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

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Peru (Ratification: 1964)

Other comments on C098

Observation

Direct Request

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The Committee notes the observations of the Autonomous Workers’ Confederation of Peru (CATP), received by the Office on 2 September 2018, which denounce anti-union discrimination and violations of collective bargaining in practice. The Committee requests the Government to provide its comments in this regard.

The Committee notes the Government’s replies to the observations made in 2015 by the International Trade Union Confederation (ITUC) and the Single Trade Union of Workers of the Judiciary–Lima–Peru (SUTRAPOJ) concerning alleged violations of the Convention in practice.

Article 1 of the Convention. Adequate protection against acts of anti-union discrimination. Judicial proceedings. In its previous comments, the Committee requested the Government to provide information on the length of the constitutional and ordinary labour proceedings relating to infringements of the rights to freedom of association and collective bargaining, and on the penalties imposed in cases of violations of these rights. The Committee notes the Government’s indication that: (i) cases concerning infringements of the right to freedom of association are dealt with through the summary procedure provided for by the New Act on Labour Procedure; (ii) six cases concerning infringements of trade union rights were settled in 2016, 22 in 2017 and 11 in 2018 thus far; (iii) the gradual application of the New Act on Labour Procedure now covers 23 out of 35 judicial districts in the country and has led, particularly in second-level proceedings, to fewer delays in the resolution of appeals; and (iv) due to the limited allocation of resources and other factors, the length of first level labour proceedings relating to infringements of trade union rights increased from 170 days in 2016 to 379 days in 2017, and in 2018, the average duration would be 635 days. The Committee recalls that the existence of legal provisions prohibiting acts of anti-union discrimination is not enough if they are not accompanied by effective and rapid procedures to ensure their application in practice (2012 General Survey on the fundamental Conventions, paragraph 190). Observing with concern that, despite the progressive application of the New Act on Labour Procedure, the length of first-level labour procedures relating to infringements of trade union rights has increased considerably in the last three years, the Committee requests the Government to take, in consultation with the relevant authorities, the necessary measures to reduce the duration of such procedures and ensure that cases are settled swiftly. The Committee requests the Government to provide information on any developments in this regard, and to continue providing information on the length of labour procedures regarding infringements of the right to freedom of association and collective bargaining, including ordinary, constitutional and second-level proceedings. The Committee also once again requests the Government to provide information on the penalties imposed in cases of anti-union discrimination.

Workers with fixed-term contracts in the private sector. In its previous comments, noting the observations of the ITUC and the existence of several Committee on Freedom of Association cases on this issue, the Committee requested the Government to engage in dialogue with the workers’ and employers’ organizations concerned on the subject of protection against anti union discrimination against workers under fixed-term contracts and to report on the outcome. The Committee notes the Government’s reply, according to which: (i) the General Labour Act and the New Act on Labour Procedure provide, respectively, for penalties at the administrative and judicial levels, and for faster and more effective mechanisms to facilitate compliance with legal regulations on fundamental labour rights; (ii) the National Labour and Employment Promotion Council (CNTPE), a tripartite dialogue body, was re-established on 24 July 2018, and will be assisted by a standing commission on labour in developing a Social and Labour Dialogue Agenda to address several issues, including freedom of association, collective bargaining, arbitration and strikes. The Committee notes the Government’s general indication regarding mechanisms for labour law compliance. In this regard, the Committee requests the Government to provide information on any specific measures taken by the labour inspectorate to ensure the effective protection of workers with fixed-term contracts against the potential non-renewal of their labour contracts on the basis of trade union activities. The Committee welcomes the re-establishment of the CNTPE and invites the Government to use this tripartite forum to examine the matter of protection against anti-union discrimination against workers with fixed-term contracts in the private sector. Observing that, in several cases before the Committee on Freedom of Association on this issue (in particular Cases Nos 3065 and 3170), the Government referred to the possibility of amending the provisions of the Act on the Promotion of Non-Traditional Exports, which would allow for the recurrent use of short-term recruitment, the Committee invites the Government to include this legislative aspect in tripartite consultations. The Committee requests the Government to provide information on the above discussions and their outcome.

