Direct Request (CEACR) - adopted 2023, published 112nd ILC session (2024)

Observation (CEACR) - adopted 2023, published 112nd ILC session (2024)

Observation (CEACR) - adopted 2013, published 103rd ILC session (2014)

Direct Request (CEACR) - adopted 2008, published 98th ILC session (2009)

The Committee notes with interest the information provided by the Government concerning its efforts to fully reflect in its report the comments made by the most representative employers’ and workers’ organizations.

Article 6, paragraph 1(b), of the Convention – Temporary exceptions. The Committee notes that, under section 9 of Legislative Decree No. 854 on hours of work (consolidated by Supreme Decree No. 007-2002-TR), overtime must be carried out on a voluntary basis, except in cases of force majeure. However, it notes that this text does not set out the circumstances in which overtime work is authorized, regardless of whether or not workers have given their consent. The Committee draws the Government’s attention to the fact that Article 6, paragraph 1(b), of the Convention restricts this possibility to cases in which the employer must deal with an abnormal pressure of work. It hopes that the Government will take steps to ensure compliance with the Convention on this point.

Article 6, paragraph 2. Remuneration of overtime. The Committee notes that section 10 of Legislative Decree No. 854 provides that overtime must be remunerated at a rate at least 25–35 per cent higher than the normal rate. It also notes that, according to section 10(4), the worker and the employer may reach an agreement to compensate the overtime worked with equivalent periods of rest. The Committee emphasizes that Article 6, paragraph 2, of the Convention provides for an overtime rate of pay at least 25 per cent higher than the normal rate in any case, i.e. whether or not compensatory rest is granted to the worker concerned. It requests the Government to take steps to ensure that the granting of compensatory rest, on the basis of an agreement between the employer and the worker concerned, for overtime worked does not replace but supplements the higher rate of pay prescribed by section 10 of Legislative Decree No. 854.

Part IV of the report form. The Committee notes with interest the detailed information provided by the Government with regard to labour inspection activities to enforce the legal provision relating to hours of work. It requests the Government to continue providing information on the application of the Convention in practice, including extracts from reports of the inspection services indicating the number and nature of infringements reported and any measures taken in response, information on the number of workers covered by the legislation relating to hours of work, and copies of any collective agreements containing provisions relating to working time arrangements.

Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

Articles 2 and 5 of the Convention. Averaging of hours of work. The Committee notes that, under section 2(1)(b) of Legislative Decree No. 854 on hours of work (consolidated by Supreme Decree No. 007-2002-TR), the employer can fix the hours of work in such a way that they are greater than eight hours on certain days and less than eight hours on other days, on condition that weekly hours of work do not exceed an average of 48 hours. It also notes that, under section 2(1)(c) of the same Decree, the employer may reduce or increase the number of working days during the week through the distribution of the daily hours of work, on condition that an average of 48 hours per week is not exceeded. In the case of extended or untypical days of work, the daily hours of work may not exceed an average of ten hours over the period under consideration. The Committee also notes that section 2(2) imposes the obligation on the employer in this case to consult and negotiate with the union concerned or otherwise with the representatives of the workers.

The Committee recalls that the basic rule established by the Convention is observance of a twofold limit on hours of work, namely eight hours per day and 48 hours per week and that, as it emphasized in its General Survey of 2005 on hours of work (paragraph 57), “these limitations … should be viewed as strict maximum limits which are not liable to variation or waiver at the free will of the parties”. Article 2(b) of the Convention allows, within certain limits, the uneven distribution of hours of work over the week instead of averaging the weekly hours of work, especially when no reference period is fixed for such averaging. Moreover, Article 5 of the Convention, which authorizes the distribution of hours of work over a period longer than a week, applies only in exceptional cases which make the limits established by the Convention regarding daily and weekly hours of work inapplicable. This provision requires the conclusion of an agreement on this subject between employers’ and workers’ organizations and the approval thereof by the competent national authorities. The Committee trusts that the Government will amend the provisions of Legislative Decree No. 854 in order to restrict the possibility of averaging weekly hours of work to exceptional cases which make the normal limits of eight hours per day and 48 hours per week inapplicable. It requests the Government to provide information on any further developments in this regard.

