Individual Case (CAS) - Discussion: 2023, Publication: 111st ILC session (2023)

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

Written information provided by the Government

Written information sent on 22 May 2023

Legislative developments. The Committee requests information to be provided on the impact of the application of Presidential Decree No. 014-2022-TR. In this regard, the Ministry of Labour and Employment Promotion (Ministry of Labour) attaches statistical tables with definitive figures on labour disputes (strikes and/or stoppages in the private sector) presented and recorded in February 2023, as well as during January and February 2023 in comparison with January and February 2022, drawn up by the General Office for Statistics and Technologies at the Ministry of Labour.

These tables show, among other data, that both the number of strikes (2022: three; 2023: one), the number of workers covered by the measure (2022: 245; 2023: 23) and the hours of work lost (2022: 234,320; 2023: 4,416) all show figures much higher than those reported for the same months in 2023, when Presidential Decree No. 014-2022-TR was not yet in force. This illustrates the fact that the level of disputes has decreased as a result of the aforementioned legislation coming into force.

Moreover, during 2022, after the decision of the employers’ unions to suspend their participation in the National Labour and Employment Promotion Council (CNTPE) and its dialogue forums, communicated in July 2022, the Ministry of Labour made efforts to resume the dialogue, inviting them to attend various bilateral meetings with the Ministerial Office but without receiving any response. However, in the context of the current period of government, bilateral meetings were held between the Ministerial Office and employers’ organizations such as the National Confederation of Private Business’ Institutions (CONFIEP), the National Society of Industry (SNI), the Chamber of Commerce of Lima (CCL) and the Exporters’ Association, between December 2022 and May 2023, at which the employers’ unions expressed their concerns regarding Presidential Decree No. 014-2022-TR.

Furthermore, between December 2022 and May 2023, bilateral meetings were held between the Ministerial Office and the trade union confederations (the General Confederation of Workers of Peru (CGTP), the Single Confederation of Workers of Peru (CUT-Peru), the Confederation of Workers of Peru (CTP), and the Autonomous Workers’ Confederation of Peru (CATP)), which in turn expressed their support for Presidential Decree No. 014-2022-TR.

It is hoped to follow up on the readiness to engage in dialogue expressed by the employers’ organizations during these recent meetings and to achieve a rapprochement with the workers’ confederations with a view to re-establishing trust so that it is possible to achieve a quorum in a future plenary meeting of the CNTPE and accordingly proceed with the processes and procedures of tripartite consultation.

Article 2 of the Convention. Recognition of the right to organize of managerial personnel and employees in positions of trust in the public administration. The Ministry of Labour indicates that Presidential Decree No. 014-2022-TR, amending the Regulations implementing the Collective Labour Relations Act, which is applicable in a subsidiary capacity to the public sector, provides as follows:

Managerial personnel and employees in positions of trust shall not be represented by the trade union or included in the total number of workers for the purposes of determining whether the requirement of the absolute majority referred to in the previous section has been achieved, unless the rules of the organization specifically permit their membership.

Accordingly, the right to freedom of association of managerial personnel and employees in positions of trust is recognized in terms of their being able to be members of a trade union provided that the rules of the union explicitly allow their membership.

It should also be recalled that section 4 of the Regulations provides that the State shall recognize and guarantee for workers, without distinction or previous authorization, the right to establish and join organizations of their own choosing, and to engage in trade union activities to defend and further their economic and social interests.

Moreover, Ministerial Decision No. 92-2022-TR provided for the pre-publication of the preliminary draft of the Labour Code, which contains a proposal for the specific regulation of vocational training schemes, defining the service provider as a worker and indicating that training schemes constitute labour contracts.

The Ministry of Labour proposed to initiate a process of tripartite dialogue in the CNTPE on the preliminary draft text, on the basis of which at ordinary session No. 127 on 13 May 2022, the plenary of the CNTPE decided that the process of dialogue on the preliminary draft text of the Labour Code would be evaluated by the social partners once the pre-publication period had elapsed.

It was accordingly decided on a tripartite basis to include the definition of the characteristics of the process of dialogue in the agenda of ordinary session No. 128 of the CNTPE plenary, which was held on 18 July 2022. However, that session was suspended, following three hours of discussions on another subject, and the preliminary draft text was not discussed.

Subsequently, on 26 July 2022, the employers’ representatives suspended their participation in the CNTPE, expressing disagreement with Presidential Decrees Nos 001-2022-TR (outsourcing) and 014-2022-TR (industrial relations).

An extraordinary session of the CNTPE plenary was then convened on 3 November 2022 to determine the process of dialogue on the preliminary draft text of the Labour Code, but it was only possible to hold an information session due to the absence of a quorum as a result of the almost total absence of employers’ representatives, although all the workers’ representatives attended the session.

In the context of the action taken by the current Government, between December 2022 and May 2023, bilateral meetings were held between the Ministerial Office, on the one hand, and the employers’ organizations and workers’ confederations, on the other.

It is hoped to follow up on the readiness to engage in dialogue expressed by the employers’ organizations during these recent meetings and to achieve a rapprochement with the workers’ confederations with a view to re-establishing trust so that it is possible to achieve a quorum in a future plenary meeting of the CNTPE and accordingly proceed with the processes and procedures of tripartite consultation.

It should also be noted that in April 2023, members of the Congress of the Republic of Peru put forward Bill No. 4483/2022-CR issuing the Labour Code, which includes in full the content of the proposed text of the preliminary draft of the Labour Code published by the Ministry of Labour in April 2022.

The judiciary has also indicated that it is important to take into account that, while article 28 of the Political Constitution of Peru provides that “the State shall recognize the right to organize, collective bargaining and to strike. It shall ensure its democratic exercise: (i) it shall guarantee freedom of association …”. Article 153 adds that “judges and prosecutors shall be prohibited from participating in politics, joining unions and calling strikes”.

These prohibitions were also envisaged in the 1979 Constitution in the chapter on the judicial authorities, which is taken up in the 1993 Constitution. The purpose is to ensure that the judicial authorities and the whole justice system are not connected with political circles, as nothing is more harmful for the justice system than the exercise of political activities by judges and/or prosecutors.

While it is clear that the Constitution provides that those officials may not be members of unions, such public officials may nevertheless establish and join associations, on condition that their purpose is “the defence of the professional interests of their members in all matters and activities intended to be of service to justice in general”, as seen in section 35(12) of Act No. 29277 on judicial careers:

Judges shall have the right to:

…

freedom of association. Associations of judges shall be established and undertake their activities in accordance with the requirements set out in the Civil Code and shall be regulated by their internal rules.

It is clear that neither judges nor prosecutors are considered to be workers by labour law, under which they are not bound to their employer by an employment contract. Moreover, the employer to which they provide services is not another private person, but the State itself. It should also be noted that freedom of association is effective if it is surrounded by the usual accompanying procedures, which are its true pillars, namely collective bargaining and the right to strike.

Judges, magistrates and prosecutors have to maintain impartiality in relation to positions that could undermine the constitutional balance of powers.

Nevertheless, professional associations, as substitutes for unions, have up to now fulfilled their function of offering a channel for the appropriate expression of the concerns and claims of certain professionals who are as deserving of this right as any other group.

Article 3. Determining the unlawfulness of strikes. In accordance with the above, under the current governmental administration, between December 2022 and May 2023, bilateral meetings were held between the Ministerial Office and, initially, the employers’ organizations and, subsequently, with the trade union confederations.

It is hoped that dialogue will be resumed in order to achieve a quorum at the next CNTPE plenary meeting and thus re-establish the processes and procedures of tripartite consultation.

[Tables not reproduced: Strikes initiated, settled and pending; workers involved and working hours lost in the private sector from 1 to 28 February 2023; Comparative table of strikes, workers involved and working hours lost in the private sector each year by economic activity from 1 to 28 February 2022 and 2023; Comparative table of strikes, workers involved and working hours lost in the private sector each year by the reason for the strike from 1 to 28 February 2022 and 2023]

Additional written information sent on 30 May 2023

Article 2. The right of all workers, without distinction, to establish and join organizations. The National Civil Service Authority (SERVIR) indicates that Peru recognizes the Convention’s guiding principle as the exercise of freedom of association and collective bargaining, which are fundamental rights aimed at ensuring workers’ full and free participation in the labour market, thus embodying a guarantee of democracy and social progress. All possible improvements to labour law therefore take place within a framework of dialogue between representative workers’ organizations and the State. It must be highlighted at the outset, however, that although the Political Constitution guarantees the exercise of the right to freedom of association, that right, like any other, is not unrestricted, but is subject to certain limits established by rules with the force of law.

