Seafarers' Pensions Convention, 1946 (No. 71) - Peru (RATIFICATION: 1962)

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The Committee notes the information provided by the Government in reply to its 2011 and 2012 observations, including its replies to the observations of the Federation of Fishing Workers of Peru (FETRAPEP) and the General Confederation of Workers of Peru (CGTP).

Follow-up to the recommendations of the tripartite committee (representation made under article 24 of the Constitution of the ILO)

Article 3(1)(a) and (2) of the Convention. Minimum replacement rate of pensions. Fishers. With reference to the recommendations of the Governing Body relating to the representation alleging non-compliance by Peru of the present Convention, made under article 24 of the Constitution of the ILO by the Autonomous Workers’ Confederation of Peru (CATP), the Committee notes the adoption of Act No. 30003 of 14 March 2013, the objective of which is to facilitate the access of fishing workers and retirees to social security, and which contains extraordinary measures for the workers and retirees affected by the dissolution and liquidation of the Fishers’ Benefits and Social Security Fund (CBSSP). The Act provides that workers previously covered by the CBSSP and new fishing workers may opt for coverage by the Special Pension Scheme (REP), the new retirement scheme for fishery workers, or the Private Pension System (SPP). The Committee notes the Government’s indication that, as required by the Convention, both systems provide for the collective financing of the benefits provided, with contributions by workers and shipowners (8 per cent and 5 per cent of insurable remuneration, respectively). The Committee notes that, under the terms of section 10 of Act No. 30003 and section 33 of its regulations, the retirement pension under the REP and the supplementary assistance pension for persons covered by the SPP is granted to fishers who have accumulated a minimum of 25 years of work in fishing and have reached the age of 55 years. The amount of the pension, for the REP, is determined by applying the replacement rate equivalent to 24.6 per cent of the average insurable monthly remuneration for the five last years of work in fishing. The SPP scheme, despite the fact that the Act does not establish a minimum replacement rate, guarantees a supplementary assistance pension, which is added to the amount of the SPP pension, when the latter is lower than the amount that the worker would have received within the framework of the CBSSP (section 33(e) of the regulations of Act No. 30003). The Committee recalls that Article 3(1)(a)(ii) of the Convention provides that the pensions provided shall be at a rate not less than 1.5 per cent of the remuneration for each year of sea service, that is 37.5 per cent for a 25-year career, i.e. the minimum period provided by the national legislation to obtain an old-age pension. In this respect, the Committee observes that the replacement rate of 24.6 per cent is lower than the rate resulting from Article 3(1)(a) of the Convention. The Committee therefore requests the Government to take the necessary measures to ensure that the national legislation provides for a minimum replacement rate that is in conformity with Article 3(1)(a)(ii) of the Convention. In addition, the Committee notes that the Government has not provided information on: (i) the total amount of the contributions paid by fishers covered by the REP and SPP schemes; and (ii) the total amount of the pensions paid under these schemes, and that it has not specified whether the percentage of the amount indicted in point (ii) represents the amount indicated in point (i) in order to demonstrate that the workers in question collectively do not contribute more than half of the cost of the pensions payable under these schemes, in accordance with Article 3(2) of the Convention. The Committee requests the Government to provide information on this matter.

Collective financing of pensions of seafarers engaged on sea, river and lake service. With regard to seafarers engaged on sea, river and lake service, the Government indicates that the National Pensions System (SNP), regulated by Legislative Decree No. 19990, includes a special retirement scheme for these workers governed by Acts Nos 21952 and 23370. Under the SNP, the contribution rate is covered exclusively by the insured person and is 13 per cent of insurable remuneration, being it understood that the wage on which the contribution is based cannot be lower than the minimum remuneration. The Government indicates that the minimum monthly amount of the contribution to the SNP in 2013 was equivalent to 97.5 new soles and that the amount of the minimum pension is 415 new soles, for which reason it considers that the contribution rate to the pension system for workers on sea, river and lake service is lower than half of the cost of the pensions payable under this scheme. The Committee notes the Government’s indication that seafarers engaged in sea, river and lake service who contribute to the pensions system on the basis of the minimum contribution are guaranteed a monthly pension equivalent to four times the amount of their contribution. Nevertheless, the Committee notes that Article 3(2) of the Convention does not require that the proportion of the minimum contribution is lower than 50 per cent of the cost of the pensions payable, but that the percentage represented by the total amount of the contributions paid in the system by all the persons covered by the scheme shall not be more than half the cost of the pensions payable under the pensions scheme. The Committee therefore requests the Government to provide all of the information requested in the report form under Article 3 of the Convention with a view to demonstrating that the workers in question do not contribute collectively more than 50 per cent of the cost of the pensions payable. The Committee notes that the Government has not provided information on the minimum replacement rate of the retirement pensions paid to seafarers on sea, river and lake service which, in accordance with Article 3(1)(a) of the Convention, shall not be less than 1.5 per cent of the remuneration for each year of sea service if the scheme provides pensions upon attaining the age of 55 years. The Committee requests the Government to provide information on this matter.

Former employees of the Peruvian steamship company (CPV). With regard to the former employees of the CPV, the Government indicates that they can be included either in the scheme governed by Legislative Decree No. 19990, which regulates the national social security pension system, or they may have been included by judicial order under the scheme governed by Legislative Decree No. 20530 on the pensions and benefit scheme for public services provided for the State and not covered by Legislative Decree No 19990. Nevertheless, the Committee notes that the Government’s report does not include data on the rate of the pensions paid to these workers. The Committee therefore requests the Government to take all the necessary measures to ensure that the rate of the pensions payable to the former employees of the CPV, who were previously seafarers and have completed a specific period of sea service, is in any case at least equal to the amount resulting from the application of the minimum replacement rate prescribed in Article 3(1)(a)(ii) of the Convention, revising, if necessary, the ceiling applicable to these pensions.

Ruling by the Supreme Court of Justice. The Government indicates that the ruling issued on 24 November 2009 by the transitional civil chamber of the Supreme Court of Justice, which ordered the State to pay its debt in relation to the CBSSP, is awaiting execution. The Committee requests the Government to continue providing information on the execution of the ruling of the Supreme Court referred to above. It also requests the Government to provide information on the liquidation of the insurance claims that are still awaiting payment by the CBSSP.

