Holidays with Pay Convention, 1936 (No. 52) - Peru (RATIFICATION: 1960)

CMNT_TITLE

Previous comments: C.1, C.52 and C.101

In order to provide a comprehensive view of the issues relating to the application of the ratified Conventions on working time, the Committee considers it appropriate to examine Conventions Nos 1 (hours of work, industry), 52 (holidays with pay) and 101 (holidays with pay, agriculture) in a single comment.

Hours of work

Article 8(2) of Convention No. 1.Application in practice. The Committee notes the indication of the Autonomous Workers’ Confederation of Peru (CATP) that limits on working hours are exceeded in certain cases (for example, in port enterprises, in the road transport sector and the urban passenger transport sector, in micro-, small and medium-sized enterprises and in the context of subcontracting) and that the labour inspection services only engage in limited action in this regard. The CATP adds that, according to the latest report of the National Institute of Statistics and Information Technology, only two out of ten workers are in the formal sector, as a result of which 80 per cent of workers do not have labour rights and have to work more than eight hours a day. The Committee requests the Government to provide its comments in this regard

Holidays with pay

Articles 2(3) and 8 of Convention No. 52 and Articles 5(d) and 10 of Convention No. 101. Illness that occurs during holidays. Public and customary holidays. The Committee notes the Government’s indication that section 13 of Legislative Decree No. 713 provides that periods of incapacity shall not be taken into consideration during holiday periods. It also indicates that the national legislation does not deduct from annual holidays interruptions of work due to illness or accident and that, on the contrary, in accordance with section 12 of Legislative Decree No. 713, for the purposes of the vacation record, the holiday period for the previous year, as well as absences for common illnesses, employment injury and occupational diseases, are considered as effective days of work. It therefore adds that absences from or interruptions of work do not affect the right of workers to annual holidays.

The Committee notes the concern expressed by the CATP in its observations at the application in practice of section 13 of Legislative Decree No. 713. It indicates in particular that, in order to avoid the long delay in the processing of their benefits by social security institutions, when workers take more than 20 days of leave for illness, they prefer to use their days of holiday during this period so that it is their employer that pays their monthly earnings. The Committee also notes the CATP’s indication that the National Labour Inspection Authority (SUNAFIL) does not have a plan of action to monitor or verify that holidays are accorded correctly and that they are not used to cover the illness or injury of workers. The CATP adds that section 13 of Legislative Decree No. 713 should be reformulated to specify that the employer shall not count public holidays during the period of holiday leave, and that workers are entitled to benefit from their days of leave without public holidays being counted as part of their holidays. The Committee requests the Government to provide its comments in this regard.

Specific issues related to holidays with pay in agriculture

Article 3 of Convention No. 101. Minimum duration of annual holiday with pay. With reference to its previous comments, the Committee notes that the Government reports the adoption of Act No. 31 110 on the agricultural labour system and incentives for the agricultural and irrigation sector, agricultural exports and agro-industry, published on 31 December 2020, and its regulations published on 30 March 2021. In this regard, the Committee notes the Government’s indication that, under section 12 of the Regulations of Act No. 31 110, the right of agricultural workers to holidays is regulated by the provisions of Legislative Decree No. 713. The Committee therefore observes that workers covered by the system set out by Act No. 31,110 are entitled to 30 calendar days of holiday for each complete year of work (section 10 of Legislative Decree No. 713). The Committee notes this information, which responds to its previous request.

CMNT_TITLE

Previous comment on Convention No. 1: Observation

Previous comment on Convention No. 14: Direct request

Previous comment on Convention No. 52: Direct request

Previous comment on Convention No. 101: Direct request

Previous comment on Convention No. 106: Direct request

In order to provide a comprehensive view of the issues relating to the application of the ratified Conventions on working time, the Committee considers it appropriate to examine Conventions Nos 1 (hours of work, industry), 14 (weekly rest, industry), 52 (holidays with pay), 101 (holidays with pay, agriculture) and 106 (hours of rest, commerce and offices) in a single comment.

The Committee notes the observations of the National Confederation of Private Business Institutions (CONFIEP) on the application of Conventions Nos 1 and 52, received on 31 August 2023, and the observations of the Autonomous Workers’ Confederation of Peru (CATP) on the application of Conventions Nos 1, 14, 52, 101 and 106, received on 1 September 2023.

