Direct Request (CEACR) - adopted 2006, published 96th ILC session (2007)

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

The Committee notes the Government’s report. Noting the draft General Labour Act, No. 67/2006-CR, it draws the Government’s attention to the following points.

Article 2 of the Convention

The Committee notes that:

–           in the Preliminary Title, section X excludes civilian service, prison labour and self-employment from the scope of the Act;

–           in Title II, section 80 of Chapter VIII on special training arrangements excludes workers covered by these arrangements from the general provisions of the Act;

–           in Title II, Chapter I on workers on probation does not specify whether such workers have the right to organize.

The Committee observes that it is not clear whether the groups of workers covered by the above provisions enjoy the safeguards provided by the Convention. It reminds the Government that, under Article 2 of the Convention, all workers, without distinction whatsoever, have the right to establish and join organizations of their own choosing. The Committee therefore asks the Government to take the necessary steps to ensure that the workers in question enjoy the rights laid down in the Convention.

The Committee further notes that paragraph (c) of section 334, on requirements for joining a trade union, prohibits membership of more than one union in the same field. The Committee reminds the Government that workers must be able to establish or join organizations of their own choosing. This is particularly important where workers have more than one occupation. Such workers should be able to join organizations representing each of the activities they engage in. The Committee requests the Government to take the necessary measures to amend this provision so as to align the law with the principle of the Convention.

Article 3

The Committee notes that section 349, “Executive Board”, of Chapter III stipulates that in order to become a member of such a board, it is necessary to be in an employment relationship. In the view of the supervisory bodies, to require a worker to belong to the establishment in question in order to be eligible for trade union office is contrary to Article 3 of the Convention, which lays down the right of workers to elect their representatives in full freedom. Furthermore, provisions of this kind may prompt employers to interfere and dismiss the union officers, thus precluding their continuation in office. The Committee requests the Government to take the necessary steps either to abolish this provision or to make it more flexible, for instance by allowing former members of the profession to stand for office or by eliminating the requirement of membership of the profession for a reasonable proportion of officers.

Right to strike

The Committee notes that:

–           section 385(4) of Chapter VI provides that “where the workers have opted to take industrial action and the strike is excessively long, with serious consequences for the parties or for production, or gives rise to acts of violence or takes on serious proportions or consequences, the Executive may intervene through the Ministry of Labour and Employment Promotion by means of a reasoned ministerial decision ordering the resumption of work …”. The supervisory bodies are of the view that, where a total and prolonged work stoppage in a vital sector of the economy is liable to create a situation endangering the life, safety or health of the population, a specific category of workers could legitimately be ordered back to work if, because of its scope and duration, the strike is liable to give rise to such a situation. To order a return to work outside such instances, however, is contrary to the principles of freedom of association. The Committee therefore asks the Government to amend section 385(4) so that a return to work may be ordered only where the life, safety or health of all or part of the population are endangered;

–           in Title VIII, the first paragraph of section 402 of Chapter II provides that the Administrative Authority for Labour is empowered to declare a strike unlawful following a request from the employer or employers affected by the measure. The supervisory bodies are of the view that the authority to declare a strike unlawful should lie not with the Government but with a body that is independent of the parties and enjoys their trust. The Committee requests the Government to take the necessary measures to align this provision with the principle laid down in the Convention.

Article 4

The Committee notes that, under section 361(3) of Chapter V, a union may be dissolved if the membership falls below the legally declared minimum. The Committee requests the Government to take the necessary measures to amend this provision so that the dissolution of an organization may be declared only by the judicial authority after a thorough examination of the reasons why the membership fell below the legal minimum.

The Committee hopes that its comments will be taken into account in the final draft of the General Labour Act. The Committee requests the Government to report any developments in this regard.