Article 2(c). Shift work. With reference to its previous comments, the Committee notes with interest the decision handed down on 17 April 2006 by the Constitutional Court, which upheld the appeal lodged by the Toquepala Workers’ Union (STTA) against the decision of the High Court of Justice of Tacna, which had rejected the appeal lodged by this organization requesting the hours of work imposed by the Southern Peru Copper Corporation to be declared illegal (namely, 12-hour working days for four days, followed by three rest days). It notes that the decision of the Constitutional Court is based on the provisions relating to hours of work contained not only in the Constitution but also in ILO Convention No. 1, the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, and the Additional Protocol to the American Convention on Human Rights. It notes that, on the basis of the analysis of the abovementioned provisions and taking into account the hazardous nature of work in mines, the Constitutional Court concluded that the working arrangements established by the Southern Peru Copper Corporation were contrary to the Constitution and the daily hours of work in mines should not exceed eight hours.

The Committee also notes the resolution of the Constitutional Court of 11 May 2006, which provides additional explanations relating to the abovementioned decision and reproduces extracts from the General Survey of 2005 on hours of work. It also notes that this resolution emphasizes that in all sectors of activity, including mining, schemes for the organization of working time in which the averaging of hours of work over a maximum three-week period exceeds eight hours per day and 48 hours per week are contrary to the Constitution. However, it notes that the resolution makes the limitation on hours of work in the mining sector subject to a “protection test” comprising a number of cumulative conditions: (a) a case-by-case evaluation taking account of the characteristics of the mining establishment; (b) examination of whether or not the employer complies with occupational safety and health conditions; (c) verification of whether or not guarantees are provided by the employer with regard to health requirements and adequate supplies of food for long days of work; (d) whether or not the employer grants adequate rest periods during the working day; and (e) whether or not the employer complies with the obligation to reduce working hours where work is done at night. The Court also raises the possibility of taking account of an additional criterion, namely whether or not to include provisions limiting daily working time to eight hours in the applicable collective agreement. The Constitutional Court maintains the conclusion which it reached in the case referred to above, namely that the work schedule established by the Southern Peru Copper Corporation is unconstitutional, but considerably reduces the scope of the limitation on hours of work in the context of shift work.

The Committee recalls that, under the terms of Article 2(c) of the Convention, hours of work in the case of shift work may be extended beyond the normal limits laid down by the Convention, namely eight hours per day and 48 hours per week, on condition that the average number of hours over a period of three weeks or less does not exceed eight per day and 48 per week. This provision, which already provides flexibility for taking account of particular working arrangements in certain enterprises, does not permit exceptions as would be allowed by application of the “protection test” mentioned by the Constitutional Court. The Committee therefore requests the Government to take the necessary steps to ensure strict compliance with this rule in all the enterprises to which the Convention is applicable, including mining enterprises.

The Committee is also addressing a request concerning a number of other points directly to the Government.

Observation (CEACR) - adopted 2005, published 95th ILC session (2006)

Further to its previous comment, the Committee notes the Government’s explanations concerning the system of inspection, including standard and special visits, responsible for ensuring compliance with the national legislation on working time, as provided for in section 13 of Supreme Decree No. 007-2002-TR.

In addition, the Committee notes the comments made by the Trade Union of Toquepala Workers (STTA), dated 1 August 2003, alleging abusive practices with respect to working hours in the Southern Peru Copper Corporation. According to the trade union organization, as of 10 April 2000, the southern Peru mining company imposed a compulsory 12-hour working day and 60-hour working week to 300 mineworkers in violation of article 25 of the National Constitution and also in contravention with section 22 of the collective agreement concluded by the enterprise on 24 October 2001. The STTA denounces this unilateral decision taken under section 9 of Supreme Decree No. 003-97-TR, Act on productivity and labour competitiveness (Legislative Decree No. 728) that allows employers to modify work schedules according to their needs. The trade union organization further alleges that the long working hours have already had serious consequences on the health and safety of workers, including some fatal accidents. Moreover, the Committee notes that, following legal action taken by the STTA against the Southern Peru Copper Corporation, the Constitutional Tribunal rendered a decision on 27 September 2002 declaring the petition unfounded. The Committee requests the Government to transmit any observations it may wish to make in connection with the points raised by the STTA and also to specify the legal provisions currently regulating the averaging of working hours in industrial undertakings.

Part V of the report form. The Committee requests the Government to provide in its next report general information on the application of the Convention in practice, including, for instance, extracts from inspection reports showing the number of violations observed and the penalties imposed, the different categories and approximate number of workers covered by relevant legislation, copies of collective agreements including special working time arrangements, etc.

Observation (CEACR) - adopted 2001, published 90th ILC session (2002)

The Committee notes the comments by the General Confederation of Peruvian Workers (CGTP) of 23 April 2001 and of 6 June 2001 concerning the application of the Convention, as well as the Government’s response of 3 September 2001. It further notes that according to the sworn statement of a group of mining workers of the mining company "Milpo SA", the employer, under the threat of terminating their employment, obliged them to accept a 14-day working schedule of 12 hours and seven days of rest.

