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

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

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.

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

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

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 That text was no longer in force and the social partners now had the right to freely engage in collective bargaining.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

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

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

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

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

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

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

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

Individual Case (CAS) - Discussion: 1990, Publication: 77th ILC session (1990)

A Government representative, the Secretary of State for the Ministry of Labour and Social Affairs, stated that with regard to the comments of the Committee of Experts on the high number of unions required for forming a federation of public servants, that Presidential Decree No. 009-89-PCM of 1 December 1989 had reduced the requirement to two federations and 30 unions. As regards the prohibition of the re-election of officers of the public servants' union at the end of their term of office, he stated that bills had been submitted to the inter-ministerial council for social affairs under which the re-election of trade union officials would be subject to their own internal by-laws. As to the prohibition of public servants' federations and confederations from forming part of organisations representing other categories of workers, he said that there were considerable differences between working conditions in the public and private sectors because they were regulated by different laws, they had different interests and labour demands, and different dispute settlement procedures existed in each sector. Therefore such a prohibition was perfectly valid. Turning to the 50 per cent requirement for setting up a union, he stated that the pluralistic criterion of the Committee of Experts had been accepted in the draft labour legislation but that the workers had seen such a proposal as a serious threat to the solidarity of the Peruvian trade union movement. At present the Government was waiting for a statement on this point by the workers' and employers' organisations for transmission to the Committee of Experts. On the right of workers to choose freely their representatives and the prohibition for unions to engage in political activities, he stated that the provisions which had been subject to comments by the Committee of Experts would be repealed when the draft bill, currently before the country's legislature, had been adopted. The speaker expected that the offer of technical assistance by the Office would receive a positive response.

A Workers' member of the United Kingdom stated that the case should be dealt with in conjunction with previous reports of the Committee on Freedom of Association issued in May and November 1989 (Cases Nos. 1478 and 1484). In November 1989 that Committee had concluded by saying that it "strongly deplores the violent situation which prevails in Peru", it had expressed strong concern at allegations concerning the killing and disappearance of several trade unionists and had asked the Government to carry out an inquiry into these allegations. In the speaker's view, the present Committee could only deplore the steady rise in human rights violations in Peru in recent years. Reports of disappearances and extra-judicial executions had increased markedly in the last two years and a number of cases had been reported for the first time in areas outside the so-called "zones of emergency". Referring to several cases mentioned by the Committee on Freedom of Association he cited that of Oscar Delgado, a leader of the Customs Workers' Trade Union. Detained by the Peruvian police in December 1983, he was still listed missing and the authorities denied any knowledge of his detention. In another case, nine trade unionists from an oil refinery were reported detained by the police in 1989; despite witnesses, the police refused to acknowledge their detention, In Peru, people were disappearing without trace and the police were associated with those disappearances. This had no connection with terrorist organisations, which no one would condone, but with terrorist tactics being used against trade unionists. The speaker also cited the disappearance of Mr. Guzmoan, a founder member of the National Federation of University Lecturers and a leading member of the Peruvian General Confederation of Labour. After leaving home in December 1989 on union business he had disappeared after two weeks and nothing had been heard of him since. The Committee on Freedom of Association had requested the Government to carry out a judicial investigation into all these violations. This request now needed to be reinforced by the present committee which was also concerned with violations of freedom of association, particularly those which involved the disappearance of trade unionists under mysterious circumstances in which the police appeared to have played a major role.

The Employers' members stated that the Committee of Experts' report showed that there were a series of provisions in Peruvian legislation which impeded freedom of association, but it also showed that the draft bill on labour legislation contained several improvements, particularly as regarded the high number of unions required to form a federation. They considered that the Government should not introduce too many constraints on union freedoms that were not in line with the Convention, but as regarded political activities by the unions this was a question which fell within the competence of each member State. They requested the Government to provide a detailed report outlining the content of the new provisions for examination by the Committee of Experts.

A Workers' member of Spain stated that there was a great similarity between trade union conditions existing in Peru and Colombia. He considered that in both countries, the problem was essentially one of "right to life" rather than of labour standards. The speaker asked the Government representative to what extend the Government was prepared to continue expressing good intentions and drafting new legislation, while those with links to the union movement continued to be assassinated. He recalled that the sentencing of the murderers who were found responsible for a massacre of lawyers linked to the workers' committees had marked the beginning of his own country's transition towards democracy.

The Government representative expressed his appreciation of the Workers' members of the United Kingdom and Spain. He made it clear, however, that his Government had the political will to impose severe sanctions on those violating human rights. He considered that there was no comparison between events in Peru and thos in Colombia. Referring to the cases examined by the Committee on Freedom of Association, the speaker said that his Government would send information to the next session of the Governing Body, that in no way could the disappearances or assassinations of unionists be imputed to the Government, and that, while certain cases had yet to be clarified, the judicial investigation was following its course.

The Workers' members stated that opportunities for real progress were still limited and, as had been pointed out by the Experts Committee, there were still certain provisions that should be amended in the draft bill being prepared in order to ensure full conformity with the Convention. They considered that there was a context of widespread violence in the country and that there was no true freedom of association as long as unions were prohibited from expressing their views publicly on questions of general interest as well as on political matters. They requested the Government to provide full information on the current position as regards the adoption of more effective legislation and on measures taken to guarantee the real exercise of freedom of association.

The Committee noted the information provided by the Government representative and the opinions and comments expressed in the course of the discussion. It also noted that the draft version of the General Labour Bill which was published in August 1989 appeared to bring certain aspects of law and practice more closely into conformity with the requirements of the Convention. However, even if the Bill were enacted in its present form, there still would be major divergencies between law and practice on the one hand, and the requirements of the Convention on the other. Accordingly, the Committee again requested the Government to take the necessary measures to bring the legislation into full conformity with the Convention. In doing so, the Committee reminded the Government of the possibility of making use of the services of the ILO in framing appropriate remedial measures. It further expressed its deep concen at the violent situation prevailing in the country and firmly hoped that the Government would be in a position to report substantial progress in the implemention of the Convention in 1991.

Direct Request (CEACR) - adopted 2023, published 112nd ILC session (2024)

Previous comment

The Committee recalls below the points it has emphasized in its previous comments and which require the adoption of specific measures to bring the legislation into full conformity with the Convention.

Article 3. Rights of organizations to organize their activities and formulate their programmes. Strikes by public servants. The Committee previously requested the Government to revise section 81 of the General Regulations of the Civil Service Act, adopted in 2014, which prohibits atypical forms of strikes such as staggered stoppages, labour slowdowns, go-slow strikes or working to rule, the deliberate reduction in performance or any type of action in which civil servants remain in the workplace or obstruct the entrance to the workplace. In this respect, the Government indicated that on 13 April 2022, by means of Ministerial Decision No. 092-2022-TR, a preliminary draft of the Labour Code prepared by the Ministry of Labour and Employment Promotion was pre-published. The draft includes in section 425 the possibility of carrying out other types of strikes, such as wild-cat strikes, stoppages in central areas or essential sections of the enterprise, labour slowdowns, go-slows or work to rule, deliberate reductions in performance or other action to paralyse work at the workplace. The Government also indicated that it received comments and suggestions regarding the preliminary draft from the public up to the month of June, and that the draft had been shared with the workers’ and employers’ representatives on the National Labour and Employment Promotion Council. The Committee noted that the trade union confederations called for the adoption of urgent measures to ensure that the restrictions imposed on the right to strike in the public and private sectors were removed without delay. The Committee expressed the hope that the preliminary draft of the Labour Code would be subject to thorough tripartite consultations and that, in the framework of that dialogue process, specific measures would be introduced without delay to revise section 18 of the General Regulations of the Civil Service Act, as indicated. The Committee requests the Government to provide information on any developments in this regard.

Replacement of striking workers in the education sector. The Committee previously requested the Government to engage in consultations with the relevant trade unions, with a view to revising the Regulations implementing Act No. 28988 declaring regular basic education to be an essential public service (Supreme Decree No. 017-2007-ED), to clarify the situations in which striking workers may be replaced and to ensure that such replacement may only take place in the event of strikes that are declared unlawful in conformity with the Convention. The Committee recalled that, although under section 4 of the Regulations the national register of supply teachers may only be used in the event of unlawful strikes, one ground for unlawfulness being the failure to ensure minimum services, section 3 of the Regulations prohibits any form of stoppage of education services by a unilateral decision of the staff mentioned, irrespective of the reason invoked, and that the preceding phrase is used to denominate the strike and the manner in which it is carried out. In this respect, the Government indicated that: (i) sections 7 to 14 of the above-mentioned Regulations were repealed by Supreme Decree No. 001-2019-MINEDU; and (ii) with regard to the recruitment of teachers, Supreme Decree No. 015-2020 provides that in case of a suspension or interruption of the education service in education institutions due to work stoppages or strikes, irrespective of how they are denominated or whether or not they are found to be inappropriate or unlawful, the director of the education institute, within 24 hours of the beginning of the interruption of work, shall propose the recruitment of the teachers required to ensure the continuity of the education service. The Government also indicated that this regulation is based on the State’s objective of ensuring quality education and improving student learning, which could not be guaranteed if students did not receive the necessary classes and undertake minimum hours of study. For their part, the trade union confederations highlighted that the objectives of quality education and the improvement of learning achievement, which were also shared by the confederations, were fully compatible with the principles of freedom of association enshrined in the Convention. The Committee once again requests the Government to engage in consultations with the relevant trade unions, with a view to revising the Regulations and Supreme Decree to clarify the situations in which striking workers may be replaced and to ensure that such replacement may only take place in the event of strikes that are declared illegal in conformity with the Convention.

Observation (CEACR) - adopted 2023, published 112nd ILC session (2024)

Previous comment

The Committee notes the observations of the International Organisation of Employers, received on 1 September 2023, in which it reiterates the comments made at the Conference Committee on the Application of Standards (hereinafter the Conference Committee) in June 2023 concerning the application of the Convention by Peru. The Committee also notes the observations of the International Trade Union Confederation, received on 27 September 2023, relating to matters examined in the present comment.

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 111th Session, June 2023)

The Committee notes the discussion that took place at the 111th Session of the Conference Committee in June 2023 and observes that, while the Conference Committee welcomed certain legislative developments, it expressed concern at the ongoing restrictions in law and in practice on the right to freedom of association and the right to organize, and requested 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;
• ensure in law and practice the right of workers’ and employers’ organizations to organize their activities and formulate their programmes in full freedom.

The Conference Committee also requested the Government to provide information, before 1 September 2023, in consultation with the social partners, on the application of the Convention in law and in practice, and invited the Government to accept a direct contacts mission in order to fully implement those recommendations.

The Committee notes the Government’s indication in its report that it aims to decisively promote tripartite social dialogue as a central focus of the management of the Ministry of Labour and Employment Promotion. To that end, on 13 July 2023 the 129th Ordinary Session of the CNTPE was held, attended by the Ministry of Labour and Employment and the main representatives of employers’ associations and trade union confederations. The Government indicates that, after almost one year, it was possible to obtain the willingness of the social partners to reactivate the Council. The Government further indicates that it was agreed to resume dialogue within the CNTPE and to reactivate its technical committees and, also, that the agreements adopted at Ordinary Sessions Nos 127 and 128 (May and July 2022) and the requests made by the parties at the July 2023 session would be addressed in accordance with the Rules of Procedure of the CNTPE. With the resumption of the sessions of the CNTPE, the Government reiterates its firm will and commitment to prioritize social dialogue as an engine, tool and governance instrument for achieving sustainable labour development in the country. The Government emphasizes that employers and workers showed willingness to continue the dialogue and that it is confident that it can continue to rely on the will and commitment of the social partners, without whom tripartite social dialogue is impossible. The Government also indicates that on 21 July 2023, a high-level meeting was held at which officials from various ministries and state bodies expressed their willingness to carry out a joint technical analysis in order to respond to the request of the Conference Committee and of this Committee, with social dialogue as a central focus. The Government also expresses its willingness to coordinate the future visit of the contacts mission requested by the Conference Committee.

The Committee takes due note of this information. The Committee welcomes the reactivation of the CNTPE and its technical committees and further welcomes the fact that a high-level meeting was held and that the commitment of the various institutions to social dialogue was reaffirmed. The Committee also welcomes the Government’s willingness to coordinate the future visit of the contacts mission requested by the Conference Committee. The Committee encourages the Government and all parties concerned to make every possible effort to ensure that the CNTPE continues to function and fulfil a fundamental role as a tripartite body for social dialogue. The Committee reiterates the importance of consultations in the preparation and drafting of legislation on collective labour relations and expects that any concerns in this respect will be duly addressed within the CNTPE. The Committee also reiterates its hope that the implementation of Supreme Decree No. 014-2022-TR 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 enshrined in the Convention. The Committee once again requests the Government to provide information on the impact of the Supreme Decree’s application. Moreover, in the light of the concerns expressed by the Conference Committee in respect of the ongoing restrictions in law and in practice on the right to freedom of association and the right to organize, the Committee firmly hopes that through strengthened social dialogue, it will be able to note progress in the very near future on the matters highlighted by the Conference Committee and which the Committee has highlighted in its previous comments. The Committee reminds the Government the technical assistance of the Office remains available and hopes that the direct contacts mission can be carried out within the shortest possible period and that it will contribute to the full implementation of the Convention.

The Committee recalls below the points that it has highlighted in its previous comments, which require the adoption of specific measures to bring the legislation into full conformity with the Convention.

Article 2 of the Convention. Right of all workers, without distinction whatsoever, to establish and join organizations. For several years, the Committee has been indicating to the Government the need to revise Act No. 28518, its implementing Regulations and the General Education Act in order to ensure the express recognition of freedom of association in vocational training schemes. The Government has indicated that: (i) on 13 April 2022, Ministerial Decision No. 092-2022-TR provided for the pre-publication of the preliminary draft of the Labour Code drawn up by the Ministry of Labour and Employment Promotion, which, in section 75, defines vocational training arrangements as special types of employment contracts, recognizing the labour element of such contracts; and (ii) that it received comments and suggestions concerning the preliminary draft text from the public until June 2022, which were shared with the workers’ and employers’ representatives participating in the CNTPE. For their part, the trade union confederations have indicated that: (i) to date, there has been no initiative to amend Act No. 28518; (ii) the generic recognition in the Constitution of trade union rights does not on its own empower persons engaged in training schemes to exercise those rights; and (iii) section 76 of the preliminary draft indicates that vocational training arrangements are not covered by general labour regulations, which means that the preliminary draft text maintains the policy direction of the current legislation of failing to offer express recognition of the trade union rights of persons engaged under vocational training schemes. The Committee hopes that the preliminary draft of the Labour Code will be the subject of extensive tripartite consultation and that, during this process of dialogue, consideration will be given to the adoption of specific measures to revise the legislation so as to set out the explicit recognition of the right to freedom of association of workers engaged under vocational training schemes. The Committee requests the Government to provide information on any progress achieved in this regard.

In previous comments, the Committee requested the Government to revise the relevant provisions of the legislation to secure the exercise of the right to organize, in law and practice, of judges and prosecutors, and of employees in positions of trust and leadership in the public administration. The Committee requested the Government to provide information on any developments in this regard. The Committee noted with regret the Government’s indication that it had noted the request for information and would provide it shortly. The Committee recalled that Article 2 of the Convention guarantees the basic right to establish and join organizations of their own choosing to all workers without distinction whatsoever, including all public servants, irrespective of the nature of their functions, the only exceptions permitted by the Convention being members of the armed forces and the police. However, the Committee has indicated that senior public officials may be barred from joining trade unions provided that they are entitled to establish their own organizations to defend their interests (see the 2013 General Survey on collective bargaining in the public service, paragraphs 43 et seq., and the 2012 General Survey on the fundamental Conventions, paragraph 66). The Committee urges the Government 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. The Committee requests the Government to provide information on any developments in this regard.

Article 3. Right of organizations to organize their activities and formulate their programmes. Determining the unlawfulness of strikes. Having observed that the Civil Service Support Commission was competent to decide whether a strike is inappropriate or unlawful and given that it had not yet been established, the Committee requested the Government to take the necessary measures to ensure that competence to determine the lawfulness of strikes, in both the private and public sectors, lay not with the Government but with an independent body trusted by the parties. In this respect, the Government indicated that while the body competent to determine the lawfulness of a strike in the private sector is the Administrative Labour Authority, which issues its decision with independence, impartiality and in accordance with the law, the preliminary draft of the Labour Code provides that, at the request of the employer or employers affected by the measure, the judicial authority shall determine the lawfulness or unlawfulness of a strike. With regard to the public sector, the Government recalled that, in accordance with the Tenth Supplementary Transitional Provision of the Regulations of the Civil Service Act, the Administrative Labour Authority shall assume the functions of the Civil Service Support Commission until the latter is established. The Committee observed that the trade union confederations considered that the fact that the Administrative Labour Authority continued to determine the lawful nature of strikes in both the private and the public sectors (in view of the persistent failure to establish the Civil Service Support Commission with guarantees of its real impartiality) bore witness to the reluctance of the State to bring the legislation into conformity with the provisions of the Convention and they indicated that 100 per cent of strikes in 2020 were found to be unlawful by the Administrative Labour Authority. The Committee urges the Government to take the necessary measures to ensure that the authority to determine the lawful nature of strikes in the private sector does not lie with the labour administration, but rather with an independent and truly impartial body that has the trust of all the parties. The Committee hopes that the proposed amendment contained in the preliminary draft of the Labour Code will be the subject of extensive tripartite consultations, and requests the Government to keep it informed of any developments in this regard. Observing with concern the indications of the trade union confederations, the Committee urges the Government to take all necessary measures so that the Civil Service Support Commission is established without further ado and expresses its firm hope that it will be a genuinely independent body. The Committee requests the Government to provide information on any progress in this regard.

