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

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Peru (Ratification: 1964)

The Committee notes the Government's report and the discussions that took place at the Conference Committee in 1991.

The Committee recalls that its previous comments addressed the following matters:

- repeated intervention by the Government in collective bargaining in various sectors of the economy, in accordance with section 211(20) of the Constitution, which empowers the President to adopt exceptional economic measures when required by the general interest;

- approval of collective agreements by under-directors of labour, under sections 2(b) and (c), and 5(2) of Presidential Decree No. 003-72/TR;

- recourse to compulsory arbitration in the event of the failure of bargaining during the period of direct bargaining (trato directo) or of conciliation, in accordance with section 13 of Presidential Decree No. 009-86/TR; refusal to bargain is regarded as a failure of bargaining (sections 18 and 26 of Presidential Decree No. 006-71/TR, as amended) and permits referral of the dispute to compulsory arbitration by one party, under section 13 of Presidential Decree No. 009-86/TR.

1. Intervention by the Government in collective bargaining under section 211(20) of the Constitution

The Committee notes the information supplied by the Government during the discussions at the Conference Committee in 1991, to the effect that Presidential Decree No. 017-82/TR (which allows government intervention in various sectors of the economy in the event of an economic emergency) was an exceptional and temporary measure aimed at containing the hyperinflation prevalent in the country and that it is no longer in force. The Committee points out that the measures to intervene in collective bargaining were taken under section 211(20) of the Constitution which empowers the President of the Republic to take exceptional economic measures when required by the general interest.

In this respect, the Committee reiterates the comment it made in its previous observation to the effect that if wage rates cannot be fixed freely by collective bargaining because of economic stabilisation or structural adjustment policies, such restrictions should be imposed as an exceptional measure and only to the extent necessary. Such restriction should not exceed a reasonable period and, more importantly, should be accompanied by adequate safeguards to protect workers' living standards. The Committee considers that it is always preferable, before such restrictions are adopted, to seek consensus rather than impose them by decree.

The Committee hopes that this principle will be taken into account in the future and asks the Government to report any new decree or provision restricting collective bargaining, issued under section 211(20) of the Constitution. 2. Approval of collective agreements by under-directors of labour

With regard to the directives or decisions that under-directors of labour may adopt when a collective agreement is submitted for their approval, the Committee notes the Government's statement that under-directors may only take decisions in accordance with the powers conferred on them by law. In addition, they can settle procedural problems that may arise, thereby speeding up the collective bargaining process.

In this connection, the Committee reiterates that a system of approval by the administrative authorities is only acceptable if it is limited to questions of form, or to observance of the minimum standards of legal protection provided for in the labour legislation.

The Committee asks the Government, in its next report, to provide information on the measures that it has taken in this respect.

3. Compulsory arbitration

With regard to recourse to compulsory arbitration at the request of only one party in the event of failure of collective bargaining (the refusal to negotiate, expiry of the conciliation period, etc.) (section 13 of Presidential Decree No. 009-86/TR), the Committee notes that the Government has not submitted any comments in this respect. The Committee wishes to stress that this is not conducive to the full development of voluntary bargaining procedures for collective agreements between employers and employers' organisations, on the one hand, and workers' organisations on the other, so that terms and conditions of employment can be settled in this manner, in accordance with Article 4 of the Convention.