Observations of the General Confederation of Workers of Peru (CGTP). The Committee refers to the observations of the CGTP referred to in its 2011 observation concerning the administration of pensions by the SPP and the impact of the global financial crisis on pension funds. In reply to these observations, the Government refers to investment instruments and operations in which pension funds can invest, and the investment limits for each type of pension fund. The Government adds that the amounts which enter individual capital accumulation accounts of insured persons are expressed in quotas of the Private Pension Fund Administration (AFP) and the type of fund that has been selected. Insured persons have an individual capital accumulation account which records the contributions paid on a monthly basis, and the accumulation of these contributions constitutes the total maintained for insured persons. These total amounts may be liquidated at any time, taking as a reference the value of the AFP quota and the type of fund belonging to insured persons, for which reason a valuation which gives negative results relating to an early reference period does not necessarily involve losses for insured persons. The fact that the accumulated total may fall over a certain period, does not imply that such a reduction is permanent. The Government adds that what is relevant is to evaluate the aspects relating to the long-term return generated by the SPP, as there are always situations in which the return may fall, due to events such as international crisis. Through the Act reforming the private pensions system, incentives can be generated for AFPs to optimize the investment of contributions. Noting that, in accordance with Article 4(4) of the Convention, “the shipowers and the seafarers who contribute to the cost of the pensions payable under the scheme shall be entitled to participate through representatives in the management of the scheme”, the Committee requests the Government to provide information on the effect given to this provision in relation to the management of the SPP.

Observations of the Federation of Fishing Workers of Peru (FETRAPEP). The Committee notes that, in relation to the observations made by the FETRAPEP, referred to in its 2011 observation, relating to the difficulties encountered by fishers in receiving their old-age benefit due to the suspension of their contracts during the veda every year (the closed season for fishing), the Government refers to a report by the multisectoral labour round table responsible for seeking solutions to the claims made by organizations of pensioners and retirees. Nevertheless, the Committee notes that this report does not address the matters raised by the FETRAPEP. The Committee therefore requests the Government to provide information on any solutions proposed on the issues raised by the FETRAPEP.

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Follow-up to the recommendations of the tripartite committee (representation made under article 24 of the Constitution of the ILO). The Committee notes that at its 313th Session (March 2012), the Governing Body adopted the report of the committee set up to examine a representation alleging non-observance by Peru of Convention No. 71, made under article 24 of the ILO Constitution by the Autonomous Workers’ Confederation of Peruvian (CATP) (GB.313/INS/12/4). The Committee recalls that in its conclusions the Governing Body asked the Government: (1) to take the necessary measures to ensure that the contributions of fishers are effectively equivalent to no more than half of the cost of the pensions payable under the scheme, in any circumstances, in accordance with Article 3(2) of the Convention; (2) to proceed to the payment of the benefits owed that are still awaiting payment by the Fishers’ Benefits and Social Security Fund (CBSSP) as soon as possible; (3) to continue, once the process of the dissolution and liquidation of the CBSSP has been completed, to secure the maintenance of a scheme for the payment of pensions that is in compliance with the requirements of the Convention both in terms of the collective financing and the guaranteed rate of pension benefits; (4) to ensure that full effect is given to the ruling of the Transitional Civil Chamber of the Supreme Court of Justice of 24 November 2009, ordering payment of the amounts owed to the CBSSP; (5) to take all necessary measures to ensure that the rate of the pensions paid to any of the former employees of the Peruvian Steamship Company (CPV) who were seafarers and have completed a prescribed period of sea service is in all cases at least equal to the rate resulting from the application of the minimum replacement rate determined by Article 3(1)(a) of the Convention, if necessary by revising the ceiling applicable to such pensions. The Governing Body furthermore invited the Government to provide, in a report to be submitted to the present session of the Committee of Experts, detailed information on measures adopted to give effect to its recommendations.

The Committee notes the information sent by the Government on the measures taken to enable the pensions due from the CBSSP to be paid. It notes that according to the applicable legislation, obligations towards CBSSP beneficiaries, including retirement pension obligations, rank second in the order of priority of payments due from the CBSSP, coming after obligations towards employees and former employees of the Fund. To enable the various debts to be settled, the CBSSP, in the process of liquidation, is drawing up a list of its creditors, it being understood that it may settle a lower ranking claim before a claim of higher rank only if it deposits the necessary resources in a financial institution. Furthermore, the CBSSP is still in operation and receives income in the form of social contributions. An inventory has been made of the Fund’s assets and some of them are in the process of being realized. Lastly, the CBSSP’s claims vis-à-vis the Peruvian State amount to some US$10 million, without interest. As to the implementation of the decision handed down by the Supreme Court of Justice on 24 November 2009, the Government refers to transfers that have already been made to the CBSSP. However, the last transfer mentioned was made under Act No. 29529 of 8 May 2010. It would thus appear that there have been no further transfers for over two years. As regards the former employees of the CPV, the Government confirms that retirement pensions are subject to a ceiling of 857.36 new soles (approximately US$330), but provides no information as to the amount of the pensions actually paid to CPV former employees, and therefore the Committee is unable to ascertain whether the provisions of Article 3(1)(a) of the Convention are observed. Furthermore, the Government provides no information on the fishers’ contributions to their retirement pension scheme or on measures taken to ensure that the contributions of fishers amount to no more than half of the cost of the pensions. Lastly, the Government provides no information on measures taken to ensure, following the dissolution of the CBSSP and pending the possible transfer of its members to the general (public or private) pension scheme, the maintenance of a pension scheme that is in compliance with the requirements of the Convention.

The Committee also notes the observations made by the CATP in a communication of 31 August 2012, in which the organization alleges that so far the Government has not implemented any of the Governing Body’s recommendations.

The Committee asks the Government to send detailed information on the measures taken to implement the Governing Body’s recommendations and to respond to the other points raised in the observation of 2011.

[The Government is asked to reply in detail to the present comments in 2013.]

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Representation made under article 24 of the Constitution. The Committee notes that at its 310th Session (March 2011), the Governing Body set up a committee to examine the representation made under article 24 of the ILO Constitution by the Autonomous Confederation of Peruvian Workers (CATP) alleging non-observance by Peru of the Seafarers’ Pensions Convention, 1946 (No. 71). In accordance with its usual practice, the Committee has decided to suspend its examination of the application of this Convention, in particular Article 3(2) of the Convention concerning the collective financing of benefits, pending the adoption by the Governing Body of the conclusions and recommendations of the above committee.

