Individual Case (CAS) - Discussion: 1991, Publication: 78th ILC session (1991)

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

A Government representative said that freedom of association and the right to collective bargaining were respected in his country. Presidential Decree No. 076-90-TR of 19 December 1990 had simplified the procedures for constituting federations of confederations (requiring, respectively, two basic trade unions and two federations) and the registration of trade unions (requiring an oath by members of the constitutive assembly of trade union organisations). The right to organise and the right to strike were accorded to public servants by the Constitution. The prohibition of re-electing trade union officers for the trade unions of public servants immediately after the end of their term of office aimed to democratise trade unions and that prohibition was accepted by those trade unions and included in their constitutions. The prohibition of the affiliation of federations and confederations of public servants to organisations which covered other categories of workers followed from the fact that public servants were not subject to the same regulations as workers in the private sector and, consequently, different mechanisms were employed to solve labour conflicts.

Concerning Convention No. 98, the Government representative said that Presidential Decree No. 017-82-TR (which, under conditions of economic emergency, empowered the Government to intervene in collective bargaining in various sectors of the economy) was a temporary emergency Decree which aimed to contain the galloping inflation rife in the country. That text was no longer in force and the social partners now had the right to freely engage in collective bargaining. Furthermore, when that Decree had been in force, the Governement had only intervened in collective bargaining when the organisations of workers and employers had not been able to reach agreement. In conclusion, the Government representative noted that his country was on the point of resolving the problems mentioned by the Committee of Experts.

The Workers' members referred to two aspects of the Presidential Decree No. 003-82-PCM which the Committee of Experts had rightly pointed out were in conflict with Convention No. 87. The first prohibited the re-election of trade union officers for the trade unions of public servants immediately after the end of their term of office. As the Committee of Experts had said, if a trade union wished to adopt a statute of that nature it was perfectly entitled to do so, but it was not for the Government to lay it down in law. The Government representative had argued that the law had been introduced in order to democratise the public service; it was a strange form of the democratic process to prevent a second term in office. Last year, the Government representative had indicated that the law was about to be amended. Nothing had been heard about any change in the law on that point, and the comments he had made merely repeated earlier remarks to the Committee of Experts. The second point concerned the right of public service unions to join federations and confederations which included unions outside the public service. Every trade union should be entitled freely to join a federation or confederation of its own choice, as the Committee of Experts had correctly stated. A repetition of earlier remarks about the existence of several confederations in Peru was beside the point. The Government representative should infom the Committee whether his Governement was prepared to make the changes necessary to bring the law into conformity the Convention No. 87. Referring to Convention No.98, the Governement representative had told the Committee that, because of the difficulties in his country, his Government had used emergency powers compatible with the Convention to exercise some control over collective bargaining. As the Committee of Experts had pointed out, those emergency powers were not intended to extend beyond a reasonable period. While the situation was not entirely clear, it appeared that emergency measures had been in force since 1982; nine years of an emergency was too long a time to be considered a true emergency situation in the understanding of the Committee of Experts. Indeed, the Committee of Experts had further stated that, if such a situation existed, there should be clear tripartite consultation in the country concerned; that had evidently not taken place in Peru. Last year, attention had been drawn to the difficulties faced by trade unions in Peru. There were frequent reports of trade union leaders being imprisoned and subjected to torture. In most cases, those people were released for lack of evidence but they remained in poor physical condition as a result of injuries consistent with having been tortured. Last year, following a reference to a couple of individual cases, the Government representative of Peru had said that all was well in his country and that any violations would be investigated. There was no mention in the report of such judicial investigations. Indeed, Amnesty International had pointed out recently that the United Nations Working Group on Enforced Disappearances had identified a paralysis of the institutions supposed to protect human rights. The Workers' members had the names of trade unionists who had disappeard, who had been taken by the army and never heard of again; those names could be communicated to the Government representative. Those who were tortured and subsequently released were threatened with immediate reimprisonment if they appealed to anybody whatsoever. Such matters were highly relevant to Convention No. 87. The Workers' members hoped that the Government representative would respond to the points that they had raised.