Definition of minimum services in essential public services. The Committee previously observed that the Consolidated Single Text of the Collective Labour Relations Act provided that the Civil Service Support Commission would be the competent body to determine the minimum services required during strikes affecting essential services, and it trusted that the Civil Service Support Commission would be established in the near future. The Government indicated that section 435 of the preliminary draft of the Labour Code provides that, in the event of disagreement, the matter shall be referred to an independent technical body for the determination of the minimum service and that the decision shall be binding. The Committee noted that, in addition to reiterating that the Civil Service Support Commission had still not been set up, the trade union confederations indicated that section 68 of the Regulations of the Collective Labour Relations Act, as amended by Supreme Decree No. 014-2022-TR, provides that, while the Administrative Labour Authority may avail itself of the support of an independent body to resolve any disagreement concerning minimum services in essential public services, the Administrative Labour Authority shall resolve the matter on the basis of the report of the independent body. While taking due note of the modifications introduced by Supreme Decree No. 014-2022-TR, the Committee recalls that disagreements between the parties on the number and functions of workers should not only be examined, but also resolved by an independent body. The Committee reiterates the need for the Civil Service Support Commission to be established without delay and requests the Government to provide information on any developments in this respect.

Right of trade unions to hold meetings and to access workplaces. The Committee previously requested the Government to revise the final provisions of Supreme Decree No. 017-2007-ED, which defines as serious offences by head teachers and deputy head teachers in schools the acts of providing school premises for trade union meetings and allowing political and/or union advocacy in educational institutions, in order to enable head teachers of schools to determine with the trade unions arrangements for access to workplaces that do not jeopardize the efficient operation of those institutions. In this respect, the Government indicated that the Ministry of Education was carrying out an assessment of the legislation in relation to the matter as a basis for determining the need to amend or repeal certain provisions of the Regulations of Act No. 28988 declaring regular basic education to be an essential public service, as approved by Supreme Decree No. 17-2007-ED. The Committee requests the Government to provide information on any developments in relation to the revision of the final provisions of the above-mentioned Supreme Decree so that head teachers in educational institutions can agree with the trade unions concerned on an arrangement for access to workplaces that does not jeopardize the effective operation of those institutions.

Lastly, the Committee notes that the Committee on Freedom of Association referred to it the legislative aspects of Case No. 3245 concerning the determination by means of Regulations of which trade union authority appoints the regional representatives of the teachers’ unions that are granted paid leave. The Committee invited the Government, in full consultation with the representative trade unions in the sector, to consider how to revise the current regulations such that it is the organizations of education workers themselves that determine the internal mechanisms by which the representatives that will receive union leave are named (see 403rd Report, June 2023). The Committee requests the Government to provide information on any measures taken in this respect.

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

Direct Request (CEACR) - adopted 2022, published 111st ILC session (2023)

Article 3 of the Convention. Rights of organizations to organize their activities and formulate their programmes. Strikes by public servants. The Committee requested the Government to revise section 81 of the General Regulations of the Civil Service Act, adopted in 2014, which prohibits atypical forms of strikes, such as staggered stoppages, labour slowdowns, go-slow strikes or working to rule, the deliberate reduction in performance or any type of action causing paralysis of work in which civil servants remain in the workplace or obstruct the entrance to the workplace. The Committee notes the Government’s indication that on 13 April 2022, by means of Ministerial Decision No. 092-2022-TR, a preliminary draft of the Labour Code prepared by the Ministry of Labour and Employment Promotion was pre-published. The draft includes in section 425 the possibility of carrying out other types of strikes, such as wild-cat strikes, stoppages in central areas or essential sections of the enterprise, labour slowdowns, go-slows or work to rule, deliberate reduction in performance, or other action to paralyse work at the workplace. The Government indicates that it received comments and suggestions regarding the preliminary draft from the public up to the month of June, and the draft had been shared with the workers’ and employers’ representatives on the National Labour and Employment Promotion Council. The Committee notes that the trade union confederations regret that the Government confines itself to referring to the proposed preliminary draft formulated by the Ministry. They call for the adoption of urgent measures to ensure that the restrictions imposed on the right to strike in the public and private sectors are removed without delay. The Committee expects that the preliminary draft of the Labour Code will be subject to thorough tripartite consultations and hopes that in the framework of this dialogue process, specific measures are introduced without delay to revise section 81 of the General Regulations of the Civil Service Act, as indicated. The Committee requests the Government to keep it informed of any developments in this regard.

Replacement of striking workers in the education sector. The Committee previously asked the Government to engage in consultations with the relevant trade unions, with a view to revising the Regulations to Act No. 28988, which declare that regular basic education is an essential public service (Presidential Decree No. 017-2007-ED), to clarify the situations in which striking workers may be replaced and to ensure that such replacement may only take place in the event of strikes that are declared unlawful in conformity with the Convention. The Committee recalls that, although under section 4 of those Regulations the national register of supply teachers may only be used in the event of unlawful strikes, one ground for unlawfulness being the failure to ensure minimum services, section 3 of the Regulations prohibits any form of stoppage of education services by a unilateral decision of the staff mentioned, irrespective of the reason invoked, the term used to denominate the strike and the manner in which it is carried out. The Committee notes the Government’s indication that: (i) sections 7 to 14 of the above-mentioned Regulations were repealed by Presidential Decree No. 001-2019-MINEDU; and (ii) with regard to the recruitment of teachers, Supreme Decree No. 015-2020 provides that in case of a suspension or interruption of the education service in education institutions due to work stoppages or strikes, irrespective of how they are denominated, or are found to be inappropriate or unlawful, the director of the education institute, within 24 hours of the beginning of the interruption of work, shall propose the recruitment of the teachers required to ensure the continuity of the education service. The Government indicates that this regulation is based on the State’s objective to ensure quality education and the improvement of student learning, which could not be guaranteed if students did not receive the necessary classes and undertake minimum hours of study. The Committee notes that the trade union confederations highlight that the objectives of quality education and the improvement of learning achievement, which are also shared by the confederations, are perfectly compatible with the principles of freedom of association enshrined in the Convention. The Committee once again requests the Government to engage in consultations with the relevant trade unions, with a view to revising the Regulations and Presidential Decree to clarify in which situations striking workers may be replaced and to ensure that such replacement may only take place in the event of strikes that are declared illegal in conformity with the Convention.

Observation (CEACR) - adopted 2022, published 111st ILC session (2023)

The Committee notes the observations of the International Trade Union Confederation (ITUC), Autonomous Workers’ Confederation of Peru (CATP), Coordination of Trade Union Confederations of Peru (which groups together the General Confederation of Workers of Peru, the Single Confederation of Workers of Peru, the CATP and the Confederation of Workers of Peru) received on 1 September 2022, which relate to matters examined by the Committee in the present comment, as well as allegations of anti-union persecution against trade union leaders and members. The Committee further notes the observations of the National Confederation of Private Business Institutions (CONFIEP), received on 1 September 2022 and relating to matters examined by the Committee in the present comment. The Committee notes the Government’s response to all the observations received. The Committee notes the Government’s response to the observations of the ITUC of 2017 and the CATP of 2018.

Legislative developments. The Committee notes that Presidential Decree No. 014-2022-TR, published on 24 July 2022, amends the Regulations of the Collective Labour Relations Act (LRTC) and observes, among other aspects, that the Decree:

• -explicitly recognizes the right of workers to the direct membership of federations and confederations (section 4);
• -explicitly recognizes the right to establish unions of “enterprise groups” and “production chains or subcontracting networks” (section 4);
• -facilitates the collection of trade union contributions by federations and confederations by only requiring the accreditation of the respective membership, which shall be provided by the higher-level organization receiving the contribution (section 16-A);
• -removes section 63 of the Regulations, which established a requirement not set out in the Act for the calling of strikes for the defence of labour rights (the presentation of the judicial ruling that has been accepted or become final);
• -establishes the explicit prohibition for employers to replace, directly or indirectly, striking workers, and any act that impedes or obstructs the exercise of the right to strike;
• -simplifies the documentary requirements for the administrative procedure of the notification of strikes, replacing the requirement to submit a legalized copy of the proceedings of the assembly in which the strike was decided upon, by the submission of a simple copy; and
• -makes explicit reference to the administrative procedure for the notification of strikes, with the indication that it is an administrative procedure subject to prior assessment and is assumed to be approved if no objections are raised.

The Committee observes that the trade union confederations consider that the Decree can contribute to alleviating the serious situation with regard to trade union rights in the country and indicate, among other aspects, that the explicit recognition of the right to establish unions of enterprise groups, production chains and subcontracting networks can be particularly important for outsourced workers. The Committee also notes that the CONFIEP: (i) indicates that the Decree should have been subject to consultation in the National Labour and Employment Promotion Council (CNTPE) in accordance with the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144); and (ii) considers that the amendment of the LRCT Regulations by the Presidential Decree will affect relations between workers and employers in the private and public sectors and public enterprises since, among other aspects, it broadens the forms of trade union organization, makes the procedures more flexible for the establishment of a trade union organization and provides that employers cannot unilaterally extend the scope of the collective agreement to workers who are not covered by its scope of application, thereby necessarily promoting trade union membership. The Committee notes in this regard the Government’s indication that, far from affecting the balance in collective relations between employers and workers, the Presidential Decree has its origins in the identification of the current worrying situation with regard to freedom of association in the country. The Government emphasizes in this respect that in 2021 the unionization rate at the national level was a mere 5 per cent and that over the past decade the number of unionized workers has grown more slowly than the number of non-unionized workers. The Government adds that, although the CNTPE, which is tripartite in composition, agreed in May 2022 to prepare a statement to reaffirm and reinforce social and labour dialogue, in the month of July 2022 the employers’ organizations notified the suspension of their participation in the CNTPE, indicating that the approval of the statement on social dialogue referred to above had been impeded by the adoption of Presidential Decree No. 014-2022-TR. Recalling the crucial importance of social dialogue and consultation with organizations of employers and workers for the preparation and development of legislation on collective labour relations, the Committee expresses the firm hope that the Government will ensure that such consultations are held. The Committee hopes that the concerns relating to the Presidential Decree will be duly addressed through tripartite social dialogue in the CNTPE and that any issues impeding the functioning of the CNTPE will be rapidly resolved. It requests the Government to keep it informed in this respect. The Committee also 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.

Article 2 of the Convention. Right of all workers, without distinction whatsoever, to establish and join organizations. For several years, the Committee has been indicating to the Government the need to revise Act No. 28518, its Regulations and the General Education Act in order to ensure the explicit recognition of freedom of association in training schemes. The Committee notes the Government’s indication that on 13 April 2022, Ministerial Decision No. 092-2022-TR provided for the pre-publication of the preliminary draft of the Labour Code drawn up by the Ministry of Labour and Employment Promotion (MTPE), which defines in section 75 the arrangements for vocational training, such as special types of employment contracts, recognizing the labour element of such contracts. The Government indicates that it received comments and suggestions concerning the preliminary draft text from the public until June 2022, which were shared with the workers’ and employers’ representatives participating in the CNTPE. The Committee observes the indications by the trade union confederations that: (i) up to now there has been no initiative to amend Act No. 28518; (ii) the generic recognition in the Constitution of trade union rights does not on its own empower persons engaged in training schemes to exercise those rights; and (iii) section 76 of the preliminary draft indicates that vocational training arrangements are not covered by general labour regulations, which means that the preliminary draft text retains the characteristic of the current legislation of failing to offer specific recognition of the trade union rights of persons engaged under vocational training schemes. The Committee hopes that the preliminary draft of the Labour Code will be the subject of extensive tripartite consultation and that, during this process of dialogue, consideration will also be given to the adoption of specific measures to revise the legislation so as to set out the explicit recognition of the right to freedom of association of workers engaged under vocational training schemes. The Committee requests the Government to provide information on any progress achieved in this regard.

In previous comments, the Committee requested the Government to revise the relevant provisions of the legislation to secure the exercise of the right to organize, in law and practice, of judges and prosecutors, and of employees in positions of trust and leadership in the public administration. The Committee requested the Government to provide information on any developments in this regard. The Committee notes with regret the Government’s indication that it has noted the request for information which will be provided shortly. The Committee recalls that Article 2 of the Convention guarantees the basic right to establish and join organizations of their own choosing to all workers without distinction whatsoever, including all public servants, irrespective of the nature of their functions, and that the only limitations permitted by the Convention are for members of the armed forces and the police. However, the Committee has indicated that senior public officials may be barred from joining trade unions provided they are entitled to establish their own organizations to defend their interests (2013 General Survey on collective bargaining in the public service, paragraphs 43 et seq., and 2012 General Survey on the fundamental Conventions, paragraph 66). The Committee urges the Government 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. The Committee requests the Government to provide information on any developments in this regard.

Article 3. Right of organizations to organize their activities and formulate their programmes. Holding a strike ballot. In previous comments, the Committee noted that, under section 40 of Act No. 30057, the Civil Service Act, section 62, as amended, of the Regulations of the Consolidated Single Text of the Collective Labour Relations Act (the TUO of the LRCT), provides that the decision to call a strike must be adopted in the manner set out in the statutes, provided that the decision is taken by at least the majority of the voting members present in the assembly, and that this provision is applicable, by extension, to strikes in the public administration. The Committee notes that, although the trade union confederations indicate that Act No. 31188, the State Sector Collective Bargaining Act, published on 2 May 2021, repealed section 40 of the Civil Service Act, the Government indicates that subsection 13(2)(e) of Act No. 31188 provides that workers may call strikes in accordance with the provisions of the TUO of the LRCT.

Determining the unlawfulness of strikes. In its previous comment, the Committee observed that the Civil Service Support Commission was competent to decide whether a strike is inappropriate or unlawful and, as it had yet to be established, the Committee requested the Government to take the necessary measures to ensure that the competence to determine the lawfulness of strikes, in both the private and public sectors, does not lie with the Government, but rather with an independent body that has the trust of the parties. The Committee notes the Government’s indication that, while the body that is competent for determining the appropriate nature of a strike in the private sector is the Administrative Labour Authority, which issues its decision with independence, impartiality and in accordance with the law, the preliminary draft of the Labour Code proposes that, at the request of the employer or employers affected by the measures, the judicial authority shall determine the lawfulness or unlawful nature of a strike. With regard to the public sector, the Government recalls that, in accordance with the Tenth Supplementary Transitional Provision of the Regulations of the Civil Service Act, the Administrative Labour Authority shall assume the functions of the Civil Service Support Commission until the latter is established. The Committee observes that the trade union confederations consider that the fact that the Administrative Labour Authority continues to determine the lawful nature of strikes in both the private and the public sectors (in view of the persistent failure to establish the Civil Service Support Commission with guarantees of its real impartiality) bears witness to the reluctance of the State to bring the legislation into conformity with the provisions of the Convention and they indicate that 100 per cent of strikes in 2020 were found to be unlawful by the Administrative Labour Authority. The Committee urges the Government to take the necessary measures to ensure that the authority to determine the lawful nature of strikes in the private sector does not lie with the labour administration, but rather with an independent body that has the trust of the parties. The Committee hopes that the proposed amendment contained in the preliminary draft of the Labour Code will be the subject of extensive tripartite consultations, and requests the Government to keep it informed of any developments in this regard. Observing with concern the indications of the trade union confederations, the Committee expresses the firm hope that the Civil Service Support Commission will be established without further ado and that it will be a genuinely independent body. The Committee requests the Government to provide information on any progress in this regard.

Definition of minimum services in essential public services. The Committee previously observed that the Consolidated Single Text of the Collective Labour Relations Act provided that the Civil Service Support Commission would be the competent body to determine the minimum services required during strikes affecting essential services, and it trusted that the Civil Service Support Commission would be established in the near future. The Committee notes the Government’s indication that section 435 of the preliminary draft of the Labour Code provides that, in the event of disagreement, the matter shall be referred to an independent technical body for the determination of the minimum service and that the decision shall be binding. The Committee notes that, in addition to reiterating that the Civil Service Support Commission has still not been set up, the trade union confederations indicate that section 68 of the Regulations of the Collective Labour Relations Act, as amended by Presidential Decree No. 014-2022-TR, provides that, while the Administrative Labour Authority may avail itself of the support of an independent body to resolve any disagreement concerning minimum services in essential public services, the Administrative Labour Authority shall resolve the matter on the basis of the report of the independent body. While taking due note of the modifications introduced by Presidential Decree No. 014-2022-TR, the Committee recalls that disagreements between the parties on the number and functions of workers should not only be examined, but also resolved by an independent body. The Committee reiterates the need for the Civil Service Support Commission to be established without delay and requests the Government to provide information on any developments in this respect.

Right of trade unions to hold meetings and to access workplaces. The Committee previously requested the Government to revise 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 acts of providing school premises for trade union meetings and allowing political and/or union advocacy in educational institutions, in order to enable head teachers of schools to determine with the trade unions arrangements for access to workplaces that do not jeopardize their efficient operation. The Committee notes the Government’s indication that the Ministry of Education is carrying out an assessment of the legislation in relation to this matter as a basis for determining the need to amend or repeal certain provisions of the Regulations of Act No. 28988 declaring regular basic education to be an essential public service, as approved by Presidential Decree No. 17-2007-ED. The Committee takes due note of these indications and requests the Government to provide information on any developments in relation to the revision of the final provisions of the above Presidential Decree so that head teachers in schools can agree with the trade unions concerned on an arrangement for access to workplaces that does not jeopardize their effective operation.

