Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

Seafarers' Pensions Convention, 1946 (No. 71) - Peru (Ratification: 1962)

The Committee notes that the Government’s report contains no reply to its previous observation of 2006. The Government refers to prior comments made by the Committee in 2002 and confines itself to repeating the wording of previous government reports of 2003 and 2005. The Committee must therefore repeat most of its previous observation which read essentially as follows:

1. Effect of the new pension scheme on the application of the Convention. In its previous comments, the Committee requested the Government to provide information on the impact of the new pension scheme on the application of the Convention, including the information specified in the report form on this Convention, for each Article of the Convention.

In its report, the Government indicates that the private pension system (SPP) is an individual capital accumulation scheme in which the amount of pensions depends directly on the workers’ contributions, the earnings of the pension funds’ investments and vouchers (Bono de Reconocimiento), where applicable. The SPP is self-financing, in other words the worker’s future pension depends on his or her own contributions. The rate of compulsory contributions to the pension fund is worked out on the basis of technical criteria to achieve an adequate replacement rate. The pensions provided by the SPP are accordingly not determined in advance. The Committee takes note of this information. In view of the fact that under the private pension system it is not possible to determine the amount of benefits in advance, the Committee requests the Government to indicate how it ensures the application of Article 3(1)(a)(ii) of the Convention (minimum amount of pensions).

On the subject of collective financing of benefits, the Government indicates that the SPP has a minimum pension which allows state subsidization for members of the scheme who meet the age and contribution requirements laid down in Act No. 27617 and who have not accumulated enough resources to finance a pension themselves. The minimum pension is financed directly by the Treasury. The Committee notes this information. It observes that, contrary to Article 3, paragraph 2, of the Convention, under the private pensions system both the cost of the pension and administrative costs are borne solely by the insured persons. In the Committee’s view, the minimum pension which the State pays and which applies only to certain cases cannot be regarded as a contribution within the meaning of Article 3, paragraph 1(b) and paragraph 2, of the Convention. Peru’s private pension system is, on the contrary, an independent scheme in which the resources for payment of the benefits are obtained by means of contributions from the insured members. The Committee again reminds the Government that according to Article 3, paragraph 2, of the Convention, seafarers collectively shall not contribute more than half the cost of the pensions payable under the scheme, and trusts that in its next report the Government will supply the statistics required by the report form under this Article of the Convention.

2. Payment of pensions to retired persons and former employees of the Peruvian Steam Ship Company (CPV). In its previous comments, the Committee asked the Government to supply information on developments in the situation regarding the payment of pensions to retirees and former employees of the CPV. It also requested the Government to provide information on the situation (vis-à-vis the Convention) reported by the Association of Crew Members for the protection of CPV workers, of former pensioners of this enterprise who have been excluded from the Pension Fund and have been unable to obtain reinstatement through a court ruling.

With regard to the legal action brought by the former pensioners of the CPV, the Government states that a decision was adopted on 3 November 2004 in which the court requires the Insurance Standardization Office (ONP) to “establish equivalent public positions in each case for the purpose of paying pensions to workers who, in accordance with the exception expressly established in the law, may receive a pension under Legislative Decree No. 20530 and who did not have the status of public servant at the time of separation. The equivalent positions shall be established in accordance with this decision.” The Committee takes note of this information and also notes that the ONP has filed an appeal against this decision, which has been admitted “without suspensive effect” but that appropriate measures have been taken to execute the abovementioned decision in accordance with the rules in force pending a ruling by the higher court on the abovementioned appeal. The Committee asks the Government to inform it of the outcome of the appeal and to provide any court decision pertaining to it.

3. Complaint by retirees of the National Ports Enterprise (ENAPU) seeking adjustment of their pensions. In its previous comments, the Committee noted once again that the ONP had still not established internal procedures to implement the court decision in favour of the Association of Former Employees and Retirees of the National Ports Enterprise (ACJENAPU), and expressed the hope that the Government would take the necessary measures in this regard. The Committee asked for information on any further developments in this case and in particular: (i) whether the adjusted pensions are actually being paid to the retirees concerned; and (ii) whether the three persons whose pensions have not been adjusted by the ONP have had their pensions adjusted by the Ministry of Economic and Financial Affairs.

The Committee notes the report by the ONP on progress made regarding the action brought by the ACJENAPU. The Government indicates in this connection that the complaint brought by the ACJENAPU is now at the stage of the execution of ruling, the ONP having accepted the court’s decision regarding the adjustment for the workers of ENAPU MATARANI, except in one case, in which the administrative file was still under the competence of the original entity. The Committee notes this information and requests the Government to report on the follow-up to this last case.

The Committee hopes that the Government will make every effort to take the necessary action in the very near future.

Furthermore, the Committee notes that the Government has not provided any reply to the observations submitted in October 2006 by the Federation of Fishing Workers of Peru (FETRAPEP), which were transmitted to the Government in November 2006. The Committee is therefore bound to draw to the Government’s attention the thrust of FETRAPEP’s comments relating to the application of the Convention.

FETRAPEP criticizes that Supreme Decree No. 006-96-TR associates to force majeure the annual period of closed season for extraction and processing of marine species (veda), which can last from four to seven months per year. It indicates that the Decree thus authorizes employers to temporarily suspend the contracts of fishers during the veda, in conformity with section 48 of the Employment Promotion Act. According to FETRAPEP, given that the remuneration of fishers is usually suppressed during the temporary suspension of their contracts, no contributions are paid to the ONP, which has the effect of extending the contributory period required to have the right to pension. FETRAPEP believes that the temporary suspension of contracts during veda causes serious difficulties for the access of fishers to old-age benefits.

The Committee calls upon the Government to respond to the observations submitted by FETRAPEP as a matter of urgency. In particular, the Committee asks the Government to explain the application of the concept of force majeure to the annually recurrent and thus foreseeable period of veda, in order to authorize the temporary suspension of contracts under section 48 of the Employment Promotion Act. The Committee further reminds the Government that, under Article 3, paragraph 1, the State has to guarantee the minimum level of pensions established by the Convention to workers having completed the prescribed period of sea service. In view of the national legislation allowing for temporary suspension of the contracts of fishers during veda, the Committee requests the Government to indicate by what means it is ensured, as regards pensions provided to fishers, that full effect is given to the requirements of Article 3, paragraph 1, of the Convention.