Report in which the committee requests to be kept informed of development - Report No 93, 1967

Case No 335 (Peru) - Complaint date: 10-MAY-63 - Closed

1. 101. The Committee examined this case at its meetings in February 1965, November 1965 and May 1966, when it submitted to the Governing Body interim reports that were approved by the Governing Body at its 162nd, 163rd and 165th Sessions respectively (May-June 1965, November 1965 and May 1966).
2. 102. One aspect of the case remained in suspense, concerning which the Government had been asked in paragraph 207 (c) of the 90th Report to supply certain additional information. The Government answered that request by a communication dated 27 July 1966.
3. 103. 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, 1959 (No. 98).

104. The complainants stated in their communication dated 3 June 1963 that the provisions of sections 7 and 9 (b) of Presidential Decree No. 009 of 3 May 1961 concerning organisation of trade unions did not conform to the standards laid down in Convention No. 87. Section 7 of that decree requires a minimum of 20 members for the formation or continuance of a trade union and further states that workers in workplaces that have five or more workers but do not reach the minimum number stated above may appoint one delegate to represent them in dealings with the employer and the authorities. Section 9 (b) states that the members of a trade union must belong to the undertaking or the activity uniting them.

1. 105. In its examination of this aspect of the case in May 1966, on the grounds indicated in paragraph 194 of its 90th Report the Committee expressed the opinion that the minimum membership of 20 laid down by Peruvian legislation did not seem excessive and therefore - did not in itself constitute an obstacle to the formation of trade unions. The Committee also took note of the Government's statement in its communication dated 19 January 1966 to the effect that workers at workplaces having five or more workers but less than 20 could join together with those at other workplaces within the same branch of activity in order to form a trade union.
2. 106. However, since the situation of workers at workplaces with five employees or less remained unclear, and since the Committee referred to the provision in Article 2 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), according to which workers " without distinction whatsoever " shall have the right to establish and, subject only to the rules of the organisations concerned, to join organisations of their own choosing, the Committee recommended the Governing Body, in paragraph 207 (c) of its 90th Report:
3. With regard to the requirements for formation of a trade union, to request the Government to inform it whether workers at establishments employing five or less persons may join with those of other establishments in order to form a trade union or may join an existing trade union and, if so, subject to what conditions.
4. 107. In compliance with that request the Government attached to its communication dated 27 July 1966 the text of a report submitted by the Technical Advisory Service of the Ministry of Labour and Communities of Peru. According to that report workers in establishments with five workers or less may join with those of other establishments to form a trade union or may join an existing trade union provided that they belong to the same branch of activity.
5. 108. According to the same document this right is established by the provision of section 9 (b) of Decree No. 009, the text of which is as follows:
6. Section 9
7. To become a member of a trade union, a worker must:
8. ......................................................................................................................................................
9. (b) belong to the undertaking or branch of activity to which the other workers in the union belong.
10. 109. At the end of the report supplied by the Government a recommendation is made to the Ministry of Labour and Communities, pointing out that since the Labour Code is now being drafted by a special committee comprising representatives of the Government, Parliament and the sectors concerned, it would be advisable to provide the committee with a copy of paragraph 207 (c) of the 90th Report of the I.L.O. Committee on Freedom of Association so that the committee may duly consider the points made in those observations.

B. B. The Committee's conclusions

1. 110. It appears from the information provided by the Government in its communication dated 27 July 1966 that section 9 (b) of Presidential Decree No. 009 guarantees, albeit indirectly, the right to organise of workers employed at workplaces with five workers or less. In view of the Government's previous statement, quoted in paragraph 105 above, it is natural to assume that the same interpretation can be placed on the situation of workplaces with more than five but less than 20 workers.
2. 111. The Committee wishes to stress that its request to the Government for information on the position of workers at establishments with less than 20 workers was motivated by the fact that section 7 of Presidential Decree No. 009 (see paragraph 104 above) appears to place restrictions on the right to organise to the detriment of workers in small establishments. Obviously, any distinction of that nature would have been incompatible with the provisions of the aforesaid Article 2 of Convention No. 87 and those of Article 7 of the same Convention, by virtue of which the acquisition of legal personality of workers' and employers' organisations shall not be made subject to conditions of such a character as to restrict the application of Article 2.
3. 112. What the Government states in reply to the Committee's request seems to dissipate the doubts in this connection but, in view of what is said in paragraph 111 above and the importance which should be attached to the provisions of Articles 2 and 7 of the Convention, the Committee feels it necessary to recommend the Governing Body to point out to the Government the advisability of considering what amendments may be necessary to bring the national legislation unequivocally into harmony with the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), which has been ratified by Peru.

The Committee's recommendations

1. 113. In these circumstances the Committee recommends the Governing Body:
   • (a) to take note of the statements made by the Government in its communications dated 19 January and 27 July 1966, from which it appears that workers in establishments with less than 20 employees may by virtue of section 9 (b) of Presidential Decree No. 009 join with those of other establishments to form a trade union or may join an existing trade union, provided that they belong to the same branch of activity;
   • (b) to suggest to the Government, in view of the considerations set forth in paragraphs 111 and 112 above, that it would be desirable to consider what amendments might be made in the national legislation to bring it unequivocally into harmony with the provisions of Articles 2 and 7 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87);
   • (c) to request the Government to inform the Governing Body of the measures it is taking or considers taking in accordance with subparagraph (b) above.