The Committee reminds the Government that it may have recourse to ILO technical assistance in relation to the matters raised in this comment.

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

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

The Committee notes the observations of the Autonomous Workers’ Confederation of Peru (CATP), received on 2 September 2018, on the right to strike in the public and private sectors. The Committee requests the Government to provide its comments with regard to these allegations.

Article 3 of the Convention. Rights of organizations to organize their activities and to formulate their programmes. Strikes by public servants. The Committee notes that section 81 of the General Regulations of the Civil Service Act adopted in 2014 prohibits atypical forms of strikes, such as staggered stoppages, labour slowdowns, go-slow strikes or working to rule, the deliberate reduction in performance or any type of action causing paralysis of work in which civil servants remain in the workplace and entrance to the workplace is obstructed. In this regard, the Committee recalled that any work stoppage, however brief and limited, may generally be considered as a strike and that the restrictions on strikes can only be justified if the strike ceases to be peaceful. Additionally, the Committee considered that strike pickets and workplace occupations should be permitted, provided that these actions unfold peacefully and with respect for freedom to work of non-striking workers and that the right of the management to enter the premises is guaranteed. Observing that the Government provides no information in this regard, the Committee once again requests it to engage in discussions with the trade unions with a view to revising this provision in the light of the abovementioned principles and to report on any steps taken in this respect.

Replacement of striking workers in the education sector. In its previous comments, the Committee requested the Government to take measures to clarify in Ministerial Decision No. 080-2007-ED, which provides for the establishment of the national register of supply teachers for regular basic education, in which situations striking workers may be replaced. The Committee also noted the Government’s indication that the Ministerial Decision had been supplemented by the Regulations to Act No. 28988 which set out regular basic education as an essential public service (Supreme Decree No. 017-2007-ED) and that, in accordance with section 4 of those Regulations, the national register of supply teachers may only be used in the event of unlawful strikes, one ground of unlawfulness being the failure to ensure minimum services. The Committee nevertheless noted that section 3 of the Regulations prohibits any form of stoppage of education services by a unilateral decision of the staff mentioned, regardless of the reason invoked, the term used for the strike and the way it is carried out. Observing that the Government provides no information in this regard, the Committee requests it once again to engage in consultations with the relevant trade unions, with a view to revising the abovementioned Regulations to clarify in which situations striking workers may be replaced and to ensure that such replacement may only take place in the event of strikes that are declared unlawful in conformity with the Convention.

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

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

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

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

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

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

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

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

Right of trade unions to hold meetings and to access workplaces. In its previous comments, the Committee observed that sections 4 and 5 of the final supplementary provisions to Supreme Decree No. 017-2007-ED define as serious offences by head teachers and deputy head teachers in schools the acts of providing school premises for trade union meetings and allowing political and/or union proselytizing in the educational institutions. Observing that the Government has provided no information in this regard, the Committee once again requests the Government to revise the final provisions of the above-mentioned Supreme Decree in order to enable head teachers in schools to determine, with the trade unions concerned, the modalities of access to workplaces that do not jeopardize the effective functioning of those facilities, and to provide information on any developments in this respect.

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

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

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

Article 3 of the Convention. Right of organizations to organize their activities and formulate their programmes. Strikes by public servants. The Committee notes that section 81 of the General Regulations of the Civil Service Act adopted in 2014 prohibits atypical forms of strikes, such as staggered stoppages, labour slowdowns, go-slow strikes or working to rule, the deliberate reduction in performance or any type of action causing paralysis of work in which civil servants remain in the workplace and entrance to the workplace is obstructed. In this regard, the Committee recalls that any work stoppage, however brief and limited, may generally be considered as a strike and that the restrictions on strikes can only be justified if the strike ceases to be peaceful. Additionally, the Committee considers that strike pickets and workplace occupations should be permitted, provided that these actions unfold peacefully and respect for freedom to work of non-striking workers and that the right of the management to enter the premises is guaranteed. The Committee requests the Government to engage in discussion with the trade unions with a view to revising this provision in the light of the abovementioned principles and to report on any steps taken in this respect.

Replacement of striking workers in the education sector. In its previous comments, the Committee requested the Government to take measures to clarify in Ministerial Decision No. 080-2007-ED, which provides for the establishment of the national register of supply teachers for regular basic education, in which situations striking workers may be replaced. The Committee notes the Government’s indication that the Ministerial Decision has been supplemented by the Regulations to Act No. 28988 which set out regular basic education as an essential public service (Supreme Decree No. 017-2007-ED) and that, in accordance with section 4 of those Regulations, the national register of supply teachers may only be used in the event of unlawful strikes, one ground of unlawfulness being the failure to ensure minimum services. The Committee nevertheless notes that section 3 of the Regulations prohibits any form of stoppage of education services by a unilateral decision of the staff mentioned, regardless of the reason invoked, the term used for the strike and the way it is carried out. In light of the above, the Committee requests the Government to engage in consultation with the relevant trade unions, with a view to revising the abovementioned Regulations to clarify in which situations striking workers may be replaced and to ensure that such replacement may only take place in the event of strikes that are declared unlawful in conformity with the guarantees of the Convention.

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

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

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

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

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

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

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

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

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

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

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

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

Article 3 of the Convention. Right of organizations to organize their activities and formulate their programmes. In its previous comments, the Committee requested the Government:

• -to report on the composition of the independent body appointed to give a ruling in the event of disagreement about the number and occupation of workers who are to continue working in the event of a strike in essential public services. In the absence of information provided in this regard, the Committee requests the Government to send its observations on this matter in its next report.
• -to take steps to make it clear in Ministerial Resolution No. 080-2007-ED creating a national register of supply teachers in basic regular education that the replacement of strikers is possible only in strikes in essential services in the strict sense of the term or in the event of an acute local or national crisis. In the absence of information provided in this regard, the Committee requests the Government in its next report to provide information on any steps taken in this regard.

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

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

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

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

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

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

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

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

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

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

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

Direct Request (CEACR) - adopted 2010, published 100th ILC session (2011)

The Committee notes the information supplied by the Government on various measures adopted to amend the General Labour Bill, by means of which the Industrial Relations Act and its regulations would be repealed.

Article 2 of the Convention. In its previous comments the Committee observed that:

–      section IX of the Preliminary Title excludes prison labour and self-employment from the scope of the Bill and it asked the Government to take the necessary steps to ensure that prison staff enjoy the right to organize. The Committee notes the Government’s statement in its report that article 28 of the Political Constitution recognizes the right to organize, engage in collective bargaining and go on strike, and all workers have the right to establish trade union organizations of their own choosing without prior authorization, and consequently prison staff enjoy the right to organize;

–      section 80 on special training arrangements excludes workers covered by these arrangements from the general provisions of the Bill and it asked the Government to indicate what legislation is applicable to these workers.

The Committee requests the Government to provide information on the legislation applicable to prison staff and to workers involved in training as regards the establishment of trade unions, collective bargaining and protection against acts of anti-union discrimination.

Article 3. Right of workers’ organizations to elect their representatives in full freedom. The Committee previously noted that section 349 concerning executive committees stipulates that, in order to become a member of such a committee, it is necessary to be in an employment relationship. The Committee considered that requiring a worker to belong to the establishment in question in order to be eligible for trade union office is contrary to the provisions of Article 3 of the Convention. Furthermore, such provisions may prompt employers to interfere and dismiss the union officers, thus precluding their continuation in office. The Committee notes the Government’s indication that: (i) the Industrial Relations Act (whose single consolidated text is approved by Supreme Decree No. 010-2003-TR) recognizes the right of workers’ organizations to elect their representatives in full freedom by prescribing in section 2 the right to organize, without prior authorization, with a view to the examination, development, protection and defence of its rights and interests, and the social, economic and moral improvement of its members; and (ii) in the absence of the minimum number of persons for establishing a trade union, section 15 of the aforementioned Supreme Decree provides for the possibility of electing two delegates to represent the members vis-à-vis the employer and the labour authority. The Committee notes that the Government does not refer in its report to the comments relating to section 349. The Committee expresses the hope that, in the context of the current reform of the labour legislation referred to by the Government, the section in question will be amended, for instance by allowing former members of the profession to stand for office or by eliminating the requirements of membership for a reasonable proportion of officers. The Committee requests the Government to provide information in its next report on any developments in this respect.

Right of organizations to organize their activities and formulate their programmes in full freedom. The Committee previously observed that:

–      Section 385(4) provides that “where the workers have opted to take industrial action and the strike is excessively long, with serious consequences for the parties or for production, or gives rise to acts of violence or takes on serious proportions or consequences, the Executive may intervene through the Ministry of Labour and Employment Promotion by means of a reasoned ministerial decision ordering the resumption of work …”. The Committee pointed out that, where a total and prolonged work stoppage in a vital sector of the economy is liable to create a situation endangering the life, safety or health of the population, a specific category of workers could legitimately be ordered back to work if, because of its scope and duration, the strike is liable to give rise to such a situation. To order a return to work outside such instances, however, is contrary to the principles of freedom of association.

The Committee notes the Government’s indication that: (i) the section in question is the product of consensus in the National Council for Labour and Employment Promotion (CNTPE); (ii) it is legitimate to order a certain category of staff to resume work when the life, safety or health of all or part of the population is endangered; and (iii) section 403 of the General Labour Bill (which amends section 385 in force) defines the essential services the interruption of which might endanger the life, safety or health of the population (persons working in centres providing assistance directly related to the health of the people; electricity, water and drainage services; cleaning and sanitary services; autopsy and burial services; communication and telecommunication services; air traffic control services; and prison services), those being the only services in which it is possible to order the resumption of work. The Committee requests the Government to provide information on any developments relating to amendments to section 385 of the General Labour Bill.

–      Section 402(1) provides that the administrative authority for labour is empowered to declare a strike unlawful following a request from the employer or employers affected by the measure. The Committee notes the Government’s indication that it is drafting a bill, the purpose of which is to ensure that responsibility for declaring a strike illegal should lie with an independent body and that, once the drafting of the aforementioned bill has been completed, this will be brought before the employers’ and workers’ representatives within the CNTPE for consideration with a view to reaching consensus on it. The Committee requests the Government to provide information in its next report on any developments in this respect.

Finally, the Committee recalls that it has been making comments for many years on the power of the administrative authority for labour to establish minimum services, in the event of disagreement, when a strike is declared in essential public services (section 82). The Committee notes the Government’s statement that, in accordance with section 1 of Supreme Decree No. 013-2006-TR (which amends section 68 of Supreme Decree No. 011-92-TR), it was stipulated that “in the event of disagreement on the number and occupation of workers who are to continue working in conformity with section 82 of the Act, the labour authority shall designate an independent body to determine them” and that the decision of the independent body will be accepted by the labour authority in order to resolve the disagreement in question. The Committee requests the Government to provide information in its next report on the composition of the aforementioned independent body.

Article 4. Dissolution of trade union organizations. The Committee previously observed that section 361(3) provides for the possibility of dissolving a union if the membership falls below the legally declared minimum. The Committee considered that such dissolution should only be declared after a thorough examination of the reasons why the membership fell below the legal minimum. The Committee notes the Government’s indication that account will be taken of the Committee’s observations through regulatory means to ensure that legal dissolution may only be declared following a thorough examination of the reasons why the membership fell below the legal minimum. The Committee requests the Government to provide information in its next report on any development in this respect.

Observation (CEACR) - adopted 2010, published 100th ILC session (2011)

Comments from workers’ organizations. The Committee notes the Government’s reply to the comments from the International Trade Union Confederation (ITUC) dated 29 August 2008, which referred to serious acts of violence against demonstrators and the arrest of trade union leaders for participating in a strike. It notes in particular the Government’s indication that the allegations are the subject of examination by the Committee on Freedom of Association. The Committee also notes the Government’s indication, in relation to the previous comments of the Autonomous Confederation of Peruvian Workers (CATP) that the executive committee of the Union of Workers of the Public Ombudsman’s Office was registered on 7 September 2009. Finally, with regard to the comments of the National Coordinating Committee of Contract Workers of the Ministry of Health dated 3 October 2008 challenging the administrative services contract regime governed by Legislative Decree No. 1057, the Committee notes the Government’s statement that the Constitutional Court ruled that the “administrative services contract” must be interpreted as a special scheme for the hire of labour for the public sector, and declared the special administrative services contract regime established by Legislative Decree No. 1057 to be constitutional, recognizing that workers covered by this regime are entitled to exercise the right to organize and the right to go on strike.

The Committee also notes the comments from the General Confederation of Workers of Peru (CGTP), the Single Confederation of Workers (CUT), the Workers’ Central Union of Peru (CTP) and the Autonomous Confederation of Workers of Peru (CATP) dated 2 and 25 August 2010 and from the ITUC dated 24 August 2010 concerning the application of the Convention and in particular that they object to: (i) article 153 of the Constitution which denies judges and prosecutors the right to organize; (ii) Legislative Decree No. 1086 of 28 June 2008 establishing the Act to promote the competitiveness, formalization and development of micro- and small enterprises and access to decent employment, which does not contain any reference to the exercise of trade union rights by workers in micro-enterprises; and (iii) the use of temporary contracts to make it difficult for workers to join trade unions. These organizations also refer to issues which have been examined by the Committee on Freedom of Association. The Committee notes the Government’s reply to the aforementioned comments and its specific indications that: (i) the prohibition on the right to organize for judges and prosecutors is based on the fact that special authority is conferred on judges for the performance of their duties, they are the highest interpreters of the law, they administrate justice on behalf of the nation and exercise power deriving from the people, and prosecutors represent the State in judicial proceedings; both have prerogatives, obligations and incompatibilities which are peculiar to the nature of their posts; (ii) contrary to the indications of the trade union organizations, section 3(5) of Legislative Decree No. 1086 of 28 June 2008 prescribes observance of the right of workers to form trade unions and non-interference with the right of workers to elect, or not elect, to join or not to join, trade union organizations which have been legally established; and (iii) as regards the use of temporary contracts in order to obstruct membership to trade unions, the labour inspectorate, with a view to granting protection of the right to organize in connection with the various types of contract provided for in the legislation, has issued directives to protect the right to organize of temporary workers. Recalling the content of Article 2 of the Convention, the Committee requests the Government to take the necessary steps to guarantee that judges and prosecutors enjoy the right to form associations or organizations for the defence of their interests. The Committee requests the Government to provide information in its next report on any measures taken in this respect.

In addition, the Committee notes various cases pending before the Committee on Freedom of Association relating to matters which the Committee of Experts is examining.

Article 3 of the Convention. Right of workers’ organizations to organize their activities and formulate their programmes. The Committee recalls that it has been making comments for many years on section 73(b) of the Industrial Relations Act, which provides that the decision to call a strike has to be adopted in the form expressly set out in the statutes and must in any event represent the will of the majority of the workers concerned. The Committee observes that the Government does not refer to this issue in its report. The Committee recalls once again that if the legislation provides that a vote is required by workers before a strike can be held, it should be ensured that account is taken only of the votes cast, and that the required quorum or majority is fixed at a reasonable level (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 170). The Committee requests the Government to take the necessary steps to amend the legislation taking account of this principle.

Furthermore, the Committee referred in its previous comment to the creation, by means of Ministerial Decision No. 0080-2007-ED of 23 February 2007, of the national register of supply teachers to replace teachers on strike and asked the Government to take the necessary steps to overturn the aforementioned Ministerial Decision, taking account of the fact that strikers should only be replaced in the event of a strike in an essential service in the strict sense in which strikes are prohibited by law and if the strike results in an acute national crisis. The Committee notes the Government’s indication that: (i) the abovementioned register constitutes a human resources management instrument which registers all professionals who are suitable for recruitment in the public education system, in cases of the continued absence of teachers of classes in basic regular education and does not have the purpose of replacing teachers who exercise their right to strike; and (ii) the aforementioned legislation was enacted in strict observance of the principle of legality and therefore does not conflict with the right to strike established in the national legislation and ratified international Conventions. While observing that the preamble to the abovementioned Ministerial Decision refers to the hours lost owing to the absence of teachers for strikes and stoppages, the Committee requests the Government to take steps to make it clear in the Ministerial Decision that the replacement of strikers is only possible in the cases referred to above.

The Committee also recalls that in its previous comments it noted the drafting of a General Labour Bill which would repeal the Industrial Relations Act and therefore the provisions in question, and asked the Government to provide information on any legislative developments relating to this Bill. The Committee notes the Government’s indication in its report that: (i) the workplan of the Labour Commission of the Congress of the Republic for 2010–11 gives priority to evaluation of the General Labour Bill and consideration has been given to the holding of macro-regional public hearings with the objective of improving the legislative capacity of the Commission, by means of comprehensive analysis of the labour legislation (priority will be given to the discussion of three fundamental themes for the world of work: public employment, the General Labour Bill and the special bill to promote formal employment), with the aim of achieving balance and optimum labour relations between workers and employers; (ii) the macro-regional public hearings will take place with the participation of representatives of the ILO, members of Congress and the social partners involved (trade union confederations and employers’ organizations) in the matters to be the subject of legislation, with the aim of achieving an overview of the proposals in question and due analysis of the consequences for the development of the country; and (iii) the aforementioned hearings seek to strengthen the system of labour relations, in observance of the international labour standards adopted by the ILO. The Committee expresses the hope that the legislative initiatives in question will take full account of its comments and that the General Labour Bill to be adopted will be in full conformity with the Convention. The Committee requests the Government to provide information in its next report on any developments in this respect.

