Definitive Report - Report No 214, March 1982

Case No 1081 (Peru) - Complaint date: 28-SEP-81 - Closed

1. 250. The complaint is contained in communications dated 28 and 29 September 1981 forwarded by the International Confederation of Free Trade Unions (ICFTU) and the Federation of Peruvian Light and Power Workers, respectively. In addition, the Union of General Maintenance Workers, by a communication dated 18 November 1981, and the Union of Peruvian Volvo Workers and the Sole Union of Workers of the Lima Sanitary Enterprise, by communications dated 19 November 1981, subscribed to and endorsed the complaint presented by the Federation of Peruvian Light and Power Workers. The Federation of Peruvian Light and Power Workers later sent additional information in a communication dated 24 November 1981. The Government, for its part, replied in a communication dated 16 November 1981.
2. 251. Peru has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. Allegations of the complainants

1. 252. The complainants allege that on 27 October 1981 the Upper House of the Peruvian Congress approved a bill to regulate the right to strike, which will probably be approved also by the Lower House, containing provisions contrary to the ILO Conventions on freedom of association.
2. 253. The bill in question contains the following provisions:
   • Section 1. Workers have the right to strike, as established in the Constitution; its exercise shall be, governed by the provisions of this Act.
   • Section 2. This Act shall apply to:
   • (I) workers coming under the labour system of the private sector; and
   • (II) public employees, with the exception of government officials having decision-making powers or holding positions of trust, members of the armed forces and magistrates of the Judiciary.
   • Section 3. Strikes shall consist in the collective, voluntary, temporary and peaceful suspension of work in an undertaking, establishment or public department, in the form and in accordance with the procedure provided for in this Act.
   • Section 4. Strikes by workers shall be intended for:
     • (a) obtaining better economic and working conditions; and
     • (b) ensuring compliance by the employer of provisions of law or collective agreements and the restoration of any of the workers' rights and benefits that may have been infringed or prejudiced.
   • Section 5. Strikes may be called for the purpose of:
     • (a) demands arising from the conclusion or amendment of collective agreements when the procedure for direct negotiation between the parties has failed; and
     • (b) demands arising as a result of the employer's failure to fulfil the obligations provided for by the laws governing the labour rights established in Chapter V of the Constitution or in collective agreements when the employer refuses to comply with the duly confirmed decision terminating the complaint.
   • Section 6. The decision to call a strike shall be taken at a general meeting convened especially for the purpose by more than half of the workers and/or employees of an undertaking or establishment, as the case may be, voting individually by direct and secret ballot, the form of the voting to be determined by the by-laws of the trade union organisation concerned or by the persons present at the meeting.
   • Section 7. The decision to call the strike shall be notified to the employer and the Labour Authority, stating the reasons therefore as well as the day and time of its commencement, at least five working days in advance.
   • Section 8. Strikes called by trade union federations and Confederations shall require the agreement of more than half of the organisations affiliated to them, which must represent the majority of their members. The decision to strike shall be taken at a general meeting of delegates convened expressly for the purpose.
   • Section 9. During the strike period the Labour Authority shall take the necessary steps to enable the parties to reach a peaceful solution to the dispute and shall propose appropriate measures for that purpose and apply the relevant legal provisions.
   • Section 10. A strike shall involve suspension of labour relations while it lasts. Consequently, the employer shall not be bound to pay any remuneration to the workers employed by him, nor shall the workers be bound to perform any services for the employer only in the event of the employer's failure to comply with the provisions of a collective agreement or a ruling under law by the Labour Authority, as provided for in section 5(b) of this Act, shall payment be made for the strike days. In every case the strike days shall be taken into account in calculating leave entitlement and compensation for length of service and in calculating benefits payable by the Peruvian Social Security Institute.
   • Section 11. During the strike the workers shall not be entitled to remain at the workplace, with the exception of those covered by section 13 as well as those performing essential services.
   • Section 12. During the strike the employer shall not engage replacements to perform the work suspended. Nor shall he remove machinery, raw material or other goods from the workplace, except in special circumstances and subject to the prior authorisation of the Labour Authority.
   • Section 13. If as a result of the strike there is a danger that goods, raw materials, machinery or plant may disappear or suffer deterioration or destruction preventing the immediate resumption of normal operations, the employment at the workplace of the necessary staff for its preservation shall be compulsory. If no provision is made in the collective agreement for complying with this requirement, the parties to the dispute shall, before the strike begins, specify the operations that shall continue to be carried on in the undertaking as well as the minimum number of workers required. If the workers concerned cease to perform the operations, they shall be held liable for dereliction of duty. In the absence of an agreement between the parties, the Labour Authority shall, in consultation with the body competent for the field of activities in which the undertaking is engaged, determine the measures required.
   • Section 14. The right to strike shall not include:
     • (a) wildcat strikes;
     • (b) sit-down strikes;
     • (c) go-slows, consisting in a deliberate and collective reduction either in output under the normal average or in normal working hours at the workplace; and