The Committee notes the decision by the tripartite committee set up to examine the two separate representations made in 2020 under article 24 of the Constitution of the ILO by the Federation of Mineworkers of the Shougang Hierro Peru and Others and the Santa Luisa de Huanzalà Mineworkers Union. The Committee notes that the tripartite committee did not find violations of Convention No. 1 in relation to the alleged violation of working time limits during COVID-19. The Committee also notes that, taking into account the context of the acute health crisis caused by the COVID-19 pandemic during which the representations were made, the tripartite committee emphasized the importance of engaging in broad social dialogue with all representative organizations of workers and employers in the relevant sectors when taking action to find effective and sustainable solutions to crises (such as the crisis caused by the COVID-19 pandemic), as well as in the context of collective bargaining. The tripartite committee also recalled the impact of excessive working hours on the health and safety of workers and emphasized the fundamental nature of the occupational safety and health Conventions, as recently recognized by the ILO.

A. Hours of work

Article 2(b) of Convention No. 1. Averaging of hours of work within the weekly limits. In its previous comments, the Committee noted the lack of conformity with the Convention of section 2(1)(b) of the single consolidated text of Legislative Decree No. 854 on hours of work, overtime hours and work, as amended by Act No. 27,761 (Presidential Decree No. 007-2002-TR of 4 July 2002), which allows employers to adopt an uneven distribution of working hours in the same week, without establishing maximum limits for daily hours of work. The Committee notes that the Government has not provided information on this subject. The Committee recalls that the Convention establishes an overall daily limit of nine hours in the case of the variable distribution of working hours within a week. The Committee requests the Government to take the necessary measures to bring section 2(1)(b) of the single consolidated text of the Act on working time and overtime hours and work into conformity with Article 2(b) of the Convention with a view to guaranteeing that, in the case of the variable distribution of working hours within a week, an overall daily limit of nine hours is established in addition to the weekly limit of 48 hours. The Committee requests the Government to provide information on the measures adopted or envisaged to ensure the application of this provision in practice.

Article 6(1)(b) and (2). Overtime hours. Circumstances in which temporary exceptions may be permitted, Overtime pay and maximum number of hours permitted. With reference to its previous comments, the Committee notes the Government’s indication that overtime hours are of an exceptional nature in accordance with section 9 of the single consolidated text of the Act on hours of work and overtime hours and work. However, the Committee notes that section 9 provides that overtime work shall be voluntary and shall only be compulsory in cases of unforeseen circumstances or force majeure. The Committee also notes that the CATP, in its observations, indicates that in certain sectors the limits on working time are exceeded and that, for example in the context of subcontracting, workers have to accept very long working days. The Committee requests the Government to take the necessary measures to ensure that overtime hours are only worked in exceptional cases of unforeseen pressure of work and are only allowed to enable enterprises to cope with unforeseen cases of pressure of work, in accordance with Article 6(1)(b) of the Convention.

Furthermore, in its previous comments, the Committee noted the absence of conformity of section 10 of the single consolidated text of the Act on hours of work and overtime hours and work, as it allows overtime pay to be replaced by compensatory rest. The Committee notes that the Government has not provided any further information on this subject. The Committee also notes the absence of legislative provisions establishing the maximum number of overtime hours that may be allowed in each case. With reference to compensation for overtime hours, the Committee requests the Government to take the necessary measures to bring section 10 of the single consolidated text of the Act on hours of work and overtime hours and work into conformity with Article 6(2) of the Convention in order to guarantee that overtime hours are paid at a rate of not less than 125 per cent of the regular rate, irrespective of any compensatory rest afforded to workers. The Committee also requests the Government to indicate the maximum number of additional hours that may be allowed in practice.

