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

Individual Case (CAS) - Discussion: 2001, Publication: 89th ILC session (2001)

A Government representative recalled that the present Government of Peru had set itself the fundamental objective of ensuring a smooth and trouble-free transfer of power to a democratic regime. Its mandate would conclude with the transfer of power, on 28 July next, to the recently elected Government led by Mr. Alejandro Toledo in elections which had been described by all international observers as transparent and exemplary. In that context and as an essential part of the labour policy of the interim constitutional Government, the speaker expressed the Government's will to guarantee and respect in legislation and practice the fundamental labour principles and rights universally promoted by the ILO.

Under the same heading and, as part of its policy of reconciliation, national unity, and strengthening democratic institutions, the interim constitutional Government, from the moment it took office, restored tripartite social dialogue through the National Council of Labour and Social Promotion, a forum for collaboration which was the ideal way to launch a process of democracy in labour relations leading to active participation by, and cooperation between, the social actors. As a starting point, the National Council issued a unanimous "Declaration" which "committed" it to working for a social climate in the country based on recognition of human rights, respect for the national and international legal order, democratic social dialogue, productivity, competitiveness, cooperation, mutual respect between the parties and a common vision of Peru's problems. Furthermore, an analysis of vocational training in Peru and a working document on employment in Peru during 1990-2000, had been adopted by consensus.

Finally, he reported that the Government regulated trade union freedom, collective bargaining and strikes, and had recently submitted to the Congress of the Republic, a bill to amend the Industrial Relations Act, incorporating the observations and recommendations of the Committee of Experts. That was in addition to the fact that the Committee of Experts itself, in its report for 2001, page 65, mentioned Peru in the list of cases where progress had been made in respect of Convention No. 98. Referring to the comments of the Committee of Experts on the lack of protection against anti-union discrimination, he said that the Committee of Experts had expressed its satisfaction at the passing of Act No. 27270, the Anti-Discrimination Act, which included penal sanctions. He considered that provisions of the Act itself did not expressly mention anti-union acts. With regard to the lack of sanctions for interference in trade union affairs, sanctions had been specifically contained in the draft bill but had been deleted. Nevertheless, the bill submitted to Congress proposed to extend the scope of subjects protected under trade union immunities, which was a protection of particular importance with regard to acts of interference. The extension of trade union immunities would affect candidates for trade union office or delegates (30 calendar days before their election and following their term of office) and members of negotiating committees. In addition, the penal legislation included offences such as particular forms of interference which might directly affect workers belonging to unions and indirectly, trade union organizations. These included coercion, violation of privacy, improper use of computerized records, violation of the home, violation of correspondence, telephone-tapping, improper withholding or diversion of correspondence, disturbing a public meeting and attacks on freedom of work and association.

There were then generic provisions in the legislation to prevent interference with trade unions, without prejudice to any preventive activities by the administrative authority, such as publicity campaigns carried out by labour inspectors designed to create a culture of respect for collective rights. With regard to the so-called constitutional jurisdiction, the recourse of "amparo" (appeal) allowed natural or legal persons, as applicable, to seek the extinction of acts that breached constitutional rights, such as the right to collective bargaining and freedom of association in general. In addition, the Labour and Social Security Committee of the Congress of the Republic had unanimously approved Bill No. 1670/2000, which restricted the arbitrary dismissal of trade union officials and workers who belonged to a trade union. In other words, their dismissal would only be justifiable for an objective reason laid down in national legislation.

As for the point indicated by the Experts on the slowness of judicial processes to deal with acts of anti-union discrimination, the organic law of the judiciary established sanctions against civil servants of the judiciary who did not properly perform their duties. The measures adopted to evaluate and adopted measures to remedy the slowness of the judiciary were as follows: formation of a committee of members of the Congress of the Republic, representatives of the Ministry of Justice and advocates in the Supreme Court of Justice to draft an organic law of the judiciary. In April 2001, an inter-institutional agreement was concluded creating a high-level commission consisting of the President of the Supreme Court of Justice, the Attorney-General and the Minister of Justice, under the programme for improving access to justice, to examine and propose measures to improve the quality of the administration of justice in Peru. In the framework of this programme, which had the support of the Inter-American Development Bank, it was proposed to establish 43 basic justice centres throughout the country, concentrating prosecutors, judges and official defence lawyers of the Ministry of Justice under one roof to facilitate access to justice. In addition, early in 2000, the Supreme Court of Justice had created an additional chamber for labour and social security matters solely to hear appeals in labour cases, thus speeding up judicial proceedings. Furthermore, extra judicial measures were being considered to resolve labour disputes through compulsory conciliation prior to court proceedings, conducted in the Ministry of Labour and Social Promotion and specialized conciliation centres authorized by the Ministry of Justice.

As for collective bargaining, the Labour Committee of the CNT and PS, the tripartite consultative body launched by the Government in January 2001, was examining a draft amendment to the Industrial Relations Act which would be discussed by the social partners, covering all aspects of collective bargaining.

As for article 9 of the Act on Competitiveness and Productivity at Work which allowed employers to modify shifts, days and hours of work, as well as the form and manner in which work was performed, the speaker indicated that the employers' power was subject to what was collectively agreed. In that respect, the Industrial Relations Act, Legislative Decree No. 25593, clearly established that collective agreements could only be amended by consent of the parties.

With respect to regulation of the single productivity bonus in the public sector, the speaker listed the requirements set out in Ministerial resolution No. 05-99-EF/15, article 1: (a) the amount of the bonus should be established taking into account the level of responsibility, contribution and commitment of the worker, as reflected by a process of evaluation; (b) the amount could be paid in instalments; and (c) for personnel covered by collective bargaining, the single productivity bonus would be fixed and awarded by means of collective bargaining. As would be appreciated, the Committee understood that the requirement in subparagraph (a) would extend to the collective bargaining covered in subparagraph (c); however, a literal interpretation of subparagraph (c) would lead to the conclusion that the parties could freely negotiate the terms on which the bonus was granted, subject to the availability of budgetary resources in the sector concerned. Ministerial resolution No. 038-2001-EF/10 of 25 January 2001 regulated the conditions for awarding the bonus to workers in entities covered by the National Fund for the Financing of State Entrepreneurial Activity (FONAFE). That rule explicitly provided that the single productivity bonus granted in the context of collective bargaining should be awarded only to workers who satisfied certain requirements such as punctuality, attendance, meeting targets, productivity, etc. As a result, cases arose such as the one relating to collective bargaining in PETROPERU S.A., a state company, in which the parties had not agreed the single productivity bonus, but had directly agreed an unlimited increase in remuneration.

As for the opinion of the Experts that the bill to amend the Industrial Relations Act of 31 July 2000 contained certain provisions that were not in conformity with the Convention, the speaker indicated that three bills to amend the Industrial Relations Act which incorporated all the observations and recommendations of the Committee of Experts were currently before the Congress.

The Employer members recalled that the comments of the Committee of Experts in the case of Peru focused on the absence of sufficient protection against anti-union discrimination when taking up employment and in relation to other measures. Although the Committee of Experts had noted with satisfaction a number of improvements in the case, it had still found that provision was not made for sanctions against acts of interference by employers in trade union organizations. It was unfortunate in this respect that the Committee of Experts had not referred to individual cases since, as all agreed, practice was more important than theory in cases such as the present one. In this respect, the Government representative had referred to a number of provisions providing for penal sanctions and the Committee of Experts could therefore examine the matter again in the light of the new information.

Another question raised in the report of the Committee of Experts concerned the slowness of judicial procedures in the event of complaints made by trade unions. In this respect, the matters raised seemed to be something of a borderline case related principally to issues concerning the judicial infrastructure. The problem of the slowness of procedures should not be seen in isolation, since it might depend, for example, on the number of different stages involved in the procedure and whether or not a preliminary arbitration was required. Another reason might be the number of cases which had to be handled by the judicial bodies. The Conference Committee did not have the information available to make judgements on these questions, which required an overview of the situation with regard to the judicial system in the country. This would also need to be examined more carefully by the Committee of Experts.

Another point raised by the Committee of Experts was the requirement of a double majority in order to be able to conclude a collective agreement. This meant that both a majority of workers and of enterprises was required. The Committee of Experts had stated that this double requirement was difficult to meet. However, this view might perhaps be over-simplistic. The question arose, for example, as to whether the double requirement only applied to erga omnes agreements which were applicable to all parties, and might not therefore cover collective agreements that were more limited in scope, so that these collective agreements would not be applicable to all the parties. Moreover, this particular issue was not covered by Article 4 of the Convention and the Employer members recalled that it was important to stay within the provisions of the Convention in interpretations of it.

The final point raised by the Committee of Experts concerned the powers of employers to introduce changes in working conditions. The Government had indicated that such changes were subject to three criteria of reasonableness. However, in the view of the Committee of Experts, these safeguards were not adequate and the practice was contrary to the principles of collective bargaining. The Employer members found this to be a somewhat surprising conclusion, particularly in view of the different traditions of collective bargaining in the various countries. For example, in certain States with a long tradition of collective bargaining, collective agreements could have effects at different levels, such as being assimilated to legal provisions, having a contractual effect or merely having the status of recommendations. The situation differed widely in the various countries and it was therefore unproductive to speculate on the effects that a collective agreement might or should have. This was another matter on which no firm provisions were contained in Article 4 of the Convention.

Finally, the Employer members noted the reference by the Government representative to a new bill that was shortly to be enacted. They therefore called on the Government to transmit the new legislation to the Committee of Experts for its consideration once it had been adopted.

The Worker members recalled the different points raised by the Committee of Experts in its last observation. Concerning the implementation of Articles 1 and 2 of the Committee of Experts, the Worker members noted with satisfaction that the Government had taken measures to remedy the absence of protection and of sufficiently effective and dissuasive sanctions against anti-union discrimination, especially at the time of taking up employment and in the event of prejudicial acts against workers and trade union leaders. They nevertheless regretted that the law did not provide sanctions against acts of interference by employers and asked the Government to remedy this situation quickly taking into account the international standards to which it had subscribed. The Worker members supported the request of the Committee of Experts and the Committee on Freedom of Association relative to the excessively slow judicial procedures with a view to guaranteeing adequate protection for workers and their organizations against discrimination. Concerning the application of Article 4, the Worker members recalled the recommendations made by the Committee on Freedom of Association in Case No. 1906 in which it had requested, just like the Committee of Experts, the elimination of the double requirement so that the parties were able to determine freely the level at which they wished to negotiate. In this respect, the Worker members insisted that the right of organizations to collective bargaining be clearly established in case their representation rate did not reach 50 per cent. The Worker members asked the Government to urgently take all necessary measures to abrogate the provisions which enabled employers to modify unilaterally the content of collective agreements. These provisions in fact flagrantly contradicted the principles of the Convention. They expressed the hope that the new Government would take account of their requests as well as those of the Committee of Experts relative to the non-conformity of some provisions of the new draft bill of 31 July 2000 and that the next Government report would allow an ascertainment not only of the good will of the Government but also of the real progress made in bringing in conformity with the Convention the national legislation and practice in the area of collective bargaining.

The Worker member of Peru said that there had been major changes in his country with the return to democracy after ten years of a dictatorship which had introduced a free market economic model and a labour flexibility which had resulted in total deregulation of labour relations. The interim transitional Government had been playing an important role in the task of democratization. He highlighted the constructive participation of the current Minister of Labour who had convened the National Labour Council in a major project to develop social dialogue and consultation. He indicated the importance of the Inspections Act and the Minimum Age Act and the Collective Relations Bill. However, although there had been a degree of progress, and the Government should be commended on that account, there was still much to be done. Workers were constantly threatened by the possibility of "arbitrary dismissal", as it was called in Legislative Decree No. 7290, which had resulted in the last ten years in over 1.5 million workers losing their jobs. Workers subcontracted through service companies and cooperatives and workers in youth vocational training or work experience programmes were not allowed to form trade unions. Trade unions in the public sector, which comprised over 600,000 workers, and were very active in practice, were not recognized. Collective bargaining had fallen to one-quarter over the last ten years. In sectors such as civil engineering, banking and mining, inter alia, there had been no collective agreements for over six years. The working day had been totally altered, based on the fact that the Act referred to a 48-hour working week but did not specify that it must be eight hours a day, so that many companies required their workers to work for over 12 hours a day. The new Peruvian Government should, therefore, continue to be urged to comply fully with the ILO Conventions in order to restore trampled labour rights.

The Worker member of the United States pointed out that while the report of the Committee of Experts had identified some of the discrepancies between national legislation and the Convention, he wished to complete this report by describing the general, chronic and systemic violations of the Convention in Peru's labour law regime. The Committee of Experts had noted that Act No. 27270 of May 2000 had incorporated provisions prohibiting discrimination in the Penal Code. However, it had also noted that there was no mechanism to remedy acts of interference by employers in trade union organizations, as guaranteed by Article 2 of the Convention. The labour law still failed to deal with anti-union discrimination at recruitment. Moreover, the 1995 Employment Promotion Act allowed employers to alter limited financial compensation in lieu of both reinstatement and back pay to the victims of anti-union dismissals. Privatization had been used as an effective tool to carry out acts of anti-union discrimination. In the process of privatizing the telecommunications and railway industries in 1999, workers had been dismissed from their employment and offered jobs in newly created subsidiaries with different conditions of employment, lower pay and no union representation. Moreover, they had been told to wait three months before they could join a union. They also needed to attain one year seniority in the new company before being able to participate directly in collective bargaining and the absolute majority requirement for both workers and enterprises in order to create industrial-sectorial union and bargaining structures is prohibitive, clashing with Convention No. 98. Finally, Peruvian law permitted employers to introduce unilateral changes in hours and other terms and conditions of employment. The premise of the Government's argument was that if the matter was not dealt with by a collective agreement, then the employer was legally entitled to unilaterally alter any individual employee's employment conditions. Moreover, the employer was legally allowed to unilaterally alter terms and conditions of employment of individual employees in a first collective contract bargaining situation without having reached an impasse. Moreover, the speaker had been informed by his colleagues from the Peruvian labour movement that the threat of arbitrary dismissal empowered employers to make these unilateral changes with impunity. The provisions of section 1 of the Convention are also undermined by the application of the secret ballot requirement for strike votes. A full list of the workers who attend the meetings in which the secret ballots are taken are submitted to management. Moreover, Peruvian labour law continues to harbour an overly broad definition of the essential services prohibition on strike action, collective action which is the device workers have to guarantee respect for the Convention. Hence, this Committee needed to continue to monitor the application of Convention No. 98 in Peru.

