Título Tercero. Salarios, Jornadas y Descansos

Wage or salary is the remuneration that the employer must pay to the worker by virtue of performance of the employment contract or of the employment relationship in force between the two. Except for statutory exceptions, all service rendered by a worker to his respective employer must be remunerated by the latter.

The calculation of this remuneration, for purposes of its payment, may be agreed:

a)By unit of time (by month, fortnight, week, day or hour);

b)By unit of work (by piece, task, lump-sum price or piecework); and

c)By participation in the profits, sales or collections made by the employer, but in no case shall the worker assume the risks of losses incurred by the employer.

To fix the amount of the wage in each class of work, the intensity and quality thereof, climate and living conditions must be taken into account.

For equal work, performed in post and conditions of efficiency and seniority within the same enterprise, also equal, equal wage shall correspond, which must include the payments made to the worker in exchange for the worker's ordinary labor.

In the claims filed by women workers relating to wage discrimination on grounds of sex, the employer is obligated to prove that the work performed by the claimant is of inferior quality and value.

The wage must be paid exclusively in legal tender currency.

Payment of the wage, in whole or in part, in merchandise, vouchers, tokens, coupons or any other representative sign intended to substitute currency is prohibited. Legal sanctions must be applied at their maximum when payment orders are only exchangeable for merchandise in certain establishments.

It is understood that the foregoing prohibition does not include the delivery of vouchers, tokens or other analogous means of computing the wage, provided that at the expiry of each pay period the employer exchanges the exact equivalent thereof in legal tender currency.

Notwithstanding the foregoing provisions, peasant workers who work in agricultural or livestock operations may receive payment of their wage, up to thirty percent of its total amount as a maximum, in food and other similar articles intended for their immediate personal consumption or that of their family members who live with and are economically dependent on him, provided that the employer supplies them at cost price or less.

Likewise, economic advantages, of whatever nature, granted to workers in general for the performance of their services, unless otherwise agreed, must be understood to constitute thirty percent of the total amount of the wage earned.

The amount of the wage shall be determined by employers and workers, but it shall not be less than that fixed as a minimum in accordance with the following chapter.

Employers and workers must set the time limit for the payment of the wage, which may not exceed a fifteen-day period for manual workers, nor one month for intellectual workers and domestic services.

If the wage consists of participation in the profits, sales or collections made by the employer, a fifteen-day or monthly sum to be received by the worker must be specified, which must be proportionate to the needs of the latter and the probable amount of the participation that may correspond to him. The final settlement must be made at least each year.

Except as provided by the second paragraph of the preceding article, the wage must be settled in full in each pay period. For this purpose, as well as for the computation of all indemnities or benefits granted by this Code, full wage means that earned during the ordinary and extraordinary workdays or the equivalent thereof in the case of subsection b) of Article 88.

Likewise, for the same purposes indicated in the preceding paragraph, whenever wages in kind may legally be agreed and the proportion between such wages and the wage in money has not been stipulated, it shall be understood that it has been agreed to pay in kind thirty percent of the total wage.

The wage must be paid directly to the worker or to the person of his family whom he indicates in writing or in a record drawn up by a labor authority.

Unless a written agreement provides otherwise, payment of the wage must be made at the very place where the workers provide their services and during working hours or immediately after they conclude.

Payment of the wage in places of recreation, commercial outlets or outlets for alcoholic beverages or other similar places is prohibited, except in the case of workers who work in that class of establishments.

The following are declared unseizable:

a)Minimum wages and those which, without being such, do not exceed thirty quetzales per month;

b)Ninety percent of wages exceeding thirty quetzales, but less than one hundred quetzales per month;

c)Eighty-five percent of wages of one hundred quetzales or more, but less than two hundred quetzales per month;

d)Eighty percent of wages of two hundred quetzales or more, but less than three hundred quetzales per month; and

e)Sixty-five percent of monthly wages of three hundred quetzales or more.

Notwithstanding the provisions of the preceding article, all classes of wages are attachable, up to fifty percent, to satisfy obligations to pay current maintenance or maintenance owed from the six months prior to the attachment.

