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

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

The Committee notes the information supplied by the Government in its report, as well as the observations of the Federation of Workers in the Lighting and Power Industry of Peru in relation to the application of the Convention.

The Committee recalls that its previous comments related to:

-- 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 requirements 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);

-- the obligation to renegotiate collective agreements which are currently in force (fourth transitional and final section, and section 43(d) of the Act and section 30 of its Regulations) (Article 4);

-- the possibility for the employer of having 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 (sections 1 and 2 of Legislative Decree No. 25921 of 3 December 1992) (Article 4).

With reference to the absence of effective and dissuasive sanctions, the Committee notes with interest that the Single Text of the Act on Productivity and Labour Competition, section 29(a) and (b), contains provisions relating to the annulment of the dismissal when it takes place on the grounds of trade union membership or participation in trade union activities, or of being a workers' representative, or acting or having acted in that capacity. The Committee also notes with interest that section 168 of the Penal Code prohibits forcing another person, by violence or threats, to join or not to join a trade union and lays down penal sanctions for violation of this provision. In regard to other acts of anti-union discrimination against a worker, such as at the time of recruitment, in the event of prejudicial acts other than dismissal, or for acts of interference by employers in the affairs of trade union organizations, the Committee notes that legislation does not provide any protection whatsoever. The Committee requests the Government to take measures to extend existing protection to such cases.

Furthermore, taking into consideration the numerous complaints examined by the Committee on Freedom of Association in regard to anti-union acts and dismissals, for which the legal procedures are slow and legal decisions to reinstate persons have in some cases not been complied with by the employers, the Committee wishes to remind the Government that "the existence of general legal provisions prohibiting acts of anti-union discrimination is not enough if they are not accompanied by effective and rapid procedures to ensure their application in practice" (see General Survey on freedom of association and collective bargaining, 1994, paragraph 214). The Committee requests the Government to take measures so that existing procedures for remedy proceed rapidly.

With regard to the requirement of a majority to conclude a collective agreement for a branch of activity or occupation, the Committee notes the Government's comments regarding the grounds on which legislation lays down this requirement and that they are fundamentally identical to information given in its previous report. On this question, the Committee insists that the requirement for a majority of not only the number of workers but also of enterprises in order to conclude a collective agreement for a branch of activity or occupation, stipulated in section 46 of the Industrial Relations Act of 1992, raises problems of compatibility with the Convention. In this respect, the Committee stresses that the level at which collective bargaining is carried out must depend essentially on the decision of the parties.

With regard to the provisions concerning the obligation to renegotiate collective agreements which are currently in force, stipulated in the fourth transitional and final section, and section 43(d) of the Industrial Relations Act of 1992 and section 30 of its Regulations, the Committee takes due note that these provisions are no longer applicable since virtually all the collective agreements have been revised with the agreement of the social partners, and have been harmonized with the legislation in force.

With reference to the employer's possibility of having 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 (sections 1 and 2 of Legislative Decree No. 25921 of 3 December 1992), the Committee notes that according to the information provided by the Government these provisions were repealed by Act No. 26513 of 28 July 1995. Nevertheless, the Committee observes that section 42 of the Employment Stimulation Act allows the employer to introduce changes or to modify working shifts, days and hours, as well as the form and methods of providing the work. In this respect, the Committee emphasizes that a legal provision which allows the employer unilaterally to modify the content of previously concluded collective agreements or forces them to be renegotiated, is contrary to the principles of collective bargaining.

The Committee requests the Government once again to take measures, in consultation with the social partners, to amend the legislation to bring it fully into conformity with the Convention.

The Committee requests the Government to inform it in its next report of the measures adopted in relation to the questions raised.