Observation (CEACR) - adopted 2000, published 89th ILC session (2001)

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Peru (Ratification: 1964)

The Committee notes the Government’s report as well as the comments on the application of the Convention sent by the General Confederation of Workers of Peru (CGTP) and the Government’s reply thereto.

Articles 1 and 2 of the Convention.  In its previous observation, the Committee referred to: (1) the absence of protection against anti-union discrimination at the time of taking up employment and in the event of prejudicial acts other than dismissal; and (2) the slowness of judicial procedures and the lack of effective and dissuasive sanctions to guarantee the protection of workers and trade union leaders against acts of anti-union discrimination, or against acts of interference by employers in trade union organizations. The Committee notes with satisfaction that Act No. 27270 of May 2000 incorporates provisions prohibiting discrimination on any grounds into the Penal Code, and provides for fines or the temporary closure of the workplace in the event of discriminatory conduct.

The Committee observes, however, that Act No. 27270 of May 2000 does not provide for sanctions against acts of interference by employers in trade union organizations. The Committee accordingly asks the Government to take steps to bring the legislation into full conformity with the Convention and to keep it informed of any measures taken in this regard.

With regard to the slowness of judicial procedures for complaints concerning acts of anti-union discrimination or interference, the Committee recalls that the Committee on Freedom of Association has noted that in many cases the procedures are excessively long. The Committee notes the Government’s statement that the consolidated text of the Judiciary Act provides for sanctions and disciplinary measures against employees of the judiciary who fail to perform their duties properly. The Committee, however, points out that to remedy violations, procedures must be expeditious in order to constitute adequate protection for workers and their organizations against acts of discrimination or interference. The Committee asks the Government to take the necessary steps to remedy these shortcomings and to ensure that the legislation provides for expeditious judicial procedures.

Article 4 of the Convention.  In its previous observation, the Committee referred to the requirement of a majority of both the number of workers and the number of enterprises to conclude a collective agreement covering a branch of activity or occupation (sections 9 and 46 of the Industrial Relations Act). The Committee notes the Government’s statement that the purpose of the above-noted provisions is: to place greater emphasis on the representativeness of unions; to ensure that a collective agreement by branch of activity or occupation is the result of negotiations between organizations representing the majority of workers and enterprises; and to promote more democratic agreements through assemblies of the membership, proper elections of representatives and the building of collective awareness among workers. The Committee considered that the double requirement was difficult to meet and that the Act should therefore be amended to eliminate the double requirement so that the parties are able to determine freely the level at which they wish to negotiate. The Committee asks the Government to provide information in its next report on the measures taken in this connection and to confirm that the present legislation does not prevent the parties from negotiating even when the union cannot satisfy the double requirement if the collective agreement does not have erga omnes effects. If this is not the case, the Committee asks the Government to take steps to ensure that the legislation clearly establishes the right to bargain collectively of sufficiently representative organizations representing less than 50 per cent.

The Committee also observed previously that section 42 of the Employment Promotion Act of 1995 (currently section 9 of the Act on productivity and competitiveness at work - Legislative Decree No. 728) allows employers to "introduce changes or modify working shifts, days and hours, as well as the form and manner in which work is performed". The Committee notes that, according to the Government, such changes are subject to criteria of reasonableness that take into account the needs of the workplace, and there are mechanisms in the legislation which provide that: (1) if the majority of the workers do not agree to the employer’s modifications of the work schedule, they may take the employer to the administrative labour authority for a decision on the merits; (2) collective agreements containing clauses on working hours must be respected; and (3) legal action may be brought for failure to comply with collective agreements which are binding on the signatories. The Committee stresses that, despite the existence of the mechanisms referred to by the Government, a legal provision which allows the employer unilaterally to change the content of previously concluded collective agreements, or requires them to be renegotiated, is contrary to the principles of collective bargaining. The Committee accordingly requests that the Government take measures to repeal this provision, and to provide information in its next report on any measures taken in this regard.

With regard to the right to bargain collectively in the public sector, the Committee observes that Emergency Decree No. 011-99, Ministerial Resolution No. 075-99-EF/15 and Emergency Decree No. 004-2000 provide that a global financial increment based on productivity ascertained through an evaluation of individual workers will be granted within the framework of collective bargaining. The Committee points out that such an evaluation should not exclude workers covered by the collective agreement who have been evaluated negatively from entitlement to the salary increments negotiated between the parties. The Committee asks the Government to indicate what the position of negatively evaluated workers is in this respect.

Lastly, the Committee recalls that in its previous comments it noted that a bill to amend the Industrial Relations Act had not been enacted. The Committee notes the new amending bill of 31 July 2000. It observes that some of the provisions of the new bill are inconsistent with the Convention and refers to them in a direct request.