Both in the case of attachments to satisfy maintenance payment obligations referred to in the preceding paragraph, and in the case of attachment for other obligations, the writ, as well as the respective proceedings, shall contain the warning to whoever must pay the wages that even when the same wage is subject to several attachments, the non-attachable portion shall be left free for the benefit of the judgment debtor, pursuant to the provisions of this article or the preceding one.

Attachments for maintenance shall have priority over other attachments and in no case may two attachments be simultaneously enforced in the proportion indicated in this article and in the proportion of cited Article 96; for when the maximum proportion indicated in the article last cited has been covered, only up to ten percent more may be attached to satisfy the other obligations.

As additional protection of the wage, the instruments, tools or implements of the worker that are indispensable for practicing their profession or trade are also declared unseizable, except where it is a matter of satisfying debts arising solely from the acquisition on credit of the same.

Advances made by the employer to the worker on account of wages shall in no case bear interest.

Debts incurred by the worker to the employer for this reason, for payments made in excess or for civil liability arising from the work, shall be amortized until extinguished over a minimum of five pay periods, except when the worker voluntarily pays within a shorter time limit. It is understood that upon termination of the contract, the employer may make the final settlement that is appropriate.

In other cases, debts incurred by the worker to the employer or to the employer's associates, relatives or dependents during the time the contract is in force or prior to its execution may only be amortized or, as applicable, set off in the proportion in which the respective wages earned by the former are attachable.

Wages not exceeding one hundred quetzales per month may not be assigned, sold, set off or encumbered in favor of persons other than the wife or concubine and relatives of the worker who live and are economically dependent on him, except in the proportion in which they are garnishable. Legal transactions entered into with cooperatives or with credit institutions operating with authorization granted in accordance with the law remain unaffected.

Credits for unpaid wages or monetary indemnities to which workers are entitled by reason of termination of their employment contracts, by virtue of their alimentary nature, enjoy the following privileges, once such credits or indemnities have been recognized by the Labor and Social Welfare Tribunals:

a)They may be collected through the special proceeding provided for in Article 426; and

b)They have the character of first-class credits in the case of universal proceedings and, within such proceedings, enjoy absolute preference over any others, except those arising, in accordance with the terms and conditions of the Civil Code regarding first-class creditors, from common judicial expenses, expenses for conservation and administration of the property subject to the insolvency proceedings, burial expenses of the debtor and indispensable expenses for repair or construction of immovable property.

For the purposes of this subparagraph, the judge of the insolvency proceedings must proceed without loss of time to the sale of sufficient property to cover the respective debts, in the event that there is no cash that permits making their immediate payment.

The privileges referred to in this article only cover an amount of such credits or indemnities equivalent to six months of wages or less.

Every employer that permanently employs ten or more workers must keep a wages book authorized and sealed by the *Administrative Department of the Ministry of Labor and Social Welfare, which is obligated to supply models and rules for its proper printing.

Every employer that permanently employs three or more workers, without reaching the limit of ten, must keep payrolls in accordance with the models adopted by the Guatemalan Institute of Social Security.

Every worker has the right to earn a minimum wage that covers his normal needs of a material, moral and cultural nature and that allows him to satisfy his duties as head of family.

Said wage must be fixed periodically as determined in this chapter, and taking into account the modalities of each work, the particular conditions of each region and the employer capabilities in each intellectual, industrial, commercial, livestock or agricultural activity. Such fixing must also take into account whether wages are paid by unit of time, by unit of work or by participation in the profits, sales or collections made by the employer and must be carried out by adopting the necessary measures so that workers who earn by piece, task, lump-sum price or piecework are not adversely affected.

The system established in the present chapter for the fixing of minimum wages must be applied to all workers, with the exception of those who serve the State or its institutions and whose remuneration is determined in a public budget.

However, the former and the latter must annually make in their respective budgets the necessary corrections so that none of their workers earns a wage lower than the minimum corresponding to them.

Attached to the Ministry of Labor and Social Welfare there shall be a National Wage Commission, a technical and advisory body of the joint commissions, charged with advising said Ministry on general wage policy.

