Effect given to the recommendations of the committee and the Governing Body - Report No 365, November 2012

Effect given to the recommendations of the Committee and the Governing Body

1. 152. When it last examined the case, in June 2011, the Committee made the following recommendations on matters that were still pending [see 360th Report, para. 993]:
   • – The Committee requests the Government to take the necessary measures so that the right to organize is guaranteed in both law and practice for persons hired under training agreements.
   • – The Committee requests the Government to indicate whether the necessary regulations have been issued so that State workers covered by CAS are able to exercise the right to organize and to strike, in accordance with the ruling of the Constitutional Court, and, if not, to take the necessary measures for their adoption as soon as possible.
   • – The Committee requests the Government to keep it informed of current legislative reforms and expects that the Committee’s conclusions and recommendations will be taken into account when amending the provisions referred to by the complainant organizations with a view to improving the exercise in practice of the rights of freedom of association and collective bargaining.
2. 153. In its communication of 14 September 2011, in response to the Committee’s first recommendation (guaranteeing the right to organize of persons hired under training agreements), the Government asserts that such training arrangements do not imply the existence of a labour relationship that confers social and labour rights – the right to organize, for example – on the beneficiary. The rationale for this premise is that the beneficiary is engaged in a process of supervised learning, which involves no professional responsibilities of the kind that would be expected of someone in an employment relationship. Because the law does not treat them as workers, the beneficiaries of such training arrangements are not entitled to form or join trade unions. It must be borne in mind, however, that like any member of the public they do have the right to set up associations as long as they are not trade unions.
3. 154. As to whether the necessary regulations have been issued so that state workers covered by the Administrative Service Contract (CAS) are able to exercise the right to organize and to strike, the Government states that pursuant to the decision of the Constitutional Court (requiring the Government to issue the necessary regulations so that workers covered by the CAS are able to exercise the right to organize and to strike enshrined in article 28 of the Political Constitution of Peru, 1993), the Office of the President of the Council of Ministers issued Supreme Decree No. 065-2011-PCM (published on 27 July 2011), to amend the CAS Regime Regulation, approved by Supreme Decree No. 075-2008-PCM. As amended, the CAS Regime Regulation contains provisions to guarantee and regulate the right to organize and to strike for CAS workers.
4. 155. With regard to the legislative reforms under way to improve the exercise in practice of the right to freedom of association and collective bargaining, the Government states that the National Labour and Employment Promotion Council (CNTPE) – the competent body – drafted a general labour bill, which is currently among the pending issues on the agenda of the Plenary of the Congress of the Republic. The bill sets out general provisions to be applied to individual and collective employment relationships. The Government has decided, through Ministerial Resolution No. 257-2011-TR, to set up a committee of experts to be responsible for revising and updating the bill. The committee will be required to submit a technical report containing comments and/or observations on the bill which will address issues relating to freedom of association and collective bargaining.
5. 156. The Committee notes with satisfaction the information that Supreme Decree No. 065-2011-PCM, published on 27 July 2011, recognizes the right to organize and to strike of workers covered by the CAS regime.
6. 157. With regard to the right to organize of persons hired under training agreements, the Committee notes that according to the Government, these persons may belong to associations but not form or join trade unions. The Committee reiterates its previous conclusions in this regard, namely that persons hired under training agreements should likewise have the right to organize and “the status under which workers are engaged with the employer, as apprentices or otherwise, should not have any effect on their right to join workers’ organizations and participate in their activities” [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, paras 258–259]. The Committee accordingly repeats its request to the Government to take the necessary steps to ensure that this right is guaranteed for the workers concerned both in law and in practice.
7. 158. Lastly, the Committee takes note of the information provided on the current legislative reforms to amend the General Labour Act and improve the exercise in practice of the rights of freedom of association and collective bargaining, in particular as regards its request mentioned in the previous paragraph.