Observation (CEACR) - adopted 2004, published 93rd ILC session (2005)

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

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.