     • (d) the occupation of the undertaking or workplace by the workers as a means of stoppage.
   • Section 15. Strikes shall be deemed to be legal when they are called in strict compliance with the provisions of this Act; otherwise, the Labour Authority shall order the resumption of work. Any worker who has not resumed work after three days have elapsed shall be held liable for dereliction of duty.
   • Section 16. Strikes shall be terminated:
     • (a) by decision of the workers on strike;
     • (b) by decision of the Labour Authority in the case of an illegal strike;
     • (c) by submitting the dispute giving rise to the strike to compulsory arbitration established by presidential decree, issued with the approval of the Council of Ministers and reported to Congress, when the extent or duration of the strike seriously jeopardises the general interest.
   • Section 17. For the purposes of this Act, essential services shall be deemed to be:
     • (a) water supply;
     • (b) light, energy and communications;
     • (c) cleaning and sanitary services;
     • (d) cemeteries;
     • (e) hospitals, clinics and other medical care services;
     • (f) telecommunications; and
     • (g) any other service declared by the Government, in agreement with the Council of Ministers, to be essential for daily social life.
   • Essential services shall not be discontinued.
   • Section 18. Should the staff necessary for the continuing operation of an essential service refuse to work without due cause, the said staff shall be held liable for dereliction of duty.
   • Section 19. Public employees shall be entitled to exercise the right to strike in the event of a failure of the conciliation procedure provided for in the following sections.
   • Section 20. The trade union or persons representing over half of the employees of the public establishment concerned shall submit in writing their demand for the introduction of new or a change in existing conditions of employment.
   • On receipt of the demand, the head of the public establishment shall convene a joint Committee, which shall seek a solution within ten working days.
   • The joint Committee shall be composed of four representatives of the trade union or the persons representing the employees and four representatives of the public establishment. The chairmanship shall rotate between the employees' representatives and the department's representatives.
   • Section 21. Should a strike take place in a public establishment because the joint Committee fails to reach an agreement, an arbitration board shall be set up within five working days at most, whose ruling on the demand giving rise to the strike shall be final and binding.
   • The board shall be composed of five members, two of whom shall be appointed by the employees and two by the public establishment, and shall be presided over by an acting or retired magistrate appointed by the High Court of the corresponding court district, at the request of the head of the public establishment.
   • The board shall hear the demand and shay hand down, by the end of the third day of hearings, a binding award terminating the dispute.
   • Section 22. A strike shall be terminated:
     • (a) by decision of the workers on strike;
     • (b) by award of the arbitration board; or
     • (c) by agreement between the parties.
   • Section 23. Strikes by public employees' shall comply with the rules governing strikes in the private sector and with the provisions of this Act, wherever applicable.
   • Section 24. This Act shall come into force on the date of its publication.
3. 254. The complainants point out in particular that section 2 excludes from the scope of the Act self-employed workers, workers belonging to related undertakings not subject to the private labour system and magistrates of the Judiciary; that the term "peaceful" contained in section 3 in relation to strikes might give rise to arbitrary interpretations whereby strikes could be declared illegal; that section 4 establishes extremely limited purposes for the exercise of the right to strike, preventing solidarity strikes in particular; that section 5 contains additional requirements for calling a strike, requirements which, under subparagraph (b), might cause it to be delayed for a year or more pending completion of the relevant administrative procedure in the event of an employer's failure to fulfil the obligations incumbent on him by law; that section 6 provides that a strike has to be decided upon by over half of the workers; that section 7 unjustifiably extends the period for strike notice ; that section 8 requires trade union federations and Confederations to have the agreement of over half of the organisations affiliated to them, which must represent the majority of their members, in order to call a strike; that section to Provides employers with a legal basis for non-payment of strike days; that section 11, taken in conjunction with section 14, implies lack of recognition for strikes of less than one working day where the workers do not leave the workplace; that section 13 affords no machinery to compensate for the non-exercise of the right to strike by staff deemed to be essential for the preservation of the workplace and places the parties to a dispute on an unequal footing since the employer's interests will not really be affected however many stoppages are carried out by the workers; that section 14 fails to recognise and makes illegal various forms of strikes commonly practised by trade union organisations throughout the world; that section 16 allows disputes to be submitted to compulsory arbitration in certain circumstances; that section 17 deprives workers in certain services not essential in the strict sense of the right to strike and paves the way for having mining and the petroleum industry considered as essential services, while empowering the Government, under subsection (g), to declare, with the agreement of the Council of ministers, other services to be essential for daily social life; and that sections 19, 20 and 21 discriminate against public employees as regards the right to strike and make the demands giving rise to strikes subject to compulsory arbitration. Lastly, the complainants state that the bill fails to make any reference to the establishment of measures to compensate for the restricted right to strike in sectors included in the categories of essential services.

