Observación (CEACR) - Adopción: 1997, Publicación: 86ª reunión CIT (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.