In each department or in each economic circumscription determined by the Executive Branch, by means of an agreement issued through the Ministry of Labor and Social Welfare, there must be a Joint Minimum Wages Commission composed of two employers and an equal number of unionized workers and a labor inspector, who shall be responsible for presiding over it.

Furthermore, the Executive Branch, by means of an agreement issued through the aforementioned channel, may create joint minimum wages commissions for each intellectual, industrial, commercial, livestock or agricultural activity, with jurisdiction throughout the country or in part thereof; and also for specific enterprises that prove to have activity in various departments or economic circumscriptions and a number of workers of not less than one thousand, in which case the jurisdiction of the commissions is limited to the enterprise in question.

Likewise, the Executive Branch is empowered to increase the number of employers and workers who are to make up one or more joint minimum wages commissions, whenever the importance of the task thereof so requires.

The Executive Branch, through the Ministry of Labor and Social Welfare, by means of an agreement, shall issue the Regulation governing the organization and operation of the National Wage Commission and of the joint minimum wage commissions.

The indispensable requirements to be a member of a Joint Minimum Wage Commission are:

a)To be a native Guatemalan and an active citizen;

b)To be over twenty-one years of age;

c)To be able to read and write;

d)To have been a resident of the department of the economic circumscription in question for the three years prior to his appointment or, in the case of the second paragraph of Article 105, to currently be a worker or employer in the economic activity and to belong to the respective enterprise and to have been so since the year prior to his designation;

e)Not to be a public official, with the exception of the provisions of the second paragraph of the preceding article; and

f)To have a good conduct record and not to have been sentenced within the three years prior to his appointment for violation of labor or social welfare laws.

Employers and workers shall hold office for two years, may be reelected and must discharge such offices obligatorily, except where they are over sixty years of age or where they demonstrate, conclusively, and in the judgment of the Ministry of Labor and Social Welfare, that they lack time to perform said offices.

All members of the Parity Commissions for Minimum Wages have the right to earn a monthly wage or a per-session allowance for each session held, which in each case shall be determined by the Ministry of Labor and Social Welfare in light of the importance of their work and the time that performance thereof demands of them.

The employers and workers who are to make up the Parity Commissions on minimum wages must be appointed by the Ministry of Labor and Social Welfare, within the first twenty days of the month of January of the corresponding year, in accordance with this procedure:

a)Said Ministry must publish, eight or more days prior to the date of the election, the exact day and time at which it is to be held, so that interested persons who wish may attend the act;

The respective notice must be inserted twice consecutively in the Official Gazette and in one of private ownership that is among those of greatest circulation in the territory of the Republic;

b)During said eight-day term, each legally constituted trade union or association is obligated to send to the Ministry of Labor and Social Welfare a list of four or more candidates for each commission, from among whom the most suitable who meet the requirements of law are to be chosen. In the event that none fulfills said conditions, the Ministry must freely choose those who do satisfy them; and

c)The election of the representatives of the workers must be made from among the members of the Executive Committees of all legally constituted workers' trade unions in each department or economic circumscription or, as the case may be, in each economic activity or enterprise in question, provided that said members meet the requirements of law. In the event that there are no trade unions, the Ministry must freely choose the workers who meet the aforementioned requirements.

Once the members of each commission have been chosen, they must be appointed by means of the agreement of law.

Half plus one of the members of a commission shall constitute legal quorum for its operation.

Every call to meeting must be made in writing at least three days in advance by the president of the commission, whether on his own initiative or at the request of two members thereof.

The powers of the Parity Minimum Wage Commissions are:

a)To specify in reasoned form the minimum wages that each of them recommends for its jurisdiction in a memorial to be addressed to the National Wage Commission. Said report must be signed by all the members of the commission, even if one or some of them dissent. In the latter case, the memorial must be accompanied by the respective reasoned votes;

b)To ensure that the agreements fixing the minimum wage in their respective jurisdictions are effectively complied with and to report violations committed before the labor authorities; and

c)To hear any request for revision filed during the validity of the agreement fixing the minimum wage, provided it is signed by no fewer than ten employers or twenty-five workers of the same industrial, agricultural, livestock or commercial activity for which said modification is requested. If the number of employers does not reach ten, the request must be signed by all those that exist.

