Direct Request (CEACR) - adopted 1992, published 79th ILC session (1992)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Peru (Ratification: 1960)

The Committee notes that, once again, the Government has not submitted any observations on the comments addressed to it which referred to the right to strike, and the need to change the requirement of over 50 per cent of workers for the creation of a union, either of manual or of non-manual workers or a mixed union of manual and non-manual workers (section 11 of Presidential Decree No. 003 of 3 May 1961 as amended by Presidential Decree No. 0021 of 21 December 1962). In view of the great importance of the questions raised and of the fact that the Committee has been drawing attention to them for many years, the Committee repeats its previous direct request which read as follows:

The right to strike

1. In its previous request, the Committee noted that section 13 of Decree No. 006-71-TR, as amended by Decree No. 009-86-TR, which provides that in the event of the failure of the process of voluntary negotiation (trato directo) or conciliation, the dispute shall be settled by the administrative labour authorities, is equivalent to the unilateral imposition of arbitration to settle a labour dispute.

The Government recalled that the right to strike is enshrined in the Constitution, that it is exercised during the process of collective negotiation and that in the event of the failure of this process, the dispute is referred to the competent authorities, thereby bringing an end to any strike under the principle that strike action may be exercised against employers but not against the State.

The Committee noted this information but emphasised that, within the framework of the negotiating machinery, when one of the parties fails to turn up either at the voluntary negotiations stage (section 18), or during the conciliation process (section 26), the other party is bound to notify the administrative authorities of the failure of the process that is under way. In these circumstances, the application of section 13 has the effect of referring the dispute to the competent authorities and terminating any form of strike action. Furthermore, in the event of the failure of conciliation at the end of the legally established period, only one of the parties may refer the case to the administrative authorities, which also terminates strike action.

In the opinion of the Committee, the procedure, which permits a strike to be ended at the initiative of one of the parties, either following the failure of conciliation after a period of time fixed by law, or in the event of a refusal to negotiate, is such as to restrict the exercise of the right to strike.

The Committee recalls that it has considered that the right to strike is one of the essential means available to workers to defend their economic and social interests and that it can only be prohibited for public servants acting in their capacity as agents of the public authority, in essential services in their strict sense (that is, those whose interruption would endanger the life, personal safety or health of the whole or part of the population) or in the event of an acute national crisis. In the Committee's opinion, compulsory arbitration should only occur at the request of both parties or in the cases and circumstances set out above.

The Committee requests the Government to take the necessary measures to avoid the application of provisions respecting collective bargaining and the settlement of disputes that result in excessive limitations or an indirect prohibition of the right to strike and to supply copies of any amendments to the legislation and regulations that are adopted in this respect in the light of the above principles.

The Committee notes that the question of the classification of collective labour stoppages which have occurred in violation of Presidential Decrees Nos. 003-82-PCM and 026-82-JUS by the heads of public institutions under the section 1 of Presidential Decree No. 0010-83-PCM has been submitted to the National Institute of Public Administration within the context of the examination of legal provisions respecting public servants. The Committee therefore recalls that in the event of a total and prolonged stoppage of work in an important sector of the economy, the maintenance of a minimum service concerning a specified category of workers would seem to be justified in strikes whose scope and duration would cause a situation of acute national crisis. However, for such a measure to be acceptable, the minimum service should be restricted to operations that are strictly necessary and the workers' organisations should, if they wish, be able to participate in defining the service along with the employers and public authorities (see paragraph 215 of the General Survey on Freedom of Association and Collective Bargaining of 1983).

The Committee requests the Government to supply information in its next report on the measures that it has taken in the light of these comments.

The right of workers to establish trade unions of their own choosing

With regard to the requirement that over 50 per cent of workers are needed to establish a trade union of manual workers, non-manual workers or a mixed trade union, the Committee notes that the Government has not replied to its question as to whether the provisions of section 11 of Presidential Decree No. 003 of 1961 and sections 5 and 11(a) of Presidential Decree No. 076-90/TR are mutually complementary or whether, in the event of section 11 of President Decree No. 009 remaining in force, one of these provisions overrides the other.

The Committee expresses the hope that, in its next report, the Government will reply to this question.