Observation (CEACR) - adopted 2018, published 108th ILC session (2019)

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

The Committee notes the observations of the Autonomous Workers’ Confederation of Peru (CATP), received by the Office on 2 September 2018, on the application of the Convention in law and in practice, including limits on the granting of trade union leave in the education sector. The Committee requests the Government to provide its comments in this respect.

The Committee previously requested the Government to provide its comments on the alleged violations in the specific enterprises and public institutions referred to in the observations of the International Trade Union Confederation (ITUC) in 2017. The Committee once again requests the Government to provide its comments in this regard.

Article 2 of the Convention. Right of all workers, without distinction whatsoever, to establish and join organizations. In its previous comments, the Committee requested the Government to take the necessary measures to revise the content of Act No. 28518 and its regulations, and the General Education Act, in order to ensure the explicit recognition of freedom of association in training schemes. In this regard, the Committee notes the observations of the CATP denouncing the misuse of training schemes by employers, which have reportedly become a means of concealing the existence of labour relations and of paying less than the minimum wage. The Committee further notes, with regard to Act No. 28518, that the Government indicates that: (i) despite the fact that training schemes include a work component, they do not serve to produce goods or services, but rather to develop the skills and capacities of the beneficiaries, in order to increase their employability and labour productivity, and that such beneficiaries therefore cannot be considered as workers and are excluded from the protection afforded by Article 2 of the Convention; (ii) work is currently under way to adopt the Act on specific public sector pre-vocational and vocational practices, and the content of Act No. 28518 is being revised with a view to potentially amending it and incorporating the comments of this Committee; (iii) while Act No. 28518 excludes training schemes from the labour regulations in force, the right to organize under such schemes is generally recognized by the Peruvian legal framework, in so far as the Peruvian Constitution broadly recognizes the rights to organize and bargain collectively, and the right to strike, and confers constitutional status on ratified international agreements; (iv) the Administrative Labour Authority interprets and recognizes the right to freedom of association in a broad manner and without the requirement for a work relationship with the employer; in this regard, the database of the Trade Union Register indicates the existence of autonomous and independent workers; and (vi) in practice, the Administrative Labour Authority has not denied any registration applications from trade union organizations comprising persons under training schemes. While duly noting the extent of the recognition of freedom of association by the Constitution, the Committee trusts that the future adoption of the Act on specific public sector pre-vocational and vocational practices and the revision of the Act on Labour Training Schemes will allow, without delay, for the explicit recognition of the freedom of association of workers under training schemes. The Committee requests the Government to provide information on any developments in this respect.

In relation to the restrictions to the scope of freedom of association contained in article 153 of the Peruvian Constitution, which prevents judges and prosecutors from participating in politics, establishing or joining a trade union, and going on strike, the Committee notes the Government’s reply, according to which, judges and prosecutors from various jurisdictional bodies enjoy this right in practice, and that there are currently at least three organizations of judges and prosecutors, namely the Association of Judges for Justice and Democracy, the Peruvian National Association of Magistrates and the Peruvian Association of Women Judges. With regard to the restrictions contained in article 42 of the Constitution, which does not recognize the right to organize of public servants having decision-making powers or holding positions of trust or leadership, the Committee notes the observations of the CATP, which indicate the Government’s lack of political will to make the relevant legislative changes. The Committee further notes the Government’s indication that the regulations preventing public servants who have decision-making powers or hold positions of trust or leadership from establishing or joining trade unions is constitutional, in so far as any regulations of a lower status must conform to constitutional standards, and section 40 of the Civil Service Act (LSC) confines itself to reiterating the constitutional exception. The Committee recalls that, pursuant to Article 9(1) of the Convention, the only authorized exceptions from the scope of application of the Convention concern members of the police and the armed forces, and that these exceptions must be construed in a restrictive manner. The Committee also recalls that Article 2 of the Convention guarantees the basic right to establish and join organizations of their own choosing to all workers “without distinction whatsoever”, including all public servants, whatever the nature of their functions, the only limitations permitted by the Convention being members of the armed forces and the police. However, the Committee has stated that senior public officials may be barred from joining trade unions provided they are entitled to establish their own organizations to defend their interests (see General Survey on collective bargaining in the public service, 2013, paragraphs 43 et seq., and General Survey on the fundamental Conventions, 2012, paragraph 66). The Committee once again 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, in law and in practice, of judges and prosecutors, and of employees in positions of trust or leadership in the public administration. The Committee requests the Government to provide information on any developments in this regard.

