Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

Labour Clauses (Public Contracts) Convention, 1949 (No. 94) - Guatemala (Ratification: 1952)

The Committee notes that, in its report, the Government responds essentially to the observations previously made by the Trade Union of Workers of Guatemala (UNSITRAGUA) concerning different types of labour contracts, a matter which is not addressed by the Convention. The Committee also notes that, in response to its previous comments, the Government limits itself to indicating that it is for each body that is party to a public contract to choose whether to insert or not to insert labour clauses into this contract, but that under no circumstances is it possible to waive social rights, in accordance with section 12 of the Labour Code and articles 102 to 113 of the Constitution.

The Committee is once again obliged to recall the obligations imposed by the Convention. Even if, as the Government indicates, the social legislation, in particular the Labour Code, is applicable to workers employed within the framework of public works contracts, it is imperative that public contracts contain the labour clauses envisaged by the Convention. The inclusion of such clauses ensures to the workers concerned wages, hours of work and other conditions of labour which are not less favourable than the most favourable conditions provided for in accordance with one of the three formulas envisaged by the Convention, namely by collective agreement, by arbitration award or by national laws or regulations. The protection of workers is thus ensured in cases where the legislation sets forth only minimum labour conditions likely to be exceeded by general collective or sectoral agreements. The Committee insists on the importance of complying with this principle, given the risk of social dumping linked to the severe competition between enterprises for public works contracts.

In this regard, the Committee recalls that it noted with satisfaction, in a 1987 observation, the adoption of the Ministerial Agreement of 21 November 1985 approving a model of labour clauses to be included in contracts concluded by the public authorities. The Committee asks the Government to indicate whether this Ministerial Agreement is still in force. If it is not, the Committee strongly hopes that the Government will, without delay, take the necessary measures to ensure the application of the Convention, and asks it to keep the Committee informed of any developments in this regard.