The guarantees that protect workers’ rights are based on respect for international labour standards given that Peru has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), both of which address the protection of the right to organize in general, as well as the Labour Relations (Public Service) Convention, 1978 (No. 151), which protects, inter alia, public officials’ right to organize and which forms a basis for the right to strike. Moreover, article 42 of the Political Constitution states that “[p]ublic officials’ rights to organize and to strike are recognized”. Similarly, under article 28 of the Constitution, the State recognizes the rights to organize, to collective bargaining and to strike, ensuring that they are exercised democratically. As a consequence, therefore, of the recognition of these rights, civil servants’ freedom of association and right to strike, among other things, are guaranteed.

The right to organize in the public sector in Peru is regulated by section 41  of the Civil Service Act (Act No. 30057), under which civil servants enjoy the right to organize for the purpose of defending their interests. Civil servants’ organizations must contribute to the continuous improvement of services for citizens and refrain from hindering the efficient functioning of a body or the provision of a service, while the authorities must not promote acts that limit the formation of trade union bodies or the exercise of the right to organize.

It is also important to note that Title V, Chapter I, of the General Regulations relating to the Civil Service Act, adopted through Presidential Decree No. 040-2014-PCM, regulates the exercise of the right to organize and contains provisions on, inter alia, freedom of association,  protection from anti-union discrimination, protection from acts of interference, the formation of trade unions, trade union registration and trade union leave.

Article 3. Rights of organizations to organize their activities and formulate their programmes. Voting to declare a strike. With respect to the right to strike, SERVIR indicates that this is regulated in sections 79 to 85 of the General Regulations of the Civil Service Act, which provide that one of the requirements for a strike is that the decision must be adopted in the manner expressly stated by the union rules and that it must represent the will of the majority of workers covered by its scope. Likewise, section 13.2(e) of Act No. 31188 on collective bargaining in the public sector states that public sector workers may declare a strike under the provisions of the single consolidated text of the Collective Labour Relations Act, approved by Presidential Decree No. 010-2003-TR, and its regulations. Lastly, the single consolidated text of the Collective Labour Relations Act and its regulations apply supplementarily to any aspects not regulated in the previous provisions.

Right of trade union organizations to hold meetings and have access to workplaces. The Ministry of Education states that according to section 66 of the General Education Act (Act No. 28044), the goal of educational institutions is to ensure the learning and comprehensive training of their students. Likewise, as a physical environment, they provide facilities for conducting extracurricular and community activities, upholding the educational goals and objectives, as well as the specific functions, of the institutional premises.

Under article 28 of our Constitution, the State guarantees freedom of association. Article 6 of the Convention No. 151, establishes that such facilities shall be afforded to the representatives of recognized public employees’ organizations as may be appropriate in order to enable them to carry out their functions promptly and efficiently, both during and outside their hours of work, without impairing the efficient operation of the administration.

In this context, having reviewed the only final complementary provision of Presidential Decree No. 017-2007-ED, referring to the fact that the director or deputy director of a public educational institution providing regular basic education must guarantee the functioning of his/her educational centre, and so “facilitating the use of school premises for union meetings” is a serious offence. We consider that this provision is in line with the Constitution and international agreements, as educational institutions are intended to provide an education service, which under Act No. 28988 constitutes an essential public service.

Discussion by the Committee

Chairperson – I invite the Government representative of Peru, the Minister of Labour, to take the floor.

Government representative (Minister of Labour and Employment Promotion) – It is an honour to address you today during the 111th Session of the International Labour Conference to convey the warm greetings of the Constitutional President of the Republic of Peru, Ms Dina Ercilia Boluarte Zegarra and the Peruvian people.

Historically, the Peruvian State has assumed with great responsibility its commitment to protect and defend fundamental labour rights, implementing at every opportunity the recommendations formulated by the various bodies of the International Labour Organization’s standards supervisory system.

In that vein, we will now provide information on the observations contained in the 2023 report of the Committee of Experts related to the Convention.

The first observation of the Committee of Experts related to its request for information on the impact of the application of Presidential Decree No. 014-2022‑TR and on the resumption of social dialogue in the CNTPE to ensure that concerns regarding the Decree are discussed in this space and that any circumstances hindering the functioning of this body are swiftly resolved.

In this respect, it should be noted that the Ministry of Labour submitted statistical information to this Committee on the labour disputes filed and registered during the months of January and February 2023, in other words, after the issuance of Presidential Decree No. 014-2022-TR, including figures on strikes, workers involved and working hours lost.

With regard to the resumption of social dialogue, suspended in July 2022, allow me to specify that with the change of Government, the mechanisms to resume rapprochement between the social partners were strengthened through bilateral meetings with the ministerial office.

During my current term as Minister of Labour and Employment Promotion, since 24 April 2023, we have held bilateral working meetings with the trade unions and employers’ associations, which has allowed them to present their contributions and issues of concern, all agreeing on the need to strengthen social dialogue as an opportunity to achieve continuous improvement in the labour sector.

The Ministry of Labour has set up eight working groups with trade unions such as the CGTP, the General Confederation of Workers (CUT), the CTP and the ’CATP, and with employers’ associations such as ’CONFIEP, the CCL, the Association of Exporters (ADEX) and the SNI.

It should be noted that spaces for tripartite social dialogue, such as the National Council on Occupational Safety and Health (CONSSAT), the National Committee for the Prevention and Eradication of Child Labour (CPETI) and the National Committee on Combating Forced Labour (CNLCTF), remained active and met on a continuing basis due to the willingness of the social actors involved.

In its second observation the Committee hoped that the preliminary draft of the Labour Code would be the subject of tripartite consultation and that, during that process of dialogue, consideration would be given to the revision of the legislation so as to recognize the right to freedom of association of workers engaged under training schemes.

In this regard, allow me to point out that Ministerial Resolution No. 232-2021-TR established a temporary sectoral commission to prepare a proposal for a preliminary draft Labour Code, to be submitted to a broad tripartite social dialogue process in the National Labour Council, also taking into account the contributions of civil society.

Through the bilateral meetings that the previous Government held with workers and employers on 13 and 18 April 2022, respectively, the Ministry of Labour informed the social partners of the content of the preliminary draft.

Subsequently, Ministerial Resolution No. 92-2022-TR ordered the pre-publication of the preliminary draft, which contains a proposal for a specific regulation on workers under training schemes.

During the 127th ordinary session of the CNTPE on 13 May 2022, the plenary agreed that the process of dialogue on the preliminary draft of the Labour Code would be evaluated by the social actors after the pre-publication period.

Thus, the definition of the process of dialogue on the preliminary draft was included in the agenda of the 128th ordinary session of the plenary of the Council, held on 18 July 2022. However, this session was suspended, and it was not possible to address the preliminary draft.

An extraordinary session of the CNTPE plenary was then called for 3 November 2022 to define the process of dialogue on the preliminary draft, but there was a lack of quorum so only an information session was held.

It should therefore be taken into consideration that the above-mentioned preliminary draft has not yet been debated in the CNTPE, nor has it been approved by the Council of Ministers, so it is only a regulatory proposal that is in the process of being drafted and validated. It does not form part of the Peruvian State’s legal system, and therefore it is not appropriate to issue an opinion on the possible discrepancies that may exist between its sections 75 and 76, regarding the recognition of freedom of association for training schemes.

However, we are willing to continue the dialogue established with the employers’ associations and trade unions at the bilateral meetings held during this administration, in order to make it feasible to resume tripartite dialogue within the CNTPE.

In the third observation the Government is urged to take the necessary measures to revise the relevant provisions of the legislation in order to secure the right to organize, in law and practice, of judges and prosecutors, and of employees in positions of trust or leadership in the public administration.

In this respect, it should be borne in mind that article 153 of the Peruvian Constitution states that “judges and prosecutors are prohibited from participating in politics, from joining trade unions and from going on strike”, so the Constitution would have to be amended in order to address the observation of the Committee of Experts.

However, section 35(12) of Act No. 29277, the Judicial Profession Act, recognizes the right of judges “to free association. Judges’ associations are established and carry out their activities in accordance with the rules established in the Civil Code and are regulated in accordance with their statutory provisions”.