Furthermore, the Committee has been informed that in June 2010 the Labour Commission of Congress approved an opinion modifying certain sections of the Industrial Relations Act and that this opinion is to be discussed in the plenary of Congress. The Committee requests the Government to contemplate the possibility of amending the sections of the Act on which it has been commenting for many years amended in the context of this reform.

Article 6. Right of workers’ organizations to establish federations and confederations. The Committee recalls that in its previous comments it asked the Government to take the necessary steps to amend section 19 of Supreme Decree No. 003-82-PCM to allow federations and confederations of public servants to establish or join organizations of their own choosing. The Committee notes that the Government repeats that, under Supreme Decree No. 003-2004-TR (which created the register of trade union organizations of public servants (ROSSP)) and Directive No. 001-2004-DNRT (on guidelines for the registration of trade union organizations in the register of trade union organizations of public servants of the Ministry of Labour and Employment Promotion), federations of state workers who are covered by different labour regimes (private or public sector) are allowed to join and form confederations. The Committee once again requests the Government to indicate whether, in accordance with these provisions, federations of state workers are allowed to join confederations which contain organizations of non-state workers.

The Committee is raising a number of other points in a direct request to the Government.

Direct Request (CEACR) - adopted 2008, published 98th ILC session (2009)

The Committee recalls that it previously noted the draft General Labour Act of Peru (No. 67/2006-CR) and that it made comments on that subject.

Article 2 of the Convention. In its previous comments, the Committee observed that:

–      section IX of the Preliminary Title excludes prison labour and self-employment from the scope of the Act;

–      section 80 on special training arrangements excludes workers covered by these arrangements from the general provisions of the Act;

–      Chapter I of Title II on workers on probation does not specify whether such workers have the right to organize.

In this regard, the Committee observed that it was not clear whether the groups of workers mentioned enjoy the safeguards provided by the Convention and requested the Government to take steps to ensure that the workers in question enjoy the rights laid down in the Convention. The Committee notes that the Government indicates in its report that section VI of the Preliminary Title of the draft General Labour Act provides that the Act shall be applicable to self-employed workers where appropriate. With regard to the beneficiaries of special training arrangements, the draft does not expressly prohibit these persons from joining organizations. With regard to workers on probation, section 336 of the draft provides that workers may join a trade union during their probationary period. The Committee recalls that, under Article 2 of the Convention, all workers, without distinction whatsoever, shall have the right to establish and join organizations of their own choosing. Under these circumstances, the Committee requests the Government to take the necessary measures to ensure that prison staff enjoy the right to organize, keep it informed of any measures adopted in this regard and indicate what legislation is applicable to workers covered by special training arrangements.

Membership of more than one trade union. The Committee previously observed that section 334(3) on requirements for joining a trade union prohibits membership of more than one union in the same field. The Committee considered that workers who have more than one occupation should be able to join organizations representing the workers of each of the activities they engage in. The Committee notes the Government’s indication that the restriction imposed by section 334 refers to the establishment of a numerical criterion for the purposes of determining the most representative trade union within a given field, but does not obstruct the right of any workers with more than one occupation to join trade union organizations of their own choosing.

Article 3. Right of workers’ organizations to elect their representatives in full freedom. The Committee previously noted that section 349 on the Executive Board stipulates that, in order to become a member of such a board, it is necessary to be in an employment relationship. The Committee considered that to require a worker to belong to the establishment in question in order to be eligible for trade union office is contrary to Article 3 of the Convention. Furthermore, provisions of this kind may prompt employers to interfere and dismiss the union officers, thus precluding their continuation in office. The Committee notes the Government’s indication that this section was the result of a consensus between workers and employers within the National Labour and Employment Promotion Council (CNTPE) and that the necessary efforts shall be made to amend this section along the lines indicated by the Committee prior to the adoption of the draft Act. The Committee expresses the hope that section 349 of the General Labour Act will take this principle into account, for instance by allowing former members of the profession to stand for office or by eliminating the requirements of membership of the profession for a reasonable proportion of officers.

Right of organizations to organize their activities and formulate their programmes in full freedom. The Committee previously observed that:

–      section 385(4) provides that “where the workers have opted to take industrial action and the strike is excessively long, with serious consequences for the parties or for production, or gives rise to acts of violence or takes on serious proportions or consequences, the Executive may intervene through the Ministry of Labour and Employment Promotion by means of a reasoned ministerial decision ordering the resumption of work …”. The Committee pointed out that, where a total and prolonged work stoppage in a vital sector of the economy is liable to create a situation endangering the life, safety or health of the population, a specific category of workers could legitimately be ordered back to work if, because of its scope and duration, the strike is liable to give rise to such a situation. To order a return to work outside such instances, however, is contrary to the principles of freedom of association. The Committee notes that the Government indicates that this section of the draft Act was approved by consensus and that, in any case, the principle referred to by the Committee could be taken into account in the regulatory standard which will be issued once the General Labour Act has been approved. The Committee requests the Government to take all the steps within its power to amend section 385(4) of the draft General Labour Act so that a return to work may be ordered only where the life, safety or health of all or part of the population are endangered;

–      section 402(1) provides that the Administrative Authority for Labour is empowered to declare a strike unlawful following a request from the employer or employers affected by the measure. The Committee notes that the Government points out that workers have available expeditious summary proceedings through the courts, provided for under section 24 of Act No. 27584 regulating the dispute procedure. In this regard, the Committee recalls that responsibility for declaring a strike illegal should not lie with the Government, but with an independent body which has the confidence of the parties involved. The Committee requests the Government to take steps to amend section 402 of the draft Act along the lines indicated.

Article 4. Dissolution of trade union organizations. The Committee previously noted that section 361(3) provides for the possibility of dissolving a union if the membership falls below the legally declared minimum. The Committee considered that such dissolution should only be declared after a thorough examination of the reasons why the membership fell below the legal minimum. The Committee notes that the Government indicates that this section of the draft Act was approved by consensus and that, in any case, the regulatory Act of the General Labour Act could provide that legal dissolution may only be declared following a thorough examination of the reasons why the membership fell below the legal minimum. The Committee expresses the firm hope that the Government will take all the measures within its power to ensure that the General Labour Act or the regulatory Act approved take the above principle into account.

Finally, the Committee hopes that its comments will be taken into account in the final draft of the General Labour Act. The Committee requests the Government to report on any developments in this regard.

Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

The Committee notes the Government’s reply to the comments made by the National Union of Public Employees of the Armed Forces (SINEP-FFAA) dated 7 April 2006, concerning the refusal to grant it legal personality, in which it reports that, in a decision of 3 May 2006, the trade union organization was registered automatically.

The Committee also notes the comments made by the General Confederation of Workers of Peru (CGTP), dated 23 January and 16 May 2007, which refer to the following violations of the trade union rights of the Single Union of Public Education Workers (SUTEP): (1) the declaration of regular basic education as an essential service by means of Act No. 28988 of 19 March 2007, and (2) the creation of the national register of supply teachers to replace teachers on strike by means of Ministerial Decision No. 0080-2007-ED of 23 February 2007.

With regard to the declaration of regular basic education as an essential service (Act No. 28988), the Committee observes that, under section 82 of the Industrial Relations Act, the sole purpose of such declaration is to ensure minimum services in the event of a strike. In this regard, the Committee considers that the declaration of regular basic education as an essential service for the purposes of imposing a minimum service does not raise problems of conformity with the Convention.

With regard to the creation of the national register of supply teachers to replace teachers on strike (Ministerial Decision No. 0080-2007-ED), the Committee recalls that strikers should only be replaced: (a) in the case of a strike in an essential service in the strict sense of the term in which strikes are prohibited by the legislation, and (b) if the strike results in an acute national crisis. Under these circumstances, the Committee requests the Government to take the necessary measures to repeal Ministerial Decision No. 0080-2007-ED on the replacement of teachers on strike.

The Committee also notes the comments made by: (1) the International Trade Union Confederation (ITUC) dated 29 August 2008, which refer to serious acts of violence against demonstrators and the arrest of trade union leaders for participating in a strike; (2) the Autonomous Confederation of Peruvian Workers (CATP), sent with the Government’s report, which refer to the refusal to register the Union of Workers of the Public Ombudsperson, and the hiring of workers to replace State workers on strike; and (3) the National Coordinating Committee of Ministry of Health Workers, dated 3 October 2008. The Committee requests the Government to provide its comments on this subject.

Furthermore, the Committee notes the various cases currently before the Committee on Freedom of Association relating to matters being examined by the Committee.

Article 3 of the Convention. Right of workers’ organizations to elect their representatives in full freedom. The Committee recalls that in its previous observation, it noted a bill approving mechanisms to ensure transparency in the election of executive boards of trade unions, federations and confederations of public sector workers, which amends section 5(a) of Act No. 26487 (Basic Act on the National Register of Identity and Civil Status) and section 5 of Act No. 26486 (Basic Act on the National Elections Commission), which contained various provisions which were not in conformity with the Convention. In this regard, the Committee notes with interest that this bill was shelved permanently on 13 December 2007.

Right of workers’ organizations to organize their activities and formulate their programmes. The Committee recalls that for many years, it has been making comments on the following provisions of the Industrial Relations Act:

–      The power of the labour administration to determine minimum services, in the event of disagreement, when a strike is declared in essential public services (section 82). In this regard, the Committee recalls that since minimum services restrict one of the essential means of pressure available to workers to defend their economic and social interests, their organizations should be able, if they so wish, to participate in defining such a service, along with employers and the public authorities (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 161) and, in the event of disagreement with regard to the establishment of this minimum service, the legislation should provide for the disagreement to be settled by an independent body and not by the labour authority.

–      Section 73(b) which provides that the decision to call a strike has to be adopted in the form expressly set out in the statutes and must in any event represent the will of the majority of the workers concerned. In this regard, the Committee recalls that if the legislation provides that a vote is required by workers before a strike can be held, it should be ensured that account is taken only of the votes cast, and that the required quorum or majority are fixed at a reasonable level (see General Survey, op. cit., paragraph 170).

The Committee also recalls that in its previous comments, it noted the drafting of the General Labour Bill which repealed the Industrial Relations Act and therefore the provisions in question, and asked the Government to provide information on the progress of the abovementioned Bill. In this regard, the Committee notes that the Government points out in its report that, in September 2006, the Congressional Committee on Labour entrusted to the National Council for Labour and Employment Promotion (CNTPE) the revision of the General Labour Bill. To that end, the CNTPE appointed an ad hoc committee whose work was ratified by the plenary meeting of the CNTPE on 27 October 2006 and referred to the Congressional Labour Committee. The Bill is currently on the agenda of the plenary of the Congress for discussion. The Committee hopes that the General Labour Act adopted will be in complete conformity with the Convention. The Committee requests the Government to continue providing information on developments relating to this Bill in its next report and whether it amends the sections in question.

Article 6. Right of workers’ organizations to establish federations and confederations. The Committee recalls that, in its previous comments, it asked the Government to take the necessary measures to amend section 19 of Supreme Decree No. 003-82-PCM to allow federations and confederations of public servants to establish or join organizations of their own choosing. In this regard, the Committee notes that the Government points out that, under Supreme Decree No. 003-2004-TR (which created the Register of Trade Union Organizations of Public Servants (ROSSP)) and Directive No. 001-2004-DNRT (on guidelines for the registration of trade union organizations with the Register of Trade Union Organizations of Public Servants of the Ministry of Labour and Employment Promotion), federations of State workers who are covered by different labour regimes (private or public sector) are allowed to join and form confederations. In this regard, the Committee requests the Government to indicate whether, in accordance with these provisions, federations of State workers are allowed to join confederations which include organizations of private sector workers.

Furthermore, the Committee addresses a direct request to the Government on other matters.

Direct Request (CEACR) - adopted 2006, published 96th ILC session (2007)

The Committee notes the Government’s report. Noting the draft General Labour Act, No. 67/2006-CR, it draws the Government’s attention to the following points.

Article 2 of the Convention

The Committee notes that:

–           in the Preliminary Title, section X excludes civilian service, prison labour and self-employment from the scope of the Act;

–           in Title II, section 80 of Chapter VIII on special training arrangements excludes workers covered by these arrangements from the general provisions of the Act;

–           in Title II, Chapter I on workers on probation does not specify whether such workers have the right to organize.

The Committee observes that it is not clear whether the groups of workers covered by the above provisions enjoy the safeguards provided by the Convention. It reminds the Government that, under Article 2 of the Convention, all workers, without distinction whatsoever, have the right to establish and join organizations of their own choosing. The Committee therefore asks the Government to take the necessary steps to ensure that the workers in question enjoy the rights laid down in the Convention.

The Committee further notes that paragraph (c) of section 334, on requirements for joining a trade union, prohibits membership of more than one union in the same field. The Committee reminds the Government that workers must be able to establish or join organizations of their own choosing. This is particularly important where workers have more than one occupation. Such workers should be able to join organizations representing each of the activities they engage in. The Committee requests the Government to take the necessary measures to amend this provision so as to align the law with the principle of the Convention.

Article 3

The Committee notes that section 349, “Executive Board”, of Chapter III stipulates that in order to become a member of such a board, it is necessary to be in an employment relationship. In the view of the supervisory bodies, to require a worker to belong to the establishment in question in order to be eligible for trade union office is contrary to Article 3 of the Convention, which lays down the right of workers to elect their representatives in full freedom. Furthermore, provisions of this kind may prompt employers to interfere and dismiss the union officers, thus precluding their continuation in office. The Committee requests the Government to take the necessary steps either to abolish this provision or to make it more flexible, for instance by allowing former members of the profession to stand for office or by eliminating the requirement of membership of the profession for a reasonable proportion of officers.

Right to strike

The Committee notes that:

–           section 385(4) of Chapter VI provides that “where the workers have opted to take industrial action and the strike is excessively long, with serious consequences for the parties or for production, or gives rise to acts of violence or takes on serious proportions or consequences, the Executive may intervene through the Ministry of Labour and Employment Promotion by means of a reasoned ministerial decision ordering the resumption of work …”. The supervisory bodies are of the view that, where a total and prolonged work stoppage in a vital sector of the economy is liable to create a situation endangering the life, safety or health of the population, a specific category of workers could legitimately be ordered back to work if, because of its scope and duration, the strike is liable to give rise to such a situation. To order a return to work outside such instances, however, is contrary to the principles of freedom of association. The Committee therefore asks the Government to amend section 385(4) so that a return to work may be ordered only where the life, safety or health of all or part of the population are endangered;

–           in Title VIII, the first paragraph of section 402 of Chapter II provides that the Administrative Authority for Labour is empowered to declare a strike unlawful following a request from the employer or employers affected by the measure. The supervisory bodies are of the view that the authority to declare a strike unlawful should lie not with the Government but with a body that is independent of the parties and enjoys their trust. The Committee requests the Government to take the necessary measures to align this provision with the principle laid down in the Convention.

Article 4

The Committee notes that, under section 361(3) of Chapter V, a union may be dissolved if the membership falls below the legally declared minimum. The Committee requests the Government to take the necessary measures to amend this provision so that the dissolution of an organization may be declared only by the judicial authority after a thorough examination of the reasons why the membership fell below the legal minimum.

The Committee hopes that its comments will be taken into account in the final draft of the General Labour Act. The Committee requests the Government to report any developments in this regard.

Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

The Committee takes note of the Government’s report and of its reply to the comments of 31 August 2005 by the International Confederation of Free Trade Unions (ICFTU). It likewise notes the ICFTU’s comments of 10 August 2006 and those of 7 April 2006 by the National Union of Public Employees of the Armed Forces (SINEP-FFAA) referring to matters raised by the Committee. These comments also assert that trade union leaders have been threatened for participating in a protest, that the daughter of one trade union leader was abducted, that an attempt was made on the life of the President of the General Confederation of Workers of Peru (CGTP) and that trade unions have been refused registration. The Committee notes that, according to the Government: (1) the president of the CGTP has been offered protection and an investigation is under way; (2) there is not enough information on the alleged acts of violence. The Committee reminds the Government that trade union leaders can perform their duties only where fundamental human rights are observed and fully guaranteed, particularly the right to life and personal safety. The Committee requests the Government to provide information on any investigations and court decisions relating to the alleged violence and to send its observations on the other comments still pending.

Article 3 of the Convention. Right to strike. In its previous comments, the Committee raised the following matters:

–         the power of the labour administration to determine minimum services, in the event of disagreement, when a strike is declared in essential public services (section 82 of the Industrial Relations Act of 1992). The Committee notes that the recently drafted General Labour Bill, No. 67/2006-CR, repeals the Industrial Relations Act and provides, in section 406, that in the event of disagreement the workers’ representative may take the matter within five days to the tripartite body set up for the purpose by the National Labour Council, for settlement within five days;

–         section 73(b) of the Industrial Relations Act of 1992 which provides that the decision to call a strike has to be adopted in the form expressly set out in the statutes and must in any event represent the will of the majority of the workers concerned. The Committee notes that, according to the Government, Supreme Decree No. 011-92-TR (regulating section 73(b)) has been replaced by section 62 of Supreme Decree No. 013-2006-TR to provide that “the trade union organization may declare a strike in the form expressly set out in its statutes, provided that the decision to strike is adopted by a majority of its voting members”. The Committee nonetheless observes that section 62 of Supreme Decree No. 013-2006-TR provides that “in order for the trade union to call a strike, at least two-thirds of the total membership must be present at the time of voting”. The Committee reminds the Government in this connection that a quorum of two-thirds of the members may be difficult to reach when a union has a large membership or covers a large geographical area and that if a member State sees fit to establish by law that strike action must be put to the vote of the workers, it must make sure that only the votes cast are counted and that the requisite quorum or majority is set at a reasonable level. The Committee understands that in any event the recently drafted General Labour Bill is to repeal the Industrial Relations Act and its regulatory decrees (third supplementary provision of the Bill).