The Parity Commissions on Minimum Wages shall take into account, in order to better fulfill their mandate, the surveys on the cost of living conducted by the General Directorate of Statistics; all other data they may find, relating to their jurisdiction, on the price of housing, clothing and staple foodstuffs consumed by the workers, as well as on the means of employers, the facilities that employers provide to the workers with regard to lodging, land for cultivation, firewood and other benefits that reduce the cost of living of the latter.

Likewise, the commissions may request from any public entity or institution the assistance or reports they need, and private enterprises are obligated to supply the data requested from them, with the limitations established by laws of common order.

The National Wage Commission, once it receives the reports of all the commissions, must render to the Ministry of Labor and Social Welfare the corresponding reasoned opinion, within the fifteen days following receipt of said report, in which it must harmonize the minimum wages by activity and economic circumscriptions throughout the country, to the extent possible.

Copies of this opinion must be sent at the same time to the Monetary Board of the Bank of Guatemala and to the Guatemalan Institute of Social Security, so that both institutions forward to the Ministry of Labor and Social Welfare the written observations they deem pertinent to formulate insofar as the projected fixing may affect their respective fields of activities. Both the Bank of Guatemala and the Institute must forward their observations within a time limit of not more than thirty days. The omission of this requirement within the stated time limit does not prevent the Ministry from deciding what is appropriate.

The Executive Branch, in view of the aforementioned reports and opinions, shall annually fix by means of agreements issued through the Ministry of Labor and Social Welfare the minimum wages to govern in each activity, enterprise or economic circumscription.

The recitals of said agreements shall set forth the reasons upon which the fixing of minimum wages is based.

In the case of subparagraph (c) of Article 110 of this Code, the same foregoing procedures shall be observed, but the commissions shall submit their reports to the National Wage Commission within thirty days following the filing of the request that gave rise to them and said Commission shall submit its reasoned opinion to the Ministry of Labor and Social Welfare, with copies for the Monetary Board of the Bank of Guatemala and the Guatemalan Social Security Institute within fifteen days after the day on which it received said reports. The Institute and the Bank shall remit their observations to the Ministry within a time limit of fifteen days as well. Failure to comply with this requirement within the stated time limit does not prevent the Ministry from deciding what is appropriate.

The Ministry shall issue the applicable agreement or the corresponding denial. Any amendment or repeal that is made shall enter into force ten days after promulgation of said agreement and for the remainder of the legal period.

Every request for review must be based on reliable facts and data and be accompanied by the corresponding studies and evidence.

No request for review filed after the first four months in force of the agreement that fixed the minimum wages for the year in question shall be admitted.

The fixing of the minimum wage automatically modifies the employment contracts in which a lower one has been stipulated and does not imply renunciation by the worker, nor abandonment by the employer, of pre-existing agreements more favorable to the former.

When the minimum wages are fixed by means of the collective agreement on conditions of work, the commissions and the Ministry shall abstain from doing so in the enterprise, zone or economic activity covered by the latter.

The ordinary working hours of daytime effective work may not be greater than eight hours daily, nor exceed a total of forty-eight hours per week.

The ordinary working hours of nighttime effective work may not be greater than six hours daily, nor exceed a total of thirty-six hours per week.

Effective working time is that during which the worker remains at the orders of the employer.

Daytime work is that performed between six and eighteen hours of the same day.

Nighttime work is that performed between eighteen hours of one day and six hours of the following day.

The normal weekly daytime work shall be forty-five hours of effective work, equivalent to forty-eight hours for the exclusive purposes of payment of wage. Excepted from this provision are agricultural and livestock workers and the workers of enterprises where fewer than ten work, whose normal weekly daytime work shall be forty-eight hours of effective work, save for custom more favorable to the worker. But this exception shall not extend to agricultural enterprises where five hundred or more workers work.