On the other hand, we must point out that article 42 of the Political Constitution of Peru “recognizes the rights of public servants to organize and strike. State officials with decision-making powers and those who hold positions of trust or management are not included […]”.

The fourth observation relates to the determination of the unlawfulness of a strike in the private sector not lying with the labour administration but with an independent body that has the trust of the parties; and the Committee of Experts’ hopes that the proposed amendment contained in the preliminary draft of the Labour Code will be the subject of extensive tripartite consultations.

In this respect, section 84 of the single consolidated text of the Industrial Relations Act, approved by Presidential Decree No. 010-2003-TR, establishes the grounds for declaring a strike illegal. These criteria are in line with the provisions of article 28 of the Constitution, insofar as the State not only recognizes the right to strike, but also safeguards its democratic exercise, determining that it be exercised in keeping with the interests of society.

The classification of strikes is in line with the ruling of the Constitutional Court in Case No. 02211-2009-PA/TC, which states that the exercise of the right to strike is not absolute and can be limited by law, so that it is exercised in keeping with the public interest.

This is in line with paragraph 114 of Advisory Opinion OC 27/21 of the Inter-American Court of Human Rights, according to which: “[…] the exercise of the right to freedom of association, the right to collective bargaining and the right to strike may be subject only to restrictions established by law, provided that such restrictions are characteristic of a democratic society and necessary for safeguarding public order for protecting public health or morals or the rights and freedoms of others. Any such restrictions set on the exercise of these rights, however, must be interpreted restrictively, applying the pro persona principle, and must never be stripped of their essential contents or reduced such as to deprive them of any practical value.”

In this sense, there would be no basis for asserting a priori that determining the unlawfulness of a strike in the private sector should not be the responsibility of the labour administration, but of a body independent of the parties and trusted by them.

With regard to the content of the preliminary draft, we reiterate that it has not been debated in the CNTPE, nor has it been approved by the Council of Ministers, so it is only a regulatory proposal that is at the drafting and validation stage, which does not form part of the legal system of the Peruvian State.

We also express our willingness to continue the dialogue established with the employers’ associations and trade unions at the bilateral meetings held during this administration, in order to make it feasible to resume the tripartite dialogue within the CNTPE.

The fifth observation concerns the establishment, without further delay, of the Civil Service Support Commission as a truly independent body, and the examination and resolution by an independent body of disputes between the parties on the number and occupation of minimum service workers in essential public services. In this regard, given that the Civil Service Support Commission referred to in section 86 of the general regulations of Act No. 30057, the Civil Service Act, has not been implemented to date, the resolution of conflicts and disputes between public bodies or between those bodies and civil servants would be the responsibility of the Ministry of Labour, in accordance with the provisions of General Directive No. 01-20216-MTPE/2/14, “General Directive regulating the actions of the administrative labour authority in the process of collective bargaining in the public sector”, approved by Ministerial Resolution No. 156-2016-TR.

It should be noted that, in the current context, the General Labour Directorate of the Ministry of Labour is responsible for handling the procedure on disagreement regarding minimum services in the public sector. For this purpose, the Directorate is legally entitled to the support of an independent body. With regard to the sixth observation, it should be noted that Article 6 of Convention No. 151, provides that such facilities shall be afforded to the representatives of public employees’ organizations as may be appropriate in order to enable them to carry out their functions promptly and efficiently, both during and outside their hours of work, without impairing the efficient operation of the administration.

It should be borne in mind that according to section 66 of Act No. 28044: “[...] the purpose of the educational institution is to pursue the schooling and the comprehensive training of its students. [...] The educational institution, as a physical and social environment, establishes links with the different bodies in its surroundings and makes its facilities available for the development of extracurricular and community activities, preserving the educational aims and objectives, as well as the specific functions of the institutional premises [...]”.

In this regard, we attach particular importance to the balanced and conventional interpretation of these norms, in accordance with the fourth of the final transitional provisions of the Political Constitution of Peru, which establishes that the norms relating to the rights and freedoms that the Constitution recognizes, such as the right to organize, are interpreted in accordance with the Universal Declaration of Human Rights and the international treaties and agreements on the same subjects ratified by Peru.

Employer members – In this regard, I would like to state that Presidential Decree No. 014-2022-TR, issued on 24 July 2022, amended the Regulations of the Collective Labour Relations Act in Peru.

The first aspect to which I would like to refer concerns social dialogue and tripartite consultation. As the Peruvian Government itself has acknowledged, when giving explanations to the Committee of Experts, a unilateral modification of the regulations on collective labour relations took place in Peru without respect for the process of dialogue and consultation with workers’ and, particularly, employers’ organizations.

Although the Government sought to justify these actions based on the alleged seriousness of the situation of the right to organize in the country, the following should be borne in mind: first, the existence of a low rate of trade union membership in a country cannot serve as a justification for the violation of international standards on consultation and social dialogue; and second, the Government has not provided any significant evidence that the legal amendments adopted unilaterally or arbitrarily are the most appropriate and proportional measure to solve the alleged problems identified.

A fundamental principle of respect for international labour standards has to do with the effective and genuine promotion of consultation with the representative actors of workers and employers; this guiding principle has immediate effect arising from the foundational character of tripartism in the ILO.

Dialogue and contrasting opinions among the actors that determine wages is imperative in order to achieve open and democratic labour relations. This obviously does not mean that agreement is necessary in all cases, but it does mean that there must be a mutual rapprochement in an environment of trust and exchange in good faith that encourages such agreement. This guarantees a better social balance in a country and provides the necessary legitimacy to the rules that regulate labour relations.

Notwithstanding the above, the Peruvian employer sector recognizes and welcomes the willingness expressed by the current Government administration to resume dialogue and expresses its hope that this dialogue will allow for the amendment of regulations that may be particularly complex or conflictive for enterprises to implement.

A second point I would like to consider concerns negative freedom of association. Presidential Decree No. 014-2022-TR provides for employers to unilaterally extend the effects of a collective agreement concluded by a trade union that does not cover a majority of the workers in a field. The explanatory memorandum of the Decree seeks to justify the measure by referring to the opinion of the Committee on Freedom of Association that the recognition of the most representative union should not prevent minority unions from operating or presenting their demands.

In this respect, it is clear that there is no logical connection between the above-mentioned decision of the Committee on Freedom of Association and the new regulatory framework established. The severe shortcomings in the reasoning applied are the result of a lack of adequate reflection in the context of social dialogue with the actors concerned, but beyond that it is paradoxical that the alleged incompatibility of the previous regulation with the development of the rights to freedom of association and collective bargaining should be the basis for this measure.

The Government fails to refer to concrete decisions in which other supervisory bodies have indicated that the extension of a collective agreement by an employer is valid. Thus, it is false that the supervisory bodies of international labour standards state that extending the effects of a collective agreement signed with a minority union is an anti-union practice. What is true and clear is that forcing workers to unionize in order to obtain basic economic benefits with a general pay rise affects the right of workers not to join a union, which is contrary to the Convention.

Freedom of association is both positive and negative, positive in that the right of workers to form or join trade unions cannot be prohibited or hindered, but negative in that no worker can be forced to join a trade union in order to work or access benefits provided by the enterprise in which he or she provides services.

It is also necessary to refer to the arbitrary inequality in access to optional arbitration (arbitraje potestativo): the Decree only empowers trade unions to request — meaning that it is optional — compulsory arbitration excluding employers from this possibility, which had a clear impact on the equality between the parties, creating an imbalance that affects the free and voluntary nature of collective bargaining. This is particularly serious if we take into account that arbitration is usually a settlement mechanism used in the event of disagreement over the level of bargaining, that is to say that the Decree has vetoed the possibility for employers to have recourse to this settlement mechanism in this type of conflict, opening up the possibility that a change in the level of bargaining can only be discussed or challenged by the workers.

The rule creates a complex incentive for trade unions that could lead to bargaining collectively being a kind of first instance for the achievement of their demands with the certainty that they could subsequently resort unilaterally to arbitration in the expectation that the arbitration board would grant them greater benefits, thus collective bargaining could end up losing relevance and becoming a mere formality.

Finally, one aspect that I would like to consider relates to the issue of strikes. The right to strike is an issue that the Committee of Experts has repeatedly commented on in this case. In this respect, we consider it very important to point out that the labour laws, and even the Peruvian Constitution, recognize the right to strike as part of collective bargaining. Nevertheless, we, as Employer members and as part of the International Organisation of Employers , fully stand by the position that we have reiterated when there have been attempts to address this issue in the Committee.