The Worker member of Brazil said that in the last ten years, during which Peru had been the subject of observations by the Committee of Experts, there had been numerous violations of human rights in general and freedom of association in particular. Trade union legislation in Peru clearly had authoritarian aims and placed trade unions in a constant position of insecurity. Referring to the right to strike, he indicated that the right to strike was severely restricted by the law, taking into account the requirement for a secret ballot imposed by it. He recalled that the Committee of Experts had indicated for years that the requirement for an absolute majority of workers and companies in order to conclude collective agreements (articles 9 and 46 of the Industrial Relations Act) was contrary to Article 4 of the Convention. That requirement was excessive and clearly designed to inhibit free negotiations between trade unions and employers. Collective agreements were nothing more than a legal fiction in Peru. In fact, the law allowed an employer to unilaterally alter what had been agreed with a trade union, which amounted to a clear attack on the trade union's good faith and the exercise of collective autonomy. The judicial procedures protecting against acts of anti-union discrimination, set out in the 1992 Act, were excessively slow and ineffective. In that regard the Committee of Experts had recommended amendments to ensure the effective application of Articles 1 and 2 of the Convention. Legal protection of trade union activity without an expeditious judicial process was worthless in practice. Finally, he supported the proposal by the spokesperson for the Worker members and suggested that the Committee's conclusions should be emphatic so that they were clearly heard, not only by the present Government, but by the future President of Peru.

The Government representative took note of the discussion that had taken place and the interesting and constructive views that had been expressed by the various groups. He would give a full report to his Government and it would be taken into consideration in fulfilling the Convention. As indicated by some of the workers, the present Government had taken significant steps towards the reconstruction of democracy. He highlighted the importance of the National Labour Council which was a guarantee of social dialogue and was regarded as an essential factor for change in labour issues. He pointed out that he could not guarantee what the new Government, which would take office shortly, would do, but he was confident that it would continue to strengthen social dialogue.

The Worker members underlined that the Government should make the necessary modifications to the bill of 31 July 2000 so that the right to collective bargaining could be exercised in law and practice in conformity with the Convention.

The Committee took note of the oral information supplied by the Government representative and the subsequent debate. The Committee underlined its concern that the Committee of Experts and the Committee on Freedom of Association had found serious discrepancies between national legislation and practice and the Convention with respect to: inadequate protection against interference in trade union affairs, delays in judicial proceedings relating to acts of anti-union discrimination or interference, and restrictions on collective bargaining both in the private and public sectors. Nevertheless, the committee welcomed Act No. 27270 which reinforced protection against acts of anti-union discrimination. The Committee noted the Government's statements that it had drafted a bill which would cover those issues and which would be discussed with the social partners. The Committee urged the Government to take all necessary measures, as soon as possible, to bring national legislation and practice into full conformity with the provisions and requirements of the Convention, following consultation with the employers' and workers' organizations. The Committee expressed the firm hope that in the very near future, it would be in a position to observe real progress in the application of the Convention. The Committee requested the Government to submit a detailed report to be examined at the next meeting of the Committee of Experts for the purpose of evaluating developments.

Individual Case (CAS) - Discussion: 1991, Publication: 78th ILC session (1991)

See under Convention No. 87, as follows:

A Government representative said that freedom of association and the right to collective bargaining were respected in his country. Presidential Decree No. 076-90-TR of 19 December 1990 had simplified the procedures for constituting federations of confederations (requiring, respectively, two basic trade unions and two federations) and the registration of trade unions (requiring an oath by members of the constitutive assembly of trade union organisations). The right to organise and the right to strike were accorded to public servants by the Constitution. The prohibition of re-electing trade union officers for the trade unions of public servants immediately after the end of their term of office aimed to democratise trade unions and that prohibition was accepted by those trade unions and included in their constitutions. The prohibition of the affiliation of federations and confederations of public servants to organisations which covered other categories of workers followed from the fact that public servants were not subject to the same regulations as workers in the private sector and, consequently, different mechanisms were employed to solve labour conflicts.

Concerning Convention No. 98, the Government representative said that Presidential Decree No. 017-82-TR (which, under conditions of economic emergency, empowered the Government to intervene in collective bargaining in various sectors of the economy) was a temporary emergency Decree which aimed to contain the galloping inflation rife in the country. That text was no longer in force and the social partners now had the right to freely engage in collective bargaining. Furthermore, when that Decree had been in force, the Governement had only intervened in collective bargaining when the organisations of workers and employers had not been able to reach agreement. In conclusion, the Government representative noted that his country was on the point of resolving the problems mentioned by the Committee of Experts.

The Workers' members referred to two aspects of the Presidential Decree No. 003-82-PCM which the Committee of Experts had rightly pointed out were in conflict with Convention No. 87. The first prohibited the re-election of trade union officers for the trade unions of public servants immediately after the end of their term of office. As the Committee of Experts had said, if a trade union wished to adopt a statute of that nature it was perfectly entitled to do so, but it was not for the Government to lay it down in law. The Government representative had argued that the law had been introduced in order to democratise the public service; it was a strange form of the democratic process to prevent a second term in office. Last year, the Government representative had indicated that the law was about to be amended. Nothing had been heard about any change in the law on that point, and the comments he had made merely repeated earlier remarks to the Committee of Experts. The second point concerned the right of public service unions to join federations and confederations which included unions outside the public service. Every trade union should be entitled freely to join a federation or confederation of its own choice, as the Committee of Experts had correctly stated. A repetition of earlier remarks about the existence of several confederations in Peru was beside the point. The Government representative should infom the Committee whether his Governement was prepared to make the changes necessary to bring the law into conformity the Convention No. 87. Referring to Convention No.98, the Governement representative had told the Committee that, because of the difficulties in his country, his Government had used emergency powers compatible with the Convention to exercise some control over collective bargaining. As the Committee of Experts had pointed out, those emergency powers were not intended to extend beyond a reasonable period. While the situation was not entirely clear, it appeared that emergency measures had been in force since 1982; nine years of an emergency was too long a time to be considered a true emergency situation in the understanding of the Committee of Experts. Indeed, the Committee of Experts had further stated that, if such a situation existed, there should be clear tripartite consultation in the country concerned; that had evidently not taken place in Peru. Last year, attention had been drawn to the difficulties faced by trade unions in Peru. There were frequent reports of trade union leaders being imprisoned and subjected to torture. In most cases, those people were released for lack of evidence but they remained in poor physical condition as a result of injuries consistent with having been tortured. Last year, following a reference to a couple of individual cases, the Government representative of Peru had said that all was well in his country and that any violations would be investigated. There was no mention in the report of such judicial investigations. Indeed, Amnesty International had pointed out recently that the United Nations Working Group on Enforced Disappearances had identified a paralysis of the institutions supposed to protect human rights. The Workers' members had the names of trade unionists who had disappeard, who had been taken by the army and never heard of again; those names could be communicated to the Government representative. Those who were tortured and subsequently released were threatened with immediate reimprisonment if they appealed to anybody whatsoever. Such matters were highly relevant to Convention No. 87. The Workers' members hoped that the Government representative would respond to the points that they had raised.

The Employers' members welcomed the fact that some progress had been made since last year, as was evident from the report of the Committee of Experts concerning Convention No. 87, particularly the possibility of pluralism for trade unions. Important problems, however, remained. They agreed with the Workers' members that the State had no business in interfering with the internal affairs of trade unions and employers' organisations. Only if such associations engaged in external activities could it sometimes be argued that the State should act in the interests of the general public. The law ought to be changed soon and the Government representative of Peru should be invited to inform the Committee whether specific amendments were planned. The question of affiliation of federations and confederations of public servants was another instance of internal trade union affairs; here again, the Government had no business to intervene. Furthermore, the requirement that over 50 per cent of workers were needed to establish a trade union was certainly not satisfactory. There was some confusion about the legislation actually in force and the matter required clarification. In any event, the present situation was unsatisfactory. A commitment had been made to change the requirement to belong to an enterprise in order to hold trade union office; undoubtedly, that obstacle to the right of workers to elect their representatives in full freedom would be eliminated in future. The question of the delimitation between trade unions and political activities was complex. It was nevertheless certain that trade union organisations should have the possibility of expressing their opinions on "political" issues but that if a trade union became a political organisation it should not enjoy trade union privileges. Referring to Convention No. 98, he stressed that the emergency provision should be applied reasonably, whereas in Peru the necessary consultation with the social partners had not taken place. The Government representative of Peru had stated that the related legislation was no longer being applied; the matter would be settled when the decree in question had been repealed. Perhaps the Government representative of Peru could clarify the steps that were going to be taken to bring his country's legislation in line with Conventions Nos. 87 and 98.

The Workers' member of Tunisia noted that the statement by the Government representative confirmed that the Government of Peru continued to violate Convention No. 87. Government interference in trade union statutes, trade union elections and the affiliation of workers and their organisations should be stopped.

The Workers' member of the United States indicated that the Committee of Experts, in commenting on Convention No. 98, had endorsed the observations of the Committee on Freedom of Association concerning a recent complaint about restrictions placed on collective negotiations. Consequently, the Government representative should state clearly whether Decree No.017-82-TR was no longer applied, as he had said, or whether it had been repealed.

The Government representative made it clear that "democratisation" aimed to ensure that trade union officials responded to the needs of workers and did not embed themselves in trade unions, and it was normal for trade union officials from the public and private sectors not to participate in the same trade union governing bodies. Mention had been made of disappearances, detention and torture; they were often caused by subversive movements acting in the country which, sometimes under cover of trade union activities (strikes, demonstrations), committed serious acts of violence against people and attacks against property, through certain trade union officials and people infiltrated into trade unions. It should not be forgotten that the forces operating in the country were not only the forces of order but also terrorist forces. Legal procedures had been started but some elements were still missing to bring them to a conclusion. Concerning the Decree on the state of emergency which restricted collective bargaining, the Government representative repeated that the Decree was temporary and had only been in force since December 1990. Finally, he indicated that he would communicate to the competent authorities the wish expressed by the Workers' members that legislation be adopted providing, for example, that trade unions of public servants could be affiliated to a national federation.

The Workers' member of Peru associated himself with the complaint that his organisation, along with other organisations, had made concerning the restrictions imposed on collective bargaining by Presidential Decree No. 017-82-TR, taking into account the huge difficulties that faced workers in Peru.

The Committee took note of the information provided by the Government and the debate that had taken place within the Committee. While taking note with interest of the legislative changes that had taken place in 1990 to simplify the registration of trade unions, allow for the possibility of trade union pluralism and accord independent workers the right to form trade unions, the Committee recalled the conclusions of the Committee of Experts concerning the persisting difference between practice and legislation, on one hand, and the requirements of the two Conventions Nos. 87 and 98, on the other. The Committee expressed the hope that the questions concerning the trade union rights of public servants, the right of workers to freely elect their representatives and the right of trade unions freely to organise their activities would be re-examined in the near future in order to bring legislation into conformity with Convention No. 87. While aware of the economic and financial situation of the country, the Committee recalled the importance of the principle of free collective bargaining established by Convention No. 98 and the need for any policy of economic stabilisation to be the fruit of cooperation not constraint. The Committee requested the Government to take a position on the questions posed by the Committee of Experts and by the present Committee itself, and to present a report on that subject to the Committee of Experts as soon as possible. The Committee expressed the hope that, in the near future, it would be in a position to see that further progress had been made.

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

The Committee notes the observations of the Autonomous Workers’ Confederation of Peru (CATP), the International Trade Union Confederation (ITUC) and the Coordination of Trade Union Confederations of Peru (which groups together the General Confederation of Workers of Peru (CGTP), the Single Confederation of Workers of Peru (CUT-Peru), the CATP and the Confederation of Workers of Peru (CTP)), and the National Confederation of Private Business Institutions (CONFIEP), received on 1 September 2022, which relate to matters examined by the Committee in the present comment. The Committee notes the Government’s response to all these observations. It also notes the Government’s response to the CATP’s observations of 2018.

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

• –indicates that the protection of trade union rights also includes delegates of trade union chapters and the leaders of unions, federations and confederations, or representatives nominated by the latter, and the parties may agree through a collective agreement to extend the protection of trade union rights to other workers or increase their period of protection. Trade union representatives on social dialogue bodies are also covered by the protection of trade union rights (section 12).
• –includes section 23-A specifying the scope of the judicial dissolution of a trade union due to the loss of the minimum number of members, with the indication that, for the calculation of the number of members, unionized workers who have been dismissed or whose dismissal has not yet been approved by the courts or who have denounced acts of anti-union discrimination to the labour inspection services are still taken into account.
• –indicates that employers are not empowered to extend unilaterally the effects of the collective agreement to workers not covered by its scope of application (section 28).
• –provides that, in the event of the dissolution of the trade union, the operative clauses of the collective agreement shall continue to apply (section 30).
• –introduces section 33-A into the Regulations of the LRCT, with the indication that in the event of disagreement on the level of collective bargaining, alternative dispute resolution machinery may be used.
• –specifies the scope of the right to information of trade unions for collective bargaining, and establishes the minimum level of information that shall be provided and the period within which the employer shall provide it (section 38).
• –introduces section 40-A, setting out the minimum content of the requirement to negotiate in good faith provided for in section 54 of the LRCT.
• –amends section 59 of the Regulations, to provide that a judicial appeal against an arbitration award does not suspend its application, unless so decided by the courts.
• –amends section 61-A of the Regulations on the conditions governing compulsory arbitration.

The Committee notes that the trade union confederations consider that the Decree can contribute to mitigating the serious situation with regard to trade union rights. The Committee notes that the CONFIEP: (i) indicates that the Decree should have been referred for consultation to 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 amendments to the Regulations of the LRCT will have an impact on labour relations between workers and employers. The CONFIEP indicates that “the list of information that shall be provided by the employer affects the protection of the personal data of workers; that collective bargaining by branch of activity is being promoted (required): trade unions are exclusively able to seek compulsory arbitration and it is provided that employers may not unilaterally extend the effects of the collective agreement to workers not included within its scope of application, thereby necessarily promoting trade union membership”.

The Committee notes the Government’s indication that, far from affecting the balance of industrial relations between employers and workers, the Presidential Decree has its origins in the observation of the worrying current situation of freedom of association in the country. The Government emphasizes that, in 2021, the unionization rate at the national level was a mere 5 per cent and that 4.42 per cent of workers in the formal private sector were covered by collective bargaining that year. The Government adds that in 2021, only 429 lists of claims were put forward, thereby maintaining the tendency for their number to decrease which commenced in the 1990s. The Government indicates that the number of claims that were resolved fell from 1,762 in 1990 to 186 in 2021. The Government further indicates that, although in May 2022 the CNTPE, with its tripartite composition, agreed to formulate a statement reaffirming and calling for the strengthening of social and labour dialogue, in July 2022 the employers’ organizations indicated that they were suspending their participation in the CNTPE claiming that the approval of the statement had been prevented by the adoption of Presidential Decree No. 014-2022-TR. Recalling the crucial importance of social dialogue and consultations with employers’ and workers’ organizations for the preparation and formulation of legislation on collective labour relations, the Committee firmly hopes that the Government will ensure that substantive tripartite consultations are held on legislative initiatives of this type. The Committee also hopes that any concerns relating to the Presidential Decree will be duly examined within the framework of tripartite social dialogue in the CNTPE and that any obstacles preventing the functioning of that body will be resolved rapidly. It requests the Government to provide information in this regard.