Workers with fixed-term contracts in the public sector. In its previous comments, the Committee requested the Government to engage in dialogue with public sector trade unions on the subject of the protection against anti-union discrimination against workers under administrative service contracts and to report on the outcome. The Committee notes the Government’s indication that: (i) the ongoing reform of the civil service aims to establish a single and exclusive regime for persons providing services in state public bodies; and (ii) the administrative service contracts served as a temporary system, which is to be gradually replaced by the Civil Service Act, and that the right to freedom of association of these workers is explicitly recognized in section 6(i) of Legislative Decree No. 1057 governing the special arrangements for the administrative service contract system. The Committee further notes that, according to the CATP, the Government has engaged in the mass dismissal of workers employed under administrative service contracts. While noting that administrative service contracts will be gradually replaced and that this regime expressly provides for the right to freedom of association, the Committee once again requests the Government to engage in dialogue with public sector trade unions on the subject of the protection against anti-union discrimination against workers under administrative service contracts, and to report on the outcome.

Article 4. Promotion of collective bargaining. Workers under training schemes. In its previous comments, the Committee requested the Government to revise the relevant legislation to explicitly recognize the right of collective bargaining of workers under training schemes. In this regard, the Committee notes that the Government: (i) reiterates that, in accordance with section 3 of the Act on Labour Training Schemes (Act No. 28518), the above arrangements are not subject to the labour regulations in force, but rather to specific regulations; (ii) the purpose of the training activities is not the production of goods or services, but rather the development of the skills and capacities of the beneficiaries, who therefore cannot be considered as workers; and (iii) the Government is working towards the adoption of the Act on specific public sector pre-vocational and vocational practices, and is revising the content of Act No. 28518 with a view to amending it and incorporating the comments of the Committee. The Committee wishes to recall that under the Convention, the recognition of the right to collective bargaining is general in scope and that, in particular, it should cover apprentices (see General Survey on the fundamental Conventions, 2012, paragraph 209). The Committee emphasizes in this regard that workers under training schemes must have the right to bargain collectively the conditions of their work and employment insofar as they participate in the activity of an enterprise or public institution. While noting the future adoption of the Act on specific public sector pre-vocational and vocational practices and the revision of Act No. 28518, the Committee hopes that the Government will make the legislative changes required for the right to collective bargaining of workers under training schemes to be expressly recognized. The Committee requests the Government to provide information on any developments in this regard.

Right to freely determine the level of negotiation. The Committee recalls that the issue of the right of the parties to freely determine the level of negotiation came to its attention several years ago and has given rise to a series of cases before the Committee on Freedom of Association (338th Report, Case No. 2375, paragraph 1227; 362nd Report, Case No. 2826, paragraph 1298; 387th Report, Case No. 3170, paragraph 589). After recalling that the level of negotiation should be negotiated between the parties, the Committee noted that the amendment of section 61 of the Regulations of the Collective Labour Relations Act (LRCT) through Supreme Decree No. 014-2011-TR according to which the parties may have recourse to arbitration (arbitraje potestativo) where an agreement is not reached during the preliminary negotiations on their level, provided that the negotiations have produced no results after three months. In this regard, the Committee further notes that section 61 of the Regulations was amended again through Supreme Decree No. 09-2017-TR of 31 May 2017, by establishing that, in addition to the three months mentioned above, at least six direct negotiation or conciliation meetings must have been held before the above recourse to arbitraje potestativo is possible. The Committee of Experts nevertheless observes that section 45 of the LRCT remains in force. This section establishes that, where a collective agreement does not exist, and in the absence of an agreement on the level of the agreement, negotiations will be held at the level of the enterprise. It also provides that, where an agreement exists at some level, in order to enter into another agreement at a different level, which will replace or supplement the first agreement, it is essential for this to be agreed between the parties. Observing that, in accordance with section 45 of the LRCT, in the event of disagreement between the parties and the absence of a collective agreement, the legislation gives precedence to negotiation at the level of the enterprise, the Committee recalls that it is necessary to ensure that collective bargaining can be carried out at any level, whether at the level of the enterprise, multiple-enterprise, sectoral or national level, and that the parties must be allowed to determine this level. The Committee therefore requests the Government to engage in consultations with representative workers’ and employers’ organizations on the amendments to section 45 of the LRCT which are required to ensure that the level of collective bargaining is determined freely by the parties concerned, and on the mechanism for the settlement of disputes relating to the level at which the collective bargaining must take place. The Committee requests the Government to provide information on any developments in this regard.