In this respect, we have pointed out the following: the Employers recall their disagreement with the Committee of Experts on the Convention and the right to strike, they wish to underline that neither the Convention nor any other ILO Convention contains rules on the right to strike. This fact was also underlined by the Government group in its position statement of March 2015, according to which the scope of the status of this right is regulated at the national level.

Consequently, Governments legitimately intend to determine their own approach to the right to strike, freely guided by their national needs and priorities and not bound by the recommendations of the Committee of Experts.

For this reason, we will refrain from commenting further on this matter in this Committee and with respect to our dispute regarding its regulation as contemplated in Presidential Decree No. 014-2022-TR, we hope to be able to address this in Peru in keeping with the willingness to engage in dialogue expressed by the current Government authorities.

Worker members – I would like to start by commemorating Carlos Ledezma, a recently deceased legal adviser to our trade union confederations, who coordinated the affiliates of our region, the Americas, in this Committee. Peruvian by birth, he was a generous colleague and a tireless defender of trade union and human rights and that is why we wish to pay tribute to him.

The report of the Committee of Experts on the case of Peru notes a series of worrying situations of restrictions on trade union activity which must be addressed in order to guarantee the effective exercise of the fundamental rights at work protected under the Convention. The report also identifies some progress that should be sustained, especially in the difficult political situation in the country. We refer in particular to certain changes brought about by Presidential Decree No. 014-2022-TR of 24 July 2022, which, among other things, expressly recognizes workers’ right to direct membership in federations and confederations. The right to form trade unions of groups of enterprises and production chains or subcontracting networks, in turn, prohibits the direct or indirect replacement of workers who are exercising the right to strike, as well as any other act that might impede or obstruct the exercise of the right to strike.

The regulation is an appropriate response to the observations made by the ILO supervisory bodies on labour relations legislation and practice in Peru.

What is striking in this case is the reaction of the employers to this new legislation: they opposed it because it supposedly, as they argue, increases unionization.

Far from any negative connotation, we consider, on the contrary, that the promotion of trade union activity is a means of widening democratic spaces in modern societies, in such a way as to enable the representation of workers’ interests in line with Article 10 of the Convention.

We must insist that strong and independent trade unions are essential to redress the imbalance of access to judicial and economic power for workers. The Committee of Experts is therefore right when it “expresses the hope that the implementation of the Presidential Decree, which, according to the Government, has its origins in concerns at the situation of freedom of association in the country, will contribute to ensuring the full enjoyment and exercise of the rights set out in the Convention and requests the Government to provide information on the impact of the Decree’s application.”

With regard to the central aspect that we wish to address, the report of the Committee of Experts notes in the national legislation a series of limitations to the recognition of freedom of association for certain categories of workers, such as those who work as judges, prosecutors and employees in positions of trust and leadership in the public administration.

It is well known that the Convention applies to all workers without any distinction, and that mention alone is sufficient to mandate the urgent restitution of the right to freedom of association for those who are illegally deprived of it.

The report also addresses the problem of the restrictive action of the labour authority in relation to the right to freedom of association, in particular, the labour authority exercises control over the legality of strikes, both in the private and public sectors. For more than six years, the Government has failed to set up the Civil Service Support Commission, which would lend impartiality to the process of declaring and carrying out strikes.

The lack of guarantees is such that, for example, according to data reported in 2020, the administration declared 100 per cent of strikes illegal. Moreover, the Peruvian Government maintains ambiguous regulations regarding the scope of the opinion of the independent technical body that rules in cases of disagreement on minimum services in the event of a strike.

The uncertainty and legal insecurity are such that it is not even clear whether there is a positive obligation for the labour authority to convene this body.

This is a crucial issue and we urge the Government to commit itself to amending its legislation in this regard in order to provide sufficient guarantees for the exercise of the fundamental right to strike. To further illustrate this point, we can cite as an example the case of an enterprise in the beverage sector of which the trade union, SITRACORLINSA, initiated a dispute procedure in which it questioned the determination of minimum services, due to the fact that every year the enterprise increased the number of posts qualified as minimum services, to such an extent that if, in 2022, a strike had been declared and this formula had been applied to the list of minimum services presented by the enterprise, more than 70 per cent of its workers would have been deprived of their rights because they were considered to occupy indispensable posts.

These and other limitations to freedom of association are the result of excessive state interference in trade union activity, contrary to the principle of autonomy enshrined in Article 3 of the Convention, as well as the failure to comply with regulations that could overcome these obstacles, such as the implementation of the Civil Service Support Commission, which has never materialized, and the determination of essential services by an independent body.

Finally, the present appearance of the Government before the Committee is conducive to promoting a review of the final provisions of Presidential Decree No. 017-2007-ED, which defines as serious offences by head teachers and deputy head teachers in schools the act of providing school premises for trade union meetings. We believe that the freedom and autonomy of the social partners, both head teachers and trade unions, to agree on the terms of use of premises for the exercise of trade union activity should be respected, without hindering the functioning of certain institutions.

As we have briefly outlined, the accumulation of violations of trade union activity in Peru requires a series of actions that include both legislative changes and the implementation of some mechanisms provided for in positive law that the Government has failed to implement, so that the fundamental right to freedom of association is fully complied with.

We would like to say that we stand by the mandate of the Committee of Experts, and in this respect, the Workers’ group reaffirms its position that the right to strike is covered by the Convention without there being grounds in this context to take this decision as simply a protest by our group.

Employer member, Peru – Allow me to set out the position of the employers of Peru, represented by ’CONFIEP. We wish to refer to the violations of the Convention which our Government has committed by adopting Presidential Decree No. 014-2022-TR, amending the Regulations of the Collective Labour Relations Act. This Decree was adopted with total disregard for the opinion and input of the employers, despite the fact that the issues it regulates are included in the preliminary draft of the Labour Code that was being discussed by the social partners in the CNTPE, as the Government has acknowledged today.

By doing this, the Government not only violated social dialogue but also did not act in accordance with the information it had provided to the ILO, where it had indicated through a memorandum that the Labour Code would be revised, guaranteeing constructive social dialogue. However, it arbitrarily regulated matters that were still to be discussed.

The issuance of this text without consultation was strongly opposed by the employer unions – as we rejected the unilateral decision of the Government that fractured the CNTPE. We were therefore forced to withdraw from this council in protest.

It is important to take into account that this Presidential Decree was not an isolated measure, but part of an agenda with a title and specific measures agreed exclusively with the workers. That is to say, it was a state policy that not only disregarded but even rejected the role of employers in the creation of decent work through the development of responsible and sustainable enterprises.

The Government indicated that the absence of participation and dialogue with the social actors representing the employers was justified because the text contained minor amendments on procedural aspects. This is totally false – the amendment made affected 43 per cent of this regulation.

It has also been said that it was necessary to resolve the apparent incompatibility of the regulation in question with international labour standards. In this regard, there were only two particular observations made by the ILO on our regulation: one on union registration and the other on union dissolution. It is clear that these two observations could not justify the arbitrary amendment without consultation to over 40 per cent of our regulation on collective labour relations.

On the contrary, the progress made in responding to the ILO’s previous observations has been reversed. In 2003, an Act was passed in Peru effectively named the Act to respond to the observations of the ILO Committee on Freedom of Association, through which the regulation on collective labour relations was amended. This 2003 Act had been subject to broad discussion among the social actors. The draft was discussed in the National Labour Council in 13 meetings, leading to consensus on 12 issues. In other words, we had a regulation that was the product of consensus, which has been destroyed by authoritarian action.

We recognize the efforts being carried out by the Government under the current direction of the Ministry of Labour to re-establish social dialogue. We welcome the fact that, as a first step, bilateral working groups have been set up, in which we are actively participating. However, this new effort does not undo the previous breach to tripartism inflicted by the adoption of Presidential Decree No. 014-2022-TR.

Hence why we request the derogation of this text and a resumption of the discussion on the regulation on collective labour relations. To that end, we hope to have the valuable technical assistance and support of the ILO.

With respect to the amendments carried out, I would like to highlight certain points that violate the fundamental rights of the employers and workers.

First, a general prohibition was established against extending the effects of a signed collective agreement with a minority trade union to unaffiliated workers. In an international economic context of high inflation and low growth, the impossibility of extending a collective agreement to those who are not members of a trade union may be to the detriment of unaffiliated workers, who make up the majority of workers in Peru.