In these circumstances, the Committee expresses the hope that the law adopted will conform fully to the Convention and requests the Government to provide information on the progress of the abovementioned Bill in its next report.

Article 6. In its previous comments, the Committee noted that federations and confederations of public servants are barred from joining organizations that represent other categories of workers (section 19 of Supreme Decree No. 003-82-PCM) and asked the Government to take steps to bring this provision into line with the administrative authority’s practice of allowing this kind of organization. The Committee notes that, according to the Government, the National Directorate of Labour Relations has issued a resolution, No. 001-2004-MTPE/DVMT/DNRT on the registration of trade union organizations of public servants. The Committee observes that the resolution allows the establishment only of trade union organizations whose members include public servants covered by various legal regimes (one being the private activities labour regime), but does not allow federations and confederations of public servants to form part of organizations that represent other categories of workers. The Committee requests the Government to take the necessary measures to amend section 19 of Supreme Decree No. 003-82-PCM to allow federations and confederations of public servants to establish or join organizations of their own choosing.

Other matters. In its previous observation, the Committee asked the Government: (1) to place the Union of Workers of Petro Tech Peruana SA back on the register; and (2) not to cancel the registration of the Union of Ticket Sellers and Ushers in Cinematographic Enterprises on the ground that it had only 57 members instead of the 100 required by the law, now amended. The Committee notes that, according to the Government, the Mar y Tierra Workers’ Union of Petro Tech Peruana SA has been entered in the Register of Trade Union Organizations, and the registration of the Union of Ticket Sellers and Ushers in Cinematographic Enterprises has not been cancelled.

Lastly, the Committee takes note of a bill approving mechanisms to ensure transparency in the election of executive boards of trade unions, federations and confederations of public sector workers which amends section 5(a) of Act No. 26487 (Basic Act on the National Register of Identity and Civil Status) and section 5 of Act No. 26486 (Basic Act on the National Elections Commission). The Committee observes that the bill requires unions, federations and confederations of public sector workers, within 120 days at most, to align their statutes with the provisions of the bill establishing that:

–         the National Office for Electoral Processes is responsible for organizing all elections of executive boards held in general assemblies of unions, federations and confederations of public sector workers with a membership of at least 20,000;

–         the National Elections Commission is responsible for supervising elections of executive boards held in general assemblies of unions, federations and confederations of public sector workers with a membership of at least 20,000;

–         the Commission has the authority to declare null and void elections of executive boards held in general assemblies of unions, federations and confederations of public sector workers with a membership of at least 20,000.

The Committee reminds the Government that the regulation of procedures and arrangements for the election of trade union leaders is a matter to be addressed in statutes of workers’ organizations and not in some body outside the organization, and that any disputes arising in connection with elections should be settled by the judicial authority. In these circumstances, the Committee requests the Government to take the necessary measures to ensure that the abovementioned bill takes into account the principle recalled above and to keep it informed of any developments regarding the relevant legislation.

The Committee is addressing a request concerning other matters directly to the Government.

Observation (CEACR) - adopted 2004, published 93rd ILC session (2005)

The Committee notes the Government’s report and its information in relation to the comments made by the Peruvian Workers’ Confederation (CTP).

The Committee recalls that for several years it has been referring in its comments to a number of provisions of the Industrial Relations Act of 1992 and its regulations, which are not in conformity with the provisions of the Convention. The Committee notes with satisfaction the adoption of Act No. 27912, published on 8 January 2003, amending several of the sections commented upon by the Committee. More precisely, the following provisions have been amended: (1) the denial of the right to trade union membership of workers during their probationary period has been eliminated (former section 12(c) of the Act); (2) the requirement of a high number of workers to establish trade unions by branch of activity or occupation in a number of professions has been reduced from 100 to 50 (section 14 of the Act); (3) the requirement that workers must be active members of the trade union (section 24(b)) and must have been in the service of the enterprise for a minimum of one year (section 24(c)) to be eligible for trade union office have been changed so that workers are currently only required to be employed in the enterprise to be a member of the executive board at this level, and the other requirements have been eliminated; (4) the prohibition upon the political activities of trade unions has been amended (section 11(a) of the Act), with it now being provided that trade union organizations may not devote themselves as institutions exclusively to party political matters, without prejudice to the freedoms set forth in the Political Constitution and the international Conventions of the ILO ratified by Peru; (5) with regard to the right to strike, section 67 has been repealed (it had been criticized by the Committee for providing that in the case of essential public services, if no agreement was reached through direct negotiation or conciliation, the dispute would be submitted to compulsory arbitration by a tripartite tribunal composed of an arbitrator designated by each party and a president appointed by the labour authorities); (6) section 10(f) of the Act, establishing the obligation for trade unions to compile reports which may be requested by the labour authority, has been repealed; and (7) the power of the labour authority to cancel the registration of a trade union (section 20 of the Act) and the requirement that the trade union must wait six months after the cause of cancellation has been remedied before reapplying for registration (Regulation 24) has been modified and now, where a trade union no longer fulfils the requirements, its dissolution has to be determined by the judicial authorities.

With regard to section 73(b) of the Industrial Relations Act of 1992, as amended by Act No. 27912, which now provides that the decision to call a strike has to be adopted in the form explicitly set out in the statutes which must in any case represent the majority will of the workers concerned, the Committee recalls that in its General Survey on freedom of association and collective bargaining, 1994, paragraph 170, it emphasized that if a member State deems it appropriate to establish in its legislation provisions which require a vote by workers before a strike can be held, it should ensure that account is taken only of the votes cast, and that the required quorum and majority are fixed at a reasonable level. The Committee accordingly requests the Government to take measures to amend section 73(b) so that, to be able to call a strike, the decision only has to be adopted by the majority of those voting.

With regard to the power of the labour administration to determine minimum services, in the event of disagreement, when a strike is declared in essential public services (section 82 of the Industrial Relations Act of 1992), the Committee notes that Act No. 27912 has not amended this provision. In this regard, the Committee hopes that the Government will examine the possibility of adopting measures so that, in the event of failure to agree on the number of workers to make up a minimum service and the occupations in which such a service has to be maintained, the disagreement will be resolved by an independent body and not by the administrative authority. The Committee requests the Government to provide information in its next report on any measure that it intends to take in this respect.

With regard to the prohibition upon federations and confederations of public servants to join organizations which represent other categories of workers (section 19 of Presidential Decree No. 003-82-PCM), the Committee notes the Government’s indication that: (1) the Office of the Legal Adviser of the Ministry of Labour and Employment Promotion indicated in an opinion that the provision to be applied should be the one that errs pro libertatis, or in other words which best guarantees fundamental rights, in this case freedom of association; (2) in the case of trade union organizations whose members include workers in the public and private sectors, the provisions of the labour law covering the private sector should be applied for the purposes of their registration; and (3) the Ministry of Labour and Employment Promotion registers trade union organizations whose members include workers covered by various labour systems. In these conditions, the Committee requests the Government, in accordance with the practice adopted by the administrative authorities, to take measures to amend this provision to bring it into line with the practice that is followed.

In its previous observation, the Committee also requested the Government to place the Union of Workers of Petrotech Peruana S.A. back on the register and not to cancel the registration of the Union of Ticket Sellers and Ushers in Cinematographic Enterprises on the grounds that it only has 57 members instead of the 100 required by the law (the Act in question has now been amended). The Committee notes that the Government has not provided information on this subject. The Committee asks the Government to keep it informed of any developments relating to the registration of the two trade unions referred to above.

With regard to the comments made by the CTP concerning the imposition of administrative standards in the maritime, river and lake transport sector setting out new registration and membership requirements for trade unions in the sector which they cannot fulfil, resulting in the cancellation of 50 branch unions and 35 workers’ organizations, the Committee notes the Government’s indication in its report on Convention No. 98 that the Ministry of Labour and Employment Promotion has registered 22 workers’ organizations in the port sector at the national level and that many of these organizations have been registered in recent years.

Observation (CEACR) - adopted 2002, published 91st ILC session (2003)

The Committee takes note of the Government’s report. The Committee also notes that the Peruvian Workers’ Confederation has sent comments on the application of the Convention and asks the Government to send its observations thereon.

The Committee also notes the conclusions and recommendations of the Committee on Freedom of Association in Case No. 2098 in which the latter draws attention to the high number of workers required by law to establish non-enterprise trade unions and the cancellation, pursuant to that requirement, of the registration of the Union of Ticket Sellers and Ushers in Cinematographic Enterprises (see 325th Report, paragraphs 524 to 546). The Committee endorses the recommendation by the Committee on Freedom of Association concerning the request not to cancel the registration of the abovementioned organization on the grounds that it has only 57 and not the statutory 100 members. The Committee asks the Government to keep it informed of any developments in this respect.

The Committee recalls that, for a number of years, it has referred in its comments to the following provisions of the Industrial Relations Act and its regulations and to Presidential Decree No. 003-82-PCM, pointing out that they are inconsistent with the provisions of the Convention:

(1)  the denial of trade union membership during the probation period (section 12(c) of the Act);

(2)  the requirement of a high level of membership (100) in order to form trade unions by branch of activity or occupation and in a number of professions (section 14);

(3)  the requirement that workers must be active members of the trade union (section 24(b)) and must have been in the service of the enterprise for a minimum of one year (section 24(c)) to become eligible for trade union office (section 24);

(4)  the prohibition of political activities for trade unions (section 11(a));

(5)  the excessive restrictions on the right of workers to call a strike, in particular sections 73(a) and (b), 67 and 83(g) and (j);

(6)  the obligation for trade unions to compile reports which may be requested by the labour authorities (section 10(f));

(7)  the power of the labour authority to cancel the registration of a trade union (section 20 of the Act) and the requirement that the trade union must wait six months after the cause of cancellation has been remedied before reapplying for registration (Regulation 24);

(8)  the prohibition of federations and confederations of the public services from forming part of organizations which represent other categories of workers (section 19 of Presidential Decree No. 003-82-PCM);

(9)  the power of the labour administration in the event of a dispute to establish minimum services when a strike is declared in essential public services (section 83 of the Act).

The Committee recalls that in its previous observation it noted the existence of a Bill (No. 0096 of 31 July 2000) on industrial relations which took account of many of the Committee’s comments. The Committee notes in this connection the Government’s statement that the Bill was shelved by the Congress Committee on Labour and Social Security on 7 June 2001. The Committee nonetheless notes that, according to the Government, the Ministry of Labour drafted a new Bill (No. 2281) which was submitted to the Congress of the Republic on 19 March 2002 and includes several of the amendments requested by the Committee. The Committee observes that the Bill is on the whole in line with its comments, but some of its provisions are not in conformity with the Convention (particularly as regards allowing federations and confederations to call strikes and strikes being declared illegal by the administrative authority).

The Committee hopes that a bill that takes account of all its comments will finally be adopted. It reminds the Government that it may seek technical assistance from the Office in this matter and requests it to provide information in its next report on any developments in the legislation.

The Committee further notes that the Federation of Petroleum, Energy and Allied Workers of the Grau Region has sent comments on the application of the Convention which concern the removal from the trade union register of the Union of Workers of Petrotech Peruana S.A. The Committee notes that, according to the Government, the membership of this union dropped below the number required to form a trade union organization and that, as a consequence, the administrative authority, in strict pursuance of the labour law, ordered its removal from the trade union register in accordance with section 43 of Presidential Decree No. 007-2000-TR. The Committee refers in this connection to its critical comments on the legislative provisions concerning the high level of membership necessary for trade union registration. The Committee accordingly asks the Government to place the trade union in question back on the register.

Direct Request (CEACR) - adopted 2000, published 89th ILC session (2001)

The Committee recalls that its previous comments referred to the following question:

The denial of the right to organize of jurisdictional auxiliaries to the judiciary (Legislative Decree No. 768, 11th part).

The Committee notes with interest in this connection that according to the Government, Act No. 26586, currently in force, provides no legal obstacle to the exercise by workers within the judiciary of their trade union rights and the right to strike. The Committee notes that since these jurisdictional auxiliaries to the judiciary are governed by private sector labour law, the Industrial Relations Act, which covers these rights, is applicable to them, and they therefore enjoy the same rights as workers subject to public sector labour law.

The Committee requests the Government to provide a copy of Act No. 26586, which came into effect in 1996.

Observation (CEACR) - adopted 2000, published 89th ILC session (2001)

The Committee recalls that its previous comments referred to various provisions of the Industrial Relations Act of 1992 and its Regulations, which are in breach of the guarantees provided under the Convention, namely:

(1)  the denial of trade union membership during the probation period (section 12(c) of the Act);

(2)  the requirement of a high number of workers (100) to form trade unions by branch of activity, occupation and for various occupations (section 14);

(3)  the requirement that workers must be active members of the trade union (section 24(b)) and must have been in the service of the enterprise for a minimum of one year (section 24(c)) to become eligible for trade union office (section 24);

(4)  the prohibition of political activities for trade unions (section 11(a));

(5)  the excessive restrictions on the right of workers to call a strike, in particular sections 73(a) and (b), 67 and 83(g) and (j);

(6)  the obligation of trade unions to compile reports which may be requested by the labour authorities (section 10(f));

(7)  the power of the labour authority to cancel the registration of a trade union (section 20 of the Act) and the requirement that the trade union must wait six months after the cause of cancellation has been remedied before reapplying for registration (section 24 of the Regulation);

(8)  the prohibition of federations and confederations of the public services to form part of organizations which represent other categories of workers (section 19 of the Presidential Decree No. 003-82-PCM);

(9)  the power of the labour administration to establish minimum services in cases of disputes, when a strike is declared in essential public services (section 83 of the Act in force).

The Committee notes the information supplied by the Government in its last report, that a draft Act No. 0096 on Industrial Relations of 31 July 2000, had been presented. According to the Government, this draft includes the main observations made by the ILO concerning previous drafts, and covers most of the aspects indicated above, as follows:

(1)  suppression of the requirement to complete a probation period in order to become a member of a trade union organization (section 8);

(2)  reduction of the number of workers from 100 to 50 to form trade unions by branch of activity, occupation and for various occupations (section 7);

(3)  remove the requirements for eligibility for trade union office, indicated in section 24 of the Act in force, thus allowing the statute to determine the form, management and mandate of such office (section 19);

(4)  guarantee the exercise of the freedoms recognized by the Constitution in this connection, namely exercise of political activities (section 12(a));

(5)  remove the obligation of trade unions to compile reports which may be requested by the labour authorities and other governmental authorities (section 13);

(6)  provide that cancellation of the registration of a trade union shall only be possible by legal action (section 27(e)); and

(7)  allow workers the opportunity of recourse to the labour judge (section 78(3)) in cases of disagreement with the employers regarding the number and occupation of workers required to maintain minimum services.

The Committee hopes that this draft will be approved in the near future and requests the Government to indicate in its next report all progress made in this connection.

However, the Committee observes that the new draft does not take into account certain of its previous comments and that it contains provisions which could cause problems regarding the implementation of the Convention, as follows:

-  restrictions to the exercise of the right to strike requiring that the decision be adopted by an absolute majority of the workers (section 73(b)(i)), in particular the obligation that the announcement of a strike shall be communicated to the employer and to the Labour Administration accompanied by a copy of the voting rule with the names and signatures of participating workers (section 73(c)). Nor is the right of workers not to strike covered, since the decision adopted by vote … when all workers are called, whether trade union members or not, and included in the range of the conflict, the decision adopted by absolute majority shall be binding to all (section 73(b)(i)); and

-  the prohibition of federations or confederations of public servants to become members of confederations which also include private sector organizations (see paragraph 193 of the General Survey on freedom of association and collective bargaining, 1994).

The Committee further notes that in order to establish federations and confederations the draft requires an excessively high number of unions (a minimum of five unions from the same branch of economic activity) and of federations (a minimum of ten), respectively (section 10).

The Committee also understands that the draft does not expressly recognize the right to strike of trade union federations and confederations (see General Survey, op. cit., 1994, paragraph 69). It therefore proposes that care should be taken accordingly in this section.

The Committee firmly hopes that draft Act No. 0096 will be adopted as soon as possible, taking account of all the comments it has so far expressed in this connection. It requests the Government to indicate in its next report all progress made in this regard and to supply a copy of the new version of the Act.

Moreover, the Committee is addressing a request directly to the Government.

Direct Request (CEACR) - adopted 1998, published 87th ILC session (1999)

The Committee notes the Government's report and the comments of the Unitary Union of Technical and Auxiliary Specialists of the Institute of Social Security of Peru (SUTAEIPSS) and recalls its previous comments which referred to the following:

-- the denial of the right to organize by jurisdictional auxiliaries of the Judiciary (Legislative Decree No. 768, 11th part);

-- the power of the labour authority, in the event of a strike in essential services, to determine minimum service in the event of disagreement (section 82 of the Act in force).

With regard to the denial of the right to organize, the Committee notes the Government's statement and wishes to emphasize that, although this category of workers is considered as holding positions of trust by the legislation, jurisdictional auxiliaries should have the right to establish their own organizations to defend their interests and again requests the Government to adopt the necessary measures to ensure that the legislation recognizes this right for jurisdictional auxiliaries.

