Direct Request (CEACR) - adopted 2023, published 112nd ILC session (2024)

Peru

Minimum Wage-Fixing Machinery Convention, 1928 (No. 26) (Ratification: 1962)
Minimum Wage Fixing Machinery (Agriculture) Convention, 1951 (No. 99) (Ratification: 1960)

Previous comment

In order to provide a comprehensive view of the issues relating to the application of ratified Conventions on wages, the Committee considers it appropriate to examine Conventions Nos 26 and 99 (minimum wages) in the same comment.

The Committee notes the observations of the National Confederation of Private Business Institutions (CONFIEP), received on 31 August 2023, and the observations of the Autonomous Workers’ Confederation of Peru (CATP), received on 1 September 2023.

Legislation. The Committee notes that the Government refers in its report to the promulgation of Act No. 31110 on labour regulations in agriculture and incentives for the agriculture/irrigation, agri-export and agro-industrial sector, published on 31 December 2020, and its implementing regulations (Supreme Decree No. 005-2021-MIDAGRI, published on 30 March 2021).

Article 2 of Convention No. 99. Partial payment of minimum wages in kind. Further to its previous comments, the Committee notes the Government’s indication that in agriculture neither Act No. 31110 nor its Regulations establish particular provisions regarding the payment of wages in kind. The Government indicates that the general labour regulations on private activity are therefore applicable, in particular the Act on labour productivity and competitiveness, adopted by Supreme Decree No. 003-97-TR, and the single consolidated text of the Act on compensation for service time, adopted by Supreme Decree No. 001-97-TR. In this regard, the Committee notes the Government’s indication that sections 9, 13, 14 and 15 of the single consolidated text of the Act on compensation for service time establish guidelines relating to payment in kind. In particular, the Government refers to section 15, which stipulates that payment of remuneration in kind must stem from an agreement and the value shall be established by joint agreement or otherwise by the market value, and it indicates that the purpose of this is to avoid attaching an excessive value to benefits in kind, which ends up affecting workers’ income. In relation to its previous comments, the Committee notes that CONFIEP indicates that section 11 of Decree-Law No. 14222, on the valuation of remuneration in kind, was tacitly repealed by section 15 of the single consolidated text of the Act on compensation for service time. In this regard, the union indicates that none of these standards establishes limits on payment of wages in kind but merely establish rules for adequate valuation. CONFIEP adds that if wages in kind are determined by an agreement of the parties, such an agreement must be reasonable and take account of normal market prices, and over-valuation of wages in kind would entitle workers to make a judicial appeal to have the agreement established at the value in question declared null and void. The Committee requests the Government to provide information on the measures taken or envisaged to ensure that the payment of wages in kind, specifically in agriculture, is only partial and that: (i) allowances in kind are appropriate for the personal use and benefit of the worker and his family; and (ii) the value attributed to such allowances is fair and reasonable.

Article 3(1) and (2) of Convention No. 26 and Article 3(1), (2) and (3) of Convention No. 99. Minimum wage-fixing machinery.Participation of the social partners. Further to its previous comments, the Committee notes the Government’s indication that a minimum wage currently exists for all private labour activity and that the National Labour and Employment Promotion Council (CNTPE), through its Special Committee on Productivity and Minimum Wages, is the forum for dialogue on this matter. The Committee also notes the Government’s indication that the participation of agricultural workers in the CNTPE is manifested through the trade union confederations which make up the dialogue forum. The Committee further notes CONFIEP’s indication that the increase in the minimum wage was never a subject of consultation with workers and employers. The Committee also notes that the CATP in its observations expresses concern at the lack of institutionalization of the review of the minimum wage. In particular, the CATP indicates that there is no official mechanism adopted by law or decree of the executive authority relating to the fixing or periodic adjustment of the minimum wage. The Committee requests the Government to provide its comments with respect to the observations of CONFIEP and the CATP.

Article 4 of Conventions Nos 26 and 99. System of supervision and sanctions. The Committee notes the Government’s indication that, according to the information provided by National Labour Inspection Authority (SUNAFIL), in 2022 and 2023 there was a total of 2,763 concluded inspection orders relating to the minimum living wage (2,198 in 2022). The Government also indicates that 15,743 workers were affected by these orders (13,292 in 2022). As regards decisions and fines relating to the minimum living wage, the Committee notes the Government’s indication that in 2022 a total of 51 decisions were issued (19 at first instance, 32 at second instance) while from January to June 2023 the figure was 28 (19 at first instance, 9 at second instance). As regards fines, the total amount in 2022 was 452,466 Peruvian soles (PEN) (308,378 at first instance, 144,088 at second instance), while up to June 2023 it was PEN 194,046 (149,188 at first instance, 44,858 at second instance). The Committee notes that the CATP in its observations expresses concern at the scarcity of labour inspection relating to the minimum wage. It also indicates that cases are frequently reported in which employers formally record payment of the minimum wage on the payroll but in practice pay workers smaller amounts. The Committee requests the Government to provide its comments in this respect. The Committee also refers to its comments on the application of the Labour Inspection Convention, 1947 (No. 81).