Observation (CEACR) - adopted 2022, published 111st ILC session (2023)

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

The Committee notes the observations of the International Trade Union Confederation (ITUC), Autonomous Workers’ Confederation of Peru (CATP), Coordination of Trade Union Confederations of Peru (which groups together the General Confederation of Workers of Peru, the Single Confederation of Workers of Peru, the CATP and the Confederation of Workers of Peru) received on 1 September 2022, which relate to matters examined by the Committee in the present comment, as well as allegations of anti-union persecution against trade union leaders and members. The Committee further notes the observations of the National Confederation of Private Business Institutions (CONFIEP), received on 1 September 2022 and relating to matters examined by the Committee in the present comment. The Committee notes the Government’s response to all the observations received. The Committee notes the Government’s response to the observations of the ITUC of 2017 and the CATP of 2018.

Legislative developments. The Committee notes that Presidential Decree No. 014-2022-TR, published on 24 July 2022, amends the Regulations of the Collective Labour Relations Act (LRTC) and observes, among other aspects, that the Decree:

• -explicitly recognizes the right of workers to the direct membership of federations and confederations (section 4);
• -explicitly recognizes the right to establish unions of “enterprise groups” and “production chains or subcontracting networks” (section 4);
• -facilitates the collection of trade union contributions by federations and confederations by only requiring the accreditation of the respective membership, which shall be provided by the higher-level organization receiving the contribution (section 16-A);
• -removes section 63 of the Regulations, which established a requirement not set out in the Act for the calling of strikes for the defence of labour rights (the presentation of the judicial ruling that has been accepted or become final);
• -establishes the explicit prohibition for employers to replace, directly or indirectly, striking workers, and any act that impedes or obstructs the exercise of the right to strike;
• -simplifies the documentary requirements for the administrative procedure of the notification of strikes, replacing the requirement to submit a legalized copy of the proceedings of the assembly in which the strike was decided upon, by the submission of a simple copy; and
• -makes explicit reference to the administrative procedure for the notification of strikes, with the indication that it is an administrative procedure subject to prior assessment and is assumed to be approved if no objections are raised.

The Committee observes that the trade union confederations consider that the Decree can contribute to alleviating the serious situation with regard to trade union rights in the country and indicate, among other aspects, that the explicit recognition of the right to establish unions of enterprise groups, production chains and subcontracting networks can be particularly important for outsourced workers. The Committee also notes that the CONFIEP: (i) indicates that the Decree should have been subject to consultation in the National Labour and Employment Promotion Council (CNTPE) in accordance with the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144); and (ii) considers that the amendment of the LRCT Regulations by the Presidential Decree will affect relations between workers and employers in the private and public sectors and public enterprises since, among other aspects, it broadens the forms of trade union organization, makes the procedures more flexible for the establishment of a trade union organization and provides that employers cannot unilaterally extend the scope of the collective agreement to workers who are not covered by its scope of application, thereby necessarily promoting trade union membership. The Committee notes in this regard the Government’s indication that, far from affecting the balance in collective relations between employers and workers, the Presidential Decree has its origins in the identification of the current worrying situation with regard to freedom of association in the country. The Government emphasizes in this respect that in 2021 the unionization rate at the national level was a mere 5 per cent and that over the past decade the number of unionized workers has grown more slowly than the number of non-unionized workers. The Government adds that, although the CNTPE, which is tripartite in composition, agreed in May 2022 to prepare a statement to reaffirm and reinforce social and labour dialogue, in the month of July 2022 the employers’ organizations notified the suspension of their participation in the CNTPE, indicating that the approval of the statement on social dialogue referred to above had been impeded by the adoption of Presidential Decree No. 014-2022-TR. Recalling the crucial importance of social dialogue and consultation with organizations of employers and workers for the preparation and development of legislation on collective labour relations, the Committee expresses the firm hope that the Government will ensure that such consultations are held. The Committee hopes that the concerns relating to the Presidential Decree will be duly addressed through tripartite social dialogue in the CNTPE and that any issues impeding the functioning of the CNTPE will be rapidly resolved. It requests the Government to keep it informed in this respect. The Committee also expresses the hope that the implementation of the Presidential Decree which, according to the Government, has its origins in concerns at the situation of freedom of association in the country, will contribute to ensuring the full enjoyment and exercise of the rights set out in the Convention and requests the Government to provide information on the impact of the Decree`s application.

