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

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

The Committee recalls that it previously noted the draft General Labour Act of Peru (No. 67/2006-CR) and that it made comments on that subject.

Article 2 of the Convention. In its previous comments, the Committee observed that:

–      section IX of the Preliminary Title excludes prison labour and self-employment from the scope of the Act;

–      section 80 on special training arrangements excludes workers covered by these arrangements from the general provisions of the Act;

–      Chapter I of Title II on workers on probation does not specify whether such workers have the right to organize.

In this regard, the Committee observed that it was not clear whether the groups of workers mentioned enjoy the safeguards provided by the Convention and requested the Government to take steps to ensure that the workers in question enjoy the rights laid down in the Convention. The Committee notes that the Government indicates in its report that section VI of the Preliminary Title of the draft General Labour Act provides that the Act shall be applicable to self-employed workers where appropriate. With regard to the beneficiaries of special training arrangements, the draft does not expressly prohibit these persons from joining organizations. With regard to workers on probation, section 336 of the draft provides that workers may join a trade union during their probationary period. The Committee recalls that, under Article 2 of the Convention, all workers, without distinction whatsoever, shall have the right to establish and join organizations of their own choosing. Under these circumstances, the Committee requests the Government to take the necessary measures to ensure that prison staff enjoy the right to organize, keep it informed of any measures adopted in this regard and indicate what legislation is applicable to workers covered by special training arrangements.

Membership of more than one trade union. The Committee previously observed that section 334(3) on requirements for joining a trade union prohibits membership of more than one union in the same field. The Committee considered that workers who have more than one occupation should be able to join organizations representing the workers of each of the activities they engage in. The Committee notes the Government’s indication that the restriction imposed by section 334 refers to the establishment of a numerical criterion for the purposes of determining the most representative trade union within a given field, but does not obstruct the right of any workers with more than one occupation to join trade union organizations of their own choosing.

Article 3. Right of workers’ organizations to elect their representatives in full freedom. The Committee previously noted that section 349 on the Executive Board stipulates that, in order to become a member of such a board, it is necessary to be in an employment relationship. The Committee considered that to require a worker to belong to the establishment in question in order to be eligible for trade union office is contrary to Article 3 of the Convention. Furthermore, provisions of this kind may prompt employers to interfere and dismiss the union officers, thus precluding their continuation in office. The Committee notes the Government’s indication that this section was the result of a consensus between workers and employers within the National Labour and Employment Promotion Council (CNTPE) and that the necessary efforts shall be made to amend this section along the lines indicated by the Committee prior to the adoption of the draft Act. The Committee expresses the hope that section 349 of the General Labour Act will take this principle into account, for instance by allowing former members of the profession to stand for office or by eliminating the requirements of membership of the profession for a reasonable proportion of officers.

Right of organizations to organize their activities and formulate their programmes in full freedom. The Committee previously observed that:

–      section 385(4) provides that “where the workers have opted to take industrial action and the strike is excessively long, with serious consequences for the parties or for production, or gives rise to acts of violence or takes on serious proportions or consequences, the Executive may intervene through the Ministry of Labour and Employment Promotion by means of a reasoned ministerial decision ordering the resumption of work …”. The Committee pointed out that, where a total and prolonged work stoppage in a vital sector of the economy is liable to create a situation endangering the life, safety or health of the population, a specific category of workers could legitimately be ordered back to work if, because of its scope and duration, the strike is liable to give rise to such a situation. To order a return to work outside such instances, however, is contrary to the principles of freedom of association. The Committee notes that the Government indicates that this section of the draft Act was approved by consensus and that, in any case, the principle referred to by the Committee could be taken into account in the regulatory standard which will be issued once the General Labour Act has been approved. The Committee requests the Government to take all the steps within its power to amend section 385(4) of the draft General Labour Act so that a return to work may be ordered only where the life, safety or health of all or part of the population are endangered;

–      section 402(1) provides that the Administrative Authority for Labour is empowered to declare a strike unlawful following a request from the employer or employers affected by the measure. The Committee notes that the Government points out that workers have available expeditious summary proceedings through the courts, provided for under section 24 of Act No. 27584 regulating the dispute procedure. In this regard, the Committee recalls that responsibility for declaring a strike illegal should not lie with the Government, but with an independent body which has the confidence of the parties involved. The Committee requests the Government to take steps to amend section 402 of the draft Act along the lines indicated.

Article 4. Dissolution of trade union organizations. The Committee previously noted that section 361(3) provides for the possibility of dissolving a union if the membership falls below the legally declared minimum. The Committee considered that such dissolution should only be declared after a thorough examination of the reasons why the membership fell below the legal minimum. The Committee notes that the Government indicates that this section of the draft Act was approved by consensus and that, in any case, the regulatory Act of the General Labour Act could provide that legal dissolution may only be declared following a thorough examination of the reasons why the membership fell below the legal minimum. The Committee expresses the firm hope that the Government will take all the measures within its power to ensure that the General Labour Act or the regulatory Act approved take the above principle into account.

Finally, the Committee hopes that its comments will be taken into account in the final draft of the General Labour Act. The Committee requests the Government to report on any developments in this regard.