The Committee recalls that under Article 2(c) of the Convention, where persons are employed in shifts, it shall be permissible to employ persons in excess of eight hours in any one day and 48 hours in any one week, if the average number of hours over a period of three weeks or less does not exceed eight per day and 48 per week. The Committee considers that the working time schedule described by the CGTP is not in compliance with Article 2 of the Convention, since the average weekly number of hours over a period of three weeks amounting to 56 hours per week would exceed the limit prescribed by Article 2(c) (48 hours per week).

The Committee further notes that copies of individual labour agreements concluded between workers and the mining company "Milpo SA", sent by the Government with its response, provide for a working day of ten hours for 14 consecutive working days and seven days of rest. This would amount to a working week of 46.7 hours, which is under the limit of 48 hours per week permitted by Article 2(c) of the Convention. The Committee asks the Government to indicate how it is ensured in practice that the actual working time does not exceed the working time specified in individual labour agreements (which should not exceed the standard prescribed by the Convention) and collective agreements and that it is set in compliance with standards prescribed by the Convention.

Observation (CEACR) - adopted 1999, published 88th ILC session (2000)

The Committee notes the Government's latest report on the application of the Convention and the information supplied in response to its observation of 1997. The Committee previously noted the adoption of Legislative Decree No. 854 on the duration of work, working hours and overtime hours and the comments by the General Confederation of Peruvian Workers (CGTP) to the effect that some provisions of the abovementioned Decree could lead to abuse and even contravene the Constitution.

The CGTP alleged that the discretion afforded to the employer by section 2 of Decree No. 854 to change unilaterally the length of the working day is excessive; it contravenes the rules established by collective agreements and is restricted only by the requirement that the working week shall not exceed 48 hours. In its reply, the Government indicates that the prerogatives granted to the employer by the Decree are offset by section 9 of Presidential Decree No. 008-97-TR, which allows recourse to a conciliatory or judicial body in the event of disagreement between the employer and the workers. The Government adds that, under sections 4 and 5 of the Presidential Decree, changes determined by the employer may not affect entitlement to weekly rest or rest on public holidays. In connection with these points, the Committee wishes to draw the Government's attention to the fact that the authorization granted to the employer by section 2 of the Decree to fix unilaterally a working day of more than eight hours (paragraph (b)) or the number of working days per week (paragraph (c)) is not among the exceptions envisaged by the Convention, in particular in Article 2(b), in that, in the workers' interest, the Convention expressly requires exceptions to be determined by collective agreements or a decision of the competent authority. Consequently, the Committee once again asks the Government to take the necessary steps to bring the national legislation into conformity with the abovementioned provisions of the Convention.

The CGTP further alleged that section 3 of Decree No. 854, which enables the employer unilaterally to extend a working day of less than eight hours, is in breach of article 62 of the Peruvian Constitution which guarantees that the provisions of laws or regulations in force at the time a contract is signed remain applicable to it notwithstanding the adoption of new laws or regulations. The Committee notes the Government's reply on this point.

Observation (CEACR) - adopted 1997, published 86th ILC session (1998)

1. The Committee notes the Government's report and the information provided in reply to its previous observation. It notes that, in the case of the brewery Backus and Johnston S.A., the Supreme Court of Lima handed down a decision confirming that the shift system denounced does not infringe the legislation in force, since provision is made for it in collective agreements approved by the parties concerned. The Committee also notes that in February 1996 the parties concluded a new collective agreement in order to put an end to the difference of opinion separating them.

2. Furthermore, the Committee notes the information provided by the Government, in accordance with Article 7, paragraph 1, of the Convention, on the collective agreements provided for in Article 5 which have been given the force of regulations.

3. Finally, the Committee notes the adoption of Legislative Decree No. 854 relating to the duration of work, working hours and overtime hours. In this regard, it also notes the comments made by the General Confederation of Peruvian Workers (CGTP). This body alleges that section 2 of the above Decree offers the unreasonable possibility to employers of unilaterally amending the length of the working day, in contravention of the very rules established by collective agreements. In addition, section 2, paragraphs (c) and (d), would enable an employer to employ persons in excess of 12 hours in any one day, provided that the length of the working week does not exceed 48 hours. The trade union Confederation adds that section 3 of the Decree, which enables an employer to extend unilaterally the length of a working day of less than eight hours, violates section 62 of the Peruvian Constitution which guarantees that the provisions of legislation or regulations in force at the time a contract is signed remain applicable to it, notwithstanding the adoption of new legislation or regulations. The Committee notes that the Government has not replied to the allegations made. It considers that the possibilities offered to an employer, under section 2 of the Decree, to fix unilaterally a working day of more than eight hours (paragraph (b)) or the number of working days per week (paragraph (c)) does not form part of the exceptions envisaged by the Convention, in particular in Article 2(b). The Committee requests the Government to reply to the observations made by the CGTP and to take the necessary measures to bring its legislation into conformity with the Convention in respect of the points referred to above.

