Definitive Report - Report No 279, November 1991

1. 64. The complainant organisations presented their complaint in a joint communication dated 20 November 1990 and provided supplementary information in a communication dated 25 April 1991. The CGTP sent a communication dated 7 June 1991. The Government furnished its observations on the allegations made in a communication dated 26 March 1991, which was received in the ILO on 2 May 1991.
2. 65. Peru has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98) and the Labour Relations (Public Service) Convention, 1978 (No. 151).

A. The complainants' allegations

1. 66. In their joint communication dated 20 November 1990, the complainants point out that Article 55 of the Constitution of Peru guarantees workers the right to strike, which must be exercised in the form provided by statute. The law in question is Supreme Decree No. 017 dated 2 November 1962, which establishes the requirements for calling a strike. On 17 November 1990 the Government issued Supreme Decree No. 070-90-TR on the exercise of the right to strike in essential services and which extended the scope of Supreme Decree No. 017 which referred only to the private sector. According to the complainants, this new Decree is a clear obstacle to the exercise of freedom of association and, in particular, the right to strike.
2. 67. The complainants state that Supreme Decree No. 017 dated 2 November 1962 establishes a series of requirements for calling a strike, including the giving of 72 hours advance notice to the employer and the labour administrative authority. In practice, all advance notice of strikes given by workers and their organisations, even though scrupulously complying with the requirements set forth in the above-mentioned Decree, is rejected by the administrative authorities of the Ministry of Labour and Social Advancement. This declaration of the irreceivability of the advance notice automatically makes the strike illegal without the need for any further administrative action, thus placing the strikers in a situation of having committed a serious misdemeanour which would justify their dismissal.
3. 68. Section 1 of Supreme Decree No. 070-90-TR stipulates that "essential services are those whose interruption may jeopardise the life, freedom, safety or health of persons and which make it necessary to guarantee the provision of a minimum service to prevent such risks".
4. 69. Section 2 of the Supreme Decree stipulates that the following are considered essential services:
   • (a) health services, hospitals, clinics and care services;
   • (b) public cleaning and sanitation services;
   • (c) supply and distribution of water, electricity, gas and fuel;
   • (d) cemeteries, burials and autopsies;
   • (e) public transport, communications and telecommunications;
   • (f) administration of justice, at the request of the Supreme Court of Justice
   • (g) all services in which the extension, duration or timing of the interruption of the service or activity may endanger the life, health, freedom or safety of persons, as decided by the ministry of the corresponding sector.
5. 70. In the same way, section 3 of the above-mentioned Supreme Decree stipulates that enterprises and bodies where workers provide the essential services set forth in section 2 shall communicate each year to their workers and the labour administration authority or the National Institute of Public Administration, as the case may be, the number of necessary workers for the maintenance of such services. The complainants point out that the provision to which reference is made in section 3 makes it obligatory for the trade union organisations in the public or private sector or the workers themselves who have gone on strike to provide "the list of necessary workers who shall ensure that essential services are not interrupted" (section 5 of Supreme Decree No. 070-90-TR).
6. 71. The complainants point out that the number of workers determined by the Supreme Decree is not intended to guarantee the maintenance of minimum operations in the sector considered to be essential, but is in fact designed to maintain such services, which is something very different from normal procedure in such cases. In this way, the legislation imposes a disproportionate burden as regards the exercise of the right which is supposedly being protected. Thus this Decree is clearly intended to render the right to strike null and void, contrary to the provisions of Article 3 of Convention No. 87.
7. 72. In cases of discrepancies concerning the number of workers to be included on the above-mentioned list, section 4 of the Decree stipulates that such discrepancies shall be resolved by the labour administration authority or the National Institute of Public Administration, in coordination with the corresponding sector, which is contrary to certain principles of freedom of association.
8. 73. Furthermore, the obligation contained in section 5, in pursuance of section 6 of the same Supreme Decree, "is also applicable to cases where the strike could result in the deterioration of equipment, raw material, machinery or installations which prevents the immediate resumption of work once the stoppage ends". The complainants state that in accordance with these principles it can clearly be seen that the objective of the provision respecting minimum services resulting from section 6 is not the respect of the basic rights of citizens but rather the respect of the economic interests of employers.
9. 74. Section 8 stipulates furthermore that "the refusal of the trade union or the workers to comply with the obligations established in the Supreme Decree shall constitute a fault which shall be penalised in accordance with the law, without prejudice to the illegal nature of the strike". According to the complainants, the provisions of this Decree give wide discretionary powers to the government authorities and substantially restrict the exercise of the right to strike by the workers, without providing any kind of compensation for this weakening of the right to exercise of which is limited. The deprivation of trade union rights undoubtedly leads to situations of violence and is a restriction of the legitimate interests of the workers which in the end is detrimental to the community as a whole.
10. 75. Furthermore, in their communication of 25 April 1991 as well as in their earlier communication, the complainants express their concern at the imminent approval by the Congress of the Republic of the Bill on strikes which, in 1981, was the subject of observations by the Committee on Freedom of Association in the context of Case No. 1081. On that occasion it was found that certain provisions of the Bill to regulate the right to strike contained restrictions of this right (see 214th Report of the Committee, paragraph 269). The complainants refer in detail to the observations set forth by the Committee on certain provisions of this Bill and add that there is no evidence which would suggest that the legislative authorities have adopted the suggestions of the Committee, and the trade union movement in Peru is concerned at the Government's intention of approving this Bill as soon as possible.
11. 76. The communication from the CGTP dated 7 June 1991 refers to several decrees which impose restrictions on collective bargaining, by establishing maximum limits and certain structural parameters for negotiation. Several of these decrees were already examined in the context of Case No. 1548 (Peru). Furthermore, the communication refers to the decrees on strikes which are subject of the present complaint.
12. 77. In the light of these considerations, the complainant organisations ask the Committee to send a direct contacts mission to the country to try and prevent the further deterioration of freedom of association in Peru.