Article 1 of the Convention. Adequate protection against anti-union discrimination. The Committee previously observed with concern that, despite the implementation of the Act on Labour Procedure of 2010, the duration of court proceedings relating to infringements of trade union rights had increased considerably, and it requested the Government to take measures to ensure that such proceedings are carried out swiftly and to provide information on their duration, and on the penalties imposed in cases of anti-union discrimination. The Committee notes with regret that the Government has not provided information on the duration of such proceedings and observes the claims by the trade union confederations that: (i) the Act on Labour Procedure is still not given effect throughout the national territory and the duration of labour proceedings continues to be very long, particularly when rulings are appealed, which is a strategy that is often used by employers; and (ii) complaints against trade union representatives are a recurrent anti-union practice which create a climate of intimidation, as there is no appropriate administrative or judicial mechanism that protects members and leaders against anti-union practices.

The Committee notes that, according to the Government’s report, during the period between 2017 and 2021, the National Superintendence of Labour Inspection (SUNAFIL) generated 2,886 inspection orders in relation to complaints concerning collective agreements and trade union membership and resolved 2,350 of them, with 964 resulting in a violation report and 1386 in a report. In this regard, the trade union confederations indicate that this information does not reveal the extent to which inspections identified violations of trade union rights in the inspection orders issued, whether they have the result of the effective restoration of trade union rights and whether the penalties were executed. They add that issues relating to trade union rights account for fewer than 2 per cent of all the matters on which inspections are carried out over a year and that in March 2021 the Labour Inspection Court of the SUNAFIL started to be operational, with the function of resolving appeals for the review of punishment procedures and that it is issuing decisions that do not contribute to the protection of trade union rights.

The Committee also observes that Presidential Decree No. 014-2022-TR provides that trade union protection also covers the delegates of trade union chapters and the leaders of unions, federations and confederations, or representatives nominated by them and that the parties may agree through collective agreements to extend the right to trade union protection to other workers or increase the duration of protection and include within such protection trade union representatives on social dialogue bodies. The Presidential Decree also provides that, for the calculation of the minimum number of members, unionized workers whose dismissals have not yet been confirmed by the courts or who have submitted complaints of anti-union acts to the labour inspection services will continue to be taken into account. The Committee notes the Government’s indication that this prevents the use of unjustified anti-union dismissals as a strategy for persecuting trade union leaders and dissolving trade unions. The Government adds that a proposed preliminary draft of the Labour Code, prepared at the beginning of 2022 by the Ministry of Labour and Employment Promotion and shared through the CNTPE, adopts the same approach as the Presidential Decree. The Committee takes due note of this information, and particularly the aspects of Presidential Decree No. 014-2022-TR that are intended to reinforce protection against acts of anti-union discrimination. The Committee once again requests the Government to provide information on the length of labour proceedings relating to infringements of the right to freedom of association and collective bargaining and to take the necessary measures to ensure that they are carried out swiftly. It also requests the Government to provide detailed and updated information on the penalties imposed in cases of anti-union discrimination and any action adopted in this regard. Recalling that the labour inspection services contribute to ensuring the application of the Convention, the Committee requests the Government to take the necessary measures for the concerns set out above to be duly examined through social dialogue in the CNTPE, which should also assess the effectiveness of the system of protection against acts of anti-union discrimination and the impact of the application of Presidential Decree No. 014-2022-TR in this regard. The Committee requests the Government to report on these discussions and their outcome. The Committee also requests the Government to keep providing information about any progress made with regard to the preliminary draft of the Labour Code.

Workers with fixed-term contracts in the private sector. The Committee previously requested the Government to provide information on any measures taken by the labour inspection services to ensure the effective protection of workers with fixed-term contracts against the potential non-renewal of their contracts for anti-union reasons. It also invited the Government to use the tripartite forum of the CNTPE to examine this issue and the possibility of amending the provisions of the Act on the Promotion of Non-Traditional Exports, which allow for the recurrent use of short-term contracts. The Committee notes the Government’s indication that the proposed preliminary draft of the Labour Code seeks to harmonize the labour legislation and reduce the use of fixed-term contracts and that it proposes the possibility of concluding contracts of different types with the same worker, provided that in total they do not exceed a maximum period of two years. The Committee observes the indication by the trade union confederations that: (i) the non-renewal of contracts tends to be used as a reprisal for trade union membership and engagement in trade union activities; (ii) in the area covered by the Act on the Promotion of Non-Traditional Exports, contracts can be renewed without any limits; (iii) in 2021, 91.2 per cent of new contracts in the country were for fixed-term jobs; and (iv) the legislation does not provide any type of protection for workers against the failure to renew temporary contracts as a reprisal against union membership and engagement in union activities. The Committee recalls that, when examining cases relating to this issue (in particular Cases Nos 3065, 3066 and 3170), the Committee on Freedom of Association has recalled that fixed-term employment contracts should not be used deliberately for anti-union purposes and that in certain circumstances the employment of workers with the successive renewal of fixed-term contracts for several years can be an obstacle to the exercise of trade union rights. Taking into account the indications relating to the high percentage of fixed-term contracts and the concerns expressed above, the Committee requests the Government to submit the issue of the protection of workers with fixed-term contracts against anti-union discrimination for thorough tripartite consultation in the CNTPE with a view to the identification of specific measures in this regard. Recalling that in the cases examined by the Committee on Freedom of Association, the Government referred to the possibility of revising the provisions of the Act on the Promotion of Non-Traditional Exports which allow the recurrent use of short-term contracts, the Committee once again invites the Government to include this issue in tripartite consultations and the current process of reforming the labour legislation. The Committee requests the Government to provide information on these discussions and their outcome.

Workers with fixed-term contracts in the public sector. Having noted the allegations of the mass dismissal of workers employed under administrative service contracts, the Committee previously requested the Government to engage in dialogue with public sector trade unions on the subject of the protection of these workers against anti-union discrimination. The Committee notes the information provided by the Government that: (i) Act No. 31131 containing provisions to eradicate discrimination in public sector scheme, published on 9 March 2021, prohibits administrative service contracts and provides that workers covered by such contracts are to be engaged under the system set out in Legislative Decree No. 728 (the Labour Productivity and Competitivity Act) and Legislative Decree No. 276 (the Basic Act on the administrative career and remuneration in the public sector); (ii) workers recruited as from 10 December 2021 who were covered by administrative service contracts benefit from permanent contracts, on condition that they have participated in a public competition for a permanent position, although personnel may be engaged under administrative service contracts for a fixed period if they are engaged as replacements or in transitional positions; and (iii) there are various unions covering this group of workers and public employees covered by administrative service contracts were represented in the negotiations relating to Act No. 31188. The Committee observes the indication by the trade union confederations that: (i) although Act No. 31131 establishes that administrative service contracts are for an indefinite period, a new form of temporary and irregular contract is being increasingly used known as third party contracts; and (ii) in 2020, over 127,000 persons were engaged through the hiring of services and in the majority of cases these were labour relations covered by apparent third party contracts under which the workers could not exercise their trade union rights as the reprisal would be the non-renewal of their contracts. While welcoming the legislative measures adopted in relation to administrative service contracts, and noting the concerns expressed above, the Committee requests the Government to submit the issue of protection against anti-union discrimination of workers who do not have permanent contracts for thorough consultation with the representative trade unions in the public sector. It requests the Government to report on these discussions and their outcome.

Article 4. Promotion of collective bargaining. Workers in training schemes. In its previous comment, the Committee noted that the Government was engaged in the adoption of an Act on specific public sector pre-vocational and vocational practices and that it was revising the content of Act No. 28518 with a view to explicitly recognizing the right to collective bargaining of workers in training schemes. The Committee notes the Government’s indication that the preliminary draft text of the Labour Code prepared by the Ministry of Labour and Employment Promotion defines vocational training schemes in section 75 as special types of labour contracts, thereby recognizing them as labour contracts, which presupposes the possibility for workers engaged in vocational training schemes to have the right to establish trade unions and engage in collective bargaining. The Committee observes the indication by the trade union confederations that: (i) up to now, no initiative has been seen to amend Act No. 28518; (ii) the general recognition in the Constitution of trade union rights does not on its own entitle persons covered by training schemes to exercise such rights; and (iii) section 76 of the preliminary draft text referred to above provides that labour training schemes are not subject to general labour regulations, or in other words the preliminary draft maintains the approach adopted in the current legislation of not explicitly recognizing the trade union rights of workers in training schemes. The Committee hopes that the preliminary draft text of the Labour Code will be the subject of thorough tripartite consultation and that, within the context of this dialogue process consideration will also be given to the revision of the legislation to give explicit recognition to the collective rights of workers in training schemes. The Committee requests the Government to report any progress in this regard.

Promotion of collective bargaining at all levels. The Committee recalls that the issue of the right of the parties to determine freely the level of negotiation has been the subject of its attention for many years and has given rise to a series of cases before the Committee on Freedom of Association. The Committee observed previously that, under the terms of section 45 of the LRCT, in the event of disagreement between the parties and where a collective agreement does not exist, the legislation gave precedence to negotiation at the enterprise level, and it requested the Government to engage in consultations with the representative organizations of workers and employers on the amendments necessary to ensure that the level of collective bargaining and the mechanism for the settlement of disputes relating to the level at which collective bargaining must take place are determined freely by the parties concerned. The Committee notes with interest the indication by the Government that Act No. 31110 on the Agricultural Labour System and Incentives for the Agricultural and Irrigation Sector, Agricultural Exports and Agro-Industry, which entered into force on 1 January 2021, removed that last indent of the first paragraph of section 45 of the Regulations of the LRCT, which provided that, in the absence of agreement on the level of negotiation, it would take place at the enterprise level. The Committee observes that the amended version of section 45 provides that, in the event of disagreement concerning the level of negotiation, the matter shall be resolved through the use of alternative dispute resolution machinery. The Committee notes the indication by the trade union confederations that the second subsection of section 45 has not been amended and that it provides that, once the level of negotiation has been determined, it may only be changed with the agreement of the parties, with no alternative machinery being envisaged to resolve any disagreement concerning the modification of the level of negotiation. The trade union confederations understand this as impeding collective bargaining at levels other than the enterprise level. The Committee notes the Government’s clarification that the amendment covers both the first and second subsections of section 45, which means that, in the event of disagreement on the level of bargaining, either in relation to new collective bargaining or if there is already an agreement at some level, the disagreement may be resolved through the use of alternative dispute resolution machinery. The Committee requests the Government to provide information on the impact of the amendment to section 45 of the Regulations of the LRCT on collective bargaining. The Committee hopes that the Government will ensure that the autonomy of the parties prevails in the determination of the level of bargaining.

The Committee also observes that Act No. 31110 promotes in the agricultural and agricultural export sector the collective right to collective bargaining, particularly at levels higher than the enterprise level, as workers in agriculture and agricultural exports experience difficulties in the effective exercise of this right due to the discontinuous and seasonal nature of their activities (section 8). Recalling the need to guarantee that collective bargaining can be carried out at any level, whether at the level of the enterprise, multiple-enterprises, the sectoral or national level, and noting the statistical data provided by the Government, as referred to above, according to which there is very low coverage of collective bargaining in the country, the Committee notes with interest that legislative measures have also been adopted to promote collective bargaining at levels higher than the enterprise level. The Committee requests the Government to report the specific measures taken to promote collective bargaining at all levels, including higher than the enterprise level, and to provide information on the results.

Recourse to arbitration (arbitaje potestativo) in the event of disagreement on the level of bargaining and in relation to other situations. The Committee observed in previous comments that the LRCT and its Regulations provide for the possibility for any of the parties to collective bargaining to have recourse to arbitration (arbitraje potestativo) in the event that: (i) during a first negotiation, agreement is not reached on its level or content (where at least six direct negotiation or conciliation meetings have been held and three months have elapsed since the beginning of the negotiations); or (ii) where during the course of bargaining acts of bad faith are noted which have the effect of delaying, hindering or preventing the achievement of agreement. The Committee observes that Presidential Decree No. 014-2022-TR introduces certain amendments to the Regulations concerning the possibility of having recourse to arbitration (arbitraje potestativo): (i) it provides that this possibility is only available to workers’ representatives; (ii) the conditions for initiating arbitration (arbitraje potestativo) in the first circumstances envisaged by the Regulations (a first negotiation, in which the parties do not reach agreement on the level or content of the negotiations) are not cumulative, but rather alternatives (since at least six direct negotiation or conciliation meetings must have been held, or three months must have elapsed since the beginning of the negotiations); and (iii) in relation to point (i), it is specified that the acts of bad faith in the negotiations which may give access to arbitration (arbitraje potestativo) are those committed by the employer.

The Committee notes the indication by CONFIEP that the Presidential Decree exclusively allows workers’ organizations to request compulsory arbitration and omits the principal option of arbitration that is voluntary for the parties. The CONFIEP considers that establishing the compulsory nature of arbitration has the result of collective bargaining processes becoming a formal step, as there is an incentive to go to arbitration (arbitraje potestativo) so that the arbitration board awards better economic benefits to the workers, without giving importance to the fact that in some cases the financial situation of the enterprise would not permit this. The Committee notes the Government’s indication in this respect that: (i) section 62 of the LRCT provides that workers may either call a strike or have recourse to arbitration; and (ii) arbitration (arbitraje potestativo) when initiated by the employer runs the potential risk of affecting the right to strike, as there could be situations in which strikes called by workers and arbitration (arbitraje potestativo) initiated by the employer may run in parallel, thereby undermining recourse to strike action.

The Committee recalls that it has considered that compulsory arbitration is only acceptable in certain specific circumstances, namely: (i) in essential services in the strict sense of the term, that is those the interruption of which would endanger the life, personal safety or health of the whole or part of the population; (ii) in the case of disputes in the public service involving public servants engaged in the administration of the State; (iii) when, after protracted and fruitless negotiations, it becomes obvious that the deadlock will not be broken without some initiative by the authorities; or (iv) in the event of an acute crisis. The Committee also recalls that, while arbitration imposed by the authorities at the request of one party is generally contrary to the principle of the voluntary negotiation of collective agreements, it can envisage an exception in the case of provisions allowing workers’ organizations to initiate such a procedure for the conclusion of a first collective agreement. As experience shows that first collective agreements are often one of the most difficult steps in establishing sound industrial relations, these types of provisions may be considered to constitute machinery and procedures intended to promote collective bargaining (2012 General Survey on the fundamental Conventions, paragraphs 247 and 250). Observing that, in a context of the very low coverage of collective bargaining, Presidential Decree No. 014-2022-TR has made certain of the conditions more flexible for workers to be able to have recourse to arbitration, in the case of a first negotiation or where bad faith has been demonstrated by the employer, the Committee requests the Government to: (i) provide full information on the application of these new provisions so that the Committee can assess their impact on the free and voluntary nature of collective bargaining and its effective promotion; and (ii) engage in thorough dialogue with the representative social partners in the country on the application of these provisions and on any other measures envisaged in this regard.

