Observation (CEACR) - adopted 1995, published 83rd ILC session (1996)

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

The Committee notes the Government's report, the observations made by the Coordinator of Trade Union Federations of Peru and the Federation of Workers in the Lighting and Power Industry of Peru in relation to the General Labour Bill of 1995, as well as the interim conclusions adopted by the Committee on Freedom of Association in Case No. 1731, approved by the Governing Body at its 259th Session in March 1994 (see 292nd Report of the Committee, paras. 774 to 786).

The Committee recalls that its previous comments concerned:

- the absence of effective and sufficiently dissuasive sanctions to guarantee the protection of workers against acts of anti-union discrimination and to protect workers' organizations against acts of interference by employers (Articles 1 and 2 of the Convention);

- the obstacles to voluntary negotiation resulting from the requirement of a majority, not only of the number of workers, but also of enterprises, in order to conclude a collective agreement for a branch of activity or occupation (section 46 of the Industrial Relations Act of 1992) (Article 4 of the Convention);

- the obligation to renegotiate collective agreements which are currently in force (fourth transitional and final section, and sections 43(d) of the Act and 30 of its regulations).

With reference to the first point concerning the absence of sanctions, the Committee notes the general comments made by the Government concerning the existence of provisions in the Constitution and labour legislation providing protection against acts of anti-union discrimination and interference. Nevertheless, the Committee notes that these provisions are not enforced by effective and sufficiently dissuasive sanctions and procedures to guarantee their application in practice. The Committee once again urges the Government to take the necessary measures as soon as possible to guarantee the full application of the Convention, since the General Labour Bill of 1995 does not contain provisions in this respect.

With regard to the second question concerning the requirement of a majority to conclude a collective agreement for a branch of activity or occupation, the Committee notes the Government's comments to the effect that section 46 of Act No. 25593 establishes the possibility of negotiating at different levels; nevertheless, in order to negotiate at the level of the branch or occupation, it is necessary for the majority of the workers concerned to express their will in a democratic manner.

In this respect, the Committee joins with the Committee on Freedom of Association in emphasizing that, according to the principle of free and voluntary collective bargaining embodied in Article 4 of the Convention, the determination of the bargaining level is essentially a matter to be left to the discretion of the parties and that, consequently, the level of negotiation should not be imposed by law (see 259th Report of the Committee on Freedom of Association, Case No. 1450 (Peru), para. 216). The Committee considers that the requirement of a majority, not only of the number of workers, but also of enterprises, in order to conclude a collective agreement for a branch of activity or occupation set out in section 46 of the Industrial Relations Act of 1992 could give rise to problems in the application of the Convention.

The Committee notes with interest that the General Labour Bill of 1995 would eliminate the provisions respecting the obligation to renegotiate collective agreements which are currently in force, as set out in the fourth transitional and final section, and sections 43(d) of the Act and 30 of its regulations. Nevertheless, the Committee notes that the Bill has not taken into account the Committee's comments concerning the requirement of a majority, not only of the number of workers, but also of enterprises, in order to conclude a collective agreement for a branch of activity or occupation (section 46 of the Industrial Relations Act of 1992), by retaining the same requirement in section 39 of the Bill.

The Committee also notes that, by virtue of sections 1 and 2 of Legislative Decree No. 25921 of 3 December 1992, the employer is empowered to have recourse to the Ministry of Labour without the agreement of the workers for the purposes of modifying, suspending or substituting conditions of work previously agreed upon. In this respect, the Committee of Experts joins with the Committee on Freedom of Association in considering that a legal provision which allows the employer to modify unilaterally the content of signed collective agreements, or to require that they be renegotiated, is contrary to the principles of collective bargaining (see 292nd Report, Case No. 1731, paras. 784 and 785 of the Case referred to above).

The Committee once again requests the Government, in consultation with the social partners, to take steps to amend the legislation so as to enable organizations of workers and of employers to exercise freely and without impediment the right to collective bargaining at all levels.

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

The Committee is addressing a direct request to the Government on other matters.