Article 2 of the Convention. Right of all workers, without distinction whatsoever, to establish and join organizations. For several years, the Committee has been indicating to the Government the need to revise Act No. 28518, its Regulations and the General Education Act in order to ensure the explicit recognition of freedom of association in training schemes. The Committee notes the Government’s indication that on 13 April 2022, Ministerial Decision No. 092-2022-TR provided for the pre-publication of the preliminary draft of the Labour Code drawn up by the Ministry of Labour and Employment Promotion (MTPE), which defines in section 75 the arrangements for vocational training, such as special types of employment contracts, recognizing the labour element of such contracts. The Government indicates that it received comments and suggestions concerning the preliminary draft text from the public until June 2022, which were shared with the workers’ and employers’ representatives participating in the CNTPE. The Committee observes the indications by the trade union confederations that: (i) up to now there has been no initiative to amend Act No. 28518; (ii) the generic recognition in the Constitution of trade union rights does not on its own empower persons engaged in training schemes to exercise those rights; and (iii) section 76 of the preliminary draft indicates that vocational training arrangements are not covered by general labour regulations, which means that the preliminary draft text retains the characteristic of the current legislation of failing to offer specific recognition of the trade union rights of persons engaged under vocational training schemes. The Committee hopes that the preliminary draft of the Labour Code will be the subject of extensive tripartite consultation and that, during this process of dialogue, consideration will also be given to the adoption of specific measures to revise the legislation so as to set out the explicit recognition of the right to freedom of association of workers engaged under vocational training schemes. The Committee requests the Government to provide information on any progress achieved in this regard.

In previous comments, the Committee requested the Government to revise the relevant provisions of the legislation to secure the exercise of the right to organize, in law and practice, of judges and prosecutors, and of employees in positions of trust and leadership in the public administration. The Committee requested the Government to provide information on any developments in this regard. The Committee notes with regret the Government’s indication that it has noted the request for information which will be provided shortly. The Committee recalls that Article 2 of the Convention guarantees the basic right to establish and join organizations of their own choosing to all workers without distinction whatsoever, including all public servants, irrespective of the nature of their functions, and that the only limitations permitted by the Convention are for members of the armed forces and the police. However, the Committee has indicated that senior public officials may be barred from joining trade unions provided they are entitled to establish their own organizations to defend their interests (2013 General Survey on collective bargaining in the public service, paragraphs 43 et seq., and 2012 General Survey on the fundamental Conventions, paragraph 66). The Committee urges the Government to take the necessary measures to revise the relevant provisions of the legislation in order to secure the right to organize, in law and practice, of judges and prosecutors, and of employees in positions of trust or leadership in the public administration. The Committee requests the Government to provide information on any developments in this regard.

Article 3. Right of organizations to organize their activities and formulate their programmes. Holding a strike ballot. In previous comments, the Committee noted that, under section 40 of Act No. 30057, the Civil Service Act, section 62, as amended, of the Regulations of the Consolidated Single Text of the Collective Labour Relations Act (the TUO of the LRCT), provides that the decision to call a strike must be adopted in the manner set out in the statutes, provided that the decision is taken by at least the majority of the voting members present in the assembly, and that this provision is applicable, by extension, to strikes in the public administration. The Committee notes that, although the trade union confederations indicate that Act No. 31188, the State Sector Collective Bargaining Act, published on 2 May 2021, repealed section 40 of the Civil Service Act, the Government indicates that subsection 13(2)(e) of Act No. 31188 provides that workers may call strikes in accordance with the provisions of the TUO of the LRCT.