The Committee notes that section 28 of Presidential Decree No. 014-2022-TR provides that the employer may not unilaterally extend the effects of the collective agreement to workers not covered by its scope of application. The Committee observes that the CONFIEP considers that this section is intended to punish non-unionized workers by promoting the necessity of trade union membership. The Committee notes the Government’s indication that this view disregards section 9 of the LRCT, which provides that: “In relation to collective bargaining, the union which has in its membership the absolute majority of workers in the area covered shall represent all of those workers, even if they are not members. Where several unions exist in the same area, unions which jointly have over half the workers as members may jointly represent all the workers. In such cases, the unions shall determine the manner in which they exercise such representation, either pro rata in proportion to the number of members or entrusted to one of the unions. If there is no agreement, each union shall solely represent its own members.” The Committee notes these indications. The Committee recalls that systems under which the collective agreements concluded by the representative organization only apply to the signatories and their members (and not to all workers), and the opposite practice under which all the workers in a bargaining unit are covered, are compatible with the principles of the Convention (2012 General Survey, paragraph 225). The Committee further observes that the amendment introduced by Presidential Decree No. 014-2022-TR does not appear to preclude the parties from being able to decide themselves on the extension of the effects of the collective agreement to include workers who are not members of the union that negotiated the agreement.

Articles 4 and 6. Promotion of collective bargaining. Public sector workers. The Committee previously indicated to the Government the need to revise the Civil Service Act of 2013 and all relevant legislation, so that public sector employees who are not engaged in the administration of the State can exercise their right to collectively negotiate wages and economic matters. The Committee notes the publication on 2 May 2021 of Act No. 31188 on collective bargaining in the State sector, which establishes rules for the exercise of the right to collective bargaining in the public sector and provides that bargaining may cover all types of working and employment conditions, including remuneration and other conditions of work with an economic impact, as well as any aspect respecting relations between employers and workers, and relations between employers’ and workers’ organizations. The Committee observes that the Act repeals various provisions of the Civil Service Act, including sections 42, 43 and 44, which completely excluded the determination of wages and economic matters from collective bargaining throughout the public sector. The Committee notes that, according to the information provided by the Government: (i) Presidential Decree No. 008-2022-PCM was published on 20 January 2022 approving guidance for the implementation of the Act; (ii) the Act on the budget for the public sector for the 2022 financial year admits the financial increase agreed collectively; and (iii) the Centralized Collective Agreement 2022-23 was concluded on 30 June 2022, including very important benefits for all State workers (with the exception of public servants on special career paths in health and education, who will engage in decentralized sectoral bargaining). The Committee notes with satisfaction the conclusion of the Centralized Collective Agreement. The Committee notes the indication by the workers’ confederations that, although the Act constitutes progress in the recognition and effectiveness of the economic negotiation of all types of terms and conditions of employment for public employees, difficulties have been reported in its application. The Committee requests the Government to take the necessary measures to ensure that the Act and its respective Presidential Decree are implemented in such a manner as to contribute to ensuring the full and complete exercise by trade union organizations of State workers of the rights recognized therein and set out in the Convention. It requests the Government to provide information on the impact of their application. The Committee also refers to its comments in relation to the Labour Relations (Public Service) Convention, 1978 (No. 151).

The Committee firmly hopes that the action taken by the Government to give effect to the Convention will be preceded by thorough consultations with the social partners. The Committee recalls that ILO technical assistance is available to the Government.

Observation (CEACR) - adopted 2018, published 108th ILC session (2019)

The Committee notes the observations of the Autonomous Workers’ Confederation of Peru (CATP), received by the Office on 2 September 2018, which denounce anti-union discrimination and violations of collective bargaining in practice. The Committee requests the Government to provide its comments in this regard.

The Committee notes the Government’s replies to the observations made in 2015 by the International Trade Union Confederation (ITUC) and the Single Trade Union of Workers of the Judiciary–Lima–Peru (SUTRAPOJ) concerning alleged violations of the Convention in practice.

Article 1 of the Convention. Adequate protection against acts of anti-union discrimination. Judicial proceedings. In its previous comments, the Committee requested the Government to provide information on the length of the constitutional and ordinary labour proceedings relating to infringements of the rights to freedom of association and collective bargaining, and on the penalties imposed in cases of violations of these rights. The Committee notes the Government’s indication that: (i) cases concerning infringements of the right to freedom of association are dealt with through the summary procedure provided for by the New Act on Labour Procedure; (ii) six cases concerning infringements of trade union rights were settled in 2016, 22 in 2017 and 11 in 2018 thus far; (iii) the gradual application of the New Act on Labour Procedure now covers 23 out of 35 judicial districts in the country and has led, particularly in second-level proceedings, to fewer delays in the resolution of appeals; and (iv) due to the limited allocation of resources and other factors, the length of first level labour proceedings relating to infringements of trade union rights increased from 170 days in 2016 to 379 days in 2017, and in 2018, the average duration would be 635 days. The Committee recalls that the existence of legal provisions prohibiting acts of anti-union discrimination is not enough if they are not accompanied by effective and rapid procedures to ensure their application in practice (2012 General Survey on the fundamental Conventions, paragraph 190). Observing with concern that, despite the progressive application of the New Act on Labour Procedure, the length of first-level labour procedures relating to infringements of trade union rights has increased considerably in the last three years, the Committee requests the Government to take, in consultation with the relevant authorities, the necessary measures to reduce the duration of such procedures and ensure that cases are settled swiftly. The Committee requests the Government to provide information on any developments in this regard, and to continue providing information on the length of labour procedures regarding infringements of the right to freedom of association and collective bargaining, including ordinary, constitutional and second-level proceedings. The Committee also once again requests the Government to provide information on the penalties imposed in cases of anti-union discrimination.

Workers with fixed-term contracts in the private sector. In its previous comments, noting the observations of the ITUC and the existence of several Committee on Freedom of Association cases on this issue, the Committee requested the Government to engage in dialogue with the workers’ and employers’ organizations concerned on the subject of protection against anti union discrimination against workers under fixed-term contracts and to report on the outcome. The Committee notes the Government’s reply, according to which: (i) the General Labour Act and the New Act on Labour Procedure provide, respectively, for penalties at the administrative and judicial levels, and for faster and more effective mechanisms to facilitate compliance with legal regulations on fundamental labour rights; (ii) the National Labour and Employment Promotion Council (CNTPE), a tripartite dialogue body, was re-established on 24 July 2018, and will be assisted by a standing commission on labour in developing a Social and Labour Dialogue Agenda to address several issues, including freedom of association, collective bargaining, arbitration and strikes. The Committee notes the Government’s general indication regarding mechanisms for labour law compliance. In this regard, the Committee requests the Government to provide information on any specific measures taken by the labour inspectorate to ensure the effective protection of workers with fixed-term contracts against the potential non-renewal of their labour contracts on the basis of trade union activities. The Committee welcomes the re-establishment of the CNTPE and invites the Government to use this tripartite forum to examine the matter of protection against anti-union discrimination against workers with fixed-term contracts in the private sector. Observing that, in several cases before the Committee on Freedom of Association on this issue (in particular Cases Nos 3065 and 3170), the Government referred to the possibility of amending the provisions of the Act on the Promotion of Non-Traditional Exports, which would allow for the recurrent use of short-term recruitment, the Committee invites the Government to include this legislative aspect in tripartite consultations. The Committee requests the Government to provide information on the above discussions and their outcome.

Workers with fixed-term contracts in the public sector. In its previous comments, the Committee requested the Government to engage in dialogue with public sector trade unions on the subject of the protection against anti-union discrimination against workers under administrative service contracts and to report on the outcome. The Committee notes the Government’s indication that: (i) the ongoing reform of the civil service aims to establish a single and exclusive regime for persons providing services in state public bodies; and (ii) the administrative service contracts served as a temporary system, which is to be gradually replaced by the Civil Service Act, and that the right to freedom of association of these workers is explicitly recognized in section 6(i) of Legislative Decree No. 1057 governing the special arrangements for the administrative service contract system. The Committee further notes that, according to the CATP, the Government has engaged in the mass dismissal of workers employed under administrative service contracts. While noting that administrative service contracts will be gradually replaced and that this regime expressly provides for the right to freedom of association, the Committee once again requests the Government to engage in dialogue with public sector trade unions on the subject of the protection against anti-union discrimination against workers under administrative service contracts, and to report on the outcome.

Article 4. Promotion of collective bargaining. Workers under training schemes. In its previous comments, the Committee requested the Government to revise the relevant legislation to explicitly recognize the right of collective bargaining of workers under training schemes. In this regard, the Committee notes that the Government: (i) reiterates that, in accordance with section 3 of the Act on Labour Training Schemes (Act No. 28518), the above arrangements are not subject to the labour regulations in force, but rather to specific regulations; (ii) the purpose of the training activities is not the production of goods or services, but rather the development of the skills and capacities of the beneficiaries, who therefore cannot be considered as workers; and (iii) the Government is working towards the adoption of the Act on specific public sector pre-vocational and vocational practices, and is revising the content of Act No. 28518 with a view to amending it and incorporating the comments of the Committee. The Committee wishes to recall that under the Convention, the recognition of the right to collective bargaining is general in scope and that, in particular, it should cover apprentices (see General Survey on the fundamental Conventions, 2012, paragraph 209). The Committee emphasizes in this regard that workers under training schemes must have the right to bargain collectively the conditions of their work and employment insofar as they participate in the activity of an enterprise or public institution. While noting the future adoption of the Act on specific public sector pre-vocational and vocational practices and the revision of Act No. 28518, the Committee hopes that the Government will make the legislative changes required for the right to collective bargaining of workers under training schemes to be expressly recognized. The Committee requests the Government to provide information on any developments in this regard.

Right to freely determine the level of negotiation. The Committee recalls that the issue of the right of the parties to freely determine the level of negotiation came to its attention several years ago and has given rise to a series of cases before the Committee on Freedom of Association (338th Report, Case No. 2375, paragraph 1227; 362nd Report, Case No. 2826, paragraph 1298; 387th Report, Case No. 3170, paragraph 589). After recalling that the level of negotiation should be negotiated between the parties, the Committee noted that the amendment of section 61 of the Regulations of the Collective Labour Relations Act (LRCT) through Supreme Decree No. 014-2011-TR according to which the parties may have recourse to arbitration (arbitraje potestativo) where an agreement is not reached during the preliminary negotiations on their level, provided that the negotiations have produced no results after three months. In this regard, the Committee further notes that section 61 of the Regulations was amended again through Supreme Decree No. 09-2017-TR of 31 May 2017, by establishing that, in addition to the three months mentioned above, at least six direct negotiation or conciliation meetings must have been held before the above recourse to arbitraje potestativo is possible. The Committee of Experts nevertheless observes that section 45 of the LRCT remains in force. This section establishes that, where a collective agreement does not exist, and in the absence of an agreement on the level of the agreement, negotiations will be held at the level of the enterprise. It also provides that, where an agreement exists at some level, in order to enter into another agreement at a different level, which will replace or supplement the first agreement, it is essential for this to be agreed between the parties. Observing that, in accordance with section 45 of the LRCT, in the event of disagreement between the parties and the absence of a collective agreement, the legislation gives precedence to negotiation at the level of the enterprise, the Committee recalls that it is necessary to ensure that collective bargaining can be carried out at any level, whether at the level of the enterprise, multiple-enterprise, sectoral or national level, and that the parties must be allowed to determine this level. The Committee therefore requests the Government to engage in consultations with representative workers’ and employers’ organizations on the amendments to section 45 of the LRCT which are required to ensure that the level of collective bargaining is determined freely by the parties concerned, and on the mechanism for the settlement of disputes relating to the level at which the collective bargaining must take place. The Committee requests the Government to provide information on any developments in this regard.

Mechanisms to appoint the presidents of arbitration courts. The Committee duly notes the Government’s indication that, in the event of disagreement between the parties, the presidents of arbitration courts are designated by drawing lots. The Committee notes with interest that this mechanism applies to both the private and public sectors.

Articles 4 and 6. Promotion of collective bargaining. Public sector workers. The Committee notes that the Committee on Freedom of Association drew its attention to the legal aspects of Case No. 3160 on the restrictions on collective bargaining concerning remuneration in the public sector (Committee on Freedom of Association, 382nd Report, paragraph 518). In its previous comments, the Committee urged the Government to take, in consultation with the trade unions concerned, the necessary measures to revise the Civil Service Act of 2013 and all relevant legislation, so that public sector employees who do not work in State administration can exercise their right to collectively negotiate matters relating to wages or of economic nature. The Committee notes the Government’s indication that: (i) although the Constitutional Court declared unconstitutional the absolute restrictions on collective bargaining in the public sector that are provided for in the Civil Service Act (Cases Nos 0025-2013-PI/TC, 003-2014-PI/TC, 008 2014 PI/TC and 0017-2014-PI/TC) and in the Budgetary Acts of 2013, 2014 and 2015 (Cases Nos 0003-2014-PI/TC, 004-2013-PI/TC and 0023-2013-PI/TC), collective bargaining is a fundamental right set out in law, the specific content and scope of which are the responsibility of the legislator; (ii) the Constitutional Court has urged the Congress of the Republic to adopt rules on collective bargaining for the public sector, in the meantime applying “vacatio sententiae”, meaning that the prohibition of collective bargaining for wage increases remains valid; (iii) Act No. 30823, adopted on 19 July 2018, empowered the executive authority to legislate, inter alia, on matters of economic management, including collective bargaining in the public sector; and (iv) several bills on collective bargaining in the public sector were referred to the Congress of the Republic. In this regard, the Committee notes that, on 18 October 2018, as a result of a parliamentary initiative, the Congress of the Republic adopted an Act on Collective Bargaining in the State Sector which, as established in its section 1, aims to regulate the exercise of the right to collective bargaining of organizations of public employees in accordance with article 28 of the Political Constitution of Peru, the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and the Labour Relations (Public Service) Convention, 1978 (No. 151), as well as pursuant to its section 4, negotiable matters include remuneration and other working conditions with an economic impact. The Committee observes, however, that it has yet to receive information on the promulgation of the abovementioned Act by the President of the Republic. With regard to collective bargaining on elements of public sector workers’ remuneration, the Committee recalls, on one hand, the existence of mechanisms that allow for combining budgetary balance with the genuine exercise of collective bargaining in the sector, and, on the other hand, the importance of the compatibility of the legislative texts as a whole, including budget acts, with the Convention. While highlighting the specific obligations of the Government in accordance with Convention No. 151 with regard to the right of civil servants who work in the administration of the State to take part in the determination of their remuneration, the Committee firmly hopes that the Government will soon be in a position to provide information on the entry into force and application of a piece of legislation that will enable public sector employees who do not work in state administration to exercise their right to collectively negotiate matters relating to wages or of economic nature in conformity with the Convention. The Committee requests the Government to inform it of any progress in this regard.

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

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.