B. The Government's reply

1. 78. In a communication dated 26 March 1991, the Government states that Supreme Decree No. 070-90-TR stipulates that in accordance with Article 55 of the State Constitution, the exercise of the workers' right to strike is subject to the statutory provisions and the rules which regulate such provisions. Thus the Government of Peru fully respects the constitutional rights of workers in this domain.
2. 79. According to the Government, the exercise of the above-mentioned rights is in no way an obstacle to freedom of association or the right to strike. The right to organise is respected by the Government, although restrictions apply to specific workers in a workplace who are legally prevented from joining the trade union of their respective enterprise.
3. 80. As regards the right to strike, the Government points out that this right is recognised and granted to workers as a means of allowing them to act collectively, but that it is not a trade union right, notwithstanding the link which exists between these recognised rights which, furthermore, are of a collective nature. The right to strike has not been restricted in any way; on the contrary, the regulations contained in Supreme Decree No. 070-90-TR guarantee its free exercise but at the same time introduce the concept of "essential services" to protect the legitimate right of individuals, a right which takes precedence over labour rights.
4. 81. The Government states that it is inconceivable therefore that in pursuance of the exercise of the right to strike, the life, freedom, safety or health of persons should be placed in danger since these are natural rights which transcend any legal framework, including that of the political Constitution, Article 2 of which clearly sets forth individual rights.
5. 82. The Government points out that although it is true that the rights of workers working in areas considered to be essential services (health services, hospitals, clinics, and care services, as well as public cleaning and sanitation services, the supply and distribution of water, electricity, gas and fuel, public transport, communications and telecommunications, cemeteries, burials and autopsies) must be protected when a dispute arises with the employer, the State also has the right to guarantee and protect the fundamental rights of individuals in general.
6. 83. It is for this reason that legislation has been passed so that workers in exercising their right to strike cannot abandon the public or essential services enumerated in Supreme Decree No. 070-90-TR since this would infringe not only the provisions of the Decree but could also result in an offence punishable under the Penal Code.
7. 84. Workers who exercise their right to strike are obliged to maintain the described essential services so that the rights of persons are not infringed. Labour doctrine establishes that the right to strike is not an absolute right of workers, but is subject to the regulations which guarantee its exercise and which protect the fundamental rights of persons. This was the objective and basis of the promulgation of Supreme Decree No. 070-90-TR.

