Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

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

The Committee notes the Government’s reply to the comments made by the National Union of Public Employees of the Armed Forces (SINEP-FFAA) dated 7 April 2006, concerning the refusal to grant it legal personality, in which it reports that, in a decision of 3 May 2006, the trade union organization was registered automatically.

The Committee also notes the comments made by the General Confederation of Workers of Peru (CGTP), dated 23 January and 16 May 2007, which refer to the following violations of the trade union rights of the Single Union of Public Education Workers (SUTEP): (1) the declaration of regular basic education as an essential service by means of Act No. 28988 of 19 March 2007, and (2) the creation of the national register of supply teachers to replace teachers on strike by means of Ministerial Decision No. 0080-2007-ED of 23 February 2007.

With regard to the declaration of regular basic education as an essential service (Act No. 28988), the Committee observes that, under section 82 of the Industrial Relations Act, the sole purpose of such declaration is to ensure minimum services in the event of a strike. In this regard, the Committee considers that the declaration of regular basic education as an essential service for the purposes of imposing a minimum service does not raise problems of conformity with the Convention.

With regard to the creation of the national register of supply teachers to replace teachers on strike (Ministerial Decision No. 0080-2007-ED), the Committee recalls that strikers should only be replaced: (a) in the case of a strike in an essential service in the strict sense of the term in which strikes are prohibited by the legislation, and (b) if the strike results in an acute national crisis. Under these circumstances, the Committee requests the Government to take the necessary measures to repeal Ministerial Decision No. 0080-2007-ED on the replacement of teachers on strike.

The Committee also notes the comments made by: (1) the International Trade Union Confederation (ITUC) dated 29 August 2008, which refer to serious acts of violence against demonstrators and the arrest of trade union leaders for participating in a strike; (2) the Autonomous Confederation of Peruvian Workers (CATP), sent with the Government’s report, which refer to the refusal to register the Union of Workers of the Public Ombudsperson, and the hiring of workers to replace State workers on strike; and (3) the National Coordinating Committee of Ministry of Health Workers, dated 3 October 2008. The Committee requests the Government to provide its comments on this subject.

Furthermore, the Committee notes the various cases currently before the Committee on Freedom of Association relating to matters being examined by the Committee.

Article 3 of the Convention. Right of workers’ organizations to elect their representatives in full freedom. The Committee recalls that in its previous observation, it noted a bill approving mechanisms to ensure transparency in the election of executive boards of trade unions, federations and confederations of public sector workers, which amends section 5(a) of Act No. 26487 (Basic Act on the National Register of Identity and Civil Status) and section 5 of Act No. 26486 (Basic Act on the National Elections Commission), which contained various provisions which were not in conformity with the Convention. In this regard, the Committee notes with interest that this bill was shelved permanently on 13 December 2007.

Right of workers’ organizations to organize their activities and formulate their programmes. The Committee recalls that for many years, it has been making comments on the following provisions of the Industrial Relations Act:

–      The power of the labour administration to determine minimum services, in the event of disagreement, when a strike is declared in essential public services (section 82). In this regard, the Committee recalls that since minimum services restrict one of the essential means of pressure available to workers to defend their economic and social interests, their organizations should be able, if they so wish, to participate in defining such a service, along with employers and the public authorities (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 161) and, in the event of disagreement with regard to the establishment of this minimum service, the legislation should provide for the disagreement to be settled by an independent body and not by the labour authority.

–      Section 73(b) which provides that the decision to call a strike has to be adopted in the form expressly set out in the statutes and must in any event represent the will of the majority of the workers concerned. In this regard, the Committee recalls that if the legislation provides that a vote is required by workers before a strike can be held, it should be ensured that account is taken only of the votes cast, and that the required quorum or majority are fixed at a reasonable level (see General Survey, op. cit., paragraph 170).

The Committee also recalls that in its previous comments, it noted the drafting of the General Labour Bill which repealed the Industrial Relations Act and therefore the provisions in question, and asked the Government to provide information on the progress of the abovementioned Bill. In this regard, the Committee notes that the Government points out in its report that, in September 2006, the Congressional Committee on Labour entrusted to the National Council for Labour and Employment Promotion (CNTPE) the revision of the General Labour Bill. To that end, the CNTPE appointed an ad hoc committee whose work was ratified by the plenary meeting of the CNTPE on 27 October 2006 and referred to the Congressional Labour Committee. The Bill is currently on the agenda of the plenary of the Congress for discussion. The Committee hopes that the General Labour Act adopted will be in complete conformity with the Convention. The Committee requests the Government to continue providing information on developments relating to this Bill in its next report and whether it amends the sections in question.

Article 6. Right of workers’ organizations to establish federations and confederations. The Committee recalls that, in its previous comments, it asked the Government to take the necessary measures to amend section 19 of Supreme Decree No. 003-82-PCM to allow federations and confederations of public servants to establish or join organizations of their own choosing. In this regard, the Committee notes that the Government points out that, under Supreme Decree No. 003-2004-TR (which created the Register of Trade Union Organizations of Public Servants (ROSSP)) and Directive No. 001-2004-DNRT (on guidelines for the registration of trade union organizations with the Register of Trade Union Organizations of Public Servants of the Ministry of Labour and Employment Promotion), federations of State workers who are covered by different labour regimes (private or public sector) are allowed to join and form confederations. In this regard, the Committee requests the Government to indicate whether, in accordance with these provisions, federations of State workers are allowed to join confederations which include organizations of private sector workers.

Furthermore, the Committee addresses a direct request to the Government on other matters.