Direct Request (CEACR) - adopted 2015, published 105th ILC session (2016)

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

Article 1 of the Convention. Judicial proceedings. In its previous comments, the Committee, while noting the information provided by the Government regarding the impact of the New Act on Labour Procedure, requested it to continue to provide information on any developments in relation to the length of proceedings and their outcome including the sanctions imposed in cases of anti-union discrimination. In this respect, the Committee notes the Government’s indication that: (i) recalling that the New Act on Labour Procedure is applied progressively in the different judicial districts in the country, it is, as at the end of 2015, in force in 70 per cent of the judicial districts; (ii) the application of the new procedural measures under the Act is reflected in the gradual reduction of the length of labour proceedings (in 2015, the average length of ordinary proceedings in first instance is 153 days and that of shortened proceedings is 102 days); and (iii) this overall reduction in the length of labour proceedings in turn means a reduction in the length of proceedings relating to violations of freedom of association.

The Committee also notes that the ITUC indicates that: (i) owing to a lack of resources and adequate staff, judicial labour proceedings remain excessively lengthy; (ii) constitutional processes of protection (amparo), which are particularly important for the protection of freedom of association, often last for more than four years, as the amparo submitted in 2011 by the Union of Workers of the National Tax Administration Supervisory Authority (SINAUT–SUNAT) demonstrates, which is pending a final decision; and (iii) employment and constitutional law personnel lack adequate training, which often results in a narrow interpretation of the national provisions on fundamental rights and a failure to take into account the relevant international labour standards. While it notes the general information provided by the Government, the Committee requests it to send information on the length of the constitutional and ordinary labour proceedings relating to violations of freedom of association and collective bargaining. The Committee also once again requests the Government to provide information on the sanctions imposed in cases of anti-union discrimination.

Article 4. Measures to promote collective bargaining. Level of collective bargaining and autonomy of the parties. In its previous comments, the Committee noted the amendment of section 61 of the Collective Labour Relations Act through Supreme Decree No. 014-2011-TR according to which the parties may have recourse to optional arbitration in a case where an agreement is not reached on the level of the negotiation. The Committee nevertheless noted 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. In that light, the Committee invited the Government to initiate tripartite consultation so that the existing mechanisms to determine the level of bargaining promote, in so far as possible, negotiations between the social partners and have the confidence of the parties. While it notes that, in its 2014 observations, the ITUC once again criticizes the appointment of the president of the arbitration court by the administrative authority, the Committee notes the Government’s indication that: (i) although cases still arise in which labour administration appoints the president of the arbitration court where no agreement is reached between the parties in that regard, mechanisms are being developed to put an end to that situation; (ii) for private sector disputes, the General Directive No. 006-2012-MTPE-2-14 establishes a public random draw based on the National Register of Collective Bargaining Arbitrators; (iii) for disputes in public bodies and state undertakings subject to private law, Decree No. 009-2012-TR assigns the Special Council, composed of representatives from various public institutions and ministries and a trade union representative, to appoint the president of the arbitration court where no agreement is reached; and (iv) for disputes involving civil servants, the General Regulations of Act No. 30057 of the civil service establish that the Civil Service Support Commission, made up of independent professionals appointed by the Executive Board of the National Civil Service Authority, is the body competent to appoint the president of the arbitration court where no agreement is reached by the parties.

The Committee notes with interest the drawing system established for private sector disputes. In relation to the Special Council competent to appoint the presidents of the arbitration courts in the public sector undertakings subject to private law, the Committee requests the Government to provide information on the number of presidents of the arbitration courts designated by this body from 2014. With regard to the Civil Service Support Commission, the Committee requests the Government to, in order to be able to examine in detail the nature of this body, provide additional information on the rules governing the operation of this body, its current composition, and decisions it has issued relating to the appointment of presidents of the arbitration courts.