Article 3(1). Minimum level of pensions. The Committee recalls its previous observation in which it requested the Government to explain how it ensured the application of Article 3(1)(a)(ii) of the Convention in view of the fact that under the private pension system (SPP) it is not possible to determine the amount of benefits in advance. In its report submitted in 2009, the Government made reference to a system of a minimum pension, introduced by Act No. 27617 of 2001, which permits SPP affiliates to receive a minimum pension provided that they are born on 31 December 1945 at the latest and have contributed to the pension fund for at least 20 years. However, this possibility being limited to a certain number of beneficiaries, the Committee is obliged to reiterate that the current private pension system is not in conformity with this Article of the Convention which requires the State to guarantee the minimum level of pensions established by the Convention to workers having completed the prescribed period of sea service. The Committee once again asks the Government to take appropriate measures in order to give full effect to the requirements of Article 3(1) of the Convention. In this connection, the Committee also asks the Government to refer to its comments made under the Social Security (Minimum Standards) Convention, 1952 (No. 102).

Part VI of the report form. Observations of workers’ organizations. With regard to the observations submitted in October 2006 by the Federation of Fishing Workers of Peru (FETRAPEP) concerning the difficulties fishers encounter in receiving old-age benefits because of the suspension of their contracts during the veda period every year (closed season for extraction and processing of marine species), the Committee notes the Government’s reference to Ministerial Resolution No. 308-2009-PCM of 9 July 2009 establishing a multi-sectoral working group responsible for analyzing possible solutions to the claims put forward by different organizations of pensioners and retired workers. The Government indicates that the problems raised by FETRAPEP will be addressed within the framework of that working group. The Committee requests the Government to keep the Office informed of the outcome of the working group discussions and any practical solution implemented or envisaged with regard to the issues raised by FETRAPEP.

Moreover, the Committee notes the comments of the General Confederation of Workers of Peru (CGTP), received on 2 September 2009 and transmitted to the Government on 16 November 2009, concerning the administration of pension funds by the SPP. According to CGTP, as much as 42 per cent of pension funds are invested in the stock exchange while more than 8 billion Peruvian nuevos soles (PEN) (approximately US$2.9 billion) have already been lost due to the world financial crisis. The Committee requests the Government to transmit any comments it may wish to make in response to the observations of the CGTP.

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The Committee notes that the Government’s report contains no reply to its previous observation of 2006. The Government refers to prior comments made by the Committee in 2002 and confines itself to repeating the wording of previous government reports of 2003 and 2005. The Committee must therefore repeat most of its previous observation which read essentially as follows:

1. Effect of the new pension scheme on the application of the Convention. In its previous comments, the Committee requested the Government to provide information on the impact of the new pension scheme on the application of the Convention, including the information specified in the report form on this Convention, for each Article of the Convention.

In its report, the Government indicates that the private pension system (SPP) is an individual capital accumulation scheme in which the amount of pensions depends directly on the workers’ contributions, the earnings of the pension funds’ investments and vouchers (Bono de Reconocimiento), where applicable. The SPP is self-financing, in other words the worker’s future pension depends on his or her own contributions. The rate of compulsory contributions to the pension fund is worked out on the basis of technical criteria to achieve an adequate replacement rate. The pensions provided by the SPP are accordingly not determined in advance. The Committee takes note of this information. In view of the fact that under the private pension system it is not possible to determine the amount of benefits in advance, the Committee requests the Government to indicate how it ensures the application of Article 3(1)(a)(ii) of the Convention (minimum amount of pensions).

On the subject of collective financing of benefits, the Government indicates that the SPP has a minimum pension which allows state subsidization for members of the scheme who meet the age and contribution requirements laid down in Act No. 27617 and who have not accumulated enough resources to finance a pension themselves. The minimum pension is financed directly by the Treasury. The Committee notes this information. It observes that, contrary to Article 3, paragraph 2, of the Convention, under the private pensions system both the cost of the pension and administrative costs are borne solely by the insured persons. In the Committee’s view, the minimum pension which the State pays and which applies only to certain cases cannot be regarded as a contribution within the meaning of Article 3, paragraph 1(b) and paragraph 2, of the Convention. Peru’s private pension system is, on the contrary, an independent scheme in which the resources for payment of the benefits are obtained by means of contributions from the insured members. The Committee again reminds the Government that according to Article 3, paragraph 2, of the Convention, seafarers collectively shall not contribute more than half the cost of the pensions payable under the scheme, and trusts that in its next report the Government will supply the statistics required by the report form under this Article of the Convention.

2. Payment of pensions to retired persons and former employees of the Peruvian Steam Ship Company (CPV). In its previous comments, the Committee asked the Government to supply information on developments in the situation regarding the payment of pensions to retirees and former employees of the CPV. It also requested the Government to provide information on the situation (vis-à-vis the Convention) reported by the Association of Crew Members for the protection of CPV workers, of former pensioners of this enterprise who have been excluded from the Pension Fund and have been unable to obtain reinstatement through a court ruling.

With regard to the legal action brought by the former pensioners of the CPV, the Government states that a decision was adopted on 3 November 2004 in which the court requires the Insurance Standardization Office (ONP) to “establish equivalent public positions in each case for the purpose of paying pensions to workers who, in accordance with the exception expressly established in the law, may receive a pension under Legislative Decree No. 20530 and who did not have the status of public servant at the time of separation. The equivalent positions shall be established in accordance with this decision.” The Committee takes note of this information and also notes that the ONP has filed an appeal against this decision, which has been admitted “without suspensive effect” but that appropriate measures have been taken to execute the abovementioned decision in accordance with the rules in force pending a ruling by the higher court on the abovementioned appeal. The Committee asks the Government to inform it of the outcome of the appeal and to provide any court decision pertaining to it.

3. Complaint by retirees of the National Ports Enterprise (ENAPU) seeking adjustment of their pensions. In its previous comments, the Committee noted once again that the ONP had still not established internal procedures to implement the court decision in favour of the Association of Former Employees and Retirees of the National Ports Enterprise (ACJENAPU), and expressed the hope that the Government would take the necessary measures in this regard. The Committee asked for information on any further developments in this case and in particular: (i) whether the adjusted pensions are actually being paid to the retirees concerned; and (ii) whether the three persons whose pensions have not been adjusted by the ONP have had their pensions adjusted by the Ministry of Economic and Financial Affairs.