B. The Government's reply

1. 255. In its communication of 16 November 1981, the Government states that, in connection with the right to strike, various bills have been prepared relating in particular to the interruption of public services and the disruption of basic economic activities, which are now being examined and discussed by Congress. The Government adds that, since adoption of the Act on strikes is still pending, it considers the complaint precipitate and untimely.
2. 256. The Government also states that the bill on the right to strike prepared by the Ministry of Labour was examined by the National Tripartite Committee (on which workers, employers and the Government are represented), where suggestions and changes were made before it was submitted to the legislature representing all sectors of the nation.
3. 257. The Government goes on to state that the right to strike is laid down in article 55 of the Constitution, which provides that it must be exercised in the form established by law. Its exercise will therefore be regulated by enactment of the bill in question, and may in no way be denied or obstructed.
4. 258. Lastly, the Government states that the exercise of the right to strike must be embodied in standards and rules intended to prevent any disturbance of public order, breakdown of essential public services or disruption of the economy, or its use as an instrument of political struggle obeying trade union orders rather than labour-related demands.

C. The Committee's conclusions

1. 259. The Committee observes that the complainants object to a number of provisions of the bill to regulate the right to strike approved by the Upper House of the Peruvian Congress on 27 October 1981, which they consider to be contrary to the Conventions on freedom of association. These provisions relate to the purposes of strikes and the relevant procedures, the categories of workers enjoying the right to strike, the conditions required for its legal exercise, and various other questions having to do with strikes. The Committee notes that, according to the complainants, the bill in question will probably be approved by the Lower House as well.
2. 260. The Committee takes note of the Government's statements, in particular that it considers the complaint to be precipitate and untimely since adoption of the Act on strikes is still pending, that the bill on the right to strike prepared by the Ministry of Labour has been examined by the National Tripartite Committee, where suggestions and changes were made, before being submitted to the legislature, and that the law in question will regulate the right to strike, which may in no way be denied or obstructed. The Committee observes however that the Government has not made any observations on the various limitations imposed by the bill on the right to strike.
3. 261. As regards the purposes which workers may pursue through the exercise of the right to strike, the Committee recalls that strikes are one of the essential means available to workers and their organisations for the promotion and protection of their occupational and economic interests in the broad sense of the term. These interests do not only have to do with "obtaining better working conditions", "ensuring compliance by the employer of provisions of law or collective agreements" and "the restoration of any of the workers' rights that may have been infringed or prejudiced" (section 4 of the bill) but also with seeking solutions to economic and social policy questions and to labour problems of any kind which are of direct concern to the workers. Accordingly, it would be appropriate for the future Act to provide for a broader range of objectives that may be pursued by a strike, along the above lines.
4. 262. As regards the strike procedures denied to workers under the bill (sit-down strikes, go-slows, occupation of the undertaking or workplace, in accordance with section 14, and indirectly, according to the complainants, prohibition of stoppages of less than ore working day, in accordance with section 11), the Committee considers that such limitations would be warranted only in cases where a strike ceased to be peaceful or there were due grounds for believing that it would cease to be in specific circumstances.
5. 263. Concerning the categories of workers enjoying the right to strike, the Committee notes that, according to the complainants, the scope of the bill (section 2) does not include self-employed workers or workers employed in related undertakings not subject to the private labour system. In this connection, the Committee draws the Government's attention to the fact that, in accordance with the principles of freedom of association, these categories of workers should be able to exercise the right to strike. Provided they are not public employees or workers employed in essential services, categories which may be excluded from the right to strike in certain circumstances. The Committee also draws the Government's attention to the fact that the right to strike may be seriously restricted only in the above-mentioned sectors, i.e. in public services or services essential in the strict sense of the term (those whose interruption could endanger the existence or well-being of the whole or part of the population). In this respect, the Committee observes that the list of essential services given in section 17, where the right to strike is seriously restricted, includes some services that are not essential in the strict sense of the term, and that the broad wording of subsection (g) - "any other service essential for daily social life", as determined by the Government- could give rise to interpretations contrary to the above definition of essential services.