The ordinary working hours of effective mixed work may not be greater than seven hours per day nor exceed a total of forty-two hours per week.

A mixed shift is one performed during a time that encompasses part of the daytime period and part of the nighttime period.

Nevertheless, a mixed shift in which four or more hours are worked during the nighttime period shall be understood as a nighttime shift.

The ordinary working hours performed in work which by its very nature is not unhealthy or dangerous may be increased between employers and workers by up to two hours daily, provided that it does not exceed, per week, the corresponding limits of forty-eight hours, thirty-six hours and forty-two hours which the two preceding articles establish for daytime, nighttime or mixed working hours.

The ordinary working hours may be continuous or be divided into two or more periods with rest intervals that are rationally adopted to the nature of the work in question and to the needs of the worker.

Whenever continuous ordinary working hours are agreed, the worker has the right to a minimum rest of half an hour within such working hours, which must be counted as effective working time.

Permanent workers who, by legal provision or by agreement with the employers, work less than forty-eight hours per week have the right to receive in full the wage corresponding to the ordinary daytime workweek.

Effective work performed outside the time limits determined by the preceding articles for ordinary working hours, or which exceeds the lower limit contractually agreed, constitutes overtime and must be remunerated with at least fifty percent more than the minimum wages or the wages higher than the latter stipulated by the parties.

Hours that the worker spends correcting errors attributable solely to him committed during ordinary working hours, nor those resulting from his lack of activity during such working hours, provided that the latter is attributable to him, are not considered overtime hours.

Ordinary and extraordinary shifts may not exceed a total of twelve hours per day, except in highly qualified exceptional cases determined in the respective regulation or where, due to a disaster that has occurred or imminent risk, persons, establishments, machines, installations, plantings, products or crops are endangered and where, without evident prejudice, it is not possible to replace the workers or suspend the work of those who are working.

Employers are prohibited from ordering or permitting their workers to work overtime in tasks which by their very nature are unhealthy or dangerous.

In cases of public calamity, the same exception established in the first paragraph of this article applies, provided that the overtime work is necessary to avert or mitigate it. In such circumstances, work performed must be paid as ordinary.

Employers must record in their wage books or payrolls, separately from what refers to ordinary work, what they pay to each of their workers for overtime work.

The following are not subject to the limitations of working hours:

a)The representatives of the employer;

b)Those who work without immediate superior supervision;

c)Those who hold surveillance posts or posts requiring only their mere presence;

d)Those who perform their duties outside the premises where the enterprise is established, such as commission agents who have the character of workers; and

e)The other workers who perform work which by its undoubted nature is not subject to working hours.

However, none of these persons may be required to work more than twelve hours, except in highly qualified exceptional cases as determined in the respective regulation, in which case they shall be entitled to payment for the overtime hours worked in excess of the twelve-hour daily limit.

The Executive Branch, by means of agreements issued through the Ministry of Labor and Social Welfare, must issue the regulations necessary to specify the scope of this article.

Within the spirit of the provisions of this Code, the Executive Branch, by means of agreements issued through the Ministry of Labor and Social Welfare, shall specify the manner of applying this chapter to transportation enterprises, communications enterprises and to all those whose work has very special characteristics or is of a continuous nature.

Likewise, the Executive Branch is empowered to issue, through the aforementioned channel, the agreements aimed at lowering the maximum limits determined by this chapter, in the case of work that is truly unhealthy or dangerous by its very nature.

All such agreements must be issued after previously hearing the employers and the workers affected thereby and taking into account the exigencies of the service and the interest of both.

Every worker has the right to enjoy one paid day of rest after each week of work. The week shall be computed as five to six days according to custom in the enterprise or workplace.

To those who work by piecework or by commission, one-sixth of the total wages earned in the week shall be added.

To establish the number of days worked by those who work by unit of time, the rules of subparagraphs c) and d) of Article 82 shall be applied.

The following are holidays with wage for private workers: January 1; Holy Thursday, Good Friday and Holy Saturday; May 1, June 30, September 15, October 20, November 1; December 24, half day, starting at twelve o'clock; December 25; December 31, half day, starting at twelve o'clock, and the day of the festivity of the locality.

