Observation (CEACR) - adoptée 1999, publiée 88ème session CIT (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.