Observation (CEACR) - adopted 2010, published 100th ILC session (2011)

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

Comments from workers’ organizations. The Committee notes the Government’s reply to the comments from the International Trade Union Confederation (ITUC) dated 29 August 2008, which referred to serious acts of violence against demonstrators and the arrest of trade union leaders for participating in a strike. It notes in particular the Government’s indication that the allegations are the subject of examination by the Committee on Freedom of Association. The Committee also notes the Government’s indication, in relation to the previous comments of the Autonomous Confederation of Peruvian Workers (CATP) that the executive committee of the Union of Workers of the Public Ombudsman’s Office was registered on 7 September 2009. Finally, with regard to the comments of the National Coordinating Committee of Contract Workers of the Ministry of Health dated 3 October 2008 challenging the administrative services contract regime governed by Legislative Decree No. 1057, the Committee notes the Government’s statement that the Constitutional Court ruled that the “administrative services contract” must be interpreted as a special scheme for the hire of labour for the public sector, and declared the special administrative services contract regime established by Legislative Decree No. 1057 to be constitutional, recognizing that workers covered by this regime are entitled to exercise the right to organize and the right to go on strike.

The Committee also notes the comments from the General Confederation of Workers of Peru (CGTP), the Single Confederation of Workers (CUT), the Workers’ Central Union of Peru (CTP) and the Autonomous Confederation of Workers of Peru (CATP) dated 2 and 25 August 2010 and from the ITUC dated 24 August 2010 concerning the application of the Convention and in particular that they object to: (i) article 153 of the Constitution which denies judges and prosecutors the right to organize; (ii) Legislative Decree No. 1086 of 28 June 2008 establishing the Act to promote the competitiveness, formalization and development of micro- and small enterprises and access to decent employment, which does not contain any reference to the exercise of trade union rights by workers in micro-enterprises; and (iii) the use of temporary contracts to make it difficult for workers to join trade unions. These organizations also refer to issues which have been examined by the Committee on Freedom of Association. The Committee notes the Government’s reply to the aforementioned comments and its specific indications that: (i) the prohibition on the right to organize for judges and prosecutors is based on the fact that special authority is conferred on judges for the performance of their duties, they are the highest interpreters of the law, they administrate justice on behalf of the nation and exercise power deriving from the people, and prosecutors represent the State in judicial proceedings; both have prerogatives, obligations and incompatibilities which are peculiar to the nature of their posts; (ii) contrary to the indications of the trade union organizations, section 3(5) of Legislative Decree No. 1086 of 28 June 2008 prescribes observance of the right of workers to form trade unions and non-interference with the right of workers to elect, or not elect, to join or not to join, trade union organizations which have been legally established; and (iii) as regards the use of temporary contracts in order to obstruct membership to trade unions, the labour inspectorate, with a view to granting protection of the right to organize in connection with the various types of contract provided for in the legislation, has issued directives to protect the right to organize of temporary workers. Recalling the content of Article 2 of the Convention, the Committee requests the Government to take the necessary steps to guarantee that judges and prosecutors enjoy the right to form associations or organizations for the defence of their interests. The Committee requests the Government to provide information in its next report on any measures taken in this respect.

In addition, the Committee notes various cases pending before the Committee on Freedom of Association relating to matters which the Committee of Experts is examining.

Article 3 of the Convention. Right of workers’ organizations to organize their activities and formulate their programmes. The Committee recalls that it has been making comments for many years on section 73(b) of the Industrial Relations Act, which provides that the decision to call a strike has to be adopted in the form expressly set out in the statutes and must in any event represent the will of the majority of the workers concerned. The Committee observes that the Government does not refer to this issue in its report. The Committee recalls once again that if the legislation provides that a vote is required by workers before a strike can be held, it should be ensured that account is taken only of the votes cast, and that the required quorum or majority is fixed at a reasonable level (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 170). The Committee requests the Government to take the necessary steps to amend the legislation taking account of this principle.

Furthermore, the Committee referred in its previous comment to the creation, by means of Ministerial Decision No. 0080-2007-ED of 23 February 2007, of the national register of supply teachers to replace teachers on strike and asked the Government to take the necessary steps to overturn the aforementioned Ministerial Decision, taking account of the fact that strikers should only be replaced in the event of a strike in an essential service in the strict sense in which strikes are prohibited by law and if the strike results in an acute national crisis. The Committee notes the Government’s indication that: (i) the abovementioned register constitutes a human resources management instrument which registers all professionals who are suitable for recruitment in the public education system, in cases of the continued absence of teachers of classes in basic regular education and does not have the purpose of replacing teachers who exercise their right to strike; and (ii) the aforementioned legislation was enacted in strict observance of the principle of legality and therefore does not conflict with the right to strike established in the national legislation and ratified international Conventions. While observing that the preamble to the abovementioned Ministerial Decision refers to the hours lost owing to the absence of teachers for strikes and stoppages, the Committee requests the Government to take steps to make it clear in the Ministerial Decision that the replacement of strikers is only possible in the cases referred to above.

The Committee also recalls that in its previous comments it noted the drafting of a General Labour Bill which would repeal the Industrial Relations Act and therefore the provisions in question, and asked the Government to provide information on any legislative developments relating to this Bill. The Committee notes the Government’s indication in its report that: (i) the workplan of the Labour Commission of the Congress of the Republic for 2010–11 gives priority to evaluation of the General Labour Bill and consideration has been given to the holding of macro-regional public hearings with the objective of improving the legislative capacity of the Commission, by means of comprehensive analysis of the labour legislation (priority will be given to the discussion of three fundamental themes for the world of work: public employment, the General Labour Bill and the special bill to promote formal employment), with the aim of achieving balance and optimum labour relations between workers and employers; (ii) the macro-regional public hearings will take place with the participation of representatives of the ILO, members of Congress and the social partners involved (trade union confederations and employers’ organizations) in the matters to be the subject of legislation, with the aim of achieving an overview of the proposals in question and due analysis of the consequences for the development of the country; and (iii) the aforementioned hearings seek to strengthen the system of labour relations, in observance of the international labour standards adopted by the ILO. The Committee expresses the hope that the legislative initiatives in question will take full account of its comments and that the General Labour Bill to be adopted will be in full conformity with the Convention. The Committee requests the Government to provide information in its next report on any developments in this respect.

Furthermore, the Committee has been informed that in June 2010 the Labour Commission of Congress approved an opinion modifying certain sections of the Industrial Relations Act and that this opinion is to be discussed in the plenary of Congress. The Committee requests the Government to contemplate the possibility of amending the sections of the Act on which it has been commenting for many years amended in the context of this reform.

Article 6. Right of workers’ organizations to establish federations and confederations. The Committee recalls that in its previous comments it asked the Government to take the necessary steps to amend section 19 of Supreme Decree No. 003-82-PCM to allow federations and confederations of public servants to establish or join organizations of their own choosing. The Committee notes that the Government repeats that, under Supreme Decree No. 003-2004-TR (which created the register of trade union organizations of public servants (ROSSP)) and Directive No. 001-2004-DNRT (on guidelines for the registration of trade union organizations in the register of trade union organizations of public servants of the Ministry of Labour and Employment Promotion), federations of state workers who are covered by different labour regimes (private or public sector) are allowed to join and form confederations. The Committee once again requests the Government to indicate whether, in accordance with these provisions, federations of state workers are allowed to join confederations which contain organizations of non-state workers.

The Committee is raising a number of other points in a direct request to the Government.