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

The Committee notes the observations of the International Trade Union Confederation (ITUC) received on 1 September 2014 and 1 September 2015, as well as the observations of the Single Trade Union of Workers of the Judiciary-Lima (SITRAPOJ) received on 11 September 2015, which contain allegations of anti-union discrimination and obstacles to the right to collective bargaining in specific public institutions and private enterprises, as well as legislative and institutional issues addressed by the Committee in its comments. While noting the Government’s general reply to the observations submitted by various trade unions in 2011 and 2012, the Committee requests the Government to provide its detailed comments on the alleged violations in practice contained in the abovementioned trade union observations of 2014 and 2015.

Article 1 of the Convention. Protection against any acts of anti-union discrimination. Workers with fixed-term contracts in the private sector. The Committee notes that the ITUC reports that workers with fixed-term contracts are especially vulnerable to discriminatory non-renewal of their contracts, and that the routine use of this contractual modality enables employers to prevent their workers from joining a trade union. Noting that this issue has been the subject of several cases before the Committee on Freedom of Association, the Committee requests the Government to engage in dialogue on the subject of protection against anti-union discrimination against workers with fixed-term contracts with the workers’ and employers’ organizations concerned and to report on the outcome.

Workers with fixed-term contracts in the public sector. The Committee notes that the ITUC states that the public workers engaged under administrative service contracts (CAS) are especially vulnerable to anti-union discrimination owing to the determined duration of their contracts. The ITUC denounces that the contracts of workers in this category who join a trade union are either terminated or not renewed. The Committee, in so far as the CAS can be used to employ public sector workers who are not engaged in the administration of the State, refers to its previous comments under the Labour Relations (Public Service) Convention, 1978 (No. 151). The Committee once again requests the Government to engage in dialogue with the public sector trade unions on the subject of the protection against anti-union discrimination against workers under CAS and to report on the outcome.

Article 4. Promotion of collective bargaining. Public sector workers. The Committee notes that the ITUC and SITRAPOJ indicate that for 20 years the annual budget legislation has prevented negotiation of the economic conditions of public sector workers and that the Civil Service Act No. 30057 of 2013 endorses that prohibition. The Committee recalls that, in its observation relating to Convention No. 151 published in 2015, it noted with concern that the public sector budget legislation for the fiscal years 2013 and 2014, and sections 42, 43 and 44(b) of the Civil Service Act of 2013 deny to the entire public sector the right to collective bargaining concerning the determination of wages or other matters of economic nature. The Committee also indicates that, in its March 2015 meeting, the Committee on Freedom of Association regretted to observe that the Government had disregarded its recommendations in previous cases, and that the applicable legislation continued to exclude from negotiation subjects relating to wages or of economic nature throughout the public sector (Case No. 3026, 374th Report, paragraph 666).

The Committee also observes that, in a ruling of 3 September 2015 (Cases Nos 0003-2013-PUTC, 0004-2013-PI/FC and 0023-2013-PUTC), the Constitutional Court of Peru, on the basis of this Convention and Convention No. 151 and of the corresponding comments of the ILO supervisory bodies: (i) declared unconstitutional the prohibition of collective bargaining for salary rises contained in the public sector budget legislation for the years 2012–15; and (ii) called upon Congress to approve the regulation of collective bargaining in the public sector starting with the first ordinary term of 2016–17. While it welcomes the Constitutional Court ruling, the Committee notes with renewed concern that the legislation in force continues to prohibit all collective bargaining on subjects of economic nature throughout the public sector. Without prejudice to the specific obligations of the Government under Convention No. 151 with respect to the right of public employees engaged in the administration of the State to participate in the determination of their remuneration, the Committee urges the Government to, in consultation with the trade unions concerned, take the necessary measures to revise the Civil Service Act of 2013 and all relevant legislation so that public sector workers who do not work in state administration can exercise their right to collectively negotiate matters relating to wages or of economic nature in conformity with the Convention.

Promotion of collective bargaining. Workers under training schemes. In its previous observations, the Committee had noted that neither Act No. 28518 and its Regulations nor the General Education Act recognize the right to collective bargaining of workers covered by training schemes. In this respect, the Committee notes the Government’s indication that, while the right to collective bargaining of workers under training schemes is not expressly recognized in any specific provision in national legislation, it is recognized by the Peruvian legal framework overall in so far as the Peruvian Constitution broadly recognizes the rights of association and collective bargaining, and the right to strike, and confers constitutional status on the ratified international human rights conventions, including the present Convention. While it takes due note of these elements, the Committee observes that Act No. 28518 and its Regulations provide that workers under training schemes are excluded from the scope of application of labour legislation, with the consequence that they are not covered by the collective bargaining legislation. The Committee therefore once again requests the Government to revise the relevant legislation to expressly recognize the right of collective bargaining of workers under training schemes.

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

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

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.

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

The Committee notes the Government’s reply to the comments of 3 October 2008 by the National Coordinating Committee of Contract Workers of the Ministry of Health.

It also notes the comments by: (1) the General Confederation of Workers of Peru (CGTP), the Central Confederation of Workers of Peru (CUT), the Workers’ Central Union of Peru (CTP) and the Autonomous Confederation of Peruvian Workers (CATP), dated 2 and 25 August 2010 and referring to the breach of Articles 1–4 of the Convention; and (2) the International Trade Union Confederation (ITUC) dated 24 August 2010 and referring to undue interference, anti-union practices and dismissals in the textile sector. The Committee notes the Government’s reply to these comments, received on 13 October 2010.

The Committee also notes various cases currently before the Committee on Freedom of Association.

Articles 1 and 2 of the Convention. The Committee has for several years been examining the effectiveness of the system of protection against acts of anti‑union discrimination, including the matter of the efficiency of administrative and judicial procedures. In its previous comments, it noted in this connection that section 25 of the Regulations to the General Labour Inspection Act classifies interference by the employer in the freedom of association of workers or trade unions and anti-union discrimination as very serious offences. Where such offences are noted in the course of an inspection, the applicable penalty varies from 5 per cent of 11 tax units (1,925 new soles, equivalent to US$687) and 100 per cent of 20 tax units (70,000 new soles, equivalent to US$24,995), depending on the number of workers affected. The Committee asked the Government to indicate whether the penalties set in the Regulations to the General Labour Inspection Act would continue to apply once the Act is adopted.

The Committee notes that, according to the Government, the General
Labour Inspection Act (Act No. 28806) and its Regulations (Supreme Decree No. 019-2006-TR), differ in terms of coverage from the draft General Labour Act. The General Labour Inspection Act and its Regulations cover the inspection activities of the Administrative Labour Authority, empowering the latter to monitor compliance with the social and labour provisions of laws, regulations and agreements and with contractual requirements, and observance of workers’ fundamental labour rights, thereby giving it the authority to apply administrative sanctions when an offence is noted. As regards the draft General Labour Act, the Government states that Chapter IV of the Act regulates trade union protection in order to guarantee the free exercise of trade union rights, which enable workers or trade union organizations to take judicial action if they deem their rights to have been abused or threatened. The Committee notes the Government’s statement that, even if the draft General Labour Act were to be adopted, the Administrative Labour Authority will continue, through its labour inspection system, to ensure compliance with the social and labour standards that affect the trade union rights of workers and trade unions.

As regards the length of judicial proceedings following complaints of acts of anti-union discrimination or interference, the Committee notes that a new Act on labour procedure (Act No. 29497 of 30 December 2009) has been adopted, section 2(1)(g) of which provides that it is the labour courts that hear claims relating to disputes involving a trade union and disputes between trade unions, including their dissolution. The Committee requests the Government to provide information on the impact of the new Act on the length of judicial proceedings regarding complaints of acts of anti-union discrimination or interference.

Article 3. The Committee takes note of three directives issued by the Ministry of Labour and Employment Promotion to strengthen the labour inspectorate for its work relating to trade union rights, including the rights of temporary personnel, contract workers or workers engaged under service contracts. The Committee notes with interest the Constitutional Court’s ruling of 7 September 2010 establishing that persons employed under administrative service contracts shall enjoy trade union rights.

Article 4. The Committee asks the Government to send information on the trade union rights enjoyed by workers employed under “vocational training schemes”, and particularly the right to collective bargaining of the organizations representing them. Lastly, in view of the comments submitted by various national organizations, the Committee requests the Government to send further detailed information on the manner in which collective disputes about the level of collective bargaining are settled, both in law and in practice.

Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

The Committee notes the Government’s reply to the comments from the General Confederation of Workers of Peru (CGTP) dated 23 January and 16 May 2007.

The Committee also notes the comments from the National Coordinating Committee of Subcontracted Workers of the Ministry of Health dated 3 October 2008. The Committee requests the Government to send its comments in this respect.

The Committee also notes the various cases before the Committee on Freedom of Association which refer to the matters set out below.

Articles 1 and 2 of the Convention. The Committee recalls that it has been referring for a number of years to: (1) the lack of penalties for acts of interference by employers with regard to trade union organizations; and (2) the slowness of judicial procedures for dealing with complaints of anti-union discrimination or interference. The Committee notes that the International Trade Union Confederation (ITUC) refers in its comments to anti-union dismissals in various sectors.

The Committee notes with interest that, according to the Government’s report, section 25 of the Regulations relating to the General Labour Inspection Act, approved by Supreme Decree No. 019-2006-TR, as amended by Supreme Decree No. 019-2007-TR, classifies interference by the employer in the freedom of association of the worker or trade union and anti-union discrimination as serious offences. If these offences are proven during an inspection procedure, the applicable penalty varies between 5 per cent of 11 tax units (UITs) (1,925 nuevos soles, equivalent to US$630) and 100 per cent of 20 tax units (70,000 nuevos soles, equivalent to US$22,500), depending on the number of workers affected.

The Government adds that the draft General Labour Act prohibits interference (section 332) and anti-union discrimination (sections 355 and 358). With regard to the need to expedite proceedings, the draft Act also provides that any worker or trade union organization that considers that its rights with regard to freedom of association have been violated or are under immediate threat shall have the right of action via summary proceedings (section 353). In the event of the dismissal of workers who have trade union immunity, the judge may order the suspension of the effects of the dismissal at the worker’s request; within three days the employer must demonstrate that the dismissal did not take place on anti-union grounds, and within the following two days, the judge must rule on the matter (section 356). The Committee requests the Government to indicate whether the penalties laid down in the Regulations relating to the General Labour Inspection Act will continue to apply once the General Labour Act has been adopted.

Finally, with regard to the question of the level at which collective bargaining should take place in the construction sector, the Committee observes that the Government has not sent its comments in this respect. The Committee observes that this matter was dealt with by the Committee on Freedom of Association (Case No. 2375) on the basis of a decision by the Supreme Court of Justice determining that such collective bargaining should take place at the level of the branch of activity. The Committee recalls that the level at which bargaining takes place must be the subject of negotiation between the parties.

Direct Request (CEACR) - adopted 2006, published 96th ILC session (2007)

In its observation of 2004, the Committee noted the comments of the Peruvian Workers Confederation concerning breaches of the Convention in some 20 ports where collective bargaining is banned. The Committee recalls the Government’s statement that, since the dissolution of the Maritime Labour Supervisory Commission in 1991, dock work is agreed upon freely between workers and port operators and the Ministry of Labour and Employment Promotion has 22 unions registered in the ports sector. The Committee had requested the Government to provide information on the number of collective agreements concluded in the ports sector during the period covered by the report. It reiterates that request.

Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

The Committee notes the Government’s report and the reply to the observations of 31 August 2005 and 10 August 2006 by the International Confederation of Free Trade Unions (ICFTU) referring to some legislative matters raised in the Committee’s previous observation and a number of issues pertaining to the practical effect given to the Convention, in particular anti-union dismissals of trade union leaders, the dismissal of members shortly after a union was created and pressure exerted on the members of a union. The Committee notes that, according to the Government, in most of the instances cited by the ICFTU in 2005 and 2006, the parties came to an agreement or the trade union filed complaints with the courts or administrative tribunals.

1. Articles 1 and 2 of the Convention. For several years the Committee has been referring to: (1) the lack of sanctions against acts of interference by employers in trade union organizations, and (2) the slow judicial procedures for dealing with complaints of anti-union discrimination or interference. The Committee observes that in its observations, the ICFTU refers to cases of anti-union discrimination and of interference by employers in union affairs. It notes that, according to the Government’s report: (1) the Constitutional Court has ruled that freedom of association is comprehensive in nature, its protection therefore extends to trade union autonomy, namely the freedom to operate freely without any outside interference or other action that may affect it; (2) according to the Fourth Final and Transitional Provision of the Constitution, constitutional rights must be interpreted in accordance with the relevant international agreements signed by the Peruvian State; such agreements are accordingly a parameter for interpreting the rights enshrined in the Constitution, which means that the concepts, scope and coverage of the protection laid down in the agreements constitute parameters to be taken into account where a constitutional right needs interpretation; in any event such international agreements apply directly being part of Peruvian domestic law; any act of interference directly affects the right to organize, which is guaranteed under article 28 of the Constitution; accordingly, any trade union organization affected by acts of interference on the part of an employer has a constitutional right to go to the Constitutional Court, the redress in such event being restoration of the status quo ante.

While taking due note of the Government’s observations, the Committee again points out that the legislation must make express provision for prompt and sufficiently dissuasive sanctions against acts of interference by employers in workers’ organizations and that complaints of anti-union discrimination and interference need to be processed promptly for remedial measures to be really effective. The Committee requests the Government to take steps to bring its legislation fully into conformity with the Convention’s requirement for express prohibition of acts of interference, and to provide information in its next report on all measures taken to this end, including: (a) measures to ensure that sufficiently dissuasive sanctions are imposed for acts of interference, and (b) measures to speed up the administrative and judicial procedures for cases of anti-union discrimination. The Committee notes that the draft of the General Labour Act has been submitted to the National Congress and that the ILO assisted in its preparation. The Committee trusts that the future Act will contain the amendments that the Committee has requested.

2. Article 4. The Committee previously asked the Government to take steps to repeal section 9 of Supreme Decree No. 003-97-TR, the unified text of Legislative Decree No. 728 (Labour Productivity and Competitiveness Act) under which employers may introduce changes or modify shifts or working days or hours, and processes and arrangements for performing tasks. The Committee notes with satisfaction that Supreme Decree No. 013‑2006‑TR has amended section 9 of the Labour Productivity and Competitiveness Act to read as follows: “Section 2. – Section 9 of the unified text of Legislative Decree No. 728, the Labour Productivity and Competitiveness Act, approved by Supreme Decree No. 003-97-TR, shall not be so construed as to allow the employer unilaterally to change the content of previously concluded collective agreements, or to require them to be renegotiated, or to affect freedom of association in any other manner”.

3. The Committee notes that, according to the ICFTU, a collective agreement has been concluded in the construction sector after 13 years of demands for a sectoral agreement. The Committee also takes note of the conclusions of the Committee on Freedom of Association in Case No. 2375 regarding the level of collective bargaining in the construction sector as well as the particular concerns expressed by the Government thereon. The Committee requests the Government to keep it informed on any development on this issue.