Determining the unlawfulness of strikes. In its previous comment, the Committee observed that the Civil Service Support Commission was competent to decide whether a strike is inappropriate or unlawful and, as it had yet to be established, the Committee requested the Government to take the necessary measures to ensure that the competence to determine the lawfulness of strikes, in both the private and public sectors, does not lie with the Government, but rather with an independent body that has the trust of the parties. The Committee notes the Government’s indication that, while the body that is competent for determining the appropriate nature of a strike in the private sector is the Administrative Labour Authority, which issues its decision with independence, impartiality and in accordance with the law, the preliminary draft of the Labour Code proposes that, at the request of the employer or employers affected by the measures, the judicial authority shall determine the lawfulness or unlawful nature of a strike. With regard to the public sector, the Government recalls that, in accordance with the Tenth Supplementary Transitional Provision of the Regulations of the Civil Service Act, the Administrative Labour Authority shall assume the functions of the Civil Service Support Commission until the latter is established. The Committee observes that the trade union confederations consider that the fact that the Administrative Labour Authority continues to determine the lawful nature of strikes in both the private and the public sectors (in view of the persistent failure to establish the Civil Service Support Commission with guarantees of its real impartiality) bears witness to the reluctance of the State to bring the legislation into conformity with the provisions of the Convention and they indicate that 100 per cent of strikes in 2020 were found to be unlawful by the Administrative Labour Authority. The Committee urges the Government to take the necessary measures to ensure that the authority to determine the lawful nature of strikes in the private sector does not lie with the labour administration, but rather with an independent body that has the trust of the parties. The Committee hopes that the proposed amendment contained in the preliminary draft of the Labour Code will be the subject of extensive tripartite consultations, and requests the Government to keep it informed of any developments in this regard. Observing with concern the indications of the trade union confederations, the Committee expresses the firm hope that the Civil Service Support Commission will be established without further ado and that it will be a genuinely independent body. The Committee requests the Government to provide information on any progress in this regard.

Definition of minimum services in essential public services. The Committee previously observed that the Consolidated Single Text of the Collective Labour Relations Act provided that the Civil Service Support Commission would be the competent body to determine the minimum services required during strikes affecting essential services, and it trusted that the Civil Service Support Commission would be established in the near future. The Committee notes the Government’s indication that section 435 of the preliminary draft of the Labour Code provides that, in the event of disagreement, the matter shall be referred to an independent technical body for the determination of the minimum service and that the decision shall be binding. The Committee notes that, in addition to reiterating that the Civil Service Support Commission has still not been set up, the trade union confederations indicate that section 68 of the Regulations of the Collective Labour Relations Act, as amended by Presidential Decree No. 014-2022-TR, provides that, while the Administrative Labour Authority may avail itself of the support of an independent body to resolve any disagreement concerning minimum services in essential public services, the Administrative Labour Authority shall resolve the matter on the basis of the report of the independent body. While taking due note of the modifications introduced by Presidential Decree No. 014-2022-TR, the Committee recalls that disagreements between the parties on the number and functions of workers should not only be examined, but also resolved by an independent body. The Committee reiterates the need for the Civil Service Support Commission to be established without delay and requests the Government to provide information on any developments in this respect.

Right of trade unions to hold meetings and to access workplaces. The Committee previously requested the Government to revise the final provisions of Presidential Decree No. 017-2007-ED, which defines as serious offences by head teachers and deputy head teachers in schools the acts of providing school premises for trade union meetings and allowing political and/or union advocacy in educational institutions, in order to enable head teachers of schools to determine with the trade unions arrangements for access to workplaces that do not jeopardize their efficient operation. The Committee notes the Government’s indication that the Ministry of Education is carrying out an assessment of the legislation in relation to this matter as a basis for determining the need to amend or repeal certain provisions of the Regulations of Act No. 28988 declaring regular basic education to be an essential public service, as approved by Presidential Decree No. 17-2007-ED. The Committee takes due note of these indications and requests the Government to provide information on any developments in relation to the revision of the final provisions of the above Presidential Decree so that head teachers in schools can agree with the trade unions concerned on an arrangement for access to workplaces that does not jeopardize their effective operation.

The Committee reminds the Government that it may have recourse to ILO technical assistance in relation to the matters raised in this comment.

The Committee is raising other matters in a request addressed directly to the Government.