Committee hopes that the Government will take the necessary measures to ensure that the requirement is not imposed to perform work in excess of the limits imposed by the legislation, with refusal being punished by the loss of employment. Such conditions constitute forced labour under the terms of the Convention. The Committee hopes that the Government will provide information on the progress achieved in ensuring compliance with the Convention.

(b). Employees of EMPAGUA. According to UNSITRAGUA, 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 in excess of 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 noted the comments made by the Union of Operators of Plants and Wells, Guardians of the Municipal Water Company and Allied Workers (SITOPGEMA) and requested the Government to provide information on the measures adopted in this respect.

The Government indicates that in June 2008 an arbitration award was handed down by the Sixth Labour and Social Insurance Court establishing a working week of 48 hours and that overtime hours shall be paid in accordance with the law. The Government adds that EMPAGUA has been warned that “working days may not exceed 12 hours in the day”.

In relation to this case, the Committee notes the information provided by the Indigenous and Rural Workers Trade Union Movement of Guatemala according to which the demand made by 103 EMPAGUA employees for failure to pay overtime hours was set aside in a ruling issued on 16 April 2008 by the Fifth Labour Court, and that an appeal was lodged against this ruling with the Third Chamber of the Labour and Social Appeal Court, under case No. J-371-2008.

The Committee hopes that the Government will provide information on developments relating to the case that is before the Court of Appeal and on the application of the working conditions envisaged in the arbitration award so that the performance may not be required of overtime hours under the threat of dismissal or penal persecution.

(c). Office of the Attorney-General, Directorate of Criminal Investigations and National Forensic Science Institute (INACIF). The Indigenous and Rural Workers Trade Union Movement referred in its comments to cases of the imposition of shifts of 32 continuous hours of work. Furthermore, according to the organization, in view of the volume of work, workers are required to work during rest days to be able to meet requirements to hand in reports. The workers are placed under pressure through the threat of dismissal in order to work shifts and complete tasks that it would be impossible to carry out within normal working hours. The Government has not replied to these new allegations.

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 work outside normal working hours.

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 a minimum wage, have to  work in excess of the ordinary hours of the working day, with the additional hours being unpaid.

In its report, the Government indicates that the objective of fixing the minimum wage on the basis of productivity is to give enterprises an incentive to pay more than the minimum wage. It adds that in banana plantations as a result the minimum wage is broadly exceeded and that the General Labour Inspectorate has intervened in banana ranches in cases denounced by the workers.

The Committee notes the statistics on the denunciations made to the labour inspectorate concerning the payment of the minimum wage. The Committee observes that all of the 11 denunciations made in 2007 were set aside. It further notes the effect that can be produced in terms of the application of the Convention by the relationship between the extension and duration of the working day, the payment of the minimum wage based on productivity and the threat of dismissal. The Committee hopes that the Government will provide information on the outcome of the denunciations made in 2008 (which were under examination when the report was sent) and that the Government will continue to provide information on the measures adopted to ensure that in the plantations sector work is not imposed in excess of normal working hours under the threat of dismissal.