Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

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

Comments from workers’ and employers’ organizations. The Committee notes the Government’s reply to the comments made in 2010 by the General Confederation of Workers of Peru (CGTP), the Confederation of Workers of Peru (CTP), the Autonomous Workers’ Confederation of Peru (CATP) and the International Trade Union Confederation (ITUC) and notes in particular the information that magistrates have the right to organize and that the National Association of Magistrates has existed since 1977. The Committee also notes the comments of 4 August 2011 and 31 July 2012 by the ITUC, which refer to matters already raised by the Committee, and the Government’s reply thereon dated 21 September 2012. It further notes the comments of 31 August 2012 by the CATP stating that the General Labour Bill, referred to by the Government in its report, seeks to delay compliance with the Convention and that the Collective Labour Relations Act has not as yet been amended as advised by the ILO supervisory bodies.

Lastly, the Committee takes note of the comments of 28 August 2010 by the Lima Chamber of Commerce (CCL) referring to the scope of the Convention’s application to certain categories of workers, and to decisions by the administrative authority declaring strikes unlawful.

Legislative matters. In its previous comments, the Committee referred to the following matters:

Article 2 of the Convention. Right of workers to establish and join trade unions. The Committee recalls the need to ensure that workers under special training arrangements enjoy the rights enshrined in the Convention (Act No. 28518 and its regulations, General Education Act). The Committee notes the CCL’s assertion that special training arrangements, independent services and activities arising out of civic obligations fall outside the scope of the Convention. The Committee points out that according to Article 2 of the Convention, workers and employers without distinction whatsoever and without previous authorization, shall have the right to establish and join organizations of their own choosing, subject only to the rules of the organization concerned. The only exceptions to this principle that the Convention allows are set forth in Article 9(1), under which States may determine the extent to which the guarantees provided for in the Convention shall apply to the armed forces and the police. The Committee emphasizes that workers under special training arrangements should be able to join organizations, if they so wish, in order to be represented by them.

Article 3. Right of organizations to organize their activities and formulate their programmes. The Committee recalls:

• -The need to amend section 73(b) of the Industrial Relations Act, 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. The Committee recalls in this connection the principle that if the legislation provides that a vote by workers is required before a strike can be held, it should be ensured that only the votes casted are counted and that the required quorum or majority is fixed at a reasonable level.
• -The need to ensure that authority to declare a strike unlawful lies not with the Government but with an independent body that has the trust of the parties (a point made several times by the Committee on Freedom of Association). The Committee observes in this connection that the CCL believes that responsibility for declaring a strike unlawful must lie with the Government, since participation by an independent body implies a high degree of subjectivity, which would be a hindrance to any feasible settlement and to observance of the social rights involved.

Article 5. The Committee recalls the need to ensure that federations and confederations of public servants may, if they so wish, join confederations consisting of organizations of workers who are not state workers (section 19 of Supreme Decree No. 003-82-PCM on the constitution of federations and confederations of public servants, Supreme Decree No. 003-2004-TR and Directive No. 001-2004-DNRT).

In its previous comments, the Committee noted in this connection that the Government had reported the drafting of a General Labour Bill to repeal the Industrial Relations Act and the provisions in question, and asked the Government to keep it informed in this regard. The Committee notes that in its report the Government states that a new General Labour Bill, which was examined by the National Council for Labour and Employment Promotion (CNTPE) and has been referred to a Sectoral Technical Committee (CTS) consisting of technicians from the Ministry of Labour and Employment Promotion, and that consultations are still being held. The Committee also notes that since observations on the draft are in the process of being reviewed and evaluated, the State has not adopted an official position on its content since it is not as yet part of the national legislation.

The Committee hopes that in the process to finalize the draft General Labour Bill to amend the Industrial Relations Act, the representative workers’ and employers’ organizations will continue to be consulted. The Committee also trusts that its comments will be taken into account in the text that is finally adopted and reminds the Government that technical assistance from the Office is available.

The Committee raises other matters in a request addressed directly to the Government.