Direct Request (CEACR) - adopted 2018, published 108th ILC session (2019)

Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - Peru (Ratification: 1970)

Other comments on C111

Observation

Direct Request

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The Committee notes the observations of the Autonomous Workers’ Confederation of Peru (CATP), received on 28 January 2015, concerning the reduction in the labour rights of young persons between 18 and 24 years of age, which they claim has occurred as a result of Act No. 30288 of 16 December 2014, “promoting the access of young persons to the labour market and social protection”. The Committee also notes the Government’s reply that the aforementioned Act was repealed by Act No. 30300 of 27 January 2015.

Article 1 of the Convention. Scope of application and grounds of discrimination. In its previous comments, the Committee: (i) recalled that it has been referring for many years to the need to assess whether Act No. 26772 of 26 March 1997 on job vacancies and access to education and training affords sufficient protection against discrimination in all aspects of employment, and has asked the Government to indicate whether the aforementioned Act or any other legal provision in force affords adequate protection against discrimination; and (ii) noted that the Civil Service Act (No. 30057 of 3 July 2013) – which provides for equality of opportunity without any discrimination whatsoever on the grounds of origin, race, sex, language, religion, opinion, economic situation or any other grounds – does not include the grounds of colour and national extraction and it therefore asked the Government to indicate how it is ensured that persons employed by the civil service are protected in law and practice against discrimination on the grounds of colour and national extraction.

The Committee notes the Government’s indication in its report that the list of prohibited grounds of discrimination referred to in Act No. 26772 (section 2) and in Supreme Decree No. 003-97-TR15 (sections 29 and 30) (consolidated text of the Labour Productivity and Competitiveness Act (Legislative Decree No. 728)) is not closed or exhaustive, which implies that the grounds may vary according to new interpretations and in relation to social phenomena. As regards access to employment in the public sector, the Committee notes that the Government: (i) indicates that section 5 of the Public Employment Framework Act (No. 28175 of 28 January 2004) provides that access to public employment shall occur within a system of equal opportunities; (ii) refers once again to section 5 of the Civil Service Act, which establishes the principle of equality of opportunity; and (iii) points out that the aforementioned section does not establish an exhaustive list of grounds of discrimination but expressly prohibits discrimination of any kind, including with regard to colour and national extraction, as provided for in Article 1(1)(a) of the Convention. While noting this information, the Committee asks the Government to provide information on any cases of discrimination in the workplace on the grounds of national extraction or colour which have been dealt with by labour inspectors, judicial authorities or other competent authorities, and the outcome thereof. Recalling the importance of training and awareness raising for law enforcement officials, including judges and labour inspectors, regarding equality of opportunity and treatment in employment and occupation with respect to all the grounds listed in Article 1(1)(a) of the Convention, the Committee asks the Government to indicate whether measures have been adopted or planned in this respect.

Discrimination based on sex. Sexual harassment. In its previous comments, the Committee asked the Government to take specific measures to ensure that the existing enforcement procedures are effective in addressing complaints of sexual harassment and are allocated the necessary level of funding, and that penalties constituting an effective deterrent are imposed on those responsible for sexual harassment. The Committee also asked the Government to provide information on the number of complaints of sexual harassment lodged with the various competent bodies, the penalties imposed, and the compensation awarded. The Committee notes that the Government refers to reports on compliance with the Equal Opportunities Act (No. 28983 of 15 March 2007) and indicates that: (i) in 2016, a total of 24 of the 29 public entities that report on compliance with the aforementioned Act indicated that they have institutional regulations designed to prevent and penalize sexual harassment; (ii) 16 of these 29 entities implemented preventive activities in compliance with the Anti-Sexual Harassment Act (No. 27942); (iii) 15 cases of sexual harassment were reported in 2016 and these were addressed by seven of the abovementioned 29 public entities through their procedures for the investigation of complaints and the imposition of penalties; (iv) in 2016 and 2017, a total of 15 and eight appeals, respectively, were brought before the Civil Service Tribunal in relation to penalties for sexual harassment; and (v) from 2014 to September 2017, a total of 106 inspection orders relating to sexual harassment were issued, and a total of 147 workers were affected; in addition, 144 guidance orders were issued. The Committee also notes the 2017 report produced by the Ombudsman’s Office on the implementation of the “National plan against gender violence 2016–21”, adopted by Supreme Decree No. 008-2016-MIMP of 26 July 2016, which indicates, inter alia, that: (i) the Ministry of Labour and Employment Promotion (Ministry of Labour) has drawn up the “Work without harassment: A practical guide for preventing and penalizing sexual harassment in the workplace in the public and private sectors”; and (ii) only 32 per cent of regional governments have carried out activities for preventing and penalizing sexual harassment in the workplace. The Committee also notes that the United Nations Committee on the Elimination of Discrimination against Women (CEDAW), in its concluding observations, expressed concern at the persistence of sociocultural patterns and attitudes used to justify violence against women, and at the fact that some groups of women, such as women living in poverty, women belonging to indigenous or Afro-Peruvian communities and women with disabilities, in addition to being affected by gender stereotypes, face multiple forms of discrimination and violence (CEDAW/C/PER/CO/7-8, 24 July 2014, paragraph 17). The Committee asks the Government to continue its efforts to prevent and tackle cases of sexual harassment in employment and occupation and to provide information on any measures taken to this end and the impact thereof, including information on any specific awareness-raising measures combating prejudice against indigenous and Afro-Peruvian women. The Committee also asks the Government to continue to provide information on cases of sexual harassment dealt with by the competent authorities, stating the compensation awarded to the victims and the penalties imposed.