4. The Committee previously asked the Government to repeal or amend Emergency Decree No. 011-99 and Ministerial Resolution No. 075-99-EF/15 providing for a special general productivity-related bonus in the public sector. The Committee notes from the Government’s information that these provisions are not as yet in force.

Direct Request (CEACR) - adopted 2005, published 95th ILC session (2006)

The Committee notes the Government’s observations on the comments made by the Medical Social Security Association of Peru (AMSSOP).

The Committee notes that, according to these comments, section 15 of Act No. 28254, authorizing the additional budgetary credit for the public sector for the fiscal year 2004 of 15 June 2004, which prohibits the adjustment of remuneration and other benefits which were not effective by the date of the entry into force of the Act, and which includes the Social Health Insurance (ESSALUD), is in violation of the right to collective bargaining. The Committee notes that, according to the Government, the Act, as it was of a budgetary nature, was only in force during 2004. The Government adds that, although the Act restricts increases and adjustments of State origin, it does not limit the content or application of collective agreements that are in force and that the agreement concluded between AMSSOP and the ESSALUD, which covers remuneration, was applied without restriction. The Committee notes that the Act was only applicable during the course of 2004 and that it did not prevent compliance with the provisions relating to remuneration in the agreement concluded between AMSSOP and ESSALUD. The Committee recalls that, in general terms, measures taken unilaterally by the authorities to restrict the scope of negotiable issues are often incompatible with the Convention and that a particularly appropriate method to resolve these difficulties is the holding of tripartite discussions with a view to preparing jointly agreed guidelines for collective bargaining (see the General Survey on freedom of association and collective bargaining, 1994, paragraph 250).

The Committee notes the comments made by the International Confederation of Free Trade Unions (ICFTU), which refer to many anti-union acts, including the attempted murder of a trade union leader, dismissals and threats against unionized workers and the detention of various workers during a peaceful demonstration. The Committee requests the Government to provide its comments on this subject.

The Committee will examine the other matters pending together with the Government’s report in the context of the regular reporting cycle (see observation 2004, CEACR, 75th Session).

Observation (CEACR) - adopted 2004, published 93rd ILC session (2005)

The Committee notes the Government’s report and its comments on the observations made by the Peruvian Workers’ Confederation (CTP).

Articles 1 and 2 of the Convention. The Committee recalls that for several years it has been referring to: (1) the lack of sanctions against acts of interference by employers in trade union organizations; and (2) the slowness of the judicial procedures for dealing with complaints of anti-union discrimination or interference. The Committee regrets that the Government has not referred to these matters in its report. In this respect, the Committee recalls that it is necessary for the legislation to make express provision for rapid appeal procedures and effective and dissuasive sanctions against acts of interference by employers against workers’ organizations and that cases concerning issues of anti-union discrimination and interference should be examined promptly so that the necessary remedial measures can be really effective. In these conditions, the Committee requests the Government to take measures to bring the legislation into full conformity with the requirements of the Convention and to provide information in its next report on any measure adopted in this respect.

Article 4. The Committee recalls that in previous observations it considered that the dual requirement of a majority of the number of workers and the number of enterprises to be able to conclude a collective agreement covering a branch of activity or an occupation, as envisaged in the Industrial Relations Act, was excessive and difficult to meet. The Committee also requested the Government to confirm that the present legislation does not prevent the parties from negotiating, even when the union cannot satisfy the dual requirement, if the collective agreement does not have an erga omnes effect and, if that is not the case, to take steps to ensure that the legislation clearly establishes the right to collective bargaining of sufficiently representative organizations with representation of under 50 per cent. On this subject, the Committee notes with satisfaction the adoption of Act No. 27912 amending the above Act and providing in section 46 that the dual majority is only required if the outcome of collective bargaining in a branch of activity or occupation is to achieve general coverage of all the workers concerned, and that in cases where the requirements as to the majority are not fulfilled, the outcome of the collective bargaining has effects that are limited to the workers who are members of the corresponding trade union organization or organizations. The Committee also notes with satisfaction that second and third level workers’ organizations have the right to engage in collective bargaining.

On the other hand, the Committee requested the Government to take measures to repeal section 9 of the unified text of Legislative Decree No. 728 (Labour Productivity and Competitiveness Act) under which employers may introduce changes unilaterally in the content of previously concluded collective agreements or require them to be renegotiated. The Committee regrets that the Government has not referred to this matter in its comments and recalls once again that section 9 as it now stands raises problems of consistency with the Convention. The Committee requests the Government to take measures to amend this provision and to provide information in its next report on any measure adopted in this respect.

The Committee also requested the Government to repeal or amend Emergency Decree No. 011-99 and Ministerial Resolution No. 075-99-EF/15 establishing the overall productivity increment for the public sector. The Committee regrets that the Government has not provided information on this subject. Consequently, the Committee once again requests the Government to repeal or amend the above Decree and Resolution so as to ensure that it is up to the parties themselves to decide whether they wish to include in their collective bargaining the use of productivity criteria in the determination of wages.

With regard to the comments made by the CTP concerning the violation of the Convention in approximately 20 ports in Peru, to the prejudice of workers in the maritime, river and lake transport sectors who are covered by Legislative Decree No. 645 of 6 July 1991 (according to the CTP, following the notification of the dismissal of many workers, the possibility of collective bargaining was abolished and, as a result, collective bargaining has been prevented for ten years), the Committee notes the Government’s indication that: (1) until 1991, dock work was under the direction of the Maritime Labour Supervisory Commission, a public body with participation by trade union organizations, which regulated dock work and supplied workers for labour in ports; (2) following the dissolution of the above Commission, dock work was subject to free agreements between workers and port operators, which does not affect the right to freedom of association and the exercise of collective bargaining; and (3) the Ministry of Labour and Employment Promotion has registered 22 workers’ trade unions in the port sector. In this respect, the Committee requests the Government to provide information in its next report on the number of collective agreements concluded in the sector during the period covered by the report.

Finally, the Committee observes that the Medical Social Security Association of Peru (AMSSOP) has provided comments on the application of the Convention. The Committee requests the Government to provide its observations on these comments.

Observation (CEACR) - adopted 2002, published 91st ILC session (2003)

The Committee notes the communication of 19 September 2002 from the Peruvian Workers’ Confederation (CTP) containing comments on the application of the Convention. The Committee requests the Government to send its comments in this respect so that it may examine them at its next meeting.

The Committee notes with interest that a bill (No. 2281) to amend the General Labour Act has been drafted and reflects the comments the Committee has been making for many years. The Committee nonetheless observes that the bill does not ensure the right to collective bargaining of federations and confederations. In this context, the Committee hopes that, if passed, the bill will ensure the right to collective bargaining of second and third level workers’ organizations. The Committee asks the Government to provide information in its next report on any developments with regard to legislation.

The Committee will examine the matters raised in its previous observation in the course of its regular examination of the application of the Convention.

Observation (CEACR) - adopted 2001, published 90th ILC session (2002)

The Committee notes the Government’s report and the discussions that took place in the Conference Committee in 2001. It also takes note of the report of the Committee on Freedom of Association on a number of cases before it which concern Peru (see 324th, 325th and 326th Reports of the Committee on Freedom of Association).

Articles 1 and 2 of the Convention. In its previous observation the Committee had referred to the lack of sanctions against acts of interference by employers in trade union organizations. The Committee notes the information supplied by the Government to the effect that meetings are held in the National Council for Labour and Social Welfare, which is tripartite, with a view to producing appropriate legislation which imposes restrictions on acts of interference by employers in trade union organizations, in order to comply with the provisions of the Convention. The Committee hopes that such legislation will be adopted in the near future and asks the Government to provide detailed information in this respect in its next report.

The Committee also referred to the slowness of the judicial procedure for dealing with complaints of acts of discrimination. In this connection, the Committee notes the Government’s indication that it is aware of the need to propose judicial procedures which are more expeditious and in closer keeping with the rules of law, and free from any political or other interference likely to impair their transparency. That is why rules both on labour procedures and on any related procedures may be discussed and reformulated in the Council with a view to a consensus decision to encourage speed and transparency in all judicial labour procedures. Furthermore, various measures have been taken with a view to making the administration of justice more expeditious and improving its quality through new laws and bodies. The Committee expresses the firm hope that, as a result of all the foregoing, means of redress against acts of discrimination will be expeditious and efficient in the near future.

Article 4. The Committee recalls that in its previous observation the Committee had referred to the requirement of a majority of both the number of workers and the number of enterprises to conclude a collective agreement covering a branch of activity or occupation (sections 9 and 46 of the Industrial Relations Act), observing that this double requirement was excessive and difficult to meet. It had requested the Government to confirm that the present legislation did not prevent the parties from negotiating, even when the union could not satisfy the double requirement, if the collective agreement did not have erga omnes effect, and, if that was not the case, to take steps to ensure that the legislation clearly established the right to collective bargaining of sufficiently representative organizations representing less than 50 per cent. The Committee notes that the Government reiterates its political determination to meet the social partners with a view to reaching agreement on aligning the legislation with the Convention. The Committee hopes that the appropriate amendments will be adopted in the near future and enable inconsistencies with the Convention to be removed.

The Committee also had asked the Government to take steps to repeal section 9 of the Unified Text of Legislative Decree No. 728 (act on labour productivity and competitiveness) under which employers may introduce changes unilaterally in the content of existing collective agreements or the latter must be renegotiated. The Committee notes that, according to the Government, the provision also sets limits on the authority granted to the employer, for example the latter may issue provisions only of a regulatory nature so that higher ranking rules (Constitution, laws, collective agreements) take precedence over them; furthermore, any change the employer may decide to introduce in conditions of work set in a collective agreement must be made within that provision of the agreement. While noting the foregoing, the Committee takes the view that, as it now stands, section 9 raises problems of consistency with the Convention. The Government is therefore asked to make the necessary amendments in order to align the wording of this provision with its interpretation of it.

The Committee had also referred in its last observation to the overall financial increment based on productivity for the public sector, established by Emergency Decree No. 011-99 and Ministerial Resolution No. 075-99-EF/15. In this connection, the Committee notes that, according to the Government, Article 1(d) of the abovementioned Ministerial Resolution provides that in the case of workers covered by collective agreements, the increment will be addressed and granted in the collective bargaining process. According to the Government, workers covered by the collective agreement who have been evaluated negatively will not be entitled to the increment, but they will be entitled to salary increments negotiated between the parties. The legal texts referred to merely establish the content of the position that public bodies will have in collective bargaining. The Committee shares the view expressed by the Committee on Freedom of Association that provisions issued by the Executive or by law which impose on the negotiating parties productivity criteria for the grant of an increase in workers’ wages and exclude general wage increases, restrict the principle of free and voluntary collective bargaining established by the Convention. In these circumstances, the Committee joins the Committee on Freedom of Association in requesting the Government to repeal or amend the abovementioned Decree and resolution to ensure that it is up to the parties themselves to decide whether, in their collective bargaining, they wish to use productivity criteria in determining wages (see 325th Report of the Committee on Freedom of Association, Case No. 2049, paragraph 522).

Lastly, the Committee recalls that for many years the Government has been referring to various bills to amend the Industrial Relations Act. The Committee notes that the Government states once again that the latest Bill, dated 31 July 2000, has been abandoned, and that it intends to carry out a reform agreed by consensus with the social partners which will be consistent with the Convention.

The Committee expresses the firm hope that the Government will take the necessary steps to ensure that the abovementioned reform will take account of all the issues raised. It reminds the Government that it may seek technical assistance from the Office in this process if it so wishes.

Direct Request (CEACR) - adopted 2000, published 89th ILC session (2001)

The Committee notes the new Bill of 31 July 2000 amending the Industrial Relations Act, which is to supersede the Act.

The Committee considers that for the new Bill to be fully consistent with the provisions of the Convention, it would be necessary: (1) to provide for sufficiently dissuasive sanctions and procedures against acts of interference by employers and their organizations in workers’ organizations, and vice versa; (2) to amend section 40, which requires an absolute majority of the workers of a bargaining unit for entitlement to bargain collectively, so as to allow unions without such a majority to negotiate at least on behalf of their members; (3) to amend in the same way the requirement in section 41 that, in order to negotiate collectively for a branch of activity or occupation, an organization must represent the absolute majority of the workers of the branch or occupation and must also comprise an absolute majority of the respective enterprises at local, regional or national level; and (4) to amend section 68 so that the decision to intervene in a collective dispute, ordering referral of the dispute to arbitration, is limited to disputes in essential services and in the event of an acute crisis.

The Committee expresses the hope that these comments will be taken into account if it is decided to adopt the Bill and asks the Government to provide information in its next report on the Bill’s progress. The Committee reminds the Government of the availability of ILO technical assistance.

Observation (CEACR) - adopted 2000, published 89th ILC session (2001)

The Committee notes the Government’s report as well as the comments on the application of the Convention sent by the General Confederation of Workers of Peru (CGTP) and the Government’s reply thereto.

Articles 1 and 2 of the Convention.  In its previous observation, the Committee referred to: (1) the absence of protection against anti-union discrimination at the time of taking up employment and in the event of prejudicial acts other than dismissal; and (2) the slowness of judicial procedures and the lack of effective and dissuasive sanctions to guarantee the protection of workers and trade union leaders against acts of anti-union discrimination, or against acts of interference by employers in trade union organizations. The Committee notes with satisfaction that Act No. 27270 of May 2000 incorporates provisions prohibiting discrimination on any grounds into the Penal Code, and provides for fines or the temporary closure of the workplace in the event of discriminatory conduct.

The Committee observes, however, that Act No. 27270 of May 2000 does not provide for sanctions against acts of interference by employers in trade union organizations. The Committee accordingly asks the Government to take steps to bring the legislation into full conformity with the Convention and to keep it informed of any measures taken in this regard.

With regard to the slowness of judicial procedures for complaints concerning acts of anti-union discrimination or interference, the Committee recalls that the Committee on Freedom of Association has noted that in many cases the procedures are excessively long. The Committee notes the Government’s statement that the consolidated text of the Judiciary Act provides for sanctions and disciplinary measures against employees of the judiciary who fail to perform their duties properly. The Committee, however, points out that to remedy violations, procedures must be expeditious in order to constitute adequate protection for workers and their organizations against acts of discrimination or interference. The Committee asks the Government to take the necessary steps to remedy these shortcomings and to ensure that the legislation provides for expeditious judicial procedures.

Article 4 of the Convention.  In its previous observation, the Committee referred to the requirement of a majority of both the number of workers and the number of enterprises to conclude a collective agreement covering a branch of activity or occupation (sections 9 and 46 of the Industrial Relations Act). The Committee notes the Government’s statement that the purpose of the above-noted provisions is: to place greater emphasis on the representativeness of unions; to ensure that a collective agreement by branch of activity or occupation is the result of negotiations between organizations representing the majority of workers and enterprises; and to promote more democratic agreements through assemblies of the membership, proper elections of representatives and the building of collective awareness among workers. The Committee considered that the double requirement was difficult to meet and that the Act should therefore be amended to eliminate the double requirement so that the parties are able to determine freely the level at which they wish to negotiate. The Committee asks the Government to provide information in its next report on the measures taken in this connection and to confirm that the present legislation does not prevent the parties from negotiating even when the union cannot satisfy the double requirement if the collective agreement does not have erga omnes effects. If this is not the case, the Committee asks the Government to take steps to ensure that the legislation clearly establishes the right to bargain collectively of sufficiently representative organizations representing less than 50 per cent.