6. 264. Similarly, the Committee observes that section 16 of the bill provides that disputes giving rise to strikes whose extent or duration could seriously jeopardise the general interest may be submitted to compulsory arbitration by presidential decree and that section 21 establishes a system of compulsory arbitration in the event of a strike by public employees when agreement is net reached. The Committee draws the Government's attention to the fact that, in accordance with the principles set forth in the preceding paragraph, the limitations established in section 16 would only be acceptable, on account of their extent, and seriousness, in the event of an acute national emergency, and the restrictions established in section 21 only in the case of public employees coming within the category of civil servants in the employ of the Government.
7. 265. The Committee also wishes to point out to the Government that when legislation restricts or prohibits the right to strike in the public service or essential services, adequate guarantees should be provided to safeguard the workers' interests, such as impartial and speedy conciliation and arbitration procedures in which the parties can take part at every stage and in which the awards are binding on both parties and are applied fully and promptly." In this connection, the Committee observes that the bill on the right to strike does not provide for machinery to compensate for the restrictions on the right to strike established for employees in essential services.
8. 266. Regarding the conditions required for the legal exercise of the right to strike, the Committee wishes to point out that, apart from the public service and essential services, the conditions required by law for a strike to be considered lawful must be reasonable, and in any case should not involve a serious limitation on the potential activities of trade unions. In this respect, the Committee considers that the condition requiring the agreement of the majority of member organisations for calling a strike in federations and Confederations (section 8 of the bill) and a vote in favour of the strike by the absolute majority of the workers of the undertaking in the other cases (section 6) may constitute a serious limitation on the potential activities of trade unions. The same would have to be said if a legal provision paved the way for delaying the legal exercise of the right to strike for longer than a reasonable period, a circumstance which, according to the complainants, could arise in the case provided for by section 5(h).
9. 267. As regards the other provisions of the bill to which the complainants object (sections 3, 7, 10, 13, 19 and 20), the Committee considers that they are not contrary to the Conventions on freedom of association.
10. 268. Having observed that certain provisions or omissions of the bill to regulate the right to strike - which has already been approved by one of the Houses of Congress - involves drawbacks from the standpoint of the principles of freedom of association and, specifically, that some provisions involve restrictions on the right to strike, the Committee, while expressing its concern lest the final text of the Act should fail to conform fully with the principles of freedom of association, trusts that the legislature will take due account of those principles. It requests the Committee of Experts on the Application of Conventions and Recommendations to pay special attention to the legislative follow-up to the bill to regulate the right to strike.

The Committee's recommendations

1. 269. In these circumstances, the Committee recommends the Governing Body to approve this report, in particular the following conclusions:
   • (a) Having observed that certain provisions or omissions of the bill to regulate the right to strike involve restrictions on this right, the Committee expresses its concern lest the final text of the Act should fail to conform fully with the principles of freedom of association, as may very well prove to be the case since the bill has already been approved by one of the Houses of Congress.
   • (b) Among the principles stressed, the Committee wishes to point out that the conditions required by law for a strike to be considered lawful should not involve a serious limitation on the potential activities of trade unions, a limitation which would be acceptable only for the public service and essential services in the strict sense of the term. The Committee also points out that the broad wording of section 17(g) ("For the purposes of this Act, essential services shall be deemed to be (g) any other service essential for daily social life") could give rise to interpretations contrary to the concept of essential services in the strict sense of the term.
   • (c) The Committee trusts that the legislature will take due account of the above-mentioned principles and requests the Committee of Experts or, the Application of Conventions and Recommendations to pay special attention to the legislative follow-up to the bill to regulate the right to strike.