Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

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

The Committee notes the Government’s report and the reply to the observations of 31 August 2005 and 10 August 2006 by the International Confederation of Free Trade Unions (ICFTU) referring to some legislative matters raised in the Committee’s previous observation and a number of issues pertaining to the practical effect given to the Convention, in particular anti-union dismissals of trade union leaders, the dismissal of members shortly after a union was created and pressure exerted on the members of a union. The Committee notes that, according to the Government, in most of the instances cited by the ICFTU in 2005 and 2006, the parties came to an agreement or the trade union filed complaints with the courts or administrative tribunals.

1. Articles 1 and 2 of the Convention. For several years the Committee has been referring to: (1) the lack of sanctions against acts of interference by employers in trade union organizations, and (2) the slow judicial procedures for dealing with complaints of anti-union discrimination or interference. The Committee observes that in its observations, the ICFTU refers to cases of anti-union discrimination and of interference by employers in union affairs. It notes that, according to the Government’s report: (1) the Constitutional Court has ruled that freedom of association is comprehensive in nature, its protection therefore extends to trade union autonomy, namely the freedom to operate freely without any outside interference or other action that may affect it; (2) according to the Fourth Final and Transitional Provision of the Constitution, constitutional rights must be interpreted in accordance with the relevant international agreements signed by the Peruvian State; such agreements are accordingly a parameter for interpreting the rights enshrined in the Constitution, which means that the concepts, scope and coverage of the protection laid down in the agreements constitute parameters to be taken into account where a constitutional right needs interpretation; in any event such international agreements apply directly being part of Peruvian domestic law; any act of interference directly affects the right to organize, which is guaranteed under article 28 of the Constitution; accordingly, any trade union organization affected by acts of interference on the part of an employer has a constitutional right to go to the Constitutional Court, the redress in such event being restoration of the status quo ante.

While taking due note of the Government’s observations, the Committee again points out that the legislation must make express provision for prompt and sufficiently dissuasive sanctions against acts of interference by employers in workers’ organizations and that complaints of anti-union discrimination and interference need to be processed promptly for remedial measures to be really effective. The Committee requests the Government to take steps to bring its legislation fully into conformity with the Convention’s requirement for express prohibition of acts of interference, and to provide information in its next report on all measures taken to this end, including: (a) measures to ensure that sufficiently dissuasive sanctions are imposed for acts of interference, and (b) measures to speed up the administrative and judicial procedures for cases of anti-union discrimination. The Committee notes that the draft of the General Labour Act has been submitted to the National Congress and that the ILO assisted in its preparation. The Committee trusts that the future Act will contain the amendments that the Committee has requested.

2. Article 4. The Committee previously asked the Government to take steps to repeal section 9 of Supreme Decree No. 003-97-TR, the unified text of Legislative Decree No. 728 (Labour Productivity and Competitiveness Act) under which employers may introduce changes or modify shifts or working days or hours, and processes and arrangements for performing tasks. The Committee notes with satisfaction that Supreme Decree No. 013‑2006‑TR has amended section 9 of the Labour Productivity and Competitiveness Act to read as follows: “Section 2. – Section 9 of the unified text of Legislative Decree No. 728, the Labour Productivity and Competitiveness Act, approved by Supreme Decree No. 003-97-TR, shall not be so construed as to allow the employer unilaterally to change the content of previously concluded collective agreements, or to require them to be renegotiated, or to affect freedom of association in any other manner”.

3. The Committee notes that, according to the ICFTU, a collective agreement has been concluded in the construction sector after 13 years of demands for a sectoral agreement. The Committee also takes note of the conclusions of the Committee on Freedom of Association in Case No. 2375 regarding the level of collective bargaining in the construction sector as well as the particular concerns expressed by the Government thereon. The Committee requests the Government to keep it informed on any development on this issue.

4. The Committee previously asked the Government to repeal or amend Emergency Decree No. 011-99 and Ministerial Resolution No. 075-99-EF/15 providing for a special general productivity-related bonus in the public sector. The Committee notes from the Government’s information that these provisions are not as yet in force.