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

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

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The Committee notes the observations of the International Organisation of Employers, received on 1 September 2023, in which it reiterates the comments made at the Conference Committee on the Application of Standards (hereinafter the Conference Committee) in June 2023 concerning the application of the Convention by Peru. The Committee also notes the observations of the International Trade Union Confederation, received on 27 September 2023, relating to matters examined in the present comment.

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 111th Session, June 2023)

The Committee notes the discussion that took place at the 111th Session of the Conference Committee in June 2023 and observes that, while the Conference Committee welcomed certain legislative developments, it expressed concern at the ongoing restrictions in law and in practice on the right to freedom of association and the right to organize, and requested the Government, in consultation with the social partners, to adopt time-bound measures to:

• ensure that existing and prospective legislation is in conformity with the Convention;
• ensure that public servants, including judges, prosecutors and employees in positions of trust and leadership in the public administration, without distinction whatsoever, have the right in law and practice to establish and join workers’ organizations of their own choosing;
• ensure the proper functioning of the National Labour and Employment Promotion Council (CNTPE) with a view to facilitating social dialogue and consultation with the social partners on labour law reform;
• ensure in law and practice the right of workers’ and employers’ organizations to organize their activities and formulate their programmes in full freedom.

The Conference Committee also requested the Government to provide information, before 1 September 2023, in consultation with the social partners, on the application of the Convention in law and in practice, and invited the Government to accept a direct contacts mission in order to fully implement those recommendations.

The Committee notes the Government’s indication in its report that it aims to decisively promote tripartite social dialogue as a central focus of the management of the Ministry of Labour and Employment Promotion. To that end, on 13 July 2023 the 129th Ordinary Session of the CNTPE was held, attended by the Ministry of Labour and Employment and the main representatives of employers’ associations and trade union confederations. The Government indicates that, after almost one year, it was possible to obtain the willingness of the social partners to reactivate the Council. The Government further indicates that it was agreed to resume dialogue within the CNTPE and to reactivate its technical committees and, also, that the agreements adopted at Ordinary Sessions Nos 127 and 128 (May and July 2022) and the requests made by the parties at the July 2023 session would be addressed in accordance with the Rules of Procedure of the CNTPE. With the resumption of the sessions of the CNTPE, the Government reiterates its firm will and commitment to prioritize social dialogue as an engine, tool and governance instrument for achieving sustainable labour development in the country. The Government emphasizes that employers and workers showed willingness to continue the dialogue and that it is confident that it can continue to rely on the will and commitment of the social partners, without whom tripartite social dialogue is impossible. The Government also indicates that on 21 July 2023, a high-level meeting was held at which officials from various ministries and state bodies expressed their willingness to carry out a joint technical analysis in order to respond to the request of the Conference Committee and of this Committee, with social dialogue as a central focus. The Government also expresses its willingness to coordinate the future visit of the contacts mission requested by the Conference Committee.

The Committee takes due note of this information. The Committee welcomes the reactivation of the CNTPE and its technical committees and further welcomes the fact that a high-level meeting was held and that the commitment of the various institutions to social dialogue was reaffirmed. The Committee also welcomes the Government’s willingness to coordinate the future visit of the contacts mission requested by the Conference Committee. The Committee encourages the Government and all parties concerned to make every possible effort to ensure that the CNTPE continues to function and fulfil a fundamental role as a tripartite body for social dialogue. The Committee reiterates the importance of consultations in the preparation and drafting of legislation on collective labour relations and expects that any concerns in this respect will be duly addressed within the CNTPE. The Committee also reiterates its hope that the implementation of Supreme Decree No. 014-2022-TR which, according to the Government, has its origins in concerns at the situation of freedom of association in the country, will contribute to ensuring the full enjoyment and exercise of the rights enshrined in the Convention. The Committee once again requests the Government to provide information on the impact of the Supreme Decree’s application. Moreover, in the light of the concerns expressed by the Conference Committee in respect of the ongoing restrictions in law and in practice on the right to freedom of association and the right to organize, the Committee firmly hopes that through strengthened social dialogue, it will be able to note progress in the very near future on the matters highlighted by the Conference Committee and which the Committee has highlighted in its previous comments. The Committee reminds the Government the technical assistance of the Office remains available and hopes that the direct contacts mission can be carried out within the shortest possible period and that it will contribute to the full implementation of the Convention.

The Committee recalls below the points that it has highlighted in its previous comments, which require the adoption of specific measures to bring the legislation into full conformity with the Convention.

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

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

Article 3. Right of organizations to organize their activities and formulate their programmes. Determining the unlawfulness of strikes. Having observed that the Civil Service Support Commission was competent to decide whether a strike is inappropriate or unlawful and given that it had not yet been established, the Committee requested the Government to take the necessary measures to ensure that competence to determine the lawfulness of strikes, in both the private and public sectors, lay not with the Government but with an independent body trusted by the parties. In this respect, the Government indicated that while the body competent to determine the lawfulness of a strike in the private sector is the Administrative Labour Authority, which issues its decision with independence, impartiality and in accordance with the law, the preliminary draft of the Labour Code provides that, at the request of the employer or employers affected by the measure, the judicial authority shall determine the lawfulness or unlawfulness of a strike. With regard to the public sector, the Government recalled that, in accordance with the Tenth Supplementary Transitional Provision of the Regulations of the Civil Service Act, the Administrative Labour Authority shall assume the functions of the Civil Service Support Commission until the latter is established. The Committee observed that the trade union confederations considered that the fact that the Administrative Labour Authority continued to determine the lawful nature of strikes in both the private and the public sectors (in view of the persistent failure to establish the Civil Service Support Commission with guarantees of its real impartiality) bore witness to the reluctance of the State to bring the legislation into conformity with the provisions of the Convention and they indicated that 100 per cent of strikes in 2020 were found to be unlawful by the Administrative Labour Authority. The Committee urges the Government to take the necessary measures to ensure that the authority to determine the lawful nature of strikes in the private sector does not lie with the labour administration, but rather with an independent and truly impartial body that has the trust of all the parties. The Committee hopes that the proposed amendment contained in the preliminary draft of the Labour Code will be the subject of extensive tripartite consultations, and requests the Government to keep it informed of any developments in this regard. Observing with concern the indications of the trade union confederations, the Committee urges the Government to take all necessary measures so that the Civil Service Support Commission is established without further ado and expresses its firm hope that it will be a genuinely independent body. The Committee requests the Government to provide information on any progress in this regard.

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

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

Lastly, the Committee notes that the Committee on Freedom of Association referred to it the legislative aspects of Case No. 3245 concerning the determination by means of Regulations of which trade union authority appoints the regional representatives of the teachers’ unions that are granted paid leave. The Committee invited the Government, in full consultation with the representative trade unions in the sector, to consider how to revise the current regulations such that it is the organizations of education workers themselves that determine the internal mechanisms by which the representatives that will receive union leave are named (see 403rd Report, June 2023). The Committee requests the Government to provide information on any measures taken in this respect.

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