The employer is obligated to pay the weekly rest day, even when one or more holidays coincide in the same week, and likewise when a paid holiday and a weekly rest day coincide.

In companies in which work of a very special nature or of a continuous nature is performed, pursuant to a determination to be made by the regulation, or in very qualified specific cases, pursuant to a determination by the General Labor Inspectorate, work may be performed during holidays or weekly rest days, but in such cases the worker has the right, without prejudice to the wage for such holiday or weekly rest, to have the time worked paid to him, computed as overtime work.

Payment for weekly rest days or for holiday days shall be made in accordance with the daily average of ordinary and extraordinary wages earned by the worker during the week immediately preceding the rest or holiday in question.

It is understood that when the wage is stipulated by fortnight or by month, it implicitly includes payment for the weekly rest days or for the holiday days that are not worked.

In the case of the preceding paragraph, if such days are worked, payment for the same must be made by computing the time worked as extraordinary, in accordance with the ordinary and extraordinary wages earned by the worker during the last fortnight or month, as applicable.

Every worker, without exception, is entitled to a period of paid annual leave after each year of continuous work in the service of the same employer, the minimum duration of which is fifteen working days. The continuity of work shall be determined in accordance with the rules of subparagraphs (c) and (d) of Article 82.

For the worker to be entitled to annual leave, even if the contract does not require the worker to work all the hours of the ordinary working hours or all the days of the week, the worker must have a minimum of one hundred fifty (150) days worked in the year. Days on which the worker does not provide services due to enjoying paid leave established by this Code or by collective agreement, due to occupational disease, common disease or work accident, shall be counted as worked.

The employer must indicate to the worker the period in which, within the sixty days following the day on which the year of continuous service was completed, the worker must effectively take their annual leave. To that end, the employer must endeavor to ensure that neither the smooth operation of the enterprise nor the effectiveness of the rest is disrupted, as well as to avoid overburdening the work of the coworkers of the person who is taking their annual leave.

Annual leave is not compensable in money, except when the worker who has acquired the right to enjoy it has not enjoyed it due to ceasing work for whatever cause. The worker is prohibited from rendering services to any person during the annual leave period. When the worker ceases work for whatever cause, before completing one year of continuous services, or before acquiring the right to a new period, the employer must compensate them in money for the proportional part of their annual leave in accordance with their time of service.

To calculate the wage that the worker must receive by reason of his annual leave, the average of the ordinary and extraordinary remuneration earned by him during the last three months must be taken, if the beneficiary renders his services in an agricultural or livestock enterprise; or during the last year in the other cases. The respective periods shall be counted in both cases from the moment the worker acquires his right to annual leave.

The amount of this wage must be paid in advance.

Unjustified absences from work shall not be deducted from the annual leave period, unless they have been paid to the worker.

If the wage of the worker has been stipulated per fortnight or per month, the employer shall not deduct the unjustified absences which the employer has paid, to the extent that they exceed a number of days equivalent to one-third of the corresponding annual leave period.

Workers must enjoy their period of annual leave without interruption and are only required to divide it into a maximum of two parts when it involves work of a special nature that does not allow a very prolonged absence.

Workers must enjoy their period of annual leave without interruption. Annual leave is not cumulative from year to year for the purpose of subsequently enjoying a longer rest period, but the worker upon termination of the contract may claim compensation in cash for those that were omitted to him corresponding to the last five (5) years.

Written record of the granting of annual leave must be left at the request of the employer or of the worker.

In the case of private enterprises, it is presumed, save evidence to the contrary, that annual leave has not been granted if the employer, upon request by the labor authorities, does not show the respective certificate signed by the interested party or with their fingerprint impression, if they do not know how to do so.

Discrimination on grounds of sex, race, religion, political creeds, economic situation, the nature of the centers where school or academic training was obtained, and of any other kind is prohibited for obtaining employment in any workplace.

Access that female or male workers may have to the establishments referred to in this article may not be conditioned on the amount of their wages nor on the importance of the positions they hold.