The Committee notes the report by the ONP on progress made regarding the action brought by the ACJENAPU. The Government indicates in this connection that the complaint brought by the ACJENAPU is now at the stage of the execution of ruling, the ONP having accepted the court’s decision regarding the adjustment for the workers of ENAPU MATARANI, except in one case, in which the administrative file was still under the competence of the original entity. The Committee notes this information and requests the Government to report on the follow-up to this last case.

The Committee hopes that the Government will make every effort to take the necessary action in the very near future.

Furthermore, the Committee notes that the Government has not provided any reply to the observations submitted in October 2006 by the Federation of Fishing Workers of Peru (FETRAPEP), which were transmitted to the Government in November 2006. The Committee is therefore bound to draw to the Government’s attention the thrust of FETRAPEP’s comments relating to the application of the Convention.

FETRAPEP criticizes that Supreme Decree No. 006-96-TR associates to force majeure the annual period of closed season for extraction and processing of marine species (veda), which can last from four to seven months per year. It indicates that the Decree thus authorizes employers to temporarily suspend the contracts of fishers during the veda, in conformity with section 48 of the Employment Promotion Act. According to FETRAPEP, given that the remuneration of fishers is usually suppressed during the temporary suspension of their contracts, no contributions are paid to the ONP, which has the effect of extending the contributory period required to have the right to pension. FETRAPEP believes that the temporary suspension of contracts during veda causes serious difficulties for the access of fishers to old-age benefits.

The Committee calls upon the Government to respond to the observations submitted by FETRAPEP as a matter of urgency. In particular, the Committee asks the Government to explain the application of the concept of force majeure to the annually recurrent and thus foreseeable period of veda, in order to authorize the temporary suspension of contracts under section 48 of the Employment Promotion Act. The Committee further reminds the Government that, under Article 3, paragraph 1, the State has to guarantee the minimum level of pensions established by the Convention to workers having completed the prescribed period of sea service. In view of the national legislation allowing for temporary suspension of the contracts of fishers during veda, the Committee requests the Government to indicate by what means it is ensured, as regards pensions provided to fishers, that full effect is given to the requirements of Article 3, paragraph 1, of the Convention.

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The Committee notes the information supplied by the Government on the impact that the earthquake which took place last August in its country has had on its capacity to submit its reports. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous observation, which read as follows:

The Committee notes the information supplied by the Government in its report. It notes, in particular, with interest the report by the Insurance Standardization Office (ONP) on progress made regarding the action brought by the Association of Former Employees and Retirees of the National Ports Enterprise (ACJENAPU). Further to its previous comments, the Committee would like to draw the Government’s attention to the following points.

1. Effect of the new pension scheme on the application of the Convention. In its previous comments, the Committee requested the Government to provide information on the impact of the new pension scheme on the application of the Convention, including the information specified in the report form on this Convention, for each Article of the Convention.

In its report, the Government indicates that the private pension system (SPP) is an individual capital accumulation scheme in which the amount of pensions depend directly on the workers’ contributions, the earnings of the pension funds’ investments and vouchers (Bono de Reconocimiento), where applicable. The SPP is self-financing, in other words the worker’s future pension depends on his or her own contributions. The rate of compulsory contributions to the pension fund is worked out on the basis of technical criteria to achieve an adequate replacement rate. The pensions provided by the SPP are accordingly not determined in advance. The Committee takes note of this information. In view of the fact that under the private pension system it is not possible to determine the amount of benefits in advance, the Committee requests the Government to indicate how it ensures the application of Article 3(1)(a)(ii) of the Convention (minimum amount of pensions).

On the subject of collective financing of benefits, the Government indicates that the SPP has a minimum pension which allows state subsidization for members of the scheme who meet the age and contribution requirements laid down in Act No. 27617 and who have not accumulated enough resources to finance a pension themselves. The minimum pension is financed directly by the Treasury. The Committee notes this information. It observes that, contrary to Article 3, paragraph 2, of the Convention, under the private pensions system both the cost of the pension and administrative costs are borne solely by the insured persons. In the Committee’s view, the minimum pension which the State pays and which applies only to certain cases cannot be regarded as a contribution within the meaning of Article 3, paragraph 1(b) and paragraph 2, of the Convention. Peru’s private pension system is, on the contrary, an independent scheme in which the resources for payment of the benefits are obtained by means of contributions from the insured members. The Committee again reminds the Government that according to Article 3, paragraph 2, of the Convention, seafarers collectively shall not contribute more than half the cost of the pensions payable under the scheme. The Committee trusts that in its next report the Government will supply the statistics required by the report form under this Article of the Convention.

2. Payment of pensions to retired persons and former employees of the Peruvian Steam Ship Company (CPV). In its previous comments, the Committee asked the Government to supply information on developments in the situation regarding the payment of pensions to retirees and former employees of the CPV. It also requested the Government to provide information on the situation (vis-à-vis the Convention) reported by the Association of Crew Members for the protection of CPV workers, of former pensioners of this enterprise who have been excluded from the Pension Fund and have been unable to obtain reinstatement through a court ruling.

With regard to the first point, the Committee notes Report No. 136‑2005‑GL.PJ-21/ONP on the situation of the former workers of the CPV who took legal action to have their pensions adjusted. It also notes that the ONP will continue to have the same responsibilities in the event of the original entity being privatized, liquidated, disposed of and/or dissolved, as it had in December 2004, including that of representing the State in procedures before the courts and the Constitutional Tribunal. The Committee takes note of this information.

With regard to the legal action brought by the former pensioners of the CPV, the Government states that a decision was adopted on 3 November 2004 in which the court requires the ONP to “establish equivalent public positions in each case for the purpose of paying pensions to workers who, in accordance with the exception expressly established in the law, may receive a pension under Legislative Decree No. 20530 and who did not have the status of public servant at the time of separation. The equivalent positions shall be established in accordance with this decision.” The Committee takes note of this information with interest. It also notes that the ONP has filed an appeal against this decision, which has been admitted “without suspensive effect” but that appropriate measures have been taken to execute the abovementioned decision in accordance with the rules in force pending a ruling by the higher court on the abovementioned appeal. The Committee asks the Government to inform it of the outcome of the appeal and to provide any court decision pertaining to it.