Articles 2 and 3. Promotion of equality of opportunity and treatment irrespective of race or colour. In its previous comments, the Committee asked the Government: (i) to provide statistics disaggregated by sex on the labour market participation of indigenous and Afro-Peruvian workers and on their access to vocational training systems; and (ii) to conduct an evaluation of the impact of the measures adopted so far by the Government at the central and local levels on the labour market integration of these workers and to report the results of the evaluation. The Committee notes the statistical information provided by the Government concerning the overall employment rate and the rate of employment of the Afro-Peruvian population, which identifies itself as being of indigenous origin, by category of occupation, sex and area of residence. The Committee also notes the Government’s indication that the Afro-Peruvian population is facing inadequate conditions of work, reflected in the fact that 73.2 per cent of employed individuals from this population group do not have a signed employment contract. The Government adds that these inadequate conditions are even more acute in the case of Afro-Peruvian women. The Committee notes the “National development plan for the Afro-Peruvian population 2016–20” and the objectives of the “National human rights plan 2018–21”, adopted by Supreme Decree No. 002-2018-JUS of 31 January 2018, aimed at guaranteeing the Afro Peruvian population’s right to equality and non-discrimination (strategic objective No. 3) and ensuring the exercise of the collective and individual rights of indigenous peoples and their members (strategic objective No. 1). It also notes that the United Nations Committee on the Elimination of Racial Discrimination (CERD), in its concluding observations, expressed concern at: (i) the persistent structural racial discrimination faced by indigenous peoples and the Afro-Peruvian population, which is reflected in the difficulties that they have in gaining access to employment, education and quality health services; and (ii) the fact that the “National development plan for the Afro-Peruvian population 2016–20” may not be effectively implemented, in part owing to a failure to allocate adequate resources and to insufficient coordination among the institutions responsible for its implementation (CERD/C/PER/CO/22-23, 11 May 2018, paragraphs 12 and 14). Moreover, with regard to indigenous peoples, the Committee also refers to its comments on the Indigenous and Tribal Peoples Convention, 1989 (No. 169). The Committee asks the Government to provide detailed information on the specific practical measures taken to ensure equality of opportunity and treatment in employment and occupation for men and for indigenous and Afro Peruvian women, including those adopted as part of the “National development plan for the Afro-Peruvian population 2016–20” and the “National human rights plan 2018–21”, and the impact thereof. In this respect, the Committee once again asks the Government to systematically evaluate the implementation of the adopted plans and to provide information on their results and any follow-up action planned.

Labour inspection. In its previous observation, the Committee asked the Government to take specific steps with a view to ensuring that the labour inspection system is effective and contributes to promoting equality of opportunity, and that it addresses discrimination at work. It also asked the Government to provide information on the activities of the National Civil Service Authority (SERVIR) and the Civil Service Tribunal, as well as statistics on the number and nature of complaints of discrimination in the public and private sectors, and the action taken on them by the various competent authorities, the penalties imposed and the compensation awarded. The Committee notes the information provided by the Government on the functioning of SERVIR and the Civil Service Tribunal but observes that it does not include details of complaints of discrimination made to the authorities. With regard to labour inspection, the Committee notes that the Government: (i) refers to section 25(17) of the regulations implementing the General Labour Inspection Act, adopted by Supreme Decree No. 019-2006-TR, under which discrimination is deemed a serious offence; and (ii) indicates that from 2014 to July 2017 the National Labour Inspection Supervisory Authority (SUNAFIL) issued 1,185 inspection orders relating to discrimination, with a total of 18,202 workers affected. The Committee asks the Government to continue providing information on the number and nature of complaints of discrimination made in the public and private sectors, and the action taken on them by the various competent authorities, indicating the penalties imposed and the compensation awarded.