The Employers' members welcomed the fact that some progress had been made since last year, as was evident from the report of the Committee of Experts concerning Convention No. 87, particularly the possibility of pluralism for trade unions. Important problems, however, remained. They agreed with the Workers' members that the State had no business in interfering with the internal affairs of trade unions and employers' organisations. Only if such associations engaged in external activities could it sometimes be argued that the State should act in the interests of the general public. The law ought to be changed soon and the Government representative of Peru should be invited to inform the Committee whether specific amendments were planned. The question of affiliation of federations and confederations of public servants was another instance of internal trade union affairs; here again, the Government had no business to intervene. Furthermore, the requirement that over 50 per cent of workers were needed to establish a trade union was certainly not satisfactory. There was some confusion about the legislation actually in force and the matter required clarification. In any event, the present situation was unsatisfactory. A commitment had been made to change the requirement to belong to an enterprise in order to hold trade union office; undoubtedly, that obstacle to the right of workers to elect their representatives in full freedom would be eliminated in future. The question of the delimitation between trade unions and political activities was complex. It was nevertheless certain that trade union organisations should have the possibility of expressing their opinions on "political" issues but that if a trade union became a political organisation it should not enjoy trade union privileges. Referring to Convention No. 98, he stressed that the emergency provision should be applied reasonably, whereas in Peru the necessary consultation with the social partners had not taken place. The Government representative of Peru had stated that the related legislation was no longer being applied; the matter would be settled when the decree in question had been repealed. Perhaps the Government representative of Peru could clarify the steps that were going to be taken to bring his country's legislation in line with Conventions Nos. 87 and 98.

The Workers' member of Tunisia noted that the statement by the Government representative confirmed that the Government of Peru continued to violate Convention No. 87. Government interference in trade union statutes, trade union elections and the affiliation of workers and their organisations should be stopped.

The Workers' member of the United States indicated that the Committee of Experts, in commenting on Convention No. 98, had endorsed the observations of the Committee on Freedom of Association concerning a recent complaint about restrictions placed on collective negotiations. Consequently, the Government representative should state clearly whether Decree No.017-82-TR was no longer applied, as he had said, or whether it had been repealed.

The Government representative made it clear that "democratisation" aimed to ensure that trade union officials responded to the needs of workers and did not embed themselves in trade unions, and it was normal for trade union officials from the public and private sectors not to participate in the same trade union governing bodies. Mention had been made of disappearances, detention and torture; they were often caused by subversive movements acting in the country which, sometimes under cover of trade union activities (strikes, demonstrations), committed serious acts of violence against people and attacks against property, through certain trade union officials and people infiltrated into trade unions. It should not be forgotten that the forces operating in the country were not only the forces of order but also terrorist forces. Legal procedures had been started but some elements were still missing to bring them to a conclusion. Concerning the Decree on the state of emergency which restricted collective bargaining, the Government representative repeated that the Decree was temporary and had only been in force since December 1990. Finally, he indicated that he would communicate to the competent authorities the wish expressed by the Workers' members that legislation be adopted providing, for example, that trade unions of public servants could be affiliated to a national federation.

The Workers' member of Peru associated himself with the complaint that his organisation, along with other organisations, had made concerning the restrictions imposed on collective bargaining by Presidential Decree No. 017-82-TR, taking into account the huge difficulties that faced workers in Peru.

The Committee took note of the information provided by the Government and the debate that had taken place within the Committee. While taking note with interest of the legislative changes that had taken place in 1990 to simplify the registration of trade unions, allow for the possibility of trade union pluralism and accord independent workers the right to form trade unions, the Committee recalled the conclusions of the Committee of Experts concerning the persisting difference between practice and legislation, on one hand, and the requirements of the two Conventions Nos. 87 and 98, on the other. The Committee expressed the hope that the questions concerning the trade union rights of public servants, the right of workers to freely elect their representatives and the right of trade unions freely to organise their activities would be re-examined in the near future in order to bring legislation into conformity with Convention No. 87. While aware of the economic and financial situation of the country, the Committee recalled the importance of the principle of free collective bargaining established by Convention No. 98 and the need for any policy of economic stabilisation to be the fruit of cooperation not constraint. The Committee requested the Government to take a position on the questions posed by the Committee of Experts and by the present Committee itself, and to present a report on that subject to the Committee of Experts as soon as possible. The Committee expressed the hope that, in the near future, it would be in a position to see that further progress had been made.