Holidays with Pay (Agriculture) Convention, 1952 (No. 101) - Peru (RATIFICATION: 1960)

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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.

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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.

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Article 3 of the Convention. Minimum duration of annual holiday with pay. The Committee notes the Government’s indication that the Agricultural Sector Promotion Act No. 27360 of 2000, section 7.2(b) of which provides for 15 calendar days of annual leave for agricultural workers after one year of service, is in the process of revision with a view to improving the employment conditions of agricultural workers and providing them with the same benefits that other private sector workers enjoy, including 30 days of annual paid leave. The Committee requests the Government to provide updated information concerning the status of any legislative reform in the agricultural sector which would have an impact on the application of the Convention and to transmit a copy of any new legal instrument once it has been adopted.

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The Committee notes the information supplied by the Government concerning the application of Article 5(a) (apprentices and young workers), Article 5(c) (proportionate holidays) and Article 10 (system of inspection) of the Convention. It wishes to draw the Government’s attention to the following points.

Article 4. Scope of application. Associations and cooperatives. The Committee notes the Government’s statement to the effect that associations and cooperatives are governed by Act No. 26.887 of 19 November 1997 on companies and also by the unified text of the General Act on cooperatives (approved by Supreme Decree No. 074-90-TR). As the Committee understands it, although the non-associated workers of these enterprises are covered by the provisions applicable to the private sector, the associated workers (socios-trabajadores) are subject to regulations which are due to be adopted shortly. The Committee requests the Government to supply more detailed information on this subject and to indicate the legislative or regulatory provisions governing these workers’ entitlement to annual holidays with pay.

Article 5(b). Gradual increase in the duration of annual paid holidays. The Committee notes the Government’s statement that the legislation does not contain any provision relating to increases in annual paid holidays on the basis of workers’ years of service. The Committee requests the Government to indicate, as it did in its last report relating to Convention No. 52, whether such an increase is provided for by collective agreements in the agricultural sector and, if so, to supply copies of the relevant collective agreements.

Parts IV and V of the report form. Court decisions and practical application. The Committee notes with interest the decision of the Constitutional Court rendered on 21 November 2007, which refers to the provisions of the Convention. The Committee requests the Government to continue supplying copies of any court decisions relating to the area covered by the Convention. It also requests the Government to supply general information on the way in which the Convention is applied in practice, including, for example, extracts from reports of the inspection services indicating the number and nature of infringements reported with regard to annual holidays with pay in agriculture and penalties imposed, information concerning the number of agricultural workers covered by the legislation, copies of collective agreements containing clauses relating to holidays with pay, etc.

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Article 4 of the Convention. Scope - associations and cooperatives. Section 77 of Legislative Decree No. 653 (to promote agrarian sector investment) places agricultural workers under the private sector work regime. However, the same provision excludes from this regime workers who are members of an association or cooperative, who are subject to specific regulations. The Committee requests the Government to indicate the legislative provisions that apply to these workers and to provide a copy of them.

Article 5(a). Young workers. Section 51 of the Children’s and Young Persons’ Code sets the minimum age for agricultural work at 15 years. As the Committee has noted in its observation on the application of Convention No. 52, it infers from the Government’s information that under section 61 of the abovementioned Code, young workers who are not in education are likewise entitled to holiday with pay. The Committee requests the Government to specify the length of such holiday. Noting that work of apprentices are excluded from the scope of the Children’s and Young Persons’ Code and is covered by separate regulations, the Committee requests the Government to indicate the provisions on holidays with pay that apply to apprentices and to provide a copy of them.

Article 5(b). Gradual increase in the duration of annual paid holiday. The Committee requests the Government to state whether the duration of the annual holidays with pay increases with the worker’s length of service.

Article 5(c). Proportionate holiday. The Government is asked to specify whether workers whose period of continuous service is too short to qualify them for full annual holidays with pay pursuant to Legislative Decree No. 713 are entitled to proportionate holidays or payment in lieu thereof. The Committee also requests the Government to specify the minimum length of service, if any, for such entitlement.

Article 10 and Part III of the report form. The Committee requests the Government to provide information on the system of inspection and supervision responsible for ensuring the application of the Convention.

Article 11 and Part V of the report form. The Government is invited to provide information on the number and categories of workers protected by the Convention, and on the inspectorate’s activities that concern holidays with pay in agriculture.

Part IV of the report form. The Committee requests the Government to indicate whether courts of law have given decisions involving questions of principle relating to the application of the Convention and, if so, to supply a copy of them.

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The Committee requests the Government to refer to the comments that it has made under Convention No. 52.

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The Committee requests the Government to refer to the comments that it has made under Convention No. 52, as follows:

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.