Observation (CEACR) - adopted 1994, published 81st ILC session (1994)

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

The Committee takes note of the Government's report, the provisions of the new Constitution of 1993, the provisions of the new Industrial Relations (Freedom of Association) Act of 26 June 1992 and its Regulations, and the provisional conclusions of the Committee on Freedom of Association concerning Cases Nos. 1648 and 1650 (291st Report, paras. 435 to 474, approved by the Governing Body at its 258th Session, November 1993).

The Committee recalls that its previous comments referred to:

- the prohibition placed on public servants' federations and confederations from affiliating with organizations that represent other categories of workers (section 19 of Presidential Decree No. 003-82/PCM);

- the requirement that workers must belong to the enterprise to be eligible for trade union office (Presidential Decree No. 001 of 15 January 1963), and the ban placed on trade unions from engaging in political activities (section 6 of Presidential Decree No. 009 of 3 May 1961).

With regard to the prohibition placed on public servants' federations and confederations from affiliating with organizations representing other categories of workers, in its report the Government states that industrial relations differ greatly as between the public and private sectors, since they are governed by different laws. It adds that the Industrial Relations Act applies to workers coming under the private sector industrial relations system and to workers in state establishments and enterprises of the state commercial sector. Public servants are thus excluded from the private sector system and are subject to the prohibition in section 19 of Presidential Decree No. 003-82/PCM, the public sector having its own dispute settlement machinery.

In this connection, the Committee wishes to recall that such a restriction may be applied to base-level unions and federations of public employees provided that such unions and federations may affiliate freely with confederations.

With regard to the requirement that workers must belong to the enterprise to be eligible for trade union office, the Government states that Presidential Decree No. 001 of 15 January 1963 was repealed by the Fifth Transitional and Final Provision of the Industrial Relations Act.

In this connection, the Committee notes that although the above Presidential Decree was repealed by the new Act, section 24(c) of the Act requires workers to have been in the service of the enterprise for at least one year in order to be eligible for trade union office. The Committee recalls that workers should be able to elect their representatives in full freedom, in accordance with Article 3 of the Convention.

With regard to trade unions being prohibited from engaging in political activities, the Government states that this prohibition is maintained in section 11(a) of the Act of 1992, since unions are concerned only with labour matters and are therefore not competent to represent workers politically. However, according to the Government, the Act does not prohibit unions from expressing publicly their opinions on issues concerning state policy.

The Committee points out, as does the Committee on Freedom of Association, that the prohibition should be clearly limited to purely political matters and that unions should nonetheless be able to express publicly their opinion regarding the Government's economic and social policy.

While noting that some amendments to the Industrial Relations Act of 26 June 1992 and its Regulations should enable the Convention to be better applied, the Committee points out that the following provisions may still give rise to difficulties in applying the Convention:

- denial of trade union membership during the work probation period (section 12(c));

- the requirement of a minimum of 100 workers to form trade unions by branch of activity, occupation, or for various occupations (section 14);

- the requirement that, in order to be eligible for trade union office, workers must be active members of the union (section 24(b));

- excessive restrictions on the right to strike (in particular, sections 73(a) and (b), 67 and 83(g) and (j));

- the power of the labour authority to cancel the registration of a union (section 20 of the Act), and the requirement that the union must wait six months after the cause of the cancellation has been remedied before re-applying for registration (section 24 of the Regulations).

The Committee asks the Government to take initiatives in consultation with the social partners to amend the legislation so as to permit workers undergoing a period of probation, should they so wish, to join organizations of their own choosing; to reduce the number of workers required in order to form trade unions by branch of activity, occupation or for various occupations; to limit the prohibition of unions from involving themselves in matters concerning party politics to purely political matters; to enable workers to elect their leaders in full freedom; to allow workers to resort to strikes as a means of seeking solutions to political, economic and social issues and reduce the restrictions on calling strikes; to enable base-level public service unions to affiliate freely with confederations and ensure that cancellation of a trade union's registration is possible only through judicial channels.

The Committee asks the Government in its next report to inform it of the measures that have been adopted to bring the whole of its legislation into conformity with the requirements of the Convention.

The Committee is also addressing a direct request to the Government in which it asks for clarification of the obligation of trade unions to issue any reports which might be requested by the labour authority; the labour authority's determination of what constitutes minimum service in the essential services in the event of conflicting opinions; and the calling of unlawful strikes.