The Committee also observed previously that section 42 of the Employment Promotion Act of 1995 (currently section 9 of the Act on productivity and competitiveness at work - Legislative Decree No. 728) allows employers to "introduce changes or modify working shifts, days and hours, as well as the form and manner in which work is performed". The Committee notes that, according to the Government, such changes are subject to criteria of reasonableness that take into account the needs of the workplace, and there are mechanisms in the legislation which provide that: (1) if the majority of the workers do not agree to the employer’s modifications of the work schedule, they may take the employer to the administrative labour authority for a decision on the merits; (2) collective agreements containing clauses on working hours must be respected; and (3) legal action may be brought for failure to comply with collective agreements which are binding on the signatories. The Committee stresses that, despite the existence of the mechanisms referred to by the Government, a legal provision which allows the employer unilaterally to change the content of previously concluded collective agreements, or requires them to be renegotiated, is contrary to the principles of collective bargaining. The Committee accordingly requests that the Government take measures to repeal this provision, and to provide information in its next report on any measures taken in this regard.

With regard to the right to bargain collectively in the public sector, the Committee observes that Emergency Decree No. 011-99, Ministerial Resolution No. 075-99-EF/15 and Emergency Decree No. 004-2000 provide that a global financial increment based on productivity ascertained through an evaluation of individual workers will be granted within the framework of collective bargaining. The Committee points out that such an evaluation should not exclude workers covered by the collective agreement who have been evaluated negatively from entitlement to the salary increments negotiated between the parties. The Committee asks the Government to indicate what the position of negatively evaluated workers is in this respect.

Lastly, the Committee recalls that in its previous comments it noted that a bill to amend the Industrial Relations Act had not been enacted. The Committee notes the new amending bill of 31 July 2000. It observes that some of the provisions of the new bill are inconsistent with the Convention and refers to them in a direct request.

Observation (CEACR) - adopted 1999, published 88th ILC session (2000)

The Committee notes the Government's report. It also notes the conclusions and recommendations of the Committee on Freedom of Association in Case No. 1906, in March 1999 (see 313th Report, paragraphs 169 to 175).

1. Bill to replace the Industrial Relations Act. The Committee recalls that in its previous observation it criticized various provisions of the above Bill and notes that, according to the Government's report, the legislative process of the Bill was not pursued. The Committee requests the Government, if examination of the Bill is recommenced, to take into account the comments that it made in 1998.

2. Articles 1 and 2 of the Convention. The Committee had noted: (a) the absence of protection against anti-union discrimination at the time of employment and in the event of prejudicial acts leading to dismissal; and (b) the slowness of the judicial recourse procedures and the absence of effective and dissuasive penalties to guarantee the protection of workers and trade union leaders against acts of anti-union discrimination, or against acts of interference by employers with regard to trade union organizations. The Committee regrets that the Government's report does not contain new information. The Committee requests the Government to take the necessary measures to resolve these shortcomings and to bring its legislation into conformity with the Convention.

3. Article 4. Requirement of a majority of both the number of workers and of the enterprises to conclude a collective agreement covering the whole of a branch of activity or an occupation (sections 9 and 46 of the Industrial Relations Act). The Committee regrets that the report does not contain any new information. The Committee considers that these are excessive requirements and that the Act should therefore be amended to eliminate the double requirement mentioned so that the parties are able to determine freely the level at which they wish to negotiate. The Committee requests the Government to provide information in its next report on the measures adopted in this respect and to confirm that the regulation does not impede the parties from negotiating without this double requirement when the collective agreement does not have erga omnes effects.

The Committee had also noted that section 42 of the Employment Promotion Act of 1995 allows the employer to "introduce changes or modify working shifts, days and hours, as well as the form and manner in which work is performed". In this respect, the Committee emphasizes that a legal provision which allows the employer unilaterally to modify the content of previously concluded collective agreements, or requires them to be renegotiated, is contrary to the principles of collective bargaining.

4. The Committee notes the observations made by the General Confederation of Workers of Peru, dated 13 September 1999, and requests the Government to transmit its comments in this respect.

[The Government is asked to report in detail in 2000.]

Observation (CEACR) - adopted 1998, published 87th ILC session (1999)

The Committee notes the information provided by the Government in response to the observations of the Federation of Workers in the Lighting and Power Industry of Peru concerning restrictions on protection against anti-union discrimination and collective bargaining contained in provisions of the Industrial Relations Bill. The Committee notes the conclusions and recommendations of the Committee on Freedom of Association with regard to Case No. 1906 in June 1998 (see 310th Report of the Committee, paragraphs 551-556). The Committee also notes the observations of the United Union of Technicians and Specialized Auxiliary Workers of the Peruvian Social Security Institute but observes that -- they do not relate to the application of the Convention.

With regard to section 21 of the Bill which was criticized by the Federation and allows the inclusion of workers who enjoy protection on the list of collective dismissals resulting from an objective cause, the Committee notes the Government's information according to which this exceptional case would arise as a result of external factors that make continuation of the employment relationship impossible (unforeseen circumstances and force majeure, economic, technological, structural or other similar reason, dissolution and liquidation of a company, restructuring of assets) and are not connected with trade union activity. The Government also indicates that under the terms of legislation, there are procedures, applicable in every case of objective reasons for the termination of employment contracts, by which the objective circumstances cited as the cause of the termination can be fully examined, and that workers affected can contest the administrative decision.

The Committee points out that, although national legislation provides some protection against acts of anti-union discrimination, for that protection to be effective, courts must be able to give a ruling without delay when allegations of anti-union acts are made.

With regard to section 26 of the Bill, according to which no union officer is entitled to take more days of leave than the number of days actually worked by him or her in one year, the Committee notes the Government's information and points out that such a provision would constitute an unjustifiable restriction on collective bargaining and should therefore not be applied while there exists a collective agreement that is more favourable to the workers, as envisaged in section 20 of the Rules under the Industrial Relations Act currently in force. The Committee requests the Government to take the necessary measures to amend section 26 of the Bill in the appropriate way.

With regard to the allegation of restrictions on the right to collective bargaining in the construction sector under the terms of Bill No. 2266 (Case No. 1906), the Committee notes the Government's statement that the Industrial Relations Bill supercedes Bill No. 2266 and removes such restrictions. The Committee also requests the Government to ensure that the Bill in question is in full conformity with the terms of the Convention, in particular that all restrictions on the right to collective bargaining in the construction industry are removed, and to keep it informed of progress made in this regard.

The Committee further notes the drafting by the President of the Congressional Labour and Social Security Committee of a new draft substitute Industrial Relations Bill.

In this respect, the Committee observes with interest that the substitute text in question does not reinstate the obligation to renegotiate collective agreements in force (fourth transitional and final section and section 43(d) of Act No. 25593), a provision that had been criticized by the Committee of Experts.

Nevertheless, the Committee notes that the text in question does not take into account the following points raised by the Committee of Experts:

-- the absence of effective and sufficiently dissuasive sanctions to guarantee the protection of workers against anti-union discrimination (for example, at the time of hiring, acts detrimental to workers other than dismissal, acts of interference by employers in the affairs of trade unions) (Articles 1 and 2 of the Convention);

-- the obstacles to voluntary negotiation resulting from the requirements of a majority, not only of the number of workers, but also of enterprises, in order to conclude a collective agreement for a branch of activity or occupation (section 46 of the Industrial Relations Act of 1992) (Article 4);

-- the possibility for the employer of having recourse to the Ministry of Labour without the agreement of the workers for the purposes of modifying, suspending or substituting conditions of work previously agreed upon (sections 1 and 2 of Legislative Decree No. 25921 of 3 December 1992) (Article 4).

In addition the Committee observes that the substitute text contains a number of provisions which could pose problems of conformity with the Convention and concerning which the Committee would make the following comments:

-- with regard to sections 30 and 40 of the substitute text, the Committee considers that these sections should safeguard the right to collective bargaining of a minority trade union, at least on behalf of its members, where no majority trade unions exists;

-- with regard to the final paragraph of section 39 according to which "in the absence of an agreement, negotiations should be conducted at the level indicated in section 38(a) of the present Act" (meaning at enterprise level) the Committee considers that this section should be amended to avoid imposing negotiations at enterprise level;

-- with regard to the requirement of an absolute majority, both of the number of workers of a branch of activity or occupation and of enterprises, in order to conclude a collective agreement for the branch of activity or occupation in question (section 41), the Committee takes the view that the requirement is excessive and will in many cases make negotiations impossible at the level indicated, and for this reason the percentages required should be reduced to half;

-- lastly, in the Committee's view, the Act should provide expressly for the right of federations and confederations to bargain collectively.

The Committee hopes that the new draft text of the Industrial Relations Act will take into account the foregoing comments and that it will be adopted in the very near future. The Committee requests the Government to inform it in its next report of any progress made in this regard.

Observation (CEACR) - adopted 1997, published 86th ILC session (1998)

The Committee notes the information supplied by the Government in its report, as well as the observations of the Federation of Workers in the Lighting and Power Industry of Peru in relation to the application of the Convention.

The Committee recalls that its previous comments related to:

-- the absence of effective and sufficiently dissuasive sanctions to guarantee the protection of workers against acts of anti-union discrimination and to protect workers' organizations against acts of interference by employers (Articles 1 and 2 of the Convention);

-- the obstacles to voluntary negotiation resulting from the requirements of a majority, not only of the number of workers, but also of enterprises, in order to conclude a collective agreement for a branch of activity or occupation (section 46 of the Industrial Relations Act of 1992) (Article 4);

-- the obligation to renegotiate collective agreements which are currently in force (fourth transitional and final section, and section 43(d) of the Act and section 30 of its Regulations) (Article 4);

-- the possibility for the employer of having recourse to the Ministry of Labour without the agreement of the workers for the purposes of modifying, suspending or substituting conditions of work previously agreed upon (sections 1 and 2 of Legislative Decree No. 25921 of 3 December 1992) (Article 4).

With reference to the absence of effective and dissuasive sanctions, the Committee notes with interest that the Single Text of the Act on Productivity and Labour Competition, section 29(a) and (b), contains provisions relating to the annulment of the dismissal when it takes place on the grounds of trade union membership or participation in trade union activities, or of being a workers' representative, or acting or having acted in that capacity. The Committee also notes with interest that section 168 of the Penal Code prohibits forcing another person, by violence or threats, to join or not to join a trade union and lays down penal sanctions for violation of this provision. In regard to other acts of anti-union discrimination against a worker, such as at the time of recruitment, in the event of prejudicial acts other than dismissal, or for acts of interference by employers in the affairs of trade union organizations, the Committee notes that legislation does not provide any protection whatsoever. The Committee requests the Government to take measures to extend existing protection to such cases.

Furthermore, taking into consideration the numerous complaints examined by the Committee on Freedom of Association in regard to anti-union acts and dismissals, for which the legal procedures are slow and legal decisions to reinstate persons have in some cases not been complied with by the employers, the Committee wishes to remind the Government that "the existence of general legal provisions prohibiting acts of anti-union discrimination is not enough if they are not accompanied by effective and rapid procedures to ensure their application in practice" (see General Survey on freedom of association and collective bargaining, 1994, paragraph 214). The Committee requests the Government to take measures so that existing procedures for remedy proceed rapidly.

With regard to the requirement of a majority to conclude a collective agreement for a branch of activity or occupation, the Committee notes the Government's comments regarding the grounds on which legislation lays down this requirement and that they are fundamentally identical to information given in its previous report. On this question, the Committee insists that the requirement for a majority of not only the number of workers but also of enterprises in order to conclude a collective agreement for a branch of activity or occupation, stipulated in section 46 of the Industrial Relations Act of 1992, raises problems of compatibility with the Convention. In this respect, the Committee stresses that the level at which collective bargaining is carried out must depend essentially on the decision of the parties.

With regard to the provisions concerning the obligation to renegotiate collective agreements which are currently in force, stipulated in the fourth transitional and final section, and section 43(d) of the Industrial Relations Act of 1992 and section 30 of its Regulations, the Committee takes due note that these provisions are no longer applicable since virtually all the collective agreements have been revised with the agreement of the social partners, and have been harmonized with the legislation in force.

With reference to the employer's possibility of having recourse to the Ministry of Labour without the agreement of the workers for the purposes of modifying, suspending or substituting conditions of work previously agreed upon (sections 1 and 2 of Legislative Decree No. 25921 of 3 December 1992), the Committee notes that according to the information provided by the Government these provisions were repealed by Act No. 26513 of 28 July 1995. Nevertheless, the Committee observes that section 42 of the Employment Stimulation Act allows the employer to introduce changes or to modify working shifts, days and hours, as well as the form and methods of providing the work. In this respect, the Committee emphasizes that a legal provision which allows the employer unilaterally to modify the content of previously concluded collective agreements or forces them to be renegotiated, is contrary to the principles of collective bargaining.

The Committee requests the Government once again to take measures, in consultation with the social partners, to amend the legislation to bring it fully into conformity with the Convention.

The Committee requests the Government to inform it in its next report of the measures adopted in relation to the questions raised.

Direct Request (CEACR) - adopted 1995, published 83rd ILC session (1996)

The Committee notes the observations made by the Coordinator of Central Trade Union Federations of Peru, and by the Federation of Workers in the Lighting and Power Industry of Peru concerning the General Labour Bill of 1995, as well as the Government's comments.

Article 4 of the Convention. The Committee notes that section 31 of the Bill defines collective labour agreements as agreements concluded, by one or several trade union organizations of workers or, in the absence of such organizations, by representatives of the workers concerned, with employers. Sections 38 and 40(a) of the Bill provide that, even where a trade union exists, if its membership does not include over half of the workers, a coalition representing the absolute majority of workers may negotiate on behalf of the workers, including unionized workers. In this respect, in the Committee's opinion, there is a contradiction between the provisions of section 31 and those of sections 38 and 40.

The Committee wishes to remind the Government that Article 4 of the Convention provides that appropriate measures shall be taken to encourage and promote the full development and utilization of machinery for voluntary negotiation between employers or employers' organizations and workers' organizations with a view to the regulation of terms and conditions of employment by means of collective agreements.

In order to dispel any doubt and ensure that the legislation is in conformity with Article 4, the Committee considers that only in the absence of workers' organizations, should the representatives of the workers concerned be able to negotiate collectively on their behalf.

The Committee also notes that section 65 of the Bill provides that the points of claims in respect of which agreement has not been reached or which have not been resolved shall become void 12 months after their submission or when new claims are presented.

