Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

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

Comments by workers’ organizations. The Committee notes the comments of the International Trade Union Confederation (ITUC), dated 4 August 2011 and 31 July 2012, and the Government’s detailed replies thereon. The Committee notes that the Autonomous Workers’ Confederation of Peru (CATP) sent comments in a communication dated 31 August 2012 and the General Confederation of Workers of Peru (CGTP) in a communication dated 4 September 2012.

The Committee notes that the workers’ organizations denounce anti-union practices, the denial of the right to collective bargaining for workers under training schemes, the shortage of budgetary resources in light of the duration of judicial proceedings in cases of anti-union offences and obstacles to the right to collective bargaining in the public and private sectors (budgetary restrictions on bargaining, obstacles to collective bargaining at the branch level, certain aspects of the regulation of arbitration, etc.). The Committee requests the Government to provide its observations on these issues (some of which are dealt with below) and invites it to refer these matters to tripartite dialogue.

Legislative matters. The Committee notes the information provided by the Government concerning the formulation of the draft General Labour Act (LGT) to repeal the Collective Labour Relations Act and replace it. The Committee notes that the draft text is currently undergoing revision. The Committee requests the Government to provide information on any developments in this respect and to ensure that this process is still the subject of tripartite consultations, and to take into account its comments. The Committee recalls that the technical assistance of the Office is available to the Government.

Article 1 of the Convention. Protection against any acts of anti-union discrimination. With reference to the excessive duration of judicial proceedings in cases of complaints of acts of anti-union discrimination or interference, the Committee previously requested the Government to provide information on the impact of the new Act on labour procedure (Act No. 29497 of 30 December 2009) on the length of judicial proceedings in cases of complaints of acts of anti-union discrimination or interference. The Committee notes the Government’s indication in its report that the ninth additional provision of the above Act provided for its progressive entry into force. For that purpose, the Technical Institutional Team for the implementation of the new Act on labour procedure was established and entrusted, among other matters, with determining a progressive implementation schedule for the Act (six judicial districts in 2010, five in 2011 and four in 2012). The Committee notes the Government’s indication that the Act makes changes in labour proceedings with a view to the rapid resolution of labour disputes (adoption of the principle of oral hearings, the holding of hearings for sentencing, the digitalization of files, access to electronic information, etc.). The Committee notes with interest the indication in the Government’s report that the length of proceedings in trade union cases is now approximately four months in courts of first instance and three months in courts of second instance. The Committee requests the Government to continue to provide information on any developments in relation to the length of proceedings and the outcome of proceedings including the sanctions imposed in case of anti-union discrimination.

Article 4. Measures to promote collective bargaining. In its previous comment, the Committee requested the Government to provide information on the trade union rights of workers employed under “vocational training schemes”, and particularly on the right to collective bargaining of the organizations representing them. The Committee notes the Government’s indication that vocational training schemes are currently governed by Act No. 28518 on vocational training schemes and its regulations (Supreme Decree No. 007-2005-TR), as well as the General Education Act No. 28044, where applicable, and that such schemes are related to theoretical and practical learning through the performance of programmed vocational training work. The Committee observes that neither Act No. 28518 nor its Regulations, nor the General Education Act recognize the right of association and of collective bargaining of workers covered by such schemes. Noting the information provided by the trade union organizations confirming that it is impossible for workers covered by vocational training schemes to engage in collective bargaining, the Committee requests the Government to ensure that the draft General Labour Act enables such workers to enjoy the right to organize and the possibility to be represented by trade unions in collective bargaining.

Level of collective bargaining and autonomy of the parties. Finally, taking into account the comments made by the various national organizations, the Committee requested the Government to provide additional detailed information on the manner in which collective disputes relating to the level of collective bargaining are resolved, in both law and practice. The Committee notes the Government’s reference to sections 59 to 65 of the Collective Labour Relations Act, with the indication that the Ministry of Labour has envisaged the so-called procedure of “extra-proceedings” with the purpose of establishing machinery to prevent and resolve labour disputes through dialogue between the social partners. The Committee further notes the adoption of Supreme Decree No. 014-2011-TR, section 1 of which (amending section 61 of the Collective Labour Relations Act) provides that “the parties shall have the possibility to have recourse to optional arbitration in the following situations: (a) the parties have not reached agreement in the first negotiation at the level or its content; and (b) when, during bargaining on the claims, acts of bad faith occur which have the effect of postponing, obstructing or preventing agreement from being reached”. The Committee further notes the Government’s indication that the above Supreme Decree is based on a ruling of the Constitutional Court of 2010, which found that “the arbitration referred to in section 61 of Supreme Decree No. 010 2003 TR is intended to determine the level of negotiation in cases of lack of agreement, and is optional, and not voluntary. That is, in cases of lack of agreement, and when one of the parties expresses the will to have resource to arbitration, the other is bound to accept this formula for resolving the dispute”. The Government adds that, according to national jurisprudence, collective bargaining is possible at branch level just like at enterprise level and at bargaining unit level. The Committee notes the comments of the Chamber of Commerce of Lima, which considers that when agreement is not reached on the level of collective bargaining, it should take place at the enterprise level. In this respect, the Committee observes that the appointment of the president of the arbitration court is made by the administrative authority when the parties do not reach agreement, which may raise problems of confidence in the system, particularly in the public sector. The Committee wishes to emphasize that existing bodies and procedures should in so far as possible promote negotiations between the social partners on the issue of determining the level of bargaining and should enjoy the confidence of the parties. The Committee invites the Government to initiate tripartite consultation on these matters.