Observation (CEACR) - adopted 2004, published 93rd ILC session (2005)

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

The Committee notes the Government’s report and its comments on the observations made by the Peruvian Workers’ Confederation (CTP).

Articles 1 and 2 of the Convention. The Committee recalls that for several years it has been referring to: (1) the lack of sanctions against acts of interference by employers in trade union organizations; and (2) the slowness of the judicial procedures for dealing with complaints of anti-union discrimination or interference. The Committee regrets that the Government has not referred to these matters in its report. In this respect, the Committee recalls that it is necessary for the legislation to make express provision for rapid appeal procedures and effective and dissuasive sanctions against acts of interference by employers against workers’ organizations and that cases concerning issues of anti-union discrimination and interference should be examined promptly so that the necessary remedial measures can be really effective. In these conditions, the Committee requests the Government to take measures to bring the legislation into full conformity with the requirements of the Convention and to provide information in its next report on any measure adopted in this respect.

Article 4. The Committee recalls that in previous observations it considered that the dual requirement of a majority of the number of workers and the number of enterprises to be able to conclude a collective agreement covering a branch of activity or an occupation, as envisaged in the Industrial Relations Act, was excessive and difficult to meet. The Committee also requested the Government to confirm that the present legislation does not prevent the parties from negotiating, even when the union cannot satisfy the dual requirement, if the collective agreement does not have an erga omnes effect and, if that is not the case, to take steps to ensure that the legislation clearly establishes the right to collective bargaining of sufficiently representative organizations with representation of under 50 per cent. On this subject, the Committee notes with satisfaction the adoption of Act No. 27912 amending the above Act and providing in section 46 that the dual majority is only required if the outcome of collective bargaining in a branch of activity or occupation is to achieve general coverage of all the workers concerned, and that in cases where the requirements as to the majority are not fulfilled, the outcome of the collective bargaining has effects that are limited to the workers who are members of the corresponding trade union organization or organizations. The Committee also notes with satisfaction that second and third level workers’ organizations have the right to engage in collective bargaining.

On the other hand, the Committee requested the Government to take measures to repeal section 9 of the unified text of Legislative Decree No. 728 (Labour Productivity and Competitiveness Act) under which employers may introduce changes unilaterally in the content of previously concluded collective agreements or require them to be renegotiated. The Committee regrets that the Government has not referred to this matter in its comments and recalls once again that section 9 as it now stands raises problems of consistency with the Convention. The Committee requests the Government to take measures to amend this provision and to provide information in its next report on any measure adopted in this respect.

The Committee also requested the Government to repeal or amend Emergency Decree No. 011-99 and Ministerial Resolution No. 075-99-EF/15 establishing the overall productivity increment for the public sector. The Committee regrets that the Government has not provided information on this subject. Consequently, the Committee once again requests the Government to repeal or amend the above Decree and Resolution so as to ensure that it is up to the parties themselves to decide whether they wish to include in their collective bargaining the use of productivity criteria in the determination of wages.

With regard to the comments made by the CTP concerning the violation of the Convention in approximately 20 ports in Peru, to the prejudice of workers in the maritime, river and lake transport sectors who are covered by Legislative Decree No. 645 of 6 July 1991 (according to the CTP, following the notification of the dismissal of many workers, the possibility of collective bargaining was abolished and, as a result, collective bargaining has been prevented for ten years), the Committee notes the Government’s indication that: (1) until 1991, dock work was under the direction of the Maritime Labour Supervisory Commission, a public body with participation by trade union organizations, which regulated dock work and supplied workers for labour in ports; (2) following the dissolution of the above Commission, dock work was subject to free agreements between workers and port operators, which does not affect the right to freedom of association and the exercise of collective bargaining; and (3) the Ministry of Labour and Employment Promotion has registered 22 workers’ trade unions in the port sector. In this respect, the Committee requests the Government to provide information in its next report on the number of collective agreements concluded in the sector during the period covered by the report.

Finally, the Committee observes that the Medical Social Security Association of Peru (AMSSOP) has provided comments on the application of the Convention. The Committee requests the Government to provide its observations on these comments.