The way in which this provision affects workers’ freedom of association is serious. It is contrary to freedom of association and to the principles of the Convention, and of free and voluntary affiliation, to seek to raise the rate of affiliation by forcing workers to join unions in order to access benefits.

For a long time, Peru has had a rule according to which a collective agreement of a minority trade union applies only to its members, but the free and voluntary extension to workers who were not trade union members was not prohibited. On the contrary, this was a frequent practice and has been recognized as valid by other bodies of this Organization.

Even national labour case law had established as a majority criterion that an extension of this type of benefits was possible. By prohibiting this extension, the Government is contravening the decisions of the national case law and the ILO. It is striking that, when faced with any problem, the Government has always decided to resort to the most drastic prohibition or restriction.

We request the ILO to assist us in assessing alternative solutions to this situation with an international expert who is familiar with comparative systems of collective labour relations and who can act as a facilitator in the context of the progressive re-establishment of social dialogue promoted by the current Government.

Second, it is alarming that the Presidential Decree exclusively empowers trade union organizations to request compulsory arbitration, affording a privilege to one of the parties to the bargaining. It should be recalled that Peruvian legislation authorizes access to compulsory arbitration as a mechanism for collective conflict resolution in a wide range of cases, including the determination of the bargaining level, ignoring the fact that this recourse should be extraordinary and used only in extreme situations.

In this context, it is obvious that facilitating arbitration exclusively for the benefit of workers undermines free and voluntary collective bargaining. In light of the foregoing, I must highlight that our comments on this regulation are not based on the fact that it supposedly increases union membership, but rather on the lack of consultation around it and its breach of the fundamental rights of employers and workers. The objective of increasing union membership in no case justifies the absence of tripartite consultation and the breach of fundamental rights.

In view of these violations to freedom of association and respect for social dialogue as the cement of the democratic model of labour relations, we reiterate our request to recommend that Presidential Decree No. 014-2022-TR be annulled, in order that the social actors may resume the dialogue that must be the basis of any reform to our labour relations system.

Worker member, Peru – Allow us to begin by stating that the current Peruvian Government is not the popular and legitimate Government that won the elections in 2021, and does not represent the ongoing structural change for the benefit of the poorest that was initiated by President Pedro Castillo, who was removed from office on 7 December 2022. Our country is currently governed by those who abandoned their commitments to the people and allied themselves with right-wing and extreme right-wing political groups that lost the elections in 2021. Since the 1990s, under a similar dictatorship regime, a legal framework has been imposed on us that has generated the most extreme poverty with the application of capitalist processes and neoliberal measures that have been disguised as speeches and deceptive results of economic growth, while millions of workers are thrown onto the streets and their families forced to abandon any plans for a decent life.

May I present some results: at the end of the 1980s, formality was 70 per cent and informality 30 per cent; now informality is 75 per cent and formality 25 per cent. The trade union membership rate fell from 40 per cent of the economically active population to now 5 per cent in the private sector. National industry has been destroyed, we are a primary exporting country with no added value, we are last in the region of the Americas in terms of quality health and education services, with extreme loss of purchasing power and an increase of monetary poverty, among others.

The human right to freedom of association has been deliberately relaxed in the Peruvian legal framework. The State is not fulfilling its role of guaranteeing and promoting the working class’s right to organize. On the contrary, registrations of trade unions are being destroyed by administrative orders. Laws have been drawn up without social dialogue, such as special rules on workers’ contracts, which only serve as an obstacle to the right to organize.

In the private sector we have, for example, systems of agro-industry and export of non-traditional products; and in the public sector we have, for example, rules for service administrative contracts, outsourcing to third parties, and contractual modifications that fundamentally alter the original proposal (desnaturalizados). Trade union registers are destroyed under administrative orders and millions of men and women are subjected to precarious working conditions, where their main concern is to keep their job and provide for their families because, if they organize in trade unions they know that means they will lose their jobs.

The right to collective bargaining is another pillar of freedom of association that the Peruvian State does not guarantee, as it passes laws without social dialogue that allow employers to protract settlement of workers’ claims indefinitely and impose their unwillingness to seek settlement. The State itself and its protective institutions have been enshrined in laws as mere observers of what is happening between the parties and does not exercise its competence to intervene and find solutions when the dialogue is stalled by the intransigent positions of the employers to provide tangible solutions.

The right to strike has been deliberately hampered for the workers through requirements that in effect serve to deny this right. For example, the requirement to designate a minimum of essential workers to ensure the safety of facilities and the resumption of normal activities after the strike, but which is used by employers to designate any worker without reasonable technical justification, in addition to the persecution and threats that the leaders and trade union members receive for announcing the strike and the penalties that they would receive, if it is carried out.

How long does it take for employers to dismiss a worker in Peru? The time it takes them to sign the dismissal letter. How long does it take for a worker to receive justice and be reinstated? Five to six years, after going through a gruelling judicial process.

Regarding the legitimate right to social protest, this right was violated in my country when the decision was taken to cruelly punish the citizens who have protested since 7 December against the current regime, and we demanded that new general elections be called for the positions of President and congressmen and women, and that these elections included consultation on a new Constitution.

The poorest and most discriminated people of my country have been victims of a brutal repression, excessive use of force imposed by the police and military forces, a crackdown that left 70 citizens dead – most of them executed extrajudicially by bullets and tear gas bombs fired directly into the group of demonstrators, as affirmed in the reports of the United Nations – the Organization of American States and Amnesty International, among others.

Moreover, there is obviously no social dialogue in Peru. The labour legislation governing individual and collective labour relations was, in substance, imposed without any dialogue or consultation in the 1990s by the dictator Alberto Fujimori. What did occur were crimes against union leaders, including of Mr Pedro Huilca, Secretary-General of the CGTP, whose case was settled by the Inter-American Court of Human Rights.

Since that date, there has been no labour law that has been the result of social dialogue. The Collective Labour Relations Act is a decree law, that is, a law issued by the President himself who had just dissolved Congress in 1992. The Act that established the private pension system, and has allowed for employer groups to get richer at the expense of extremely poor pensions for retired workers, was not subject to social dialogue. The laws that established the special labour regimes, such as for the agrarian sector in 2000 and for micro and small enterprises in 2003, diminishing working conditions, were not subject to social dialogue. The 2007 Act on outsourcing, making the working conditions for millions of people more precarious, was also not subject to social dialogue.

Why only now are the employers demanding social dialogue? Peruvian workers have an explanation: because workers can form unions with outsourced workers and among workers from the same group of enterprises; workers can directly join federations and confederations; bureaucratic obstacles for union registration are removed; and workers can exercise the right to information for purposes of collective bargaining (among many other reasons that we have already detailed).

Is it possible that all these provisions are not aligned with the principles affirmed over time by the Committee of Experts and the Committee on Freedom of Association? Yes, we workers want social dialogue but, as the ILO says, we want dialogue with full respect for freedom of association and civil and political liberties, because dialogue in an atmosphere where these basic rights are not respected is not social dialogue but rather undercover authoritarianism.

This is why we formally request the establishment of a high-level contacts mission to visit Peru as soon as possible in order to:

- examine in situ the innumerable violations of freedom of association committed in Peru. The trade union confederations have technical reports and documented cases with indications of the employers responsible, some of which were included in our comments in reports on the Convention in question and Convention No. 98;

- examine in situ the reasons for the excessive delays in the judicial procedures, note the delaying tactics used by the defendants to draw out those procedures, and verify the regrettable labour justice situation in Peru;

- investigate the reasons why the observations made by the supervisory bodies have not been addressed by successive Governments;

- examine why comprehensive labour legislation reform has not been achieved through social dialogue, and which actors caused obstacles or delays to prevent results;

- analyse and verify the close relationship between the recent human, political and civil rights violations reported by reliable and independent bodies such as, inter alia, the Inter-American Commission on Human Rights and Amnesty International, committed by the current Government, related to the free exercise of freedom of association in Peru.

Government member, Colombia, speaking on behalf of a significant majority of Latin American and Caribbean countries. We welcome the information provided by the Republic of Peru in relation to the observations made by the Committee of Experts on the Convention.

We highlight the information provided by the Government of Peru on strengthening social dialogue in the country, including employers’ associations and trade unions. We also appreciate the Government’s indication that bilateral meetings have been held in which employers’ and workers’ associations have had the opportunity to express their concerns with a view to constructive solutions. The Government indicates very positively that these actions have had a favourable impact on reducing labour conflicts and strengthening labour relations.