B. Weekly rest

Article 5 of Convention No. 14 and Article 8(3) of Convention No. 106. Compensatory rest. In relation to its previous comments, the Committee notes that the Government refers in its report to section 3 of Legislative Decree No. 713 of 8 November 1991, which consolidates the legislation on paid leave for workers subject to the labour regulations governing the private sector, but does not provide additional information, and indicates that the national legislation is in conformity with the provisions of the Conventions. In this regard, the Committee notes the CATP’s indication that section 3 of Legislative Decree No. 713 has still not been amended, in contravention of the provisions of the Conventions on weekly rest. It adds that this situation not only endangers the health and life of workers, but also the well-being of their families. The Committee recalls that the rationale for compensatory rest is the need to protect the health and well-being of workers and emphasizes the importance that any financial compensation is in addition to, and not in lieu of, the requisite compensatory rest (2018 General Survey concerning working-time instruments, paragraph 267). The Committee requests the Government to take the necessary measures to bring section 3 of Legislative Decree No. 713 into conformity with the Conventions with a view to ensuring that workers who are subject to exceptions to the principle of weekly rest are entitled to compensatory rest of not less than 24 consecutive hours in each period of seven days, irrespective of any financial compensation.

C. Holidays with pay

Article 4 of Convention No. 52 and Article 8 of Convention No. 101. Monetary compensation for leave not taken. Partial relinquishment of holidays. In relation to its previous comments, the Committee notes that the Government refers to section 23 of Legislative Decree No. 713, which establishes the remuneration and compensation which shall be received by workers in the event that they do not take their holidays within the year following that in which they became due. The Committee recalls that Article 4 of Convention No. 52 and Article 8 of Convention No. 101 provide that any agreement to relinquish the right to annual holiday with pay, or to forgo such holiday, shall be void. The Committee therefore requests the Government to take the necessary measures to bring section 23 of Legislative Decree No. 713 into conformity with the Convention in order to ensure that workers benefit effectively from the right to annual holidays with pay in the form of a period of rest and leisure that is sufficiently long to preserve their health and well-being.

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

CMNT_TITLE

Article 2(3) of the Convention. Illness or injury that occur during holidays. In previous comments, the Committee requested the Government to clarify whether, under section 13 of Legislative Decree No. 713, interruptions of attendance at work due to sickness are included in a worker’s annual holidays with pay. In the absence of any explanations in this regard, the Committee again requests the Government to indicate the legal provisions which prohibit interruptions of attendance at work due to sickness or accident to be deducted from annual leave even when such periods of incapacity for work occur during the period of annual leave. The Committee notes, parenthetically, that because of the difficulties experienced by many countries in complying with this requirement, particularly in the mandatory form used in this Article of the Convention, Article 6(2) of the Holidays with Pay Convention (Revised), 1970 (No. 132), was deliberately drafted in more flexible terms leaving it to the competent authority to determine the conditions under which periods of incapacity for work resulting from sickness or injury might not be counted as part of the minimum annual holiday with pay.

Articles 4 and 6. Monetary compensation for leave not taken. The Committee notes that under section 23 of Legislative Decree No. 713, where workers have not used their entitlement to leave in the year following the one in respect of which the entitlement was acquired, in addition to their regular pay they receive compensation and allowance for the days of holidays lost. The Committee recalls, in this respect, that even though the Convention does not contain any provision on the postponement or accumulation of holidays, the essence of annual holidays is that, in the course of the year, workers must be granted at least part of their leave in order to enjoy a minimum amount of rest and leisure. According to the spirit of the Convention, therefore, days of annual leave not taken should not be lost or compensated, except in the case of termination of the employment contract. The Committee recalls that the same principle is reflected in Articles 11 and 12 of Convention No. 132. The Committee accordingly requests the Government to take appropriate measures to ensure that the national legislation is fully aligned with the letter and spirit of the Convention in this respect.

CMNT_TITLE

The Committee notes the Government’s explanations concerning the application of Article 1 (holidays for officials exercising political or confidential functions); Article 2, paragraph 2 (holidays for young workers and apprentices) and Article 8 (system of sanctions) of the Convention. It would like to draw the Government’s attention to the following points.

Article 2, paragraphs 1 and 4, of the Convention. Deferral of holidays. The Committee notes the Government’s indication that the provisions applicable to workers subject to the administrative career system are those of Legislative Decree No. 276 issuing basic regulations on the administrative career system and public sector pay, which is due to be revised soon as part of the reform of the civil service. The Committee hopes that the Government will take this opportunity to bring its legislation into conformity with the Convention on this point, limiting the deferral of holidays to exceptional cases and in respect of the part of the holidays in excess of the minimum of six working days. It requests the Government to keep the Office informed of any developments in this field and to supply a copy of any relevant legislative text once it is adopted.