In respect of the second point, the Committee notes with interest that the final paragraph of section 78 of the new draft text entitled the "Amended Text of the Industrial Relations Act" (drafted by the Chairman of the Labour and Social Security Committee of the National Congress) establishes, similarly to the previous Bill, that where there is disagreement in respect of the number and occupation of workers to provide a minimum service, the trade union organization may refer the matter to an industrial tribunal to resolve the disagreement.

Nevertheless, the Committee notes that the Amended Text envisages various provisions which might give rise to difficulties in complying with the Convention, namely:

-- the requirement to include not less than five trade unions registered in the same branch of activity in order to establish a federation, and not less than ten registered federations to establish a confederation (section 10). This requirement is excessive and could, in practice, restrict the right of trade unions to establish higher-level organizations;

-- the restriction on trade union organizations to carry out or encourage activities which are contrary to "... the established order or good customs" (section 12(d)), such expressions may be susceptible to a wider interpretation than is intended and should therefore be repealed;

-- the dissolution of a trade union (section 27), in the case of the merger of an enterprise (section 27(b)) or the carrying out of activities which are contrary to the "... the public order or good customs" (section 27(e)); with regard to the first provision, the right to defend the trade union concerned before the courts should be guaranteed, whereas it is suggested that the second provision is repealed for the reasons mentioned above;

-- with regard to the intervention of the Executive Power where a collective dispute exceeds a certain duration, seriously disrupting an enterprise or production centre, degenerates into acts of violence or, assumes serious characteristics by the magnitude and consequence of the collective dispute (section 68), it is suggested that this provision is amended to provide for the intervention of the authorities to order the return to work and to impose compulsory arbitration, only in cases of acute national crises or when the life, personal safety or health of the population are endangered;

-- with regard to the requirement that a strike may only be called when its objective is to defend workers' rights and occupational interests (section 73(a)), it is suggested that the term "economic and social" replace "occupational" to bring it into conformity with the comment made in respect of section 11(a) of the act in force;

-- with regard to the requirement for a ballot to agree the basis for the calling of a strike by the trade union organization or association, which must be adopted by an absolute majority of workers (section 74), such a requirement may restrict this right in practice and should therefore be abolished;

-- with regard to the illegality of strikes which entail violence to goods or persons (section 80(a)), it is suggested that the adjective "serious and general" should be added before "violence";

-- with regard to the administrative authority to declare a strike in the public service illegal (section 81), it would be desirable for the authority to be the judicial authority;

-- finally, it would be desirable that the law provides explicitly for the right of federations and confederations to call a strike.

In respect of the comments of SUTAEIPSS, concerning the obligation of public servants to request in writing the deduction of trade union dues and to renew the request annually to enable the employer to make deductions (section 1 of Presidential Decree No. 044-97-PCM), the Committee hopes to receive the Government's comments in this regard.

The Committee trusts that the Amended Text of the Industrial Relations Bill will take into account the above comments and will be adopted in the near future. The Committee requests the Government to inform it in its next report on any progress achieved in this respect.

Observation (CEACR) - adopted 1998, published 87th ILC session (1999)

The Committee notes the Government's report and recalls its previous comments which refer to the various provisions of the Industrial Relations Act of 1992 and its Regulations, namely:

-- the denial of trade union membership during the probation period (section 12(c) of the Act);

-- the requirement of a high number of workers (100) to form trade unions by branch of activity, occupation and for various occupations (section 14);

-- the requirement that workers must be active members of the trade union (section 24(b)) and must have been in the service of the enterprise for a minimum of one year (section 24(c)) to become eligible for trade union office (section 24);

-- the prohibition of political activities for trade unions (section 11(a));

-- the excessive restrictions on the right of workers to call a strike, in particular sections 73(a) and (b), 67 and 83(g) and (j);

-- the obligation of trade unions to compile reports which may be requested by the labour authorities (section 10(f));

-- the power of the labour authority to cancel the registration of a trade union (section 20 of the Act) and the requirement that the trade union must wait six months after the cause of cancellation has been remedied before reapplying for registration (section 24 of the Regulation);

-- the prohibition of federations and confederations of the public services to form part of organizations which represent other categories of workers (section 19 of the Presidential Decree No. 003-82-PCM).

The Committee notes that a new text has been drafted by the Committee on Labour and Social Security of the National Congress to amend the Industrial Relations Act entitled the "Amended Text of the Industrial Relations Act", a copy of which was transmitted to the ILO for comment.

In this respect, the Committee notes with interest that the Amended Text in question retains almost all of the positive amendments contained in the previous Bill which referred to the following provisions:

-- section 12(c) of the Act, denying trade union membership during the probation period is repealed;

-- section 7 of the Bill reducing the number of workers required to form trade unions by branch of activity, occupation or for various occupations from 100 to 50 (section 14 of the Act in force);

-- the requirement that workers must be active members of the trade union (section 24(b)) and must have been in the service of the enterprise for a minimum of one year (section 24(c)) to become eligible for trade union office (section 24) is deleted;

-- the requirement for an absolute majority to call a strike (section 73(b)) is deleted;

-- section 67 of the Act respecting compulsory arbitration in the public services is repealed; section 83(g) of the same Act which lays down that essential services include the transport services, section 80(g) of the draft text limits the application of the law to the simple requirement of finishing the journey begun; section 83(j) of the same Act laying down essential services as those whose interruption creates a serious or imminent risk to persons or goods is repealed;

-- the labour authority's supervision of trade union activities (section 10(f) of the Act in force) is deleted;

-- the power of the labour authority to cancel the registration of a trade union (section 20 of the Act in force) is deleted.

Nevertheless, the Committee notes that the Amended Text does not take into consideration the following provisions, which were the subject of the Committee of Experts' comments:

-- the prohibition of political activities (section 11(a) of the Act in force) for trade unions. In this respect, the previous Bill improved the text by adding "without impairment of freedom of opinion as to the social and economic policy of the Government", thereby removing the restriction on the right to strike laid down in section 73(a) of the Act in force;

-- the draft text does not envisage the possibility of federations and confederation of public servants to join confederations which also group together organizations from the private sector (see General Survey on freedom of association and collective bargaining, 1994, paragraph 193).

The Committee expresses the firm hope that the Amended Text of the Industrial Relations Act will take into consideration all the comments made by the Committee and that these will be adopted shortly. The Committee requests the Government to inform it in its next report of any progress achieved in this respect and to provide a copy of the text when it has been adopted.

Moreover, the Committee is addressing a direct request on the various provisions of the Amended Text of the Industrial Relations Act which may raise difficulties in complying with the Convention, namely the provisions in respect of trade union activities, the establishment and activities of federations and confederations and the restrictions on the calling of a strike.

Direct Request (CEACR) - adopted 1997, published 86th ILC session (1998)

The Committee recalls that its previous comments referred to:

-- the power of the labour authority, in the event of a strike in essential public services, to determine minimum services in the event of disagreement (section 82 of the Industrial Relations Act); and

-- the denial of trade union rights placed upon jurisdictional auxiliaries of the Judiciary from forming trade unions (Legislative Decree No. 768, 11th part).

With regard to the first point, the Committee notes with interest that section 79, last paragraph, of the Labour Relations Bill (drawn up by the Chairman of the Labour and Social Security Committee of the National Congress) establishes that in the event of disagreement as to the number and occupation of the workers needed to maintain these services, the trade union organization may refer the matter to the labour tribunal for a decision.

The Committee hopes that this provision of the Labour Relations Bill will be adopted in the near future and asks the Government to provide information in its next report on any progress made in this respect.

With regard to the denial of the right to organize of jurisdictional auxiliaries, the Committee emphasizes that this category of workers should have the right to form their own organizations to defend their interests. It therefore once again asks the Government to take appropriate measures to ensure that the legislation establishes this right for jurisdictional auxiliaries.

The Committee expresses the firm hope that in its next report the Government will provide information on any measures taken to bring the legislation into full conformity with the Convention.

Observation (CEACR) - adopted 1997, published 86th ILC session (1998)

The Committee notes the information supplied by the Government to the Committee on Freedom of Association relating to Case No. 1796 (306th report, paragraph 503, approved by the Governing Body at its 268th Session, March 1997), and recalls that its previous comments referred to several provisions of the Industrial Relations Act of 1992 and its Regulations, namely:

-- denial of trade union membership during the work probation period (section 12(c) of the Act);

-- the requirement of a high number of workers (100) to form trade unions by branch of activity, occupation, or for various occupations (section 14);

-- the requirement that, in order to be eligible for trade union office (section 24), workers must be active members of the union (section 24(b)), and must have been in the service of the enterprise for at least one year (section 24(c));

-- the ban placed on trade unions from engaging in political activities (section 11(a));

-- the excessive restrictions on the right to strike, in particular sections 73(a) and (b), 67 and 83(g) and (j);

-- the obligation placed on trade unions to compile the reports which may be requested from them by the labour authorities (section 10(f));

-- the power of the labour authority to cancel the registration of a union (section 20 of the Act), and the requirement that the union must wait six months after the cause of the cancellation has been remedied before reapplying for registration (section 24 of the Regulations);

-- the prohibition placed on public servants' federations and confederations from affiliating with organizations that represent other categories of workers (section 19 of Presidential Decree No. 003-82-PCM).

The Committee notes that the Chairman of the Labour and Social Security Committee of the National Congress has drafted an Industrial Relations Bill. The Committee notes with interest that the Bill amends most of the above provisions to take account of the Committee's comments:

-- section 12(c) of the Act, denying trade union membership during the work probation period is deleted;

-- under section 7 of the Bill, the number of workers required to form trade unions by branch of activity, occupation, or for various occupations (section 14 of the Act) is reduced from 100 to 50;

-- the requirements that, to be eligible for trade union office (section 24 of the Act), workers must be active members of the union (section 24(b)) and must have been in the service of the enterprise for at least one year (section 24(c)) are abolished;

-- as for the ban placed on trade unions from engaging in political activities (section 11(b) of the Act), section 12(a) of the Bill improves the text by adding "without impairment of freedom of opinion as to the social and economic policy of the Government" thus removing the restriction of the right to strike established in section 73(a) of the Act;

-- section 67 of the Act, concerning compulsory arbitration in public services, is deleted; as for section 83(g) of the Act, regarding the treatment of transport as an essential public service, section 80(g) of the Bill limits the application of the law to the simple requirement of finishing the journey begun; section 83(j) of the Act concerning the treatment as essential public services those services whose interruption creates a serious or imminent risk for persons or goods, is deleted;

-- the labour authority's supervision of trade union activities (section 10(f) of the Act) is abolished; and

-- the power of the labour authority to cancel the registration of a union (section 20 of the Act) is abolished.

However, the Bill has not taken account of some of the Committee's comments and contains provisions which might give rise to difficulties in complying with the Convention, namely:

-- the restrictions on the right to strike constituted by the requirement that the decision must be adopted by an absolute majority of the workers (sections 74(b)(i) and 75 of the Bill); and in particular the requirement that the strike declaration be communicated to the employer and the labour authority together with the record of the vote with the names and signatures of the workers attending (74(c)(i));

-- the Bill does not envisage the possibility of federations and confederations of public servants becoming affiliated to confederations which also include private sector organizations (see 1994 General Survey on freedom of association and collective bargaining, paragraph 193).

The Committee expresses the firm hope that the Industrial Relations Bill will take account of all the Committee's comments and that it will be adopted in the very near future. The Committee asks the Government to provide information in its next report on progress made in this respect and to send a copy of the text once it has been adopted.

The Committee is also addressing a direct request to the Government.

Direct Request (CEACR) - adopted 1996, published 85th ILC session (1997)

The Committee notes the information supplied by the Government in its report and recalls that its previous comments referred to:

- the requirement to provide a minimum service in the case of strikes in essential public services, on the subject of which any disagreement as to the number of staff and their occupation is settled by the labour authority (section 82 of the Industrial Relations Act); and

- the prohibition placed upon jurisdictional auxiliaries of the Judiciary from forming trade unions (Legislative Decree No. 768, 11th part).

With regard to the first point, the Committee notes the Government's indication that there is nothing to prevent employees from participating in defining the minimum service in essential private services, since the law does not grant such a faculty solely to the employer, and that this matter may be the subject of collective bargaining. In this connection, the Committee asks the Government to inform it whether in practice minimum services are determined through collective bargaining by the social partners and whether the same possibility exists for organizations of workers of essential public services.

With regard to the prohibition placed on jurisdictional auxiliaries from forming organizations, the Committee notes the information supplied by the Government to the effect that the prohibition is based on the fact that the offices of such public servants involve confidentiality and a high degree of responsibility and are therefore classified as positions of trust.

In this connection, the Committee stresses that this category of workers should have the right to form their own organizations in order to defend their interests, and therefore once again asks the Government to take appropriate steps to ensure that jurisdictional auxiliaries are granted this right by law.

The Committee again asks the Government to inform it in its next report of the measures adopted to this end.

Observation (CEACR) - adopted 1996, published 85th ILC session (1997)

The Committee notes the Government's report and the comments made by the Federation of Workers of "Luz y Fuerta" on the application of the Convention, and recalls that its previous comments referred to the following:

- denial of trade union membership during the work probation period (section 12(c));

- the requirement of a high number of workers (100) to form trade unions by branch of activity, occupation, or for various occupations (section 14);

- the requirement that, in order to be eligible for trade union office (section 24), workers must be active members of the union (section 24(b)) and must have been in the service of the enterprise for at least one year (section 24(c));

- the ban placed on trade unions from engaging in political activities (section 11(a));

- the excessive restrictions on the right to strike, in particular sections 73(a) and (b), 67 and 83(g) and (j);

- the obligation placed upon trade unions to compile the reports which may be requested from them by the labour authorities (section 10(f));

- the power of the labour authority to cancel the registration of a union (section 20 of the Act), and the requirement that the union must wait six months after the cause of the cancellation has been remedied before re-applying for registration (section 24 of the Regulations); and

- the prohibition placed on public servants' federations and confederations from affiliating with organizations that represent other categories of workers (section 19 of Presidential Decree No. 003-82-PCM).

The Committee observes that the Government refers to the information in its previous report and provides no new information on the matters raised. It must therefore repeat its previous comments.

The Committee took note of the Government's comments concerning the ban on trade unions from engaging in issues of party politics (section 11(a)) to the effect that trade unions are under no prohibition from expressing their points of view as regards the social and economic policy of the Government and that, with respect to section 20, the definitive cancellation of the registration of a trade union is only possible by a decision of the judicial authority. The Committee requests once again the Government to supply information on the manner in which these provisions are applied in practice.

The Committee expresses the firm hope that the Government will shortly adopt the necessary measures to ensure that the legislation: enables workers to join organizations of their choosing during the probationary period; reduces the minimum number of workers required to form trade unions by branch of activity, occupation or for various occupations; enables workers to elect their leaders in full freedom; abolishes the obligation placed upon trade unions to compile the reports which may be requested from them by the labour authorities; abolishes restrictions on the exercise of the right to strike (particularly with regard to compulsory arbitration in the transport sector); lifts the prohibition placed on first-level federations of public servants from affiliating with confederations of their own choosing.

The Committee again requests the Government to supply information on the measures adopted in this respect in its next report.

Furthermore, the Committee is addressing a request directly to the Government.

Direct Request (CEACR) - adopted 1995, published 82nd ILC session (1995)

The Committee notes the information supplied by the Government in its report and recalls that its previous comments referred to:

- the requirement to provide a minimum service in the case of strikes in essential public services, on the subject of which any disagreement as to the number of staff and their occupation is settled by the labour authority (section 82 of the Industrial Relations Act); and

- the prohibition placed upon jurisdictional auxiliaries of the Judiciary from forming trade unions (Legislative Decree No. 768, 11th part).

With regard to the first point, the Committee takes due note of the information supplied by the Government that up to the time of the preparation of the report no case had occurred in which the labour authority had intervened in the definition of the minimum service in accordance with section 82 of the Act.

Nevertheless, considering that the establishment of these types of services restricts one of the essential means of pressure available to workers to defend their economic and social interests, the Committee has considered that workers' organizations should be able, if they so wish, to participate in defining such a service, along with employers and the public authorities (see 1994 General Survey on Freedom of Association and Collective Bargaining, paragraph 161).

With regard to the prohibition placed upon jurisdictional auxiliaries from forming organizations, the Committee notes the Government's information that this category of public employees plays a determining role in the procedural aspects and settlement of judicial disputes and that their functions are of the greatest importance in the judicial process, and that they are therefore considered to be equivalent to high-level public servants.

In this respect, "the Committee is of the opinion that to bar these public servants from the right to join trade unions which represent other workers is not necessarily incompatible with freedom of association, but on two conditions, namely that they should be entitled to established their own organizations, and that the legislation should limit this category to persons exercising senior managerial or policy-making responsibilities" (see 1994 General Survey, op. cit. paragraph 57). The Committee requests the Government to inform it whether jurisdictional auxiliaries enjoy the right to organize for the defence of their occupational interests and if it is not the case to modify the legislation consequently.

The Committee once again requests the Government to provide information in its next report on the measures that have been adopted in view of these comments.

Observation (CEACR) - adopted 1995, published 82nd ILC session (1995)

The Committee notes the Government's report and the information noted by the Committee on Freedom of Association in Cases Nos. 1648, 1650 and 1731 (294th Report, paragraphs 22 and 27, approved by the Governing Body at its 260th Session, June 1994).