Mechanisms to appoint the presidents of arbitration courts. The Committee duly notes the Government’s indication that, in the event of disagreement between the parties, the presidents of arbitration courts are designated by drawing lots. The Committee notes with interest that this mechanism applies to both the private and public sectors.

Articles 4 and 6. Promotion of collective bargaining. Public sector workers. The Committee notes that the Committee on Freedom of Association drew its attention to the legal aspects of Case No. 3160 on the restrictions on collective bargaining concerning remuneration in the public sector (Committee on Freedom of Association, 382nd Report, paragraph 518). In its previous comments, the Committee urged the Government to take, in consultation with the trade unions concerned, the necessary measures to revise the Civil Service Act of 2013 and all relevant legislation, so that public sector employees who do not work in State administration can exercise their right to collectively negotiate matters relating to wages or of economic nature. The Committee notes the Government’s indication that: (i) although the Constitutional Court declared unconstitutional the absolute restrictions on collective bargaining in the public sector that are provided for in the Civil Service Act (Cases Nos 0025-2013-PI/TC, 003-2014-PI/TC, 008 2014 PI/TC and 0017-2014-PI/TC) and in the Budgetary Acts of 2013, 2014 and 2015 (Cases Nos 0003-2014-PI/TC, 004-2013-PI/TC and 0023-2013-PI/TC), collective bargaining is a fundamental right set out in law, the specific content and scope of which are the responsibility of the legislator; (ii) the Constitutional Court has urged the Congress of the Republic to adopt rules on collective bargaining for the public sector, in the meantime applying “vacatio sententiae”, meaning that the prohibition of collective bargaining for wage increases remains valid; (iii) Act No. 30823, adopted on 19 July 2018, empowered the executive authority to legislate, inter alia, on matters of economic management, including collective bargaining in the public sector; and (iv) several bills on collective bargaining in the public sector were referred to the Congress of the Republic. In this regard, the Committee notes that, on 18 October 2018, as a result of a parliamentary initiative, the Congress of the Republic adopted an Act on Collective Bargaining in the State Sector which, as established in its section 1, aims to regulate the exercise of the right to collective bargaining of organizations of public employees in accordance with article 28 of the Political Constitution of Peru, the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and the Labour Relations (Public Service) Convention, 1978 (No. 151), as well as pursuant to its section 4, negotiable matters include remuneration and other working conditions with an economic impact. The Committee observes, however, that it has yet to receive information on the promulgation of the abovementioned Act by the President of the Republic. With regard to collective bargaining on elements of public sector workers’ remuneration, the Committee recalls, on one hand, the existence of mechanisms that allow for combining budgetary balance with the genuine exercise of collective bargaining in the sector, and, on the other hand, the importance of the compatibility of the legislative texts as a whole, including budget acts, with the Convention. While highlighting the specific obligations of the Government in accordance with Convention No. 151 with regard to the right of civil servants who work in the administration of the State to take part in the determination of their remuneration, the Committee firmly hopes that the Government will soon be in a position to provide information on the entry into force and application of a piece of legislation that will enable public sector employees who do not work in state administration to exercise their right to collectively negotiate matters relating to wages or of economic nature in conformity with the Convention. The Committee requests the Government to inform it of any progress in this regard.