As to recognition of the right to organize of employees in positions of trust or leadership in the public administration, we recognize, as indicated by the Government, the importance of the necessary balance and impartiality in the exercise of the functions of judges and prosecutors. In the light of the above, we appreciate the information on the Peruvian Government’s commitment to promoting social dialogue and tripartism. Lastly, we urge the ILO Office to continue providing technical cooperation to the Government of Peru.

Government member, Switzerland – Switzerland wishes to reiterate that freedom of association and social dialogue are essential to guaranteeing the rights of workers’ and employers’ organizations and contributing to the economic and social development of countries. The fundamental right to establish organizations of their own choosing, freely, independently and autonomously, should be guaranteed for all workers, including trainees, judges and prosecutors, and employees in positions of trust or leadership in the public administration.

Switzerland notes with interest that Peru has initiated encouraging legislative amendments. We hope that employers’ and workers’ organizations will be consulted in these processes, and that the reforms will be effectively implemented.

Switzerland encourages the Peruvian Government to continue its efforts and to follow the recommendations of the Committee of Experts with a view to guaranteeing freedom of association in law and in practice. It invites the Government to provide all the information requested and, if necessary, to seek technical assistance from the Office. This will help to create an environment conducive to the development and promotion of constructive social dialogue.

Employer member, Colombia – International labour standards and the reiterated comments of the Committee of Experts refer to the commitment to engaging in effective consultations, which are founded on social dialogue, as an essential tool for the development of joint proposals between workers, employers and government to promote growth, peace and general well-being.

Achieving true dialogue and thus effective consultations requires a climate of trust based on respect for employers’ and workers’ organizations. It is therefore concerning that the Peruvian Government has unilaterally adopted Presidential Decree No. 014-2022-TR, which comprehensively amends the regulatory regime on collective labour relations, without any kind of tripartite consultation or social dialogue.

It is important to note that the purpose of this Decree, according to its preamble, is to “bring the provisions in force into line [...] with the observations of the ILO Committee of Experts on the Application of Conventions and Recommendations”. I emphasize this because it is clear to everyone that tripartism is one of the key principles of this House, and it is therefore inadmissible to invoke the observations of the Committee of Experts only to disregard the importance of social dialogue with the social partners. Second, this same Decree develops regulatory aspects that are of vital importance not only for collective bargaining, but also for all social dialogue scenarios. The Presidential Decree regulates the conditions for the recognition, exercise and enforceability of the right to union association, union representativeness, union guarantees, scope of collective bargaining agreements, arbitration and other matters. In several of its provisions, the Presidential Decree imposes limitations to the freedom of enterprise, limitations that, although they may be reasonable, should not be decided unilaterally by the Executive Branch.

Against this backdrop, I would like to emphasize that, in democratic contexts, the end does not justify the means; on the contrary, in the House of tripartism, social dialogue is the means that gives meaning to common objectives. Therefore, the lack of tripartite consultation cannot be legitimated through laudable supposed ends, such as an attempt to improve the low rate of unionization.

Lastly, we call for all draft regulations to be duly consulted in the Peruvian CNTPE, so that this body can actively assume its competence.

Worker member, Portugal – Labour legislation in Peru has been in force for decades. The matter analysed in this case is a Presidential Decree that in no way alters this legislation.

In fact, with the change of Government and the unlawful dismissal of the elected President, it is clear that the right of association is being questioned. Without the right to strike, to demonstrate or free association, compliance with this Convention and the principles of social dialogue are at stake. We know that, in recent months, workers have been killed during demonstrations, union leaders have been persecuted, and workers have been dismissed for joining unions and arrested for striking.

We also know that the country’s business sector denied the right to collective bargaining by branch of activity, denying a fundamental right to Peruvian workers. We also know that, despite President Castillo’s efforts to develop a collective labour agreement in the public sector that would benefit 600,000 workers, the current Government is turning a deaf ear to these workers by denying them a solution that would benefit them.

Therefore, it seems clear to us that social dialogue cannot be guaranteed if the agreements, namely those implemented by the previous Government, are not respected, just as the right to collective bargaining is not guaranteed. It also seems to us that, without the right to strike and demonstrate and the rights of trade unions and freedom of association, the application of the Convention is not guaranteed.

In this context, it seems to us that rights such as the right to strike and demonstrate, trade union rights and the effective recognition of the right to collective bargaining are not being upheld. In this sense, we call for efforts to analyse the various violations of trade union rights that are taking place in Peru, as well as to contribute to full respect for the right to freedom of association and free bargaining.

We therefore support the call of the Peruvian trade union confederations, led by the CGTP, for a high-level ILO commission to be sent to Peru to verify the serious violations that are detrimental to workers.

Employer member, Costa Rica – As has been explained in this forum, the regulation on collective labour relations is a result of the consensus reached by the social actors in the National Labour Council.

In this regard, it is very serious that this system has been broken by a unilateral text, approved without consultation or social dialogue. We must emphasize the importance of labour relations systems being established through democratic mechanisms that include consultation and dialogue with employers and workers, particularly on such core issues as freedom of association and collective bargaining.

In this context, we welcome the interest of the current Ministry of Labour of Peru in re-establishing social dialogue mechanisms, and hope that all obstacles will be removed so that they can be resumed as soon as possible, in respect for the principle of good faith.

As you can see, we are confronted with a clear incompatibility with international labour standards, by allowing workers exclusively to submit collective disputes to arbitration.

Lastly, we wish to draw attention to the need to eliminate any limitation to negative freedom of association, which also falls under the scope of protection of the Convention. In no case should the promotion of collective bargaining be confused with compelling workers to join unions.

Employer member, Plurinational State of Bolivia – As has been the tradition in this House, social dialogue and the capacity to develop tripartism have always been promoted as a way of seeking comprehensive solutions to the various problems and legitimate interests of all stakeholders, both employers and workers.

In this context, it is at the very least questionable that the Government of Peru unilaterally decided to amend a regulation that was in fact the product of the social dialogue that is being promulgated and of consensus between employers and workers. It is essential to remedy this situation as soon as possible.

In addition, it is notable that, as explained by the employer representative of Peru, this Presidential Decree prohibits unaffiliated workers from receiving the benefits agreed upon in a collective agreement with a minority trade union. This situation is frankly unacceptable as it in effect forces unaffiliated workers to join trade unions, thus affecting their right to choose to join a trade union or not.

While the Government may have issued this text alleging that the extension of benefits to workers not affiliated to a trade union would be an anti-union act, this conclusion is erroneous because, as we know, internal ILO bodies have already commented on other occasions that it is totally legitimate that collective bargaining agreements apply not only to the contracting parties and their members but also that their scope may cover all workers, including those not members of unions. Both options are absolutely legitimate and either alternative may be adopted in national legislation.

Further, we consider it important to highlight that, while it is possible to develop a general guiding rule that sets out whether or not a collective agreement extends to workers who are not members of a union, such a possibility cannot be twisted to impose an absolute prohibition on the extension of the effects of the agreement, as this affects and contravenes the principle of respect for the will of the parties, and disregards employers’ competence to maintain comprehensive wage scales and balanced benefits.

To this end, taking into account that the legal amendment in question has been adopted without consultation or the employers’ participation, the amendment should be annulled and the discussion resumed via social dialogue.

Worker member, Spain– Since the beginning of the 1990s, Peru has experienced a period of over 30 years of regressive labour reforms. The result of this damaging process has been a clear deterioration of poverty and precariousness, owing to radical labour deregulation and the development of special rules based on the limitation of labour and trade union rights.

In 2021, the Peruvian trade union organizations presented the incoming Government with a series of proposals on the reform of the Peruvian labour regulatory framework. Presidential Decree No. 014-2022-TR of July 2022 amended the Regulations of the Collective Labour Relations Act. The Committee of Experts observed, in its report, the progress sought through the Presidential Decree with respect to the right to form trade unions and the improvements to safeguard the exercise of the right to strike. All these issues are directly related to the provisions of the Convention.