The Committee recalls that its previous comments referred to various provisions of the Industrial Relations Act of 1992 and its Regulations, namely:

-- denial of trade union membership during the work probation period (section 12(c));

-- the requirement of a high number of workers (100) to form trade unions by branch of activity, occupation or for various occupations (section 14);

-- the requirement that, in order to be eligible for trade union office (section 24), workers must be active members of the union (section 24(b)) and must have been in the service of the enterprise for at least one year (section 24(c));

-- the ban placed on trade unions from engaging in political activities (section 11(a));

-- the excessive restrictions on the right to strike, in particular sections 73(a) and (b), 67 and 83(g) and (j);

-- the obligation placed upon trade unions to compile the reports which may be requested from them by the labour authorities (section 10(f));

-- the power of the labour authority to cancel the registration of a union (section 20 of the Act), and the requirement that the union must wait six months after the cause of the cancellation has been remedied before re-applying for registration (section 24 of the Regulations); and

-- the prohibition placed on public servants' federations and confederations from affiliating with organizations that represent other categories of workers (section 19 of Presidential Decree No. 003-82-PCM).

The Committee notes with interest, as does the Committee on Freedom of Association, that the Government intends to submit to the Commission responsible for formulating the preliminary draft text of the General Labour Act, amendments to sections 14 and 10 to reduce by 50 per cent the minimum number of 100 workers required to establish trade unions other than at the enterprise level and to eliminate the obligation for trade unions to compile any reports which might be requested by the labour authority. It also notes with interest that the requirements set out in section 24 respecting the need to be an active member of the trade union (section 24(b)) and to have been in the service of the enterprise for more than one year (section 24(c)) in order to hold trade union office would no longer remain in force.

The Committee takes due note of the Government's comments concerning the ban on trade unions from engaging in issues of party politics (section 11(a)) to the effect that trade unions are under no prohibition from expressing their points of view as regards the social and economic policy of the Government and that, with respect to section 20, the definitive cancellation of the registration of a trade union is only possible by a decision of the judicial authority. The Committee requests the Government to supply information on the manner in which these provisions are applied in practice.

With regard to the denial of the right to trade union membership for workers during their probation period (section 12(c)), the Committee notes the Government's comments that the above section is designed to establish a degree of permanency in trade union organizations and to avoid disputes concerning the protection against anti-union discrimination (fuero sindical). In this regard, the Committee once again reminds the Government that a limitation of this nature is contrary to Article 2 of the Convention, since it prevents this category of workers from joining trade union organizations of their own choosing.

With regard to the restrictions on the right to strike (section 73), under which a strike has to be in defence of occupational rights and interests (section 73(a)) and the requirement that the decision to call a strike has to be taken by more than half of all the workers concerned (section 73(b)), the Committee notes the Government's comments to the effect that, on the one hand, permitting strikes to resolve economic and social policy issues would imply a distortion of the fundamental purpose of the right to strike and, on the other hand, the above section contains the substantive and formal requirements needed to guarantee that the right to strike is exercised respecting the wishes of the majority of the workers.

The Committee recalls as regards section 73(a) that although strikes that are purely political in character do not fall within the scope of the Convention, nevertheless "organizations responsible for defending workers' socio-economic and occupational interests should, in principle, be able to use strike action to support their position in the search for solutions to problems posed by major social and economic policy trends which have a direct impact on their members and on workers in general, in particular as regards employment, social protection and the standard of living" (see 1994 General Survey on Freedom of Association and Collective Bargaining, paragraph 165). With regard to section 73(b), the Committee considers the requirement could render it difficult to call a strike, particularly in large enterprises. In the Committee's opinion, the legislation should ensure that account is taken only of the votes cast, and that the required quorum and majority for calling a strike are fixed at a reasonable level (see 1994 General Survey on Freedom of Association and Collective Bargaining, paragraph 170).

With regard to the imposition of compulsory arbitration in essential public services (sections 67 and 83(g) and (j)), the Committee recalls its opinion that such arbitration should only be imposed in essential services in the strict sense of the term, namely those services the interruption of which would endanger the life, personal safety or health of the whole or part of the population (see 1994 General Survey on Freedom of Association and Collective Bargaining, paragraph 159).

With regard to the prohibition placed upon public servants' federations and confederations from affiliating with organizations that represent other categories of workers, the Committee notes the Government's comments to the effect that there are specific mechanisms for the resolution of labour disputes in the public sector. Nevertheless, the Committee once again points out that, although first-level organizations of public servants and employees may be restricted to this category of workers, such organizations should, however, be free to join federations and confederations of their choosing, including those which also group together organizations from the private sector (see General Survey, op. cit., paragraph 193).

Although the Committee notes with interest that, in accordance with the Government's statement and taking into account the recommendations of the Committee on Freedom of Association, the Government will submit to the Commission responsible for formulating the preliminary draft text of the General Labour Act various amendments designed to improve the provisions respecting freedom of association, it requests the Government when submitting these amendments to take into account all the comments of the Committee with a view to: permitting workers undergoing a period of probation to join organizations of their own choosing; reducing the minimum number of workers required in order to form trade unions by branch of activity, occupation or for various occupations; enabling workers to elect their leaders in full freedom; reducing the excessive restrictions on the exercise of the right to strike; and lifting the prohibition placed on first-level federations of public servants from affiliating with confederations of their own choosing.

The Committee requests the Government to supply information on the measures adopted in this respect in its next report.

Furthermore, the Committee is addressing a request directly to the Government.

Direct Request (CEACR) - adopted 1994, published 81st ILC session (1994)

The Committee notes the provisions of the new Industrial Regulations (Freedom of Association) Act of 26 June 1992 and its Regulations, and of the provisional conclusions of the Committee on Freedom of Association concerning Cases Nos. 1648 and 1650, and 1706 (291st Report, paragraphs 435-474 and 475-488 respectively, approved by the Governing Body at its 258th Session, November 1993).

1. With regard to the requirement that trade unions must issue any reports that may be requested by the labour authority (section 10(f) of the 1992 Act), the Committee considers that this requirement should be restricted to reports on members accused of the breaking the law or internal rules. (See 1994 General Survey on Freedom of Association and Collective Bargaining, paragraphs 125, 126 and 135.)

2. With regard to section 82 under which, in the event of a strike in essential public services, the employer shall decide on the minimum service to be maintained, and any disagreement as to the composition of essential staff shall be resolved by the labour authority, the Committee is of the opinion that it would be preferable that the legislation provides, in the event of disagreement between the parties, for an independent body to determine the minimum services to be maintained in public services which are not considered to be essential in the "strict sense" of the term.

3. With regard to Legislative Decree No. 768, Eleventh Part, which prohibits "jurisdictional auxiliaries" of the Judiciary from forming organizations, the Committee wishes to remind the Government that, under Article 2 of the Convention, all public employees (with the possible exception of members of the armed forces and the police, Article 9 of the Convention), and workers in the private sector should be able to form organizations of their own choosing.

The Committee asks the Government to take measures to ensure that such employees may join organizations so as to defend their occupational interests.

Observation (CEACR) - adopted 1994, published 81st ILC session (1994)

The Committee takes note of the Government's report, the provisions of the new Constitution of 1993, the provisions of the new Industrial Relations (Freedom of Association) Act of 26 June 1992 and its Regulations, and the provisional conclusions of the Committee on Freedom of Association concerning Cases Nos. 1648 and 1650 (291st Report, paras. 435 to 474, approved by the Governing Body at its 258th Session, November 1993).

The Committee recalls that its previous comments referred to:

- the prohibition placed on public servants' federations and confederations from affiliating with organizations that represent other categories of workers (section 19 of Presidential Decree No. 003-82/PCM);

- the requirement that workers must belong to the enterprise to be eligible for trade union office (Presidential Decree No. 001 of 15 January 1963), and the ban placed on trade unions from engaging in political activities (section 6 of Presidential Decree No. 009 of 3 May 1961).

With regard to the prohibition placed on public servants' federations and confederations from affiliating with organizations representing other categories of workers, in its report the Government states that industrial relations differ greatly as between the public and private sectors, since they are governed by different laws. It adds that the Industrial Relations Act applies to workers coming under the private sector industrial relations system and to workers in state establishments and enterprises of the state commercial sector. Public servants are thus excluded from the private sector system and are subject to the prohibition in section 19 of Presidential Decree No. 003-82/PCM, the public sector having its own dispute settlement machinery.

In this connection, the Committee wishes to recall that such a restriction may be applied to base-level unions and federations of public employees provided that such unions and federations may affiliate freely with confederations.

With regard to the requirement that workers must belong to the enterprise to be eligible for trade union office, the Government states that Presidential Decree No. 001 of 15 January 1963 was repealed by the Fifth Transitional and Final Provision of the Industrial Relations Act.

In this connection, the Committee notes that although the above Presidential Decree was repealed by the new Act, section 24(c) of the Act requires workers to have been in the service of the enterprise for at least one year in order to be eligible for trade union office. The Committee recalls that workers should be able to elect their representatives in full freedom, in accordance with Article 3 of the Convention.

With regard to trade unions being prohibited from engaging in political activities, the Government states that this prohibition is maintained in section 11(a) of the Act of 1992, since unions are concerned only with labour matters and are therefore not competent to represent workers politically. However, according to the Government, the Act does not prohibit unions from expressing publicly their opinions on issues concerning state policy.

The Committee points out, as does the Committee on Freedom of Association, that the prohibition should be clearly limited to purely political matters and that unions should nonetheless be able to express publicly their opinion regarding the Government's economic and social policy.

While noting that some amendments to the Industrial Relations Act of 26 June 1992 and its Regulations should enable the Convention to be better applied, the Committee points out that the following provisions may still give rise to difficulties in applying the Convention:

- denial of trade union membership during the work probation period (section 12(c));

- the requirement of a minimum of 100 workers to form trade unions by branch of activity, occupation, or for various occupations (section 14);

- the requirement that, in order to be eligible for trade union office, workers must be active members of the union (section 24(b));

- excessive restrictions on the right to strike (in particular, sections 73(a) and (b), 67 and 83(g) and (j));

- the power of the labour authority to cancel the registration of a union (section 20 of the Act), and the requirement that the union must wait six months after the cause of the cancellation has been remedied before re-applying for registration (section 24 of the Regulations).

The Committee asks the Government to take initiatives in consultation with the social partners to amend the legislation so as to permit workers undergoing a period of probation, should they so wish, to join organizations of their own choosing; to reduce the number of workers required in order to form trade unions by branch of activity, occupation or for various occupations; to limit the prohibition of unions from involving themselves in matters concerning party politics to purely political matters; to enable workers to elect their leaders in full freedom; to allow workers to resort to strikes as a means of seeking solutions to political, economic and social issues and reduce the restrictions on calling strikes; to enable base-level public service unions to affiliate freely with confederations and ensure that cancellation of a trade union's registration is possible only through judicial channels.

The Committee asks the Government in its next report to inform it of the measures that have been adopted to bring the whole of its legislation into conformity with the requirements of the Convention.

The Committee is also addressing a direct request to the Government in which it asks for clarification of the obligation of trade unions to issue any reports which might be requested by the labour authority; the labour authority's determination of what constitutes minimum service in the essential services in the event of conflicting opinions; and the calling of unlawful strikes.

Direct Request (CEACR) - adopted 1992, published 79th ILC session (1992)

The Committee notes that, once again, the Government has not submitted any observations on the comments addressed to it which referred to the right to strike, and the need to change the requirement of over 50 per cent of workers for the creation of a union, either of manual or of non-manual workers or a mixed union of manual and non-manual workers (section 11 of Presidential Decree No. 003 of 3 May 1961 as amended by Presidential Decree No. 0021 of 21 December 1962). In view of the great importance of the questions raised and of the fact that the Committee has been drawing attention to them for many years, the Committee repeats its previous direct request which read as follows:

The right to strike

1. In its previous request, the Committee noted that section 13 of Decree No. 006-71-TR, as amended by Decree No. 009-86-TR, which provides that in the event of the failure of the process of voluntary negotiation (trato directo) or conciliation, the dispute shall be settled by the administrative labour authorities, is equivalent to the unilateral imposition of arbitration to settle a labour dispute.

The Government recalled that the right to strike is enshrined in the Constitution, that it is exercised during the process of collective negotiation and that in the event of the failure of this process, the dispute is referred to the competent authorities, thereby bringing an end to any strike under the principle that strike action may be exercised against employers but not against the State.

The Committee noted this information but emphasised that, within the framework of the negotiating machinery, when one of the parties fails to turn up either at the voluntary negotiations stage (section 18), or during the conciliation process (section 26), the other party is bound to notify the administrative authorities of the failure of the process that is under way. In these circumstances, the application of section 13 has the effect of referring the dispute to the competent authorities and terminating any form of strike action. Furthermore, in the event of the failure of conciliation at the end of the legally established period, only one of the parties may refer the case to the administrative authorities, which also terminates strike action.

In the opinion of the Committee, the procedure, which permits a strike to be ended at the initiative of one of the parties, either following the failure of conciliation after a period of time fixed by law, or in the event of a refusal to negotiate, is such as to restrict the exercise of the right to strike.

The Committee recalls that it has considered that the right to strike is one of the essential means available to workers to defend their economic and social interests and that it can only be prohibited for public servants acting in their capacity as agents of the public authority, in essential services in their strict sense (that is, those whose interruption would endanger the life, personal safety or health of the whole or part of the population) or in the event of an acute national crisis. In the Committee's opinion, compulsory arbitration should only occur at the request of both parties or in the cases and circumstances set out above.

The Committee requests the Government to take the necessary measures to avoid the application of provisions respecting collective bargaining and the settlement of disputes that result in excessive limitations or an indirect prohibition of the right to strike and to supply copies of any amendments to the legislation and regulations that are adopted in this respect in the light of the above principles.

The Committee notes that the question of the classification of collective labour stoppages which have occurred in violation of Presidential Decrees Nos. 003-82-PCM and 026-82-JUS by the heads of public institutions under the section 1 of Presidential Decree No. 0010-83-PCM has been submitted to the National Institute of Public Administration within the context of the examination of legal provisions respecting public servants. The Committee therefore recalls that in the event of a total and prolonged stoppage of work in an important sector of the economy, the maintenance of a minimum service concerning a specified category of workers would seem to be justified in strikes whose scope and duration would cause a situation of acute national crisis. However, for such a measure to be acceptable, the minimum service should be restricted to operations that are strictly necessary and the workers' organisations should, if they wish, be able to participate in defining the service along with the employers and public authorities (see paragraph 215 of the General Survey on Freedom of Association and Collective Bargaining of 1983).

The Committee requests the Government to supply information in its next report on the measures that it has taken in the light of these comments.

The right of workers to establish trade unions of their own choosing

With regard to the requirement that over 50 per cent of workers are needed to establish a trade union of manual workers, non-manual workers or a mixed trade union, the Committee notes that the Government has not replied to its question as to whether the provisions of section 11 of Presidential Decree No. 003 of 1961 and sections 5 and 11(a) of Presidential Decree No. 076-90/TR are mutually complementary or whether, in the event of section 11 of President Decree No. 009 remaining in force, one of these provisions overrides the other.

The Committee expresses the hope that, in its next report, the Government will reply to this question.

Observation (CEACR) - adopted 1992, published 79th ILC session (1992)

With reference to its previous comments, the Committee notes the information supplied in the Government's report and the discussions that took place at the Conference Committee in 1991.

The Committee recalls that its comments have referred for several years to the following points:

- the prohibition of the re-election of the officers of a public servants' union immediately following the end of their term of office (section 16(2) of Presidential Decree No. 003-82/PCM);

- the prohibition of public servants' federations and confederations from forming part of organisations representing other categories of workers (section 19 of Presidential Decree No. 003-82/PCM);

- the need to change the requirement of belonging to the enterprise for election to trade union office (Presidential Decree No. 001 of 15 January 1963); and

- the need to amend section 6 of Presidential Decree No. 009 of 1961 prohibiting trade unions from engaging in political activities as institutions.

Trade union rights of public servants

1. The Committee notes with satisfaction the promulgation of Presidential Decree No. 063-90/PCM of 28 February 1990 (repealing section 6 of Presidential Decree No. 003-82/PCM) which permits, in section 5, the re-election of members of management committees of public servants' trade unions immediately following the end of their term of office.

2. With regard to the prohibition of public servants' federations and confederations from forming part of organisations representing other categories of workers (section 19 of Presidential Decree No. 003-82/PCM), the Government reiterates the statement made in its last report, but indicates that the National Institute of Public Administration has taken action to ensure that the necessary measures are adopted to bring the legislation into conformity with the Convention.

The Committee takes note of the information supplied by the Government and hopes that the necessary measures will be taken to ensure that federations and confederations of public servants can affiliate freely with organisations of their choosing, at least at the higher level (see paragraphs 78 and 126 of the General Survey on Freedom of Association and Collective Bargaining of 1983).

The right of workers to elect their representatives in full freedom

3. With regard to the necessity of belonging to the enterprise to hold trade union office (Presidential Decree No. 001 of 15 January 1963), the Committee notes the Government's indication that this situation will be dealt with in the General Labour Bill.

The Committee again expresses the hope that a new provision will be adopted in the near future to eliminate any obstacle to the right of workers to elect their representatives in full freedom, in conformity with Article 3 of the Convention.

Prohibition on trade unions from engaging in political activities

4. With regard to the prohibition of trade unions from engaging in political activities as institutions, by virtue of Presidential Decree No. 009 of 1961 (section 6), the Committee notes the Government's statement that when the new Labour Law comes into force, it will repeal Presidential Decree No. 009 of 1961.

The Committee expresses the hope that the new General Labour Law will guarantee that trade union organisations are able to express themselves publicly on matters of general interest and, consequently, of a political nature in the broad sense of the term so that, in particular, they can express their views publicly on the Government's economic and social policy, since the fundamental principle of the trade union movement is to ensure the development of the social and economic well-being of all workers.