3. Complaint by retirees of the National Ports Enterprise (ENAPU) seeking adjustment of their pensions. In its previous comments, the Committee noted once again that the ONP had still not established internal procedures to implement the court decision in favour of the ACJENAPU, and expressed the hope that the Government would take the necessary measures in this regard. The Committee asked for information on any further developments in this case and in particular: (i) whether the adjusted pensions are actually being paid to the retirees concerned; and (ii) whether the three persons whose pensions have not been adjusted by the ONP have had their pensions adjusted by the Ministry of Economic and Financial Affairs.

The Government indicates in this connection that the complaint brought by the ACJENAPU is now at the stage of the execution of ruling, the ONP having accepted the court’s decision regarding the adjustment for the workers of ENAPU MATARANI, except in one case, in which the administrative file was still under the competence of the original entity. The Committee notes this information. It requests the Government to report on the follow-up to this last case.

4. Communication from the Federation of Workers of Peru (FETRAPEP). The Committee notes a communication of October 2006 from FETRAPEP, referring to several issues relating to the application of the Convention. It will then examine the above communication together with the Government’s reply which it may wish to supply.

The Committee hopes that the Government will make every effort to take the necessary action in the very near future.

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The Committee notes the information supplied by the Government in its report. It notes, in particular, with interest the report by the Insurance Standardization Office (ONP) on progress made regarding the action brought by the Association of Former Employees and Retirees of the National Ports Enterprise (ACJENAPU). Further to its previous comments, the Committee would like to draw the Government’s attention to the following points.

1. Effect of the new pension scheme on the application of the Convention. In its previous comments, the Committee requested the Government to provide information on the impact of the new pension scheme on the application of the Convention, including the information specified in the report form on this Convention, for each Article of the Convention.

In its report, the Government indicates that the private pension system (SPP) is an individual capital accumulation scheme in which the amount of pensions depend directly on the workers’ contributions, the earnings of the pension funds’ investments and vouchers (Bono de Reconocimiento), where applicable. The SPP is self-financing, in other words the worker’s future pension depends on his or her own contributions. The rate of compulsory contributions to the pension fund is worked out on the basis of technical criteria to achieve an adequate replacement rate. The pensions provided by the SPP are accordingly not determined in advance. The Committee takes note of this information. In view of the fact that under the private pension system it is not possible to determine the amount of benefits in advance, the Committee requests the Government to indicate how it ensures the application of Article 3(1)(a)(ii) of the Convention (minimum amount of pensions).

On the subject of collective financing of benefits, the Government indicates that the SPP has a minimum pension which allows state subsidization for members of the scheme who meet the age and contribution requirements laid down in Act No. 27617 and who have not accumulated enough resources to finance a pension themselves. The minimum pension is financed directly by the Treasury. The Committee notes this information. It observes that, contrary to Article 3, paragraph 2, of the Convention, under the private pensions system both the cost of the pension and administrative costs are borne solely by the insured persons. In the Committee’s view, the minimum pension which the State pays and which applies only to certain cases cannot be regarded as a contribution within the meaning of Article 3, paragraph 1(b) and paragraph 2, of the Convention. Peru’s private pension system is, on the contrary, an independent scheme in which the resources for payment of the benefits are obtained by means of contributions from the insured members. The Committee again reminds the Government that according to Article 3, paragraph 2, of the Convention, seafarers collectively shall not contribute more than half the cost of the pensions payable under the scheme. The Committee trusts that in its next report the Government will supply the statistics required by the report form under this Article of the Convention.

2. Payment of pensions to retired persons and former employees of the Peruvian Steam Ship Company (CPV). In its previous comments, the Committee asked the Government to supply information on developments in the situation regarding the payment of pensions to retirees and former employees of the CPV. It also requested the Government to provide information on the situation (vis-à-vis the Convention) reported by the Association of Crew Members for the protection of CPV workers, of former pensioners of this enterprise who have been excluded from the Pension Fund and have been unable to obtain reinstatement through a court ruling.

With regard to the first point, the Committee notes Report No. 136‑2005‑GL.PJ-21/ONP on the situation of the former workers of the CPV who took legal action to have their pensions adjusted. It also notes that the ONP will continue to have the same responsibilities in the event of the original entity being privatized, liquidated, disposed of and/or dissolved, as it had in December 2004, including that of representing the State in procedures before the courts and the Constitutional Tribunal. The Committee takes note of this information.

With regard to the legal action brought by the former pensioners of the CPV, the Government states that a decision was adopted on 3 November 2004 in which the court requires the ONP to “establish equivalent public positions in each case for the purpose of paying pensions to workers who, in accordance with the exception expressly established in the law, may receive a pension under Legislative Decree No. 20530 and who did not have the status of public servant at the time of separation. The equivalent positions shall be established in accordance with this decision.” The Committee takes note of this information with interest. It also notes that the ONP has filed an appeal against this decision, which has been admitted “without suspensive effect” but that appropriate measures have been taken to execute the abovementioned decision in accordance with the rules in force pending a ruling by the higher court on the abovementioned appeal. The Committee asks the Government to inform it of the outcome of the appeal and to provide any court decision pertaining to it.

3. Complaint by retirees of the National Ports Enterprise (ENAPU) seeking adjustment of their pensions. In its previous comments, the Committee noted once again that the ONP had still not established internal procedures to implement the court decision in favour of the ACJENAPU, and expressed the hope that the Government would take the necessary measures in this regard. The Committee asked for information on any further developments in this case and in particular: (i) whether the adjusted pensions are actually being paid to the retirees concerned; and (ii) whether the three persons whose pensions have not been adjusted by the ONP have had their pensions adjusted by the Ministry of Economic and Financial Affairs.

The Government indicates in this connection that the complaint brought by the ACJENAPU is now at the stage of the execution of ruling, the ONP having accepted the court’s decision regarding the adjustment for the workers of ENAPU MATARANI, except in one case, in which the administrative file was still under the competence of the original entity. The Committee notes this information. It requests the Government to report on the follow-up to this last case.

4. Communication from the Federation of Workers of Peru (FETRAPEP). The Committee notes a communication of October 2006 from FETRAPEP, referring to several issues relating to the application of the Convention. It will then examine the above communication together with the Government’s reply which it may wish to supply.

[The Government is asked to reply in detail to the present comments in 2007.]