Article 2, paragraph 3. Illnesses or accidents occurring during holidays. Further to its previous comment, the Committee notes that the Government’s report does not contain any new information on this point. The Committee requests the Government once again to indicate the legislative or regulatory provisions which ensure that interruptions of attendance at work due to sickness or accident are not counted in the period of annual holiday with pay, as required by this Article of the Convention.

Article 2, paragraph 5. Gradual increase of the annual holiday with pay. The Committee notes the Government’s statement to the effect that there are no legislative provisions which require the duration of the annual holiday with pay to increase with the length of service, but that the current legislation does not prohibit such an arrangement in the context of collective agreements or individual contracts, or made unilaterally by the employer. The Committee requests the Government to supply copies of collective agreements which provide for such an increase.

Part V of the report form. The Committee requests the Government to supply general information on the manner in which the Convention is applied in practice, including, for example, extracts of the reports of the inspection services indicating the number and nature of infringements reported and penalties imposed, information on the number of workers covered by the legislation, etc.

CMNT_TITLE

Article 2, paragraph 5, of the Convention. Gradual increase of annual holiday. The Committee requests the Government to state whether the duration of the annual holiday with pay increases with the length of service, as prescribed by Article 2, paragraph 5, of the Convention.

Article 8. Sanctions. According to section 23 of Legislative Decree No. 713, where workers have not used their entitlement to leave in the year following the one in respect of which the entitlement was acquired, in addition to their regular pay they receive compensation for the days of holiday lost and allowance in an equivalent amount. The Committee requests the Government to indicate whether, in addition to financial compensation, the legislation provides for sanctions to be imposed where workers are deprived of their annual holiday entitlements. More generally, the Government is requested to provide information on the system of sanctions used to ensure the application of the provisions of the Convention.

CMNT_TITLE

Article 1, paragraph 1, of the Convention. Scope - Public service. According to the information supplied by the Government in its report, the provisions on annual holiday with pay of Legislative Decree No. 276 issuing basic regulations on careers in the administration and public sector pay, apply as well to non-career public servants under contract and officials with political or confidential functions. Section 2 of Legislative Decree No. 276 provides that the two above categories are covered by the Legislative Decree only in respect of the provisions applicable to them. Furthermore, section 24 of the same Legislative Decree lists the rights - including rights to annual holiday with pay - only of career public servants and makes no express reference to non-career public servants under contract or officials with political or confidential functions. Article 40 of the Political Constitution of Peru provides that public officials with political or confidential functions do not have administrative careers. The Committee therefore requests the Government to provide more specific information on the application of the provisions of the Convention to non-career public servants under contract and officials with political or confidential functions.

The Committee notes the information supplied by the Government on the provisions that govern holidays with pay in the armed forces and the police. It requests the Government to provide copies of Supreme Decree No. 213-90-EF, and Legislative Decree No. 745 and its implementing regulations.

Articles 2, paragraph 1, and 4. Deferral of annual leave. Supreme Decree No. 121-2002-PCM set the dates at which public sector workers were required to take their holiday, namely from 16 December 2002 to 3 January 2003, i.e. a holiday period of more than six working days. However, this Supreme Decree applies only to this one specific year. Section 2(1) of Legislative Decree No. 276 still allows public servants to accumulate two holiday periods under agreements. The Committee recalls that the Convention allows holiday to be deferred from one year to the next only exceptionally and for the part of the holiday which exceeds the minimum of six working days. It requests the Government to indicate in its next report the legislative measures taken or envisaged to ensure that the Convention applies permanently as regards this point.

Article 2, paragraph 2. Young workers. Only persons over 18 years of age have access to careers in the administration and consequently, this provision of the Convention is not applicable to young workers in the public sector. As to the private sector, the Committee infers from the information sent by the Government that under section 61 of the Children’s and Adolescents’ Code, young workers who are not in the school system are likewise entitled to holidays with pay. The Committee requests the Government to specify the duration of holidays for workers under 16 years of age. Furthermore, it notes that apprentices are excluded from the scope of the Children’s and Adolescents’ Code and is governed by separate regulations. The Committee requests the Government to indicate the provisions that apply to apprentices in respect of holidays with pay and to provide a copy of them.