In this respect, the Committee doubts whether in practice the above provision will encourage or promote collective bargaining, as provided for in Article 4. The Committee considers it important for both employers and trade unions to participate in negotiations in good faith and to make every effort to reach an agreement. It also considers that the holding of real and constructive negotiations is necessary to establish and maintain a relation of trust between the parties.

The Committee hopes that the Government will adopt the necessary measures to encourage and promote the full development and utilization of machinery for voluntary negotiation between workers' organizations and employers, in accordance with the principles and provisions of the Convention.

The Committee requests the Government to inform it in its next report of any measure adopted in this respect.

Observation (CEACR) - adopted 1995, published 83rd ILC session (1996)

The Committee notes the Government's report, the observations made by the Coordinator of Trade Union Federations of Peru and the Federation of Workers in the Lighting and Power Industry of Peru in relation to the General Labour Bill of 1995, as well as the interim conclusions adopted by the Committee on Freedom of Association in Case No. 1731, approved by the Governing Body at its 259th Session in March 1994 (see 292nd Report of the Committee, paras. 774 to 786).

The Committee recalls that its previous comments concerned:

- the absence of effective and sufficiently dissuasive sanctions to guarantee the protection of workers against acts of anti-union discrimination and to protect workers' organizations against acts of interference by employers (Articles 1 and 2 of the Convention);

- the obstacles to voluntary negotiation resulting from the requirement of a majority, not only of the number of workers, but also of enterprises, in order to conclude a collective agreement for a branch of activity or occupation (section 46 of the Industrial Relations Act of 1992) (Article 4 of the Convention);

- the obligation to renegotiate collective agreements which are currently in force (fourth transitional and final section, and sections 43(d) of the Act and 30 of its regulations).

With reference to the first point concerning the absence of sanctions, the Committee notes the general comments made by the Government concerning the existence of provisions in the Constitution and labour legislation providing protection against acts of anti-union discrimination and interference. Nevertheless, the Committee notes that these provisions are not enforced by effective and sufficiently dissuasive sanctions and procedures to guarantee their application in practice. The Committee once again urges the Government to take the necessary measures as soon as possible to guarantee the full application of the Convention, since the General Labour Bill of 1995 does not contain provisions in this respect.

With regard to the second question concerning the requirement of a majority to conclude a collective agreement for a branch of activity or occupation, the Committee notes the Government's comments to the effect that section 46 of Act No. 25593 establishes the possibility of negotiating at different levels; nevertheless, in order to negotiate at the level of the branch or occupation, it is necessary for the majority of the workers concerned to express their will in a democratic manner.

In this respect, the Committee joins with the Committee on Freedom of Association in emphasizing that, according to the principle of free and voluntary collective bargaining embodied in Article 4 of the Convention, the determination of the bargaining level is essentially a matter to be left to the discretion of the parties and that, consequently, the level of negotiation should not be imposed by law (see 259th Report of the Committee on Freedom of Association, Case No. 1450 (Peru), para. 216). The Committee considers that the requirement of a majority, not only of the number of workers, but also of enterprises, in order to conclude a collective agreement for a branch of activity or occupation set out in section 46 of the Industrial Relations Act of 1992 could give rise to problems in the application of the Convention.

The Committee notes with interest that the General Labour Bill of 1995 would eliminate the provisions respecting the obligation to renegotiate collective agreements which are currently in force, as set out in the fourth transitional and final section, and sections 43(d) of the Act and 30 of its regulations. Nevertheless, the Committee notes that the Bill has not taken into account the Committee's comments concerning the requirement of a majority, not only of the number of workers, but also of enterprises, in order to conclude a collective agreement for a branch of activity or occupation (section 46 of the Industrial Relations Act of 1992), by retaining the same requirement in section 39 of the Bill.

The Committee also notes that, by virtue of sections 1 and 2 of Legislative Decree No. 25921 of 3 December 1992, the employer is empowered to have recourse to the Ministry of Labour without the agreement of the workers for the purposes of modifying, suspending or substituting conditions of work previously agreed upon. In this respect, the Committee of Experts joins with the Committee on Freedom of Association in considering that a legal provision which allows the employer to modify unilaterally the content of signed collective agreements, or to require that they be renegotiated, is contrary to the principles of collective bargaining (see 292nd Report, Case No. 1731, paras. 784 and 785 of the Case referred to above).

The Committee once again requests the Government, in consultation with the social partners, to take steps to amend the legislation so as to enable organizations of workers and of employers to exercise freely and without impediment the right to collective bargaining at all levels.

The Committee requests the Government to provide information in its next report on the measures adopted in this respect.

The Committee is addressing a direct request to the Government on other matters.

Observation (CEACR) - adopted 1994, published 81st ILC session (1994)

The Committee notes the Government's report, the provisions of the new Constitution of 1993 and of the new Industrial Relations Act of 26 June 1992, and the Regulations issued thereunder, as they regard freedom of association, as well as the interim conclusions of the Committee on Freedom of Association in respect of Cases Nos. 1648 and 1650 (291st Report, paragraphs 435-474, approved by the Governing Body at its 258th (November 1993) Session).

The Committee notes with interest that the Industrial Relations Act (fifth transitional and final section) repealed the provisions respecting the intervention of the Government in collective bargaining (Presidential Decree No. 017-82/TR), the approval of collective agreements by under-directors of labour (Presidential Decree No. 003-72/TR), and compulsory arbitration at the request of one of the parties (section 13 of Presidential Decree No. 009-86/TR), which had been the subject of comments by the Committee of Experts.

Articles 1 and 2 of the Convention

Nevertheless, the Committee notes that the 1992 Act does not provide for any sanctions to guarantee the protection of workers against acts of anti-union discrimination nor to protect organizations of workers against acts of interference by employers. In this respect, the Committee wishes to point out that the existence of basic standards prohibiting acts of anti-union discrimination or interference in trade union activities is not enough if they are not accompanied by effective and sufficiently dissuasive procedures to ensure their application in practice (see 1994 General Survey on Freedom of Association and Collective Bargaining, paragraphs 230 and 232).

The Committee also refers below to the provisions of the new Act and its regulations, which may still give rise to problems in the application of the Convention:

- the requirement of a majority not only of the number of workers, but also of enterprises, in order to conclude a collective agreement for a branch of activity or occupation (section 46);

- the obligation to renegotiate collective agreements which are currently in force (fourth transitional and final section, and sections 43(d) of the Act and 30 of its regulations).

The Committee requests the Government to take initiatives to amend the legislation so as to include appropriate measures against acts of anti-union discrimination and interference by employers in the activities of trade union organizations and, in the same way as the Committee on Freedom of Association, requests the Government, in consultation with the social partners, to take steps to amend the legislation so as to enable organizations of employers and workers to exercise freely and without impediment the right to collective bargaining, in accordance with Article 4 of the Convention.

The Committee requests the Government to supply information in its next report on the measures which are envisaged or have been adopted in this respect.

Observation (CEACR) - adopted 1992, published 79th ILC session (1992)

The Committee notes the Government's report and the discussions that took place at the Conference Committee in 1991.

The Committee recalls that its previous comments addressed the following matters:

- repeated intervention by the Government in collective bargaining in various sectors of the economy, in accordance with section 211(20) of the Constitution, which empowers the President to adopt exceptional economic measures when required by the general interest;

- approval of collective agreements by under-directors of labour, under sections 2(b) and (c), and 5(2) of Presidential Decree No. 003-72/TR;

- recourse to compulsory arbitration in the event of the failure of bargaining during the period of direct bargaining (trato directo) or of conciliation, in accordance with section 13 of Presidential Decree No. 009-86/TR; refusal to bargain is regarded as a failure of bargaining (sections 18 and 26 of Presidential Decree No. 006-71/TR, as amended) and permits referral of the dispute to compulsory arbitration by one party, under section 13 of Presidential Decree No. 009-86/TR.

1. Intervention by the Government in collective bargaining under section 211(20) of the Constitution

The Committee notes the information supplied by the Government during the discussions at the Conference Committee in 1991, to the effect that Presidential Decree No. 017-82/TR (which allows government intervention in various sectors of the economy in the event of an economic emergency) was an exceptional and temporary measure aimed at containing the hyperinflation prevalent in the country and that it is no longer in force. The Committee points out that the measures to intervene in collective bargaining were taken under section 211(20) of the Constitution which empowers the President of the Republic to take exceptional economic measures when required by the general interest.

In this respect, the Committee reiterates the comment it made in its previous observation to the effect that if wage rates cannot be fixed freely by collective bargaining because of economic stabilisation or structural adjustment policies, such restrictions should be imposed as an exceptional measure and only to the extent necessary. Such restriction should not exceed a reasonable period and, more importantly, should be accompanied by adequate safeguards to protect workers' living standards. The Committee considers that it is always preferable, before such restrictions are adopted, to seek consensus rather than impose them by decree.

The Committee hopes that this principle will be taken into account in the future and asks the Government to report any new decree or provision restricting collective bargaining, issued under section 211(20) of the Constitution. 2. Approval of collective agreements by under-directors of labour

With regard to the directives or decisions that under-directors of labour may adopt when a collective agreement is submitted for their approval, the Committee notes the Government's statement that under-directors may only take decisions in accordance with the powers conferred on them by law. In addition, they can settle procedural problems that may arise, thereby speeding up the collective bargaining process.

In this connection, the Committee reiterates that a system of approval by the administrative authorities is only acceptable if it is limited to questions of form, or to observance of the minimum standards of legal protection provided for in the labour legislation.

The Committee asks the Government, in its next report, to provide information on the measures that it has taken in this respect.

3. Compulsory arbitration

With regard to recourse to compulsory arbitration at the request of only one party in the event of failure of collective bargaining (the refusal to negotiate, expiry of the conciliation period, etc.) (section 13 of Presidential Decree No. 009-86/TR), the Committee notes that the Government has not submitted any comments in this respect. The Committee wishes to stress that this is not conducive to the full development of voluntary bargaining procedures for collective agreements between employers and employers' organisations, on the one hand, and workers' organisations on the other, so that terms and conditions of employment can be settled in this manner, in accordance with Article 4 of the Convention.

Observation (CEACR) - adopted 1991, published 78th ILC session (1991)

Article 4 of the Convention. In its previous request, the Committee noted that section 211(20) of the Constitution empowers the President of the Republic to adopt exceptional economic measures when required by the general interest. The Committee also noted that, under the terms of Presidential Decree No. 017-82-TR respecting the economic emergency, the Government had intervened in collective bargaining in various sectors of the economy.

The Committee notes and endorses the observations contained in the recommendations of the Committee on Freedom of Association concerning Case No. 1548 (Peru), in which it regrets that restrictions have been placed on future collective negotiations by decree without consultation of the organisations of workers and employers with a view to seeking the agreement of both parties.

In this connection, the Committee reminds the Government that if wage rates cannot be fixed freely by collective bargaining because of economic stabilisation or structural adjustment policies, such restrictions should be imposed as an exceptional measure and only to the extent necessary, without exceeding a reasonable period, and should be accompanied by adequate safeguards to protect workers' living standards. In any event, the Committee considers that it is always preferable when such restrictions are adopted to seek consensus rather than impose them by decree.

The Committee asks the Government to keep it informed of any developments with regard to collective bargaining.

Direct Request (CEACR) - adopted 1990, published 77th ILC session (1990)

The Committee notes the Government's report. It also notes the conclusions of the Committee on Freedom of Association in Cases Nos. 1363 and 1367 (248th Report, approved by the Governing Body at its February-March 1987 Session) and Nos. 1478 and 1484 (265th Report, approved by the Governing Body at its May-June 1989 Session).

1. In its previous request, the Committee noted that measures to intervene in collective bargaining had been taken in the mining sector, under the terms of Presidential Decree No. 017-82-TR respecting the economic emergency, and in other sectors (the press, fishing, the textile and chemical industries).

In its report, the Government indicates that the measures taken in the mining sector (the extension of the operation of collective agreements, and the freezing of staff redundancies and adjustments in wages) are no longer in force and that no restriction now affects the process of collective bargaining.

While noting these statements, the Committee notes that measures to intervene in collective bargaining have been taken under section 211(20) of the Constitution, which empowers the President of the Republic to adopt exceptional economic measures when required by the general interest.

The Committee requests the Government to report all measures taken under this provision in future.

2. With regard to the question of the approval of collective agreements by under-directors of labour, under sections 2(b) and (c) and 5(2) of Decree No. 003-72-TR, to which the Committee referred in its previous request, the Government indicates that, since the coming into force of the national Constitution in 1980: (1) the right to bargain is guaranteed; (2) the State only intervenes in the event of the failure of bargaining between the social partners; and (3) collective agreements have statutory force. It adds that collective agreements can only be declared void under section 48 of Presidential Decree No. 006-71-TR when they provide for rights that are lower than those established by the law and regulations, and that the procedure set up under Presidential Decree No. 003-72-TR comes within the supervisory function of the administrative labour authorities whose role is to ensure that no clause prejudices the acquired rights of the workers.

The Committee notes these statements and requests the Government to indicate whether under-directors are authorised to issue directives when a collective agreement is submitted for their approval.

3. In its previous request, the Committee noted the adoption of Presidential Decree No. 009-86-TR, the provisions of which supplement or amend, as appropriate, those of Presidential Decree No. 006-71-TR. It notes in particular that section 13 of Presidential Decree No. 009-86-TR provides for recourse to compulsory arbitration in the event of the failure of bargaining during the period of direct bargaining (trato directo) or of conciliation. It also notes that refusal to bargain is regarded as a failure of bargaining (sections 18 and 26 of Presidential Decree No. 006-71-TR as amended) and authorises one of the parties to refer the dispute to compulsory arbitration under section 13 of Presidential Decree No. 009-86-TR.

The Committee also notes the draft Collective Bargaining Bill (published on 10 August 1989) which was submitted to the Committee on Freedom of Association in the context of its examination of Cases Nos. 1478 and 1484. The Committee notes that compulsory arbitration can be requested at the initiative of only one of the parties to the bargaining upon the completion of the set period for voluntary bargaining (section 420) or when a party decides to end voluntary bargaining on the grounds that the appropriate conditions for continuing the meetings have not been fulfilled (sections 415 and 420).

Like the Committee on Freedom of Association, the Committee of Experts emphasises that the collective bargaining procedure set up by law, by permitting recourse to compulsory arbitration at the initiative of only one of the parties in the event of refusal to negotiate or the expiry of the periods fixed for conciliation - a procedure that is taken up in principle in the draft Bill mentioned above - is not such as to facilitate collective bargaining since one of the parties may impede bargaining in order unilaterally to refer the solution of the dispute to the labour authority.

The Committee therefore requests the Government to review its legislation concerning the collective bargaining procedure in order to guarantee fully the development of voluntary bargaining procedures for collective agreements between employers and employers' organisations, on the one hand, and workers' organisations on the other, so that terms and conditions of employment can be settled in this manner, in accordance with Article 4 of the Convention, without this being prejudiced by the imposition of compulsory arbitration at the initiative of only one of the bargaining parties.