The Committee again requests the Government to take the necessary measures to bring its law and practice into line with the Convention which it ratified many years ago, and to provide detailed information in its next report on progress made in this respect.

The Committee is also addressing a request directly to the Government.

Direct Request (CEACR) - adopted 1991, published 78th ILC session (1991)

The Committee notes that the Government's report does not contain a reply to all of its comments and hopes that in the next report full particulars will be supplied on the matters raised in its previous direct request, which read as follows:

1. In its previous request, the Committee noted that section 13 of Decree No. 006-71-TR, as amended by Decree No. 009-86-TR, which provides that in the event of the failure of the process of voluntary negotiation (trato directo) or conciliation, the dispute shall be settled by the administrative labour authorities, is equivalent to the unilateral imposition of arbitration to settle a labour dispute.

The Government recalled that the right to strike is enshrined in the Constitution, that it is exercised during the process of collective negotiation and that in the event of the failure of this process, the dispute is referred to the competent authorities, thereby bringing an end to any strike under the principle that strike action may be exercised against employers but not against the State.

The Committee noted this information but emphasised that, within the framework of the negotiating machinery, when one of the parties fails to turn up either at the voluntary negotiations stage (section 18), or during the conciliation process (section 26), the other party is bound to notify the administrative authorities of the failure of the process that is under way. In these circumstances, the application of section 13 has the effect of referring the dispute to the competent authorities and terminating any form of strike action. Furthermore, in the event of the failure of conciliation at the end of the legally established period, one of the parties may refer the case to the administrative authorities, which also terminates strike action.

In the opinion of the Committee, the procedure, which permits a strike to be ended at the initiative of one of the parties, either following the failure of conciliation after a period of time fixed by law, or in the event of a refusal to negotiate, is such as to restrict the exercise of the right to strike.

The Committee recalls that it has considered that the right to strike is one of the essential means available to workers to defend their economic and social interests and that it can only be prohibited for public servants acting in their capacity as agents of the public authority, in essential services in their strict sense (that is, those whose interruption would endanger the life, personal safety or health of the whole or part of the population) or in the event of an acute national crisis. In the Committee's opinion, compulsory arbitration should only occur at the request of both parties or in the cases and circumstances set out above.

The Committee requests the Government to take the necessary measures to avoid the application of provisions respecting collective bargaining and the settlement of disputes that result in excessive limitations or an indirect prohibition of the right to strike and to supply copies of any amendments to the legislation and regulations that are adopted in this respect in the light of the above principles.

The Committee notes that the question of the classification of collective labour stoppages which have occurred in violation of Presidential Decrees Nos. 003-82-PCM and 026-82-JUS by the heads of public institutions under the section 1 of Presidential Decree No. 0010-83-PCM has been submitted to the National Institute of Public Administration within the context of the examination of legal provisions respecting public servants. The Committee therefore recalls that in the event of a total and prolonged stoppage of work in an important sector of the economy, the maintenance of a minimum service concerning a specified category of workers would seem to be justified in strikes whose scope and duration would cause a situation of acute national crisis. However, for such a measure to be acceptable, the minimum service should be restricted to operations that are strictly necessary and the workers' organisations should, if they wish, be able to participate in defining the service along with the employers and public authorities (see paragraph 215 of the General Survey on Freedom of Association and Collective Bargaining).

The Committee requests the Government to supply information in its next report on the measures that it has taken in the light of these comments.

Observation (CEACR) - adopted 1991, published 78th ILC session (1991)

With reference to its previous comments, the Committee notes the information supplied by the Government in its report and the discussions that took place in the Conference Committee in 1990. It also notes with satisfaction the adoption of Presidential Decree No. 076-90-TR of 19 December 1990, which simplifies the registration procedures for trade unions and the conditions for the establishment of federations and confederations, makes trade union pluralism possible and sets out the right to organise of casual self-employed workers.

The Committee nevertheless recalls that its comments have referred for several years to the prohibition of the re-election of the officers of the public servants' union immediately following the end of their term of office (section 16(2) of Presidential Decree No. 003-82-PCM), the prohibition of public servants' federations and confederations from forming part of organisations representing other categories of workers (section 19, Presidential Decree No. 003-82-PCM), the necessity of changing the requirement of over 50 per cent of workers for the creation of a union, either of manual or of non-manual workers or a mixed union of manual and non-manual workers (section 11 of Presidential Decree No. 009 of 3 May 1961, as amended by section 1 of Presidential Decree No. 021 of 21 December 1962), the necessity of changing the requirement of belonging to the enterprise for election to trade union office (Presidential Decree No. 001 of 15 January 1963), and the necessity of amending section 6 of Presidential Decree No. 009 of 1961 prohibiting trade unions from engaging in political activities as institutions.

Trade union rights of public servants

1. With regard to the question of the prohibition of re-electing trade union officers for the trade unions of public servants immediately after the end of their term of office (section 16(2) of Presidential Decree No. 003-82-PCM), the Government indicates that this provision was adopted with the objective of guiding trade union organisations of public servants towards real democratisation, and that they have adopted this system, which has been accepted by their members and is set out in their own statutes. The Government adds that the necessary co-ordination will be ensured so that the required changes can be made at the appropriate time. The Committee notes this information and requests the Government to repeal this prohibition and to leave the power to decide in such cases to the members of the trade unions when they draw up their own statutes.

As regards the prohibition of the affiliation of federations and confederations of public servants to organisations which cover other categories of workers (section 19 of Presidential Decree No. 003-82-PCM), the Government indicates that the validity of this prohibition lies in the fact that the solution of labour disputes in the public sector takes place through its own procedures and that the participation of other trade union organisations, which are not confined to public servants, would not be reasonable since there is a difference in industrial relations between the public and the private sector.

The Committee notes the Government's observations but is bound to recall the recommendations that it made previously in this connection and once again requests the Government to indicate the measures that have been taken so that federations and confederations of public servants can freely join the federations and confederations of their choosing, at least at the level of higher organisations (see paragraphs 78 and 126 of the 1983 General Survey on Freedom of Association and Collective Bargaining).

Right of workers to establish unions of their own choosing

3. With regard to the requirement that over 50 per cent of workers are needed to establish a trade union of manual workers, non-manual workers or a mixed trade union (section 11 of Presidential Decree No. 009 of 1961), the Committee notes with interest that section 5 of Presidential Decree No. 076-90-TR sets a minimum of 20 workers for the establishment of a first-level or basic trade union, and that, in the event of a plurality of first-level or basic trade unions, each trade union shall be the sole representative of its members (section 11(a)).

The Committee requests the Government to inform it whether these provisions (section 11 of Presidential Decree No. 009 of 1961 and sections 5 and 11(a) of Presidential Decree No. 076-90-TR) are mutually complementary or whether, in the event of section 11 of Presidential Decree No. 009 remaining in force, one of these provisions overrides the other.

The right of workers to elect their representatives in full freedom

4. With regard to the necessity of belonging to the enterprise to hold trade union office (Presidential Decree No. 001 of 15 January 1963), the Government indicated that the obligation to belong to the occupation had been eliminated from the General Labour Bill.

The Committee trusts once again that this new provision will be adopted in the near future so as to eliminate any obstacle to the right of workers to elect their representatives in full freedom, in accordance with Article 3 of the Convention.

Prohibition on trade unions from engaging in political activities

5. With regard to the prohibition of trade unions from engaging in political activities as institutions, by virtue of section 6 of Presidential Decree No. 009 of 1961, the Committee noted the Government's statement that this prohibition applied to trade unions and not to their individual members. The Government indicated that by their nature trade union organisations had the objective of defending the rights of the workers strictly within the field of labour and that, as trade union organisations, they did not have the mandate to represent workers at the political level, although that did not mean that they were prohibited from expressing their opinions publicly on questions concerning the policy of the State regarding the interests and rights of their members.

While noting this information, the Committee once again draws the Government's attention to the need to amend the legislation in order to guarantee trade union organisations the possibility of expressing their opinions publicly on questions of general interest, including "political" questions in the broad sense of the word so that, for example, they must be able to express their views publicly on a government's economic and social policy, since the fundamental objective of the trade union movement is to ensure the development of the social and economic well-being of all workers.

The Committee notes on the other hand that the Government has not transmitted its observations in reply to the matters raised by the Committee in its previous direct requests. The Committee must address another direct request to the Government concerning the restrictions on the right to strike still contained in the law.

The Committee trusts that the Government will take the necessary measures to bring the whole of its legislation into full conformity with the Convention as soon as possible.

[The Committee requests the Government to supply full particulars to the Conference at its 78th Session.]

Direct Request (CEACR) - adopted 1990, published 77th ILC session (1990)

The Committee notes the Government's reports and the report of the Committee on Freedom of Association in Cases Nos. 1478 and 1484 (265th Report approved by the Governing Body in May-June 1989).

1. In its previous request, the Committee noted that section 13 of Decree No. 006-71-TR, as amended by Decree No. 009-86-TR, which provides that in the event of the failure of the process of voluntary negotiation (trato directo) or conciliation, the dispute shall be settled by the administrative labour authorities, is equivalent to the unilateral imposition of arbitration to settle a labour dispute.

In its report, the Government recalls that the right to strike is enshrined in the Constitution, that it is exercised during the process of collective negotiation and that in the event of the failure of this process, the dispute is referred to the competent authorities, thereby bringing an end to any strike under the principle that strike action may be exercised against employers but not against the State.

The Committee notes this information but emphasises that, within the framework of the negotiating machinery, when one of the parties fails to turn up either at the voluntary negotiations stage (section 18), or during the conciliation process (section 26), the other party is bound to notify the administrative authorities of the failure of the process that is under way. In these circumstances, the application of section 13 has the effect of referring the dispute to the competent authorities and terminating any strike action. Futhermore, in the event of the failure of conciliation at the end of the legally established period, one of the parties may refer the case to the administrative authorities, which also terminates strike action.

In the Committee's opinion, this procedure, which makes it possible to terminate strike action at the initiative of one party either in the event of the failure of conciliation at the end of the period set out by law, or prior to that stage in the event of a refusal to negotiate, is such as to restrict the exercise of the right to strike, in such a way that the workers may be deprived of one of the essential means available to them to defend their interests.

Furthermore, the Committee of Experts, like the Committee on Freedom of Association, takes note of the Industrial Relations Bill. It appears to result from these provisions that a dispute could be submitted to the administrative authorities at the initiative of only one of the parties when the failure of voluntary negotiation is reported, at the termination of the period set out for voluntary negotiation (section 420 of the Bill), or at any time during the period of voluntary negotiation if one of the parties decides to bring the procedure to an end when the conditions governing the holding of meetings are no longer fulfilled (sections 415 and 420), which would be liable to prejudice the right of workers to resort to strike action (section 443(a)).

The Committee recalls that the right to strike is one of the essential means available to workers to defend their interests and that it can only be prohibited for public servants acting in their capacity as agents of the public authority, in essential services in their strict sense (that is, those whose interruption would endanger the life, personal safety or health of the whole or part of the population) or in the event of an acute national crisis. In the Committee's opinion, compulsory arbitration should only occur at the request of both parties or in the cases and circumstances set out above.

The Committee requests the Government to take measures to avoid the application of provisions respecting collective bargaining and the settlement of disputes that result in excessive limitations or an indirect prohibition of the right to strike and to supply copies of any amendments to the legislation and regulations that are adopted in this respect.

The Committee notes that the question of the classification of collective labour stoppages which have occurred in violation of Presidential Decrees Nos. 003-82 PCM and 026-82 JUS by the heads of public institutions under the first section of Presidential Decree No. 0010-83 PCM has been submitted to the National Institute of Public Administration within the context of the examination of legal provisions respecting public servants (servidos publicos). The Committee therefore recalls that in the event of a total and prolonged stoppage of work in an important sector of the economy, the maintenance of a minimum service concerning a specified category of workers would seem to be justified in strikes whose scope and duration could cause a situation of acute national crisis. However, for such a measure to be acceptable, the minimum service should be restricted to operations that are strictly necessary and the workers' organisations should, if they wish, be able to participate in defining the minimum service along with the employers and public authorities (see paragraph 215 of the 1983 General Survey on Freedom of Association and Collective Bargaining).

The Committee requests the Government to supply information on the measures which could be taken in the light of its comments.

Observation (CEACR) - adopted 1990, published 77th ILC session (1990)

With reference to its previous comments, the Committee notes the information supplied by the Government in its reports on the provisions of the draft version of the General Labour Bill, which was published on 10 August 1989 and which has been formulated to bring the legislation respecting freedom of association and protection of the right to organise into conformity with the principles contained in the Convention. It also notes the conclusions of the Committee on Freedom of Association in Cases Nos. 1478 and 1484, approved by the Governing Body at its May-June 1989 Session.

The Committee recalls that its comments have for several years dealt with the following points:

(1) the requirement of too high a number of trade unions for the formation of a federation of public servants' (servidores publicos) unions (20) and of too high a number of federations for the formation of a confederation (10) (section 17, subsection 3);

(2) the prohibition of the re-election of the officers of the public servants' union immediately after the end of their term of office (section 16, subsection 2, of Presidential Decree No. 003-82 PCM);

(3) the prohibition of public servants' federations and confederations from forming part of organisations representing other categories of workers (section 19);

(4) the necessity of changing the requirement of over 50 per cent of the manual workers for the creation of a manual workers' union, over 50 per cent of the non-manual workers for a non-manual workers' union and over 50 per cent both of the manual and of the non-manual workers for a mixed union of manual and non-manual workers laid down by section 11 of Presidential Decree No. 009 of 3 May 1961, as amended by section 1 of Presidential Decree No. 021 of 21 December 1962;

(5) the necessity of changing the requirement of belonging to the enterprise for election to trade union office (Presidential Decree No. 001 of 15 January 1963);

(6) the necessity of amending Presidential Decree No. 009 of 1961 prohibiting trade unions from engaging in political activities as institutions (section 6).

Trade union rights of public servants (servidores publicos)

1. The Committee notes with interest that the minimum number of trade unions and federations for the formation of a higher level organisation has been reduced respectively from 20 to 10 for trade unions and from 10 to 5 for federations following the adoption of Presidential Decree No. 050-85 PCM.

2. With regard to the divergences between the national legislation and the Convention concerning the trade union rights of public servants, the Government indicates that the comments of the Committee of Experts have been submitted to the National Institute of Public Administration (INAP), which has been entrusted through multi-sectoral committees with examining this question and that the Institute's comments will be transmitted to the ILO once they have been received. The same applies to the question of the prohibition of the re-election of trade union officers immediately after the end of their term of office (section 6, subsection 2, of Presidential Decree No. 003-82 PCM). The Committee trusts that the rules governing the re-election of trade union officers will not be regulated by law but by the by-laws of trade unions.

3. The Committee notes that the Government does not provide any reply concerning the prohibition of public servants' federations and confederations from establishing and joining organisations composed of other categories of workers (section 19 of Presidential Decree No. 003-82 PCM).

The Committee once again requests the Government to indicate the measures that have been taken so that federations and confederations of public servants can freely join the federations and confederations of their choosing at the level of higher organisations (see once again paragraph 126 of the 1983 General Survey on Freedom of Association and Collective Bargaining).

Right of workers to establish unions of their own choosing

4. With regard to the high percentages of manual and non-manual workers required to form a trade union of manual workers, non-manual workers or a mixed trade union, the Committee takes due note that this provision has not been taken up in the General Labour Bill and that it will be for the workers to decide between trade union pluralism and unity.

The Committee trusts that the restrictions imposed by the legislation upon the right of workers to establish organisations of their own choosing will be lifted and it requests the Government to supply information on the progress achieved in this respect.

The right of workers to elect their representatives in full freedom

5. With regard to the necessity of belonging to the enterprise to exercise trade union office (Presidential Decree No. 001 of 15 January 1963), the Government indicates that this obligation has been eliminated from the General Labour Bill.

The Committee trusts that these new provisions will be adopted in the near future so as to eliminate any obstacle to the right of workers to elect their representatives in full freedom, in accordance with Article 3 of the Convention. The Committee requests the Government to supply information on the progress achieved in this connection.

Prohibition of trade unions from engaging in political activities

6. With regard to the prohibition of trade unions from engaging in political activities as institutions under section 6 of Presidential Decree No. 009 of 1961, the Government indicates in its reports that this prohibition applies to trade unions and not to their individual members. In the Government's opinion, the objective of trade unions is to defend the rights of the workers strictly within the field of labour; as trade union organisations, they do not have the mandate to represent workers at the political level; this does not mean that they must refrain from expressing opinions on questions concerning State policy as regards the situation, interests and rights of their members. The Government also indicates that the General Labour Bill does not propose to prohibit trade unions from undertaking political activities.

While noting these indications, with reference to Cases Nos. 1478 and 1484 examined by the Committee on Freedom of Association, the Committee draws the Government's attention to the fact that trade union organisations should have the possibility to express their views publicly on questions of general interest in so far as this involves promoting the development of the social and economic well-being of all workers. It recalls in particular that workers and their organisations should be able to show their discontent as regards economic and social questions through recourse to strike action.

The Committee therefore requests the Government to indicate whether, within the context of the current reform, it is proposed to repeal Presidential Decree No. 009 of 1961.

The Committee also once again requests the Government to supply any court decisions handed down by virtue of section 6 of Presidential Decree No. 009 of 1961 during the period covered by the report and recalls that the ILO is at its disposal for any technical assistance within the context of the current legislative reform to bring the legislation into conformity with the Convention on this point. [The Government is asked to supply full particulars to the Conference at its 77th Session.]