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

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

The Committee notes the Government’s report and its information in relation to the comments made by the Peruvian Workers’ Confederation (CTP).

The Committee recalls that for several years it has been referring in its comments to a number of provisions of the Industrial Relations Act of 1992 and its regulations, which are not in conformity with the provisions of the Convention. The Committee notes with satisfaction the adoption of Act No. 27912, published on 8 January 2003, amending several of the sections commented upon by the Committee. More precisely, the following provisions have been amended: (1) the denial of the right to trade union membership of workers during their probationary period has been eliminated (former section 12(c) of the Act); (2) the requirement of a high number of workers to establish trade unions by branch of activity or occupation in a number of professions has been reduced from 100 to 50 (section 14 of the Act); (3) the requirement that workers must be active members of the trade union (section 24(b)) and must have been in the service of the enterprise for a minimum of one year (section 24(c)) to be eligible for trade union office have been changed so that workers are currently only required to be employed in the enterprise to be a member of the executive board at this level, and the other requirements have been eliminated; (4) the prohibition upon the political activities of trade unions has been amended (section 11(a) of the Act), with it now being provided that trade union organizations may not devote themselves as institutions exclusively to party political matters, without prejudice to the freedoms set forth in the Political Constitution and the international Conventions of the ILO ratified by Peru; (5) with regard to the right to strike, section 67 has been repealed (it had been criticized by the Committee for providing that in the case of essential public services, if no agreement was reached through direct negotiation or conciliation, the dispute would be submitted to compulsory arbitration by a tripartite tribunal composed of an arbitrator designated by each party and a president appointed by the labour authorities); (6) section 10(f) of the Act, establishing the obligation for trade unions to compile reports which may be requested by the labour authority, has been repealed; and (7) the power of the labour authority to cancel the registration of a trade union (section 20 of the Act) and the requirement that the trade union must wait six months after the cause of cancellation has been remedied before reapplying for registration (Regulation 24) has been modified and now, where a trade union no longer fulfils the requirements, its dissolution has to be determined by the judicial authorities.

With regard to section 73(b) of the Industrial Relations Act of 1992, as amended by Act No. 27912, which now provides that the decision to call a strike has to be adopted in the form explicitly set out in the statutes which must in any case represent the majority will of the workers concerned, the Committee recalls that in its General Survey on freedom of association and collective bargaining, 1994, paragraph 170, it emphasized that if a member State deems it appropriate to establish in its legislation provisions which require a vote by workers before a strike can be held, it should ensure that account is taken only of the votes cast, and that the required quorum and majority are fixed at a reasonable level. The Committee accordingly requests the Government to take measures to amend section 73(b) so that, to be able to call a strike, the decision only has to be adopted by the majority of those voting.

With regard to the power of the labour administration to determine minimum services, in the event of disagreement, when a strike is declared in essential public services (section 82 of the Industrial Relations Act of 1992), the Committee notes that Act No. 27912 has not amended this provision. In this regard, the Committee hopes that the Government will examine the possibility of adopting measures so that, in the event of failure to agree on the number of workers to make up a minimum service and the occupations in which such a service has to be maintained, the disagreement will be resolved by an independent body and not by the administrative authority. The Committee requests the Government to provide information in its next report on any measure that it intends to take in this respect.

With regard to the prohibition upon federations and confederations of public servants to join organizations which represent other categories of workers (section 19 of Presidential Decree No. 003-82-PCM), the Committee notes the Government’s indication that: (1) the Office of the Legal Adviser of the Ministry of Labour and Employment Promotion indicated in an opinion that the provision to be applied should be the one that errs pro libertatis, or in other words which best guarantees fundamental rights, in this case freedom of association; (2) in the case of trade union organizations whose members include workers in the public and private sectors, the provisions of the labour law covering the private sector should be applied for the purposes of their registration; and (3) the Ministry of Labour and Employment Promotion registers trade union organizations whose members include workers covered by various labour systems. In these conditions, the Committee requests the Government, in accordance with the practice adopted by the administrative authorities, to take measures to amend this provision to bring it into line with the practice that is followed.

In its previous observation, the Committee also requested the Government to place the Union of Workers of Petrotech Peruana S.A. back on the register and not to cancel the registration of the Union of Ticket Sellers and Ushers in Cinematographic Enterprises on the grounds that it only has 57 members instead of the 100 required by the law (the Act in question has now been amended). The Committee notes that the Government has not provided information on this subject. The Committee asks the Government to keep it informed of any developments relating to the registration of the two trade unions referred to above.

With regard to the comments made by the CTP concerning the imposition of administrative standards in the maritime, river and lake transport sector setting out new registration and membership requirements for trade unions in the sector which they cannot fulfil, resulting in the cancellation of 50 branch unions and 35 workers’ organizations, the Committee notes the Government’s indication in its report on Convention No. 98 that the Ministry of Labour and Employment Promotion has registered 22 workers’ organizations in the port sector at the national level and that many of these organizations have been registered in recent years.