It is important to highlight, as even the Government has recognized, that Presidential Decree No. 014-2022-TR has stirred up a concerning situation regarding freedom of association in the country. The Committee of Experts has expressed its hope that the implementation of the Presidential Decree will help to ensure the full enjoyment and exercise of the rights enshrined in the Convention. And it is very important to point this out, as it appears that, in the employers’ comments included in the report of the Committee of Experts, the Convention is expressly disregarded, as the employers literally state that the Presidential Decree will affect labour relations between workers and employers, as it broadens the form of trade union organization.

To sum up, the position expressed by the employers is an explicit affront against the broadening of the form of trade union organization. The employers themselves have also expressed that the Presidential Decree prevents employers from unilaterally extending the coverage of a collective agreement to workers not included in its scope of application. That is to say that the employers are demanding the power to unilaterally decide on the extension of collective agreements to prevent trade union affiliation.

It is surprising that, in the house of tripartism, demands are being made for unilateral rights with anti-union effects. We must remember that these anti-union positions of employers are held in a country like Peru, where trade union membership is not higher than 5 per cent and the rate of collective bargaining coverage is not higher than 3 per cent, according to ILOSTAT data.

We therefore request the Committee to clearly demand that the Government effectively implement the Presidential Decree and duly develop other labour standards to ensure compliance with the Convention.

Lastly, I wish to recall that the Convention is not a Convention on positive or negative freedom of association. It is the Convention on freedom of association and protection of the right to organize without adjectives, which guarantees and protects this fundamental right, which must be respected.

Worker member, Bolivarian Republic of Venezuela – We, the Bolivarian Socialist Confederation of Workers (CBST), in the case of the application of the Convention in Peru, stand against the serious violations currently being committed against Peruvian workers, especially education workers.

The Regional Labour and Employment Promotion Directorate is annulling the registration of the National Federation of Education Workers of Peru (FENATE-PERU), which was accepted on 22 July 2021.

Strikes are considered illegal, thereby disregarding the independent body set up through a decree and failing to comply with the Constitution and labour laws. The right of trade union organizations to hold meetings and review labour laws is being abolished. The right of trade union organizations to hold meetings and visit workplaces is also being abolished, and replacements are found for those on strike.

Education workers reject an improper procedure that seeks to privatize education in Peru, which amounts to manipulation of education.

We also reject the persecution and detention of workers, education workers and rural workers, and other sectors of the economy, especially those belonging to FENATE-PERU.

We support the organization of Peruvian workers to oppose the violation of Conventions Nos 87, 98 and the Discrimination (Employment and Occupation) Convention, 1958 (No. 111).

The current situation of those deciding Peru’s fate entails the non-recognition of the Constitution, labour laws and ILO Conventions.

We suggest that this Committee make greater efforts so that employers and those who currently administer the Peruvian State comply with Convention Nos 87, 98 and 111.

Today we can say that the right to strike and to protest is being violated in Peru. The executive and congress are not legitimate, because Pedro Castillo is the legitimate President of Peru. Indeed, they reach agreements for a dialogue by convening 700 marines in order that they engage in dialogue against the Peruvian people. We therefore vehemently reject those who currently administer the Peruvian State, who are going against the people of Peru and all its workers.

Worker member, Netherlands – The Committee of Experts notes in its report that the Peruvian trade union confederations consider that Presidential Decree No. 014-2022-TR may contribute to mitigating the serious trade union rights situation in the country and indicate that the fact that it explicitly recognizes the right to form trade unions for groups of enterprises and production chains or outsourcing networks may be particularly important in the case of outsourced workers.

We agree, however, even if currently the capacity for outsourced workers to form trade union organizations is recognized at the regulatory level, in practice the law is not applied, which amounts to a violation not only of the decree but also of the Convention, ratified in 1960 by Peru.

According to a recent survey carried out in Peru by CNV International of the Netherlands, 46.3 per cent of respondents indicate that their contracts will not be renewed in cases of trade union participation. Furthermore, 63 per cent feel that their manager is hostile with respect to trade union membership, and 49.6 per cent indicate that they are not covered by a collective agreement.

A court case has been brought by a group of employers against the Presidential Decree in order to have it declared null and void. This judicial action is in process and there is still no outcome, but the judiciary’s hard work is needed to support the full validity and legitimacy of this text.

In addition, previously, some sections of Presidential Decree No. 001 (regarding outsourced workers and their rights) were declared null and void by the judiciary. One of those such articles allowed outsourced workers to enter into a permanent employment relationship, thereby promoting their right to freedom of association, as outsourced workers with temporary contracts – those that are renewed every three months – do not join unions, despite the fact that Presidential Decree No. 014-2022-TR expressly refers to this.

The real and effective protection of the rights of unionized workers has been weakened by what has been indicated here. It is therefore important that the Ministry of Labour continues to defend the validity of Presidential Decree No. 001 in its entirety and to be attentive to the results of the judicial process concerning Presidential Decree No. 014-2022-TR.

Worker member, Argentina – The case of Peru reveals once again the double standard regarding freedom of association, to which employers are not accustomed. They are basically calling into question Presidential Decree No. 014-2022-TR, amending the Regulations of the Collective Labour Relations Act, adopted by President Castillo.

At the outset, it should be highlighted that this Presidential Decree represented substantial progress in terms of freedom of association in Peru; and this is no small issue given that for many years the Committee of Experts has been noting the serious failures regarding freedom of association in this country.

For example, the Presidential Decree expressly recognizes workers’ right to directly join federations and confederations, and also recognizes the right to form trade unions of enterprise groups, production chains or subcontracting networks, in accordance with Article 2 of the Convention. It also facilitates the collection of union dues for federations and confederations and abolishes section 63 of the Regulations on the Act, which established a requirement, not envisaged in the law, for strikes in defence of labour rights to be declared. It expressly prohibits employers from replacing, directly or indirectly, workers on strike, and any act that prevents or obstructs the exercise of the right to strike. It streamlines the procedural requirements for the administrative procedure for communicating the strike declaration, and also extends and strengthens trade union protection.

With regard to the right to strike, we cannot help but notice the contradiction the employers have come into, in that they are calling into question a strike, as a right protected under the Convention, and the interpretation therein by the Committee of Experts. The same employers, however, have no problems with contradiction in order to align themselves with the Committee of Experts and the Convention, if it is in their interests.

Furthermore, as the Peruvian trade union confederations have underscored, this Presidential Decree can help to mitigate the serious situation of trade union rights in the country. They indicate, inter alia, that the recognition of the right to form trade unions for groups of enterprises, production chains or subcontracting networks can be especially important for subcontracted workers.

For its part, the Committee of Experts expressed the hope that the implementation of the Presidential Decree, which stems from the concerning situation of freedom of association in the country, will help to ensure the full enjoyment and exercise of the rights enshrined in the Convention and requested the Government to provide information on the impact of its application.

Those who are currently responsible for reporting progress with regard to freedom of association have not only usurped power but have also developed a policy that entails a real regression in terms of both freedom of association and collective bargaining, quashing public freedoms, going so far as the murders of 70 citizens.

Observer, IndustriALL Global Union – I am speaking on behalf of IndustriALL Global Union to highlight the serious violations of freedom of association faced by our members in Peru.

First, we must note the abuse of the employment relationship – particularly outsourcing and temporary contracts – to escape responsibilities to workers.

Our affiliate in the manufacturing sector, the Federation of Workers in the Manufacturing and Allied Industries of Peru (FETRIMAP), faces a constant battle to get members in enterprises where most workers are on temporary contracts, hired under Decree Law No. 728, and are afraid that if they join, their contracts will not be renewed.

These violations are even starker in the textile and garment sector where our affiliate, the National Federation of Textile Workers of Peru (FNTTP) operates. The Act on the so-called “non-traditional exports” (Decree Law No. 22342) allows employers to treat workers as if they are on a trial period for their whole lives. There are workers who are about to retire who have signed over 200 employment contracts for the same post throughout their lives. It should not come as a surprise to us therefore that only 5 per cent of the sector’s workers are in trade unions.

In the mining sector, outsourced workers represent 60 per cent or more of the workforce, even in the commercial activities of enterprises. Caught between the enterprise that gives them work and the subcontractor that pays them, they do not have much possibility to join a trade union or engage in collective bargaining. They are therefore treated as second class citizens and run an even greater risk of having an accident, to the point of considering themselves cannon fodder.

Second, we must note that these abuses of the employment relationship result in the exploitation not only of temporary workers but also of the minority of fixed-term workers because, for obvious reasons, their trade unions have little bargaining power. When they try to join a trade union, they are subjected to attempts at bribery and dismissal and are even prosecuted in the criminal courts, as is the case of the Miners’ Federation.