Observation (CEACR) - adopted 1995, published 82nd ILC session (1995)

1. With reference to its previous comments, the Committee notes Legislative Decree No. 26136 of 1992, incorporating the provisions of the Convention into the national legislation. The Committee would be grateful if in its next report the Government would provide information, as it stated previously in its report dated 18 May 1993, on the practical application of this Legislative Decree provision (Part VI of the report form).

2. The Committee also notes a communication from the trade union of the employees of the Brewery Bakus and Johnston Ltd., referring to matters connected with the application of the Convention, which was received in the ILO in January 1995 and transmitted to the Government in February 1995. The Committee trusts that the Government will make any comments it deems appropriate on the above communication in its report.

Observation (CEACR) - adopted 1995, published 83rd ILC session (1996)

1. The Committee notes the Government's comments relating to the observation made by the Union of Workers of the Brewery "Backus and Johnston S.A.". According to the trade union, a shift system is applied in the enterprise under which, following seven weeks during which 56 hours a week have been worked, each worker is granted only one additional rest day to compensate for the extra days worked. The trade union referred the matter to the labour courts alleging violation of section 25 of the Political Constitution, of Convention No. 1 and of the collective agreements concluded between the parties. The court decision, which was transmitted to the Committee, recognizes that over the seven- week shift patterns worked by the teams covered by the collective agreement, 24 hours of rest were allowed for 48 hours of work, which does not appear to infringe the provisions of the legislation that is in force. The Government states to the Committee that the trade union's complaint is groundless and that the trade union, availing itself of the rights guaranteed under national legislation, appealed against the above-mentioned decision on the grounds of non-compliance with labour legislation and the Convention. The Committee would be grateful if the Government would supply the text of the ruling handed down by the higher court in the case brought by the Union of Workers of the Brewery "Backus and Johnston S.A." so that it is able to assess the manner in which effect has been given to the provisions of the Convention which, with the exception of the provisions of Article 4 relating to processes carried on continuously, do not authorize average working hours to exceed 48 in the week (Article 2(c) and Article 5, paragraph 2, of the Convention). The Committee therefore also requests the Government to provide, in accordance with Article 7 of the Convention, full information as to working of the agreements mentioned in Article 5, namely a list of the agreements with an indication of the industries and workers covered and, where possible, the text of the agreements. Please also indicate whether courts of law or other tribunals have issued decisions involving questions of principle relating to the application of the Convention.

2. The Committee notes the information on the activities of the labour inspectorate in 1993. It requests the Government to indicate in its next report, if the relevant statistics exist, the number of workers covered by the legislation, the number and nature of violations reported and the number of overtime hours worked in the cases referred to in Articles 3 and 6 of the Convention.

The Government is asked to report in detail in 1996.

Observation (CEACR) - adopted 1993, published 80th ILC session (1993)

Further to its previous observations, the Committee notes the Government's indications that Legislative Decree No. 26136 has been adopted to ensure that national law and practice are consistent with the Convention. The Government specifies that the above Legislative Decree covers both normal working hours and additional working hours; in this connection it mentions that section 10 establishes a working day of eight hours and a working week of 48 hours, and any work done outside the normal working day shall have a special rate of remuneration. The Government also points out that section 7 establishes an average working week of 48 hours for shift systems or cumulative systems.

The Committee asks the Government to provide a copy of Legislative Decree No. 26136 and detailed information on its practical application.

Observation (CEACR) - adopted 1989, published 76th ILC session (1989)

The Committee refers to its previous observation in which it noted the reservations or disagreements of employers' and workers' organisations concerning the draft presidential decree which would guarantee that working hours beyond eight hours per day and 48 hours per week would be authorised only under the conditions and within the limits provided for in Articles 3 to 6 of the Convention.

The Committee notes from the Government's report that this situation remains unchanged, but that the Government hopes to bring the legislation into conformity with the Convention either by carrying out further consultations with employers' and workers' organisations, or when the draft new labour legislation is adopted in the near future. The Government has stated in this connection that technical assistance from the ILO could prove very fruitful.

The Committee trusts that the Government will be able in the near future to take measures to ensure that the national law and practice are in conformity with the provisions of the Convention as concerns the regulation of additional working hours. A positive reply by the International Labour Office to the Government's request for technical assistance could bring a solution to these problems closer.