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The Committee notes the information provided by the Government in its report in reply to its previous comments and would like to draw the Government’s attention to the following points.

1. Impact of the new pension scheme on the application of the Convention. In reply to the Committee’s requests concerning the impact of the new pension scheme on the application of the Convention, the Government provides with its report a document drawn up by the Banking and Insurance Supervisory Agency (SBS) and statistics on the number of retired seafarers receiving pensions from the various pension schemes which apply to them. In this regard, the communication from the SBS recalls that there is no specific scheme applicable to seafarers within the private pension system (SPP) and that affiliation to the SPP is on a voluntary basis. The SBS also refers to Act No. 27617 of 1 January 2002 under which persons affiliated to the SPP at the date of entry into force of the abovementioned Act and who were entitled at the time of their affiliation to early retirement under the national pension scheme (SNP) may also avail themselves of this entitlement under the SPP.

The Committee notes this information. However, inasmuch as there have been many changes in recent years in the legislation and regulations giving effect to the Convention and in order to be able to carry out a precise evaluation of the manner in which the Convention is applied, the Committee requests the Government to provide in its next report the detailed information on the application of the Convention requested in the report form in respect of each of the Articles of the Convention.

2. Payment of pensions to retirees and former employees of the Peruvian Steamship Company (CPV). In its previous comments, the Committee requested the Government to provide information on any developments in the situation concerning the payment of pensions to retirees and former employees of the CPV. It also requested the Government to provide information on the situation in relation to the Convention, reported by the Association of Crew Members for the Protection of CPV Workers, of former pensioners of this enterprise who had been excluded from the Pension Fund and had been unable to obtain their reinstatement through a court ruling.

With regard to the first point, the Government indicates in its report that, further to the adoption of Supreme Decree No. 104-2003-EF of 25 July 2003, the adjustment of the pensions of the persons concerned is no longer the responsibility of the Insurance Standardization Office (ONP). In this regard, the Government’s report indicates that, under new Act No. 28047 of 31 July 2003, each entity is responsible, in respect of the retirees affiliated to the scheme under Act No. 20530 but who were not public servants, for establishing the equivalent public positions with respect to adjustment of the pensions paid to the persons in the abovementioned category. The Government also adds that Decision No. 57 of 30 January 2003 of the administrative court (juzgado de derecho público) declared the Ministry for Economic and Financial Affairs to be the competent authority as successor to the ONP, and that an application was made to the administrative judge in order to determine whether, in view of all the legal amendments that had taken place, the Ministry of Economic and Financial Affairs was also responsible for adjustment of the pensions of the CPV retirees. The Government concludes by stating that, since the matter is still before the courts, it will provide information in its next report on any developments in the situation.

The Committee notes this information. It hopes that all necessary measures will actually be taken by the Government, if necessary by amending the legislative texts in order to clarify them by clearly designating the responsible bodies, and that it will be in a position to inform the Office very soon that the matter under consideration has had a favourable outcome. With regard to the second point referred to above, it notes that the Government has still not provided information on it and hopes that it will provide all necessary information in its next report, in line with the previous undertaking that it made.

3. Procedures for the adjustment of pensions of certain retirees of the National Ports Enterprise (ENAPU). It its previous comments, while again noting that the Insurance Standardization Office (ONP) had still not determined the internal procedures for implementing the court decision in favour of the Association of Former Employees and Retirees of the National Ports Enterprise (ACJENAPU), the Committee expressed the hope that the Government would take the necessary measures in this regard. In its last report, the Government refers to a communication from the ONP, which stated that it gave effect to the decision ordering the adjustment of pensions on the basis of the wages paid to employees in the same category of the ENAPU, with the exception of three cases. The aforementioned communication adds that the files relating to these three persons were sent to the Ministry of Economic and Financial Affairs pursuant to the entry into force of Act No. 27719 of 12 May 2002 and Supreme Decree No. 104-2003-EF of 25 July 2003 having the effect of removing the matter from the competence of the ONP. The Committee notes this information with interest. It would be grateful if the Government would provide information in its next report on any subsequent developments in this matter and specify in particular: (i) whether the adjusted pensions are actually being paid to the retirees concerned; and (ii) whether the three persons whose pensions had not been adjusted by the ONP have had their pensions adjusted by the Ministry of Economic and Financial Affairs.

[The Government is asked to reply in detail to the present comments in 2005.]

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1. With reference to its previous comments, the Committee notes the detailed information provided by the Government on the manner in which benefits are paid to retired employees of the Peruvian Steamship Company (CPV). It notes with interest the fact that by a ruling of 28 December 1999, the Administrative Corporate Affairs Tribunal declared that the many claims made by CPV pensioners were valid. The ruling in question required that the appropriate level of pension be established for every claimant, and to that end the Insurance Standardization Office (ONP) must establish the equivalent public positions that apply in each case. The Committee also notes the adoption of resolution No. 048-2001-JEFATURA/ONP of 14 February 2001, by which the ONP approved Directive No. 002-2001-JEFATURA/ONP on procedures for determining the equivalent public posts for the CPV pensioners referred to in Legislative Decree No. 20530. The Committee notes the judicial ruling of 7 November 2001 to the effect that, contrary to the decision of the superior body, the ONP determined the equivalent posts and wage categories of the CPV retired employees without taking into account that the determination of pension benefits should depend directly on the claimant’s occupational category at the time of retirement. The ruling instructs the ONP to determine the pensions of all the retired employees within ten days. The Ministry of Economics and Finance is awaiting the rulings of the court and the determination of the ONP regarding the adjustment of pensions payable to former CPV employees. The Committee requests the Government to keep it informed in this regard, and requests the Government once again to provide information on the situation, with reference to the Convention, of former employees of this company who were excluded from the pension fund and have not been reinstated in it by a court ruling.

2. In its previous comments, the Committee had requested the Government to indicate whether the new system of private management of pension funds (SPP), established by Decree No. 054-97-EF of 13 May 1997, applies to persons employed on board or in the service of vessels flying the Peruvian flag and, if so, to supply information on the impact of this system on the application of the Convention. In its report, the Government reiterates that the SPP does not provide for any special scheme for seafarers, and adds that the early retirement rights (introduced by Act No. 27252) for SPP-affiliated workers employed in work that carries risks for their life or health do not apply to seafarers. The conditions of membership and retirement for seafarers are the general conditions that cover all SPP members.

