Direct Request (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)

The Committee notes the information supplied by the Government on various measures adopted to amend the General Labour Bill, by means of which the Industrial Relations Act and its regulations would be repealed.

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 Bill and it asked the Government to take the necessary steps to ensure that prison staff enjoy the right to organize. The Committee notes the Government’s statement in its report that article 28 of the Political Constitution recognizes the right to organize, engage in collective bargaining and go on strike, and all workers have the right to establish trade union organizations of their own choosing without prior authorization, and consequently prison staff enjoy the right to organize;

–      section 80 on special training arrangements excludes workers covered by these arrangements from the general provisions of the Bill and it asked the Government to indicate what legislation is applicable to these workers.

The Committee requests the Government to provide information on the legislation applicable to prison staff and to workers involved in training as regards the establishment of trade unions, collective bargaining and protection against acts of anti-union discrimination.

Article 3. Right of workers’ organizations to elect their representatives in full freedom. The Committee previously noted that section 349 concerning executive committees stipulates that, in order to become a member of such a committee, it is necessary to be in an employment relationship. The Committee considered that requiring a worker to belong to the establishment in question in order to be eligible for trade union office is contrary to the provisions of Article 3 of the Convention. Furthermore, such provisions may prompt employers to interfere and dismiss the union officers, thus precluding their continuation in office. The Committee notes the Government’s indication that: (i) the Industrial Relations Act (whose single consolidated text is approved by Supreme Decree No. 010-2003-TR) recognizes the right of workers’ organizations to elect their representatives in full freedom by prescribing in section 2 the right to organize, without prior authorization, with a view to the examination, development, protection and defence of its rights and interests, and the social, economic and moral improvement of its members; and (ii) in the absence of the minimum number of persons for establishing a trade union, section 15 of the aforementioned Supreme Decree provides for the possibility of electing two delegates to represent the members vis-à-vis the employer and the labour authority. The Committee notes that the Government does not refer in its report to the comments relating to section 349. The Committee expresses the hope that, in the context of the current reform of the labour legislation referred to by the Government, the section in question will be amended, for instance by allowing former members of the profession to stand for office or by eliminating the requirements of membership for a reasonable proportion of officers. The Committee requests the Government to provide information in its next report on any developments in this respect.

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 the Government’s indication that: (i) the section in question is the product of consensus in the National Council for Labour and Employment Promotion (CNTPE); (ii) it is legitimate to order a certain category of staff to resume work when the life, safety or health of all or part of the population is endangered; and (iii) section 403 of the General Labour Bill (which amends section 385 in force) defines the essential services the interruption of which might endanger the life, safety or health of the population (persons working in centres providing assistance directly related to the health of the people; electricity, water and drainage services; cleaning and sanitary services; autopsy and burial services; communication and telecommunication services; air traffic control services; and prison services), those being the only services in which it is possible to order the resumption of work. The Committee requests the Government to provide information on any developments relating to amendments to section 385 of the General Labour Bill.

–      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 the Government’s indication that it is drafting a bill, the purpose of which is to ensure that responsibility for declaring a strike illegal should lie with an independent body and that, once the drafting of the aforementioned bill has been completed, this will be brought before the employers’ and workers’ representatives within the CNTPE for consideration with a view to reaching consensus on it. The Committee requests the Government to provide information in its next report on any developments in this respect.

Finally, the Committee recalls that it has been making comments for many years on the power of the administrative authority for labour to establish minimum services, in the event of disagreement, when a strike is declared in essential public services (section 82). The Committee notes the Government’s statement that, in accordance with section 1 of Supreme Decree No. 013-2006-TR (which amends section 68 of Supreme Decree No. 011-92-TR), it was stipulated that “in the event of disagreement on the number and occupation of workers who are to continue working in conformity with section 82 of the Act, the labour authority shall designate an independent body to determine them” and that the decision of the independent body will be accepted by the labour authority in order to resolve the disagreement in question. The Committee requests the Government to provide information in its next report on the composition of the aforementioned independent body.

Article 4. Dissolution of trade union organizations. The Committee previously observed 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 the Government’s indication that account will be taken of the Committee’s observations through regulatory means to ensure that legal dissolution may only be declared following a thorough examination of the reasons why the membership fell below the legal minimum. The Committee requests the Government to provide information in its next report on any development in this respect.