Observation (CEACR) - adopted 2015, published 105th ILC session (2016)

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

The Committee notes the observations of the International Organisation of Employers (IOE) received on 1 September 2015 which are of a general nature. The Committee also notes the observations of the International Trade Union Confederation (ITUC) received on 1 September 2014 and 1 September 2015 which contain, firstly, reports of violations of the Convention in specific public institutions and enterprises and, secondly, legislative matters addressed by the Committee in this observation and in the corresponding direct request. The Committee requests the Government to provide its comments in relation to the cases of alleged violation of the Convention in the specific public institutions and enterprises mentioned in the ITUC observations.

Article 2 of the Convention. Right of all workers, without distinction, to form organizations and to join them. For several years, the Committee has been recalling the need for the relevant legislation (Act No. 28518 and its Regulations, and the General Education Act) to guarantee that workers under training schemes enjoy the rights enshrined in the Convention. In this respect, the Committee notes the Government’s indication that: (i) indeed, the right to organize of workers under training schemes is not expressly recognized in any specific provision in national legislation; (ii) that right is, however, generally recognized by the Peruvian legal framework in so far as the Peruvian Constitution recognizes broadly the rights of association and collective bargaining, and the right to strike, and confers constitutional status on the ratified international human rights conventions, including the present Convention; and (iii) in practice, the Labour Authority has never denied the right of workers under training schemes to exercise their freedom of association. While it takes due note of these elements, the Committee recalls that Act No. 28518 and its Regulations exclude workers under training schemes from the scope of application of labour legislation, with the consequence that they are not covered by the freedom of association legislation. The Committee also recalls that, as a result of a complaint submitted by three Peruvian Confederations, the Committee on Freedom of Association, in the framework of Case No. 2757, requested that workers under training schemes be recognized the right to associate. The Committee therefore requests the Government to take the necessary measures to revise the relevant legislation to expressly recognize the freedom of association of workers under training schemes. The Committee requests the Government to report on any steps taken in this regard.

In previous comments relating to restrictions to the scope of freedom of association contained in section 153 of the Peruvian Constitution, the Committee requested the Government to take the necessary measures to guarantee that judges and prosecutors enjoy the right to form associations or organizations to defend their interests. The Committee requests the Government to provide information, in the near future, on any steps taken in this respect.

The Committee notes that the ITUC reports that article 42 of the Peruvian Constitution does not recognize the right to organize of public servants with decision-making powers and in positions of trust or leadership. The Committee observes that section 40 of Act No. 30057 of the Civil Service Act of 2013 contains identical restrictions. In this respect, the Committee recalls that, under Articles 2 and 9 of the Convention, all workers, with the only exception of members of the armed forces and the police, must enjoy the guarantees of the Convention, and that the legislation that provides that senior officials must form separate organizations from other public servants is compatible with the Convention, provided that the legislation limits this category to persons exercising senior managerial or policy-making responsibilities. In light of the above, the Committee requests the Government to take the necessary steps to revise the relevant provisions in its legal framework in order to secure the right to organize of employees in positions of trust or leadership in the public administration. The Committee requests the Government to inform it of any steps taken in this respect.

Article 3. Right of organizations to organize their activities and formulate their programmes. Holding a strike vote. In relation to section 73(b) of the Collective Labour Relations Act, which provides that the decision to call a strike represents the will of the majority of the workers concerned, the Committee requested that it should be ensured that only the votes cast are counted and that the required quorum or majority is fixed at a reasonable level. Taking note of the Government’s indication that Supreme Decree No. 024-2007-TR amended section 62 of the Regulations of the Collective Labour Relations Act, the Committee observes with satisfaction that under the revised section the call to strike may be made “in the form expressly set out in the statutes, provided that the decision to strike is adopted by a majority of its voting members present at the meeting”. Observing that the General Regulations of the Civil Service Act adopted in 2014 provide, like the Collective Labour Relations Act, that the decision to call a strike should represent the will of the majority of the workers concerned, the Committee requests the Government to indicate whether the revised section 62 of the Regulations of the Collective Labour Relations Act is applicable to the public administration.