In terms of social insurance, a specific pension scheme for seafarers has not been established as envisaged by the Convention. Seafarers are included in schemes which were not necessarily established for them, but under which they can be insured. There is also a special insurance scheme for maritime workers, who fall within the scope of the national pension system provided for by Decree No. 19990. Acts Nos. 21952, 21933 and 23237 include within this scheme maritime, inland waterway and dock workers, and also make provision for the early retirement of maritime workers. The Committee notes this information, and once again requests the Government to provide detailed information on the impact of the new pension scheme on the application of the Convention and to provide, where possible, statistics on the number of seafarers covered by the national pension scheme to which Decree No. 19990 refers, or by the SPP, or by any other special scheme.

3. In its previous comments the Committee had noted the information provided by the Government in reply to the communication from the Association of Former Employees and Retirees of the National Ports Enterprise (Empresa Nacional de Puertos S.A. - ACJENAPU) denouncing the violation of the acquired rights of retirees of the National Ports Enterprise. In its reply, the Government provides detailed information on the legal action taken by the ACJENAPU in its supplementary action against the National Ports Enterprise. The Committee notes once again that the Insurance Standardization Office (ONP) has still to establish the internal procedure to be followed by the National Ports Enterprise to give effect to the award by the courts in favour of the ACJENAPU in its supplementary action. The Committee hopes that the Government will take the necessary measures in this respect and requests it to keep the Committee informed of the progress achieved in this regard.

4. With reference to the observations presented by the Union of Crew Members of Maritime Vessels for the Protection of CPVSA Workers concerning, among other matters, the application of the Convention, which were transmitted to the Government on 20 February 2001, the Committee notes that the Government will supply additional information, and hopes that the Government will communicate its comments in this regard as soon as possible.

[The Government is asked to reply in detail to the present comments in 2003.]

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1. With reference to the Committee’s previous comments, the Government reiterates in its report that, in accordance with Extraordinary Supreme Decree No. 057-PCM/93, the Ministry of Economy and Finance assumes responsibility for the payment of benefits due under Legislative Decree No. 20530 of 1974 to retirees of the Peruvian Steamship Company (limited liability company in liquidation). The provision of these pensions to former employees and to retirees is on a monthly basis, taking as a reference for the approval of such pensions the strict observance of the positions, wage categories, duration of service and level of pension benefits which were transferred as of 1 October 1992. The above pensions levels are set, increased and readjusted in accordance with the standards that are in force with regard to pensions and are paid into savings accounts opened in the Bank of the Nation. The Committee notes this information. It requests the Government to continue providing detailed information on the manner in which the above pensions are paid and to furnish information on the situation, with regard to the Convention, of the former retirees of this company who were excluded from the pension fund and who have not been reinstated by court rulings.

2. In its previous comments, the Committee requested the Government to indicate whether the new system of private pension fund management (SPP) established by Decree No. 054 97 EF, of 13 May 1997, applies to persons employed on board or in the service of vessels flying the Peruvian flag and, if so, to provide information on the impact of this system on the application of the Convention. In its report, the Government states that the SPP does not establish any distinction as to the situation of workers who wish to affiliate to it, but that the only exception provided for by the SPP concerns the performance of work in activities which involve risks to life or health. In terms of social insurance, a specific pension scheme for seafarers has not been established as envisaged by the Convention. Seafarers are included in schemes which were not necessarily established for them, but under which they can be insured. There is also a special insurance scheme for maritime workers, who fall within the scope of the national pensions system provided for by Decree No. 19990. Acts Nos. 21952, 21933 and 23237 include within this scheme maritime, inland waterway and dockworkers, and also make provision for the early retirement of maritime workers. The Committee notes this information. It requests the Government to provide detailed information on the impact of the new pension scheme on the application of each Article of the Convention in reply to the questions raised in the report form and to provide, where appropriate, statistics on the number of seafarers covered by the various pension schemes.

3. The Committee notes the information provided by the Government in reply to the communication from the Association of Former Employees and Retirees of the National Ports Enterprise (Empresa Nacional de Puertos S.A. ACJENAPU) denouncing the violation of the acquired rights of retirees of the Empresa Nacional de Puertos S.A. In its reply, the Government provides detailed information on the legal action taken by the ACJENAPU in its supplementary action against the Empresa Nacional de Puertos. The Committee nevertheless notes that the Insurance Standardization Office (ONP) is still to establish the internal procedure to be followed by the Empresa Nacional de Puertos to give effect to the award by the courts in favour of the ACJENAPU in its supplementary action. The Committee hopes that the Government will take the necessary measures in this respect and requests it to keep the Committee informed of the progress achieved in this regard.

4. The Committee notes the comments of the Union of Crew Members of Maritime Vessels for the Protection of CPVSA Workers concerning, among other matters, the application of the Convention, which were transmitted to the Government on 20 February 2001. The Committee will examine the above comments in the light of any observations that the Government may make in this respect.

[The Government is asked to report in detail in 2002.]

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1.  In reply to the Committee’s previous comments, the Government states that it has requested information from various public authorities regarding the Committee’s comments in order to prepare the report on this Convention. The Government adds that, as soon as it receives the information, it will be sent as a supplement. The Committee regrets to note that this information has still not been received. In these circumstances, the Committee would like the Government to provide a detailed report for 2001 including full information regarding the following questions raised in its previous observation:

(a)  With reference to the Committee’s previous comments, the Government recalls in its report that, in accordance with Extraordinary Presidential Decree No. 057-PCM/93, the Ministry of the Economy and Finance pays the pensions due under Legislative Decree No. 20530 of 1974 to retired employees of the Peruvian Steamship Company (a limited liability company in liquidation), and that these pensions are paid normally. The Committee notes this information. It would be grateful if the Government would continue to provide detailed information on the manner in which the payment of the pensions of retired employees of the above Peruvian Steamship Company is ensured and would also provide information on the situation of former retirees of this company who have been excluded from their pension fund and have not been reinstated by judicial decision under the Convention.

(b)  The Committee also requests the Government to indicate in its next report whether the new system of private management of pension funds, established by Decree No. 054-97-EF of 13 May 1997, applies to persons employed on board or in the service of vessels flying the Peruvian flag and, if so, to supply information on the impact of this system on the application of the Convention.