Article 2, paragraph 3. Illnesses or accidents that occur during holidays. Section 13 of Legislative Decree No. 713 states that annual holidays shall not be granted when the worker is unable to work due to sickness or an accident, unless such a cause occurs during the annual holiday. According to the information in the Government’s supplementary report in 2000, holidays entail a suspension of the employment relationship, which means that employers may not be required to compensate workers for days of holiday lost owing to sickness or accidents. However, Article 2, paragraph 3, of the Convention allows no exceptions to the prohibitions on including interruptions due to sickness in the annual holiday with pay. It accordingly asks the Government to bring the legislation into conformity with this provision of the Convention and to keep it informed of all progress in this regard.

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

CMNT_TITLE

The Committee takes note of Legislative Decree No. 276 (Law of the Bases of the Administrative Career and Remuneration in the Public Sector) and the new Code of Children and Adolescents (Law No. 27337) of 7 August 2000.

Article 1, paragraph 1, of the Convention. The Committee notes that public servants are entitled to 30 days of paid annual leave, as provided for under section 24, paragraph (d), of Legislative Decree No. 276. It further notes section 2 of the Decree, which states that public servants under contract and officials with political or confidential functions are only covered by the provisions of the Decree, "as far as they are applicable", and that they are not applicable to the armed forces, the police forces and workers of state undertakings and of mixed companies. The Government is requested to indicate the legislative provisions that govern annual holidays with pay for these categories of workers in the public sector.

Article 2, paragraphs 1 and 4. The Committee notes that section 24, paragraph (d), of Legislative Decree No. 276 permits agreements on the accumulation of holidays up to two periods. It recalls that the Convention entitles the worker, after one year of continuous service, to a minimum annual holiday with pay of six working days. In special circumstances, any part of the annual holiday that exceeds the stated minimum duration prescribed by the Convention may be divided into parts. The Committee asks the Government to indicate in its next report the legislative measures taken or envisaged to ensure the application of the Convention in this respect.

Article 2, paragraph 2. The Committee notes from the report that equal rights for all persons are established in section 2 of the Constitution and that Legislative Decree No. 713 does not make any distinction in respect of age, sex or economic conditions. Thus, section 10 of the Decree also entitles young workers to 30 calendar days of paid annual holidays, after one year of continuous service. The Committee recalls, however, that the Decree is restricted to activities in the private sector. It therefore requests the Government to inform it of any legislation, which would ensure annual holidays with pay for young workers in the public sector. The Committee notes the indication in the report that young workers under 16 years of age, in general, still attend school. For this group, section 61 of the new Code of Children and Adolescents (Law No. 27337) requires the employer to make work compatible with regular school attendance and to grant annual holidays with pay simultaneously with school holidays, which usually last from the middle of December until April of the following year. Notwithstanding, it does not become clear from the text of the Code, whether, for instance, young persons under 16 years who do not go to school, have the right to at least 12 working days of paid annual holidays, after one year of continuous service, as required by the Convention. Please provide information as to how this requirement of the Convention is satisfied in the public as well as in the private sector.

CMNT_TITLE

The Committee notes the adoption of Legislative Decree No. 713 of 7 November 1991 and Supreme Decree No. 012-92-TR of 2 December 1992 on paid rest for workers in private activities.

Article 1, paragraph 1, of the Convention. Act No. 9049 of 13 February 1940 (repealed by Legislative Decree No. 713) granted workers in public and private enterprises, 30 days of annual holiday with pay. Since Legislative Decree No. 713 apparently applies only to workers in private employment, the Committee requests the Government to indicate what legislative provisions govern annual holidays with pay to workers in public undertakings and establishments, and to supply a copy of this legislation in the near future.

Article 2, paragraph 2. The Committee requests the Government to indicate in its next report what legislation grants young workers the right to annual holidays and hopes that the Government will transmit the relevant text to the Office. It also trusts that the Government will ensure that in practice, young workers receive annual holidays with pay of at least 12 working days after one year of continuous service.

Article 2, paragraph 3(b). Section 13 of Legislative Decree No. 713 states that annual holidays shall not be granted when the worker is disabled due to sickness or an accident, unless such disability occurs during holiday leave. The Committee draws the Government's attention to Article 2, paragraph 3(b), of the Convention which requires employers not to include interruptions of attendance at work due to sickness in a worker's annual holidays with pay. It requests the Government to indicate whether such absences which occur during holidays are deducted from annual paid leave.