Determining the unlawfulness of strikes. In its previous comments, the Committee emphasized the need to ensure that the authority to determine 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). In relation to the private sector, the Committee notes the Government’s indication that, under Supreme Decree No. 017-2012-TR, the body authorized to determine the lawfulness or unlawfulness of a strike is the Administrative Labour Authority. The Committee regrets the lack of progress on this matter and urges the Government to take the necessary measures in order that the authority to determine a strike unlawful in the private sector does not lie with the labour administration but with an independent body that has the trust of the parties. In relation to the public administration, the Committee notes the Government’s indication that, under sections 86, 87 and 88 of the General Regulations of 2014 of the Civil Service Act, the authority to determine the lawfulness or unlawfulness of a strike lies with the Civil Service Support Commission, which consists of independent professionals who are elected in accordance with a decision of the Executive Board of the National Civil Service Authority. In order to be able to examine in detail the nature of the body concerned, the Committee requests the Government to provide additional information on the rules governing the operations of the Civil Service Support Commission, its current composition, as well as decisions it has issued with respect to the exercise of the right to strike. With respect to the education sector, the Committee requests that the Government indicates whether sections 86, 87 and 88 of the General Regulations of 2014 of the Civil Service Act mentioned above, are applicable to strikes within that sector. If this is not the case, the Committee requests the Government to revise section 20 of Supreme Decree No. 017-2007-ED in order that the authority to determine the lawfulness or unlawfulness of strikes in the education sector does not lie with the Ministry of Education but rather with an independent body that has the trust of the parties.

Definition of minimum services in essential public services. In its previous comments, the Committee requested the Government to provide information on the composition of the independent body appointed to give a ruling in the event of disagreement about the number and occupation of workers who are to continue working in the event of a strike in essential public services. The Committee notes the Government’s indication that, to date, this procedure has not been implemented since no disagreement has been referred to the Labour Authority on the number and occupation of workers necessary to maintain essential services. Observing that the Committee on Freedom of Association recently examined a case relating to this issue (see Case No. 3096, 376th report of the Committee on Freedom of Association, November 2015), the Committee requests the Government to take, in consultation with the social stakeholders, the necessary measures to define in advance the composition of the independent body appointed to give a ruling in the event of disagreement about the number and occupation of workers who are to continue working in the event of a strike in essential public services. The Committee requests the Government to report on any steps taken in this respect. The Committee also notes the Government’s indication relating to the resolution of the disagreements on the number and occupation of workers who are to continue working in the event of a strike in essential public services which are operated by public administration workers. The Government points out that, under the Civil Service Act that task falls within the competence of the Civil Service Support Commission. Observing that this body was already mentioned above with respect to the determination of the lawfulness of strike actions in the public administration, the Committee reiterates its requests to the Government to send additional information in order to enable it to examine in detail the nature of the Civil Service Support Commission.

Right of trade unions to hold meetings and to access workplaces. The Committee observes that sections 4 and 5 of the final supplementary provisions to Supreme Decree No. 017-2007-ED define as serious offences by head teachers and deputy head teachers in schools the acts of: (i) providing school premises for trade union meetings; and (ii) allowing political and/or union proselytising in the educational institutions. In this respect, the Committee recalls that Article 3 of the Convention protects the right of trade unions to hold meetings and to access workplaces to communicate with workers. The Committee therefore requests the Government to revise the final provisions of the abovementioned Supreme Decree in order to enable head teachers in schools to determine, with the trade unions concerned the modalities of access to workplaces that do not jeopardize the effective functioning of those facilities. The Committee requests the Government to report any steps taken in this respect.

Article 5. Establishment of federations and confederations. In its previous comments, the Committee recalled the need to guarantee that federations and confederations of public servants may, if they so wish, join confederations consisting of organizations of workers who are not state workers. The Committee notes the Government’s indication that, under section 57 of the General Regulations of the Civil Service Act which repeals Supreme Decree No. 003 2004-TR, which had previously been examined by the Committee: (i) at least two trade unions from the same field are required to establish a federation and at least two federations to establish a confederation; and (ii) the federations and confederations are governed by the Civil Service Act and the Regulations in question. The Committee notes with interest that the new provisions no longer prohibit the affiliation of federations and confederations of public servants with broader confederations. The Committee requests the Government to indicate the regulations that govern the operations of the confederations that group together both federations of private sector workers and federations of public administration workers.

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