Observation (CEACR) - adopted 2001, published 90th ILC session (2002)

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

The Committee notes the Government’s report and the discussions that took place in the Conference Committee in 2001. It also takes note of the report of the Committee on Freedom of Association on a number of cases before it which concern Peru (see 324th, 325th and 326th Reports of the Committee on Freedom of Association).

Articles 1 and 2 of the Convention. In its previous observation the Committee had referred to the lack of sanctions against acts of interference by employers in trade union organizations. The Committee notes the information supplied by the Government to the effect that meetings are held in the National Council for Labour and Social Welfare, which is tripartite, with a view to producing appropriate legislation which imposes restrictions on acts of interference by employers in trade union organizations, in order to comply with the provisions of the Convention. The Committee hopes that such legislation will be adopted in the near future and asks the Government to provide detailed information in this respect in its next report.

The Committee also referred to the slowness of the judicial procedure for dealing with complaints of acts of discrimination. In this connection, the Committee notes the Government’s indication that it is aware of the need to propose judicial procedures which are more expeditious and in closer keeping with the rules of law, and free from any political or other interference likely to impair their transparency. That is why rules both on labour procedures and on any related procedures may be discussed and reformulated in the Council with a view to a consensus decision to encourage speed and transparency in all judicial labour procedures. Furthermore, various measures have been taken with a view to making the administration of justice more expeditious and improving its quality through new laws and bodies. The Committee expresses the firm hope that, as a result of all the foregoing, means of redress against acts of discrimination will be expeditious and efficient in the near future.

Article 4. The Committee recalls that in its previous observation the Committee had 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), observing that this double requirement was excessive and difficult to meet. It had requested the Government to confirm that the present legislation did not prevent the parties from negotiating, even when the union could not satisfy the double requirement, if the collective agreement did not have erga omnes effect, and, if that was not the case, to take steps to ensure that the legislation clearly established the right to collective bargaining of sufficiently representative organizations representing less than 50 per cent. The Committee notes that the Government reiterates its political determination to meet the social partners with a view to reaching agreement on aligning the legislation with the Convention. The Committee hopes that the appropriate amendments will be adopted in the near future and enable inconsistencies with the Convention to be removed.

The Committee also had asked the Government to take steps to repeal section 9 of the Unified Text of Legislative Decree No. 728 (act on labour productivity and competitiveness) under which employers may introduce changes unilaterally in the content of existing collective agreements or the latter must be renegotiated. The Committee notes that, according to the Government, the provision also sets limits on the authority granted to the employer, for example the latter may issue provisions only of a regulatory nature so that higher ranking rules (Constitution, laws, collective agreements) take precedence over them; furthermore, any change the employer may decide to introduce in conditions of work set in a collective agreement must be made within that provision of the agreement. While noting the foregoing, the Committee takes the view that, as it now stands, section 9 raises problems of consistency with the Convention. The Government is therefore asked to make the necessary amendments in order to align the wording of this provision with its interpretation of it.

The Committee had also referred in its last observation to the overall financial increment based on productivity for the public sector, established by Emergency Decree No. 011-99 and Ministerial Resolution No. 075-99-EF/15. In this connection, the Committee notes that, according to the Government, Article 1(d) of the abovementioned Ministerial Resolution provides that in the case of workers covered by collective agreements, the increment will be addressed and granted in the collective bargaining process. According to the Government, workers covered by the collective agreement who have been evaluated negatively will not be entitled to the increment, but they will be entitled to salary increments negotiated between the parties. The legal texts referred to merely establish the content of the position that public bodies will have in collective bargaining. The Committee shares the view expressed by the Committee on Freedom of Association that provisions issued by the Executive or by law which impose on the negotiating parties productivity criteria for the grant of an increase in workers’ wages and exclude general wage increases, restrict the principle of free and voluntary collective bargaining established by the Convention. In these circumstances, the Committee joins the Committee on Freedom of Association in requesting the Government to repeal or amend the abovementioned Decree and resolution to ensure that it is up to the parties themselves to decide whether, in their collective bargaining, they wish to use productivity criteria in determining wages (see 325th Report of the Committee on Freedom of Association, Case No. 2049, paragraph 522).

Lastly, the Committee recalls that for many years the Government has been referring to various bills to amend the Industrial Relations Act. The Committee notes that the Government states once again that the latest Bill, dated 31 July 2000, has been abandoned, and that it intends to carry out a reform agreed by consensus with the social partners which will be consistent with the Convention.

The Committee expresses the firm hope that the Government will take the necessary steps to ensure that the abovementioned reform will take account of all the issues raised. It reminds the Government that it may seek technical assistance from the Office in this process if it so wishes.