C. The Committee's conclusions

1. 85. The Committee notes that the allegations made in this case refer to Supreme Decree No. 070-90-TR dated 16 November 1990 on the exercise of the right to strike in essential services and the establishment of minimum services, the practical difficulties in calling a strike, according to the requirements established in Supreme Decree No. 017 of 2 November 1962 and the Bill to regulate the right to strike which is being discussed by Parliament.
2. 86. As regards Supreme Decree No. 070-90-TR, the Committee takes note of the replies sent by the Government to the effect that this Decree in no way restricts the right to strike but, by introducing the concept of minimum services in the essential services, attempts to establish a balance between the right to strike of workers and the right of individuals in general, both of which are constitutional rights. However, the Committee would like to recall that the right to strike may be subject to restrictions and even be prohibited only in the public service (where public servants are those persons acting on behalf of the public authorities) or in essential services in the strict sense of the term, that is those services whose interruption would endanger the life, personal safety or health of the whole or part of the population (see in this respect, for example, Case No.1140 (Colombia), 236th Report, para. 144). It would also reiterate that when the right to strike is limited or prohibited in enterprises or services considered to be essential, the restrictions on the right to strike should be accompanied by adequate, impartial and speedy conciliation and arbitration, proceedings in which the parties concerned can take part at every stage and in which the awards, once made, are fully and promptly implemented.
3. 87. As regards the establishment of minimum services, the Committee notes that the allegations made by the complainants concern certain provisions of Supreme Decree No. 070-90-TR. At the same time it recalls that a minimum service may be set up in the event of a strike, the extent and duration of which might be such as to result in an acute national crisis in which the normal conditions of existence of the public could be endangered, always provided the said minimum service is confined to operations which are strictly necessary to avoid endangering the life or normal conditions of existence of the whole or part of the population and that the defining of minimum service should involve not only employers and the public authorities but also workers' organisations (see in this respect, 234th Report, Case No. 1244 (Spain), paras. 153 and 154).
4. 88. As regards the list of the essential services set out in section 2 of Supreme Decree No. 070-90-TR for the purposes of fixing a minimum service, while although the Committee believes it is legitimate to establish a minimum service in the event of a strike, it urges the Government to adopt a flexible attitude when setting a minimum service in certain sectors which in themselves are not considered as essential, provided that the said minimum service is confined to operations which are strictly necessary to avoid endangering the life, personal safety or health of the whole or part of the population (see in this respect Case No. 1244 (Spain) op. cit.).
5. 89. As regards the administrative obstacles and practical difficulties in declaring a legal strike, the Committee notes that under the provisions of Supreme Decree No. 017 of 1962 it is necessary to give 72 hours advance notice to the autorities with details of the time of the vote to call the strike, the number of workers participating in the vote and the number of workers which the trade union groups together or which belong to the enterprises affected. The Committee would emphasise in this connection that the legal procedures for declaring a strike should not be so complicated as to make it practically impossible to declare a legal strike. Moreover, although the Committee considers that the obligation to submit an advance notice of a strike does not constitute a violation of freedom of association, it notes that in the case before it, an advance notice could be declared as irreceivable by the administrative authorities, which could risk leading to the dismissal of the workers participating in the strike. The Committee therefore urges the Government to take measures with a view to simplifying the legal procedures for calling a lawful strike in any future revision of the Act on strikes.