Article 3. Right of organizations to organize their activities and formulate their programmes. Holding a strike vote. In its previous comments, the Committee requested the Government to indicate whether the revised section 62 of the Regulations of Consolidated Amended Text of the Collective Labour Relations Act is applicable to the public administration. The Committee duly notes the Government’s reply which indicates that: section 72 of the Consolidated Amended Text of the Collective Labour Relations Act and section 80 of the Regulations of the Civil Service Act provide that strikes are a collective action taken in accordance with the will of the majority; section 62 of the Regulations of Consolidated Amended Text of the Collective Labour Relations Act provides that the decision to call a strike must be adopted by “over half of the workers voting in the assembly”; and that while this provision has not been expressly recognized by the Civil Service Act or its regulations, the Consolidated Amended Text of the Collective Labour Relations Act and its regulations supplements the Civil Service Act by virtue of its section 40; and that, consequently, section 62 of the Collective Labour Relations Act is applicable to strikes in the public administration.

Determining the unlawfulness of strikes. In its previous comments, the Committee requested the Government to take the necessary measures to ensure that the authority to determine a strike unlawful in the private sector does not lie with the labour administration but with an independent body. The Committee regrets that the Government does not provide its observations in this regard. With regard to the public administration, the Committee requested the Government to provide information on the Civil Service Support Commission, and to indicate whether sections 86, 87 and 88 of the Regulations of the Civil Service Act were applicable to strikes within the education sector. The Committee notes the Government’s indication that the Civil Service Support Commission has the authority to decide whether a strike is inappropriate or unlawful, and, in the case of a dispute, determine the minimum services in essential services and appoint the president of an arbitration court. The Committee also notes the Government’s indication that, due to the fact that the Civil Service Support Commission has yet to be established: (i) the Ministry of Labour and Employment Promotion remains responsible for taking the above decisions; (ii) at present, the Government is not in a position to provide information on the rules governing the operation, composition and nature of the Commission, or indicate whether strikes in the education sector fall within the Commission’s field of competence. In light of the above and observing that the Civil Service Support Commission has still not been established, the Committee once again requests the Government to take, without delay, the necessary measures to ensure that the authority to determine the lawfulness or unlawfulness of strikes, in both the private and public sector, does not lie with the Government, but rather with an independent body that has the trust of the parties. In this regard, the Committee expects that the Civil Service Support Commission will be established without delay and that it will be a genuinely independent body. The Committee requests the Government to provide information on any developments in this respect.

Definition of minimum services in essential public services. The Committee notes the Government’s indication that: (i) section 82 of the Consolidated Amended Text of the Collective Labour Relations Act provides that workers shall guarantee the presence of the staff necessary to prevent a total interruption of essential public services and ensure continuity of services and activities as required; (ii) following the observation of the Committee on Freedom of Association, section 68 of the Regulations of the Consolidated Amended Text of the Collective Labour Relations Act was amended, and the amended text provides that, in the event of disagreement on the number and occupation of workers who are to provide an essential service during the strike, the labour authority shall designate an independent body, the Civil Service Support Commission, to make such decisions, and that these decisions will be adopted by the above authority as its own; (iii) although the Civil Service Support Commission has yet to be established and there are no regulations in this regard; and (iv) on 5 July 2018, a draft Supreme Decree amending the Regulations of the Collective Labour Relations Act was pre-published, under which the Ministry of Labour and Employment Promotion will determine, by means of a resolution, the technical requirements to be met by this body, and the reference fees to be paid, in order to fully regulate the procedure for resolving disputes on minimum services in essential public services. In light of the above, the Committee understands that the Civil Service Support Commission will be the competent body for determining the minimum services required during all strikes affecting essential services, which will be ensured by public administration officials or private sector workers. The Committee trusts that the Civil Service Support Commission will be established without delay, and that it will be a genuinely independent body. The Committee requests the Government to provide information on any developments in this regard.

Right of trade unions to hold meetings and to access workplaces. In its previous comments, the Committee observed 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 providing school premises for trade union meetings and allowing political and/or union proselytizing in the educational institutions. Observing that the Government has provided no information in this regard, the Committee once again requests the Government to revise the final provisions of the above-mentioned 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, and to provide information on any developments in this respect.

Article 5. Establishment of federations and confederations. In its previous comments, noting that, under section 57 of the General Regulations of the Civil Service Act, two trade unions from the same field were required to establish a federation, the Committee requested the Government to indicate the regulations governing the operations of the confederations that group together both federations of private sector workers and federations of public administration workers. The Committee notes the Government’s indication that: (i) the regulatory framework covering federations and confederations in the private sector comprises the Consolidated Amended Text of the Collective Labour Relations Act and its regulations, while the legislation applicable to the public sector comprises the Civil Service Act and its regulations; and (ii) with regard to mixed federations and confederations, that is, those composed of trade unions and workers from both the public and private sector, the possibility of establishing and joining such organizations is guaranteed by section 28 of the Political Constitution of Peru and by the Fourth Final and Transitional Provision of the Constitution, which provide, in general, for the right of workers to establish trade union federations of their own choosing.

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