Our affiliates work tirelessly to amend the legislation and have filed innumerable complaints with the Ministry of Labour, the National Labour Inspection Authority (SUNAFIL) and the courts. But even when the authorities or the courts rule in favour of the workers, it is not possible to implement these decisions because the enterprises repeatedly appeal.

IndustriALL Global Union therefore urges the Government of Peru to step up its efforts to align the legislation and practice with international standards, including the right to freedom of association, and to take measures to ensure the implementation of the labour laws.

Government representative – I would like to begin my final intervention by stating that on 7 December 2022, a coup d’état took place in Peru. After the coup, there was an immediate reaction from the democratic institutions, which forcefully rejected the breach of the constitutional order, including the judiciary, the Constitutional Court, the Congress of the Republic and the Office of the Ombudsman, among others. Those who perpetrated this coup d’état must assume the legal responsibilities of their anti-democratic felony. Immediately afterwards, a perfect constitutional succession took place, through which the current President of the Republic, Ms Dina Boluarte, took office, therefore, the current Peruvian Government is legal, legitimate and enjoys wide national and international recognition. Any assertion to the contrary is a distortion of the truth.

Finally, I would like to emphasize the deep commitment of the Government of Peru to the process of monitoring standards. During this process of analysis of the Convention, we have shown the progress made in the area of freedom of association, responding to each of the requests for information made in recent months by the ILO.

We have also shown our interest in pursuing continuous improvement through tripartite social dialogue. Along these lines, the Government, considering the observation on the establishment of the Civil Service Support Commission, will reinforce its efforts for its prompt implementation. In addition to this, and considering the relevance of Presidential Decree No. 014-2022-TR, we must point out that this regulation is currently before the courts, with 85 amparo (protection of constitutional rights) actions and 5 popular actions, which provides an opportunity for the parties to seek consensus on the improvement of the regulation in the CNTPE.

We look forward to the recognition in this forum of our assurances that, as Employers, Workers and Government, we will continue to move forward together.

Worker members – Peru has taken a positive step by issuing Presidential Decree No. 014-2022-TR, which amended the Regulations of the Collective Labour Relations Act.

The Act has taken into consideration the long-standing recommendations of the Committee of Experts concerning restrictions on freedom of association and collective bargaining.

The Presidential Decree explicitly recognizes the right of workers to join federations and confederations directly, to allow the establishment of trade unions in groups of enterprises and supply chains and prohibits employers from replacing striking workers. These are undoubtedly important measures that provide a basis for compliance with the Convention, as recognized by the Committee of Experts.

Despite these positive developments that were enacted before December 2022, the Workers’ group is very concerned about the restrictions that exist in practice and prevent the effective exercise of the Convention in Peru. First of all, we have emphasized the need to restore freedom of action for certain categories of workers, such as persons recruited under training schemes, judges, prosecutors and employees in positions of trust and leadership in the public administration.

We have also highlighted issues related to the excessive intervention of the administrative labour authority. This includes the lack of guarantees for workers affiliated to trade unions and the corresponding action of the authorities to declare strikes illegal. The ambiguity of regulations and excessive state interference undermine trade union activity and the autonomy of workers’ organizations.

Finally, we also express our concern about Presidential Decree No. 017-2017-ED, which defines as serious offences certain actions of head teachers and deputy head teachers in educational institutions, such as allowing union and political advocacy meetings in schools.

In view of these issues, we call on the Government to implement the following actions: firstly, to continue to promote and develop the implementation of Presidential Decree No. 014-2022-TR, particularly regarding the above-mentioned aspects related to the exercise of freedom of association and collective bargaining.

But as far as adjustments to legislation are concerned, we echo the Committee of Experts in urging the Government to put in place concrete measures to revise legislation so that it explicitly recognizes the freedom of association of workers employed under training schemes.

We also strongly support the position of the Committee of Experts in urging the Government to review the relevant provisions of its legal system to ensure the exercise of the right to organize in law and practice for judges and prosecutors, as well as for employees in positions of trust and leadership in the public administration.

We urge the Government to repeal the provisions of Presidential Decree No. 017-2007-TR, so that the head teachers of educational institutions can agree, with the trade union organizations concerned, on arrangements for accessing workplaces that do not prejudice the efficient functioning of those establishments.

Finally, in line with Article 3 of the Convention, the Government should take the necessary measures to ensure that the responsibility for determining the legality of strikes in the public and private sector does not lie with the labour administration but with an impartial body that enjoys the confidence of all parties concerned.

As a member of the ILO, we urge the Government of Peru to be led by the expert guidance of the ILO supervisory bodies in the context of its dialogue with Member States on the application of Conventions and Recommendations, in this case the Convention.

We recall that the February 2015 Government group statement on the right to strike is clear in stating that, “the Government group recognizes that the right to strike is linked to freedom of association which is a fundamental principle and right at work of the ILO”.

The Government group specifically recognizes that, without the protection of the right to strike, freedom of association, in particular the right to organize activities for the purpose of promoting and protecting the interests of workers, cannot be fully realized. The Government should be guided by the Committee of Experts in its quest for full compliance with its obligations under the Convention, including the right to strike.

As the Workers’ group, we call on the Government of Peru to accept an ILO direct contacts mission.

Employer members – Considering all that has been said today, there is no doubt that the Peruvian Government approved, without consultation and without respecting social dialogue, a law that substantially modified the regulation of collective labour relations.

In view of this situation, we support the requests of the Peruvian employers to: first, recommend that Presidential Decree No. 14-2022-TR be repealed; and second, provide technical assistance to the Government of Peru through an international specialist with knowledge of comparative collective relations systems who can act as a facilitator in the context of the progressive resumption of social dialogue promoted by the current Government.

With regard to the need to repeal the Presidential Decree in question and to ensure that any reform of the regulation of collective labour relations is carried out in accordance with the principles of social dialogue and tripartism, we recall that, in analysing the present case, the Committee of Experts recalled the crucial importance of social dialogue and consultation with employers’ and workers’ groups in the preparation and drafting of legislation on collective labour relations and indicated that it strongly hoped that in the future the Government would ensure that such consultations were carried out.

We also agree with the Committee of Experts, as we hope that the concerns regarding the Presidential Decree will be duly addressed in the framework of the tripartite social dialogue within the CNTPE.

Finally, we acknowledge the interest of the current administration of the Government of Peru in resuming social dialogue, which we hope will be achieved in an atmosphere of trust and good faith. Without prejudice to this, bearing in mind that Peru currently has a preliminary draft Labour Code, we request and reiterate to the Government that, in line with the opinion of the Committee of Experts, the preliminary draft should be the subject of exhaustive tripartite consultations; such consultations should be extended not only to the preliminary draft itself, but also to any matter contained therein that may be subject to separate or independent regulation.

Conclusions of the Committee

The Committee took note of the written and oral information provided by the Government and the discussion that followed.

The Committee welcomed legislative developments addressing certain previous observations of the Committee of Experts but expressed concern with ongoing restrictions in law and practice on the right to freedom of association and the right to organize.

Taking the discussion into account, the Committee requests the Government, in consultation with the social partners, to adopt time-bound measures to:

ensure that existing and prospective legislation is in conformity with the Convention;

ensure that public servants, including judges, prosecutors and employees in positions of trust and leadership in the public administration, without distinction whatsoever, have the right in law and practice to establish and join workers’ organizations of their own choosing;

ensure the proper functioning of the National Labour and Employment Promotion Council (CNTPE) with a view to facilitating social dialogue and consultation with the social partners on labour law reform; and

ensure in law and practice the right of workers’ and employers’ organizations to organize their activities and formulate their programmes in full freedom.

The Committee requests the Government to provide information, in consultation with the social partners, on the application of the Convention in law and in practice before 1 September 2023.

The Committee invites the Government to accept a direct contacts mission in order to fully implement these recommendations.

Government representative (Minister of Labour and Employment Promotion) – We thank this Committee for the proposed recommendations and reiterate Peru’s willingness to strengthen social dialogue with the social partners in order to reinstate the CNTPE as soon as possible. We are absolutely certain that the trade unions and employers’ associations, which are important actors in this tripartite council, will be our main allies in achieving this objective.

We also express our full conviction that a specialist from the ILO Country Office for the Andean Countries, based in Lima, will be able to monitor compliance with the recommendations proposed by the Committee.