(c)  Finally, the Committee would be grateful if the Government would provide more detailed information on the application of the Convention by providing precise responses to the questions in the report form for each Article of the Convention and by communicating, where appropriate, statistics on the number of seafarers covered by the various pension schemes.

2.  The Committee notes the communication from the association of retirees and pensioners of the National Ports Enterprise (Empresa Nacional de Puertos S.A. - ACJENAPU) denouncing the violation of the acquired rights of pensioners of the Empresa Nacional de Puertos S.A. In a communication of 20 October 2000, these comments were transmitted to the Government from which there has been no reply as yet. In these circumstances, the Committee hopes that the Government will kindly include the comments it deems necessary on the observations of the ACJENAPU in its next report on the application of Convention No. 102 which seems to be a more appropriate framework for the consideration of these comments.

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1. With reference to the Committee's previous comments, the Government recalls in its report that, in accordance with Extraordinary Presidential Decree No. 057-PCM/93, the Ministry of the Economy and Finance pays the pensions due under Legislative Decree No. 20530 of 1974 to retired employees of the Peruvian Steamship Company (a limited liability company in liquidation), and that these pensions are paid normally. The Committee notes this information. It would be grateful if the Government would continue to provide detailed information on the manner in which the payment of the pensions of retired employees of the above Peruvian Steamship Company is ensured and would also provide information on the situation of former retirees of this company who have been excluded from their pension fund and have not been reinstated by judicial decision under the Convention.

2. The Committee also requests the Government to indicate in its next report whether the new system of private management of pension funds, established by Decree No. 054-97-EF of 13 May 1997, applies to persons employed on board or in the service of vessels flying the Peruvian flag and, if so, to supply information on the impact of this system on the application of the Convention.

3. Finally, the Committee would be grateful if the Government would provide more detailed information on the application of the Convention: (a) by providing precise responses to the questions in the report form for each Article of the Convention; and (b) by communicating, where appropriate, statistics on the number of seafarers covered by the various pension schemes.

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The Committee notes the communication dated April 1998 submitted by the Union of Crew Members of Maritime Vessels for the Protection of Workers which again refers to the situation of the pensioners of the Peruvian Steamship Company (a limited liability company under liquidation). The Committee notes the Government's response in which it states that, following various judicial and extrajudicial procedures, the decision handed down by the courts shall be enforced subject to the financial means available to the Board of Liquidators of the Peruvian Steamship Company. Under these circumstances, the Committee refers to its observation of 1997 and hopes that the Government will provide a detailed report by 1999 containing the information required by the report form in respect of Articles 2, 3 and 4 of the Convention as well as practical information in respect of their application (point V of the report form), including the manner in which pensions are paid to the former pensioners of the Peruvian Steamship Company (a limited liability company under liquidation).

[The Government is asked to report in detail in 1999.]

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The Committee notes the Government's reply concerning the observations made by the union of Crew Members of Maritime Vessels for the Protection of Workers stating, amongst other things, that the Board of Liquidators of the Peruvian Steamship Company (a limited liability company under liquidation) failed to comply with the requirements of Legislative Decree No. 20530 of 1974 with regard to pensions. The Union asserts that 187 workers were excluded from receiving pension benefits on the grounds that they had not completed 30 years of service despite the fact that they had already been receiving their pensions for three years. In its reply the Government states that the Peruvian Steamship Company had exhausted its available financial means in order to make payment of an amount of $3,400,000 in incentives and social benefits to its 1,200 workers, and that it did not have any other means to meet its other obligations which had been contracted later. The Government states that the Board of Liquidators invested $2,200,000 up to October 1992, the date at which the workers were put under the responsibility of the Ministry of Economy and Finance in view of the necessity to find a solution to the payment of indemnities and pensions. The Government adds that for this reason the list of 1,200 dismissed workers and pensioners has been progressively settled in conformity with the provisions of Legislative Decree No. 763 which banned any admission or reinstatement in the scheme, which would have occurred setting aside the provisions of Legislative Decree No. 20530. The Government acknowledges that 180 former pensioners of the Peruvian Steamship Company were excluded, 14 of whom obtained a favourable decision ordering their reinstatement in the scheme. It would appear that another group of workers failed to obtain a favourable ruling. The Committee notes the foregoing and asks the Government to indicate in its next report as to what is the position of this last group of workers vis-à-vis the Convention. In this connection, the Committee recalls that the Peruvian pension system has given rise to a number of comments on the application of ratified Conventions and that in its last observation it asked the Government to provide a detailed report on the application of Convention No. 71. It therefore reiterates that request and asks the Government to provide a detailed report containing the information required by the report form for Articles 2, 3 and 4 of the Convention, together with general information on its application in practice (point V of the report form).

[The Government is asked to report in detail in 1999.]

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The Committee notes the observations made by the Union of Crew Members of Maritime Vessels for the Protection of Workers, dated 19 April 1996, in which, among other matters, it states that the Liquidating Board of the Peruvian Steamship Company (a limited liability company under liquidation) did not comply with the requirements relating to pensions in accordance with Legislative Decree No. 20530 of 1974. According to the above Union, 187 workers were excluded from receiving pension benefits on the grounds that they had not completed 30 years of service, despite the fact that they had already been receiving their pensions for three years. In a communication dated 6 May 1996, these observations were brought to the knowledge of the Government, from which no reply has yet been received. In these circumstances, the Committee hopes that the Government will include in its next report the indications that it considers necessary concerning the observations made by the above workers' organization relating to the obligations deriving from the Convention.

[The Government is asked to report in detail in 1997.]

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The Committee notes the information supplied by the Government in reply to the observations made in March 1988 by the Fishermen's Federation of Puerto Supe concerning the rates of the contributions payable to the fishermen's social security and benefits fund (Caja de beneficios y seguridad social del pescador). According to this organisation the contribution rates would be 7.5 per cent as far as the fishermen's pension scheme is concerned (5 per cent payable by the shipowners and 2.5 by the fishermen) whereas this rate would be 9 per cent (6 per cent payable by the employers and 3 per cent by the employees) as far as the pension scheme for other workers is concerned.

The Committee wishes to recall that where the seafarers' pension scheme guarantees old-age pensions at the level prescribed by paragraph 1(a) of Article 3 of the Convention, this instrument does not provide for rules pertaining to financing of the scheme, other than those provided for in paragraph 2 of Article 3, under which "seafarers collectively shall not contribute more than half the cost of the pensions payable under the scheme".