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

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

The Committee notes the information provided by the Government in response to the observations of the Federation of Workers in the Lighting and Power Industry of Peru concerning restrictions on protection against anti-union discrimination and collective bargaining contained in provisions of the Industrial Relations Bill. The Committee notes the conclusions and recommendations of the Committee on Freedom of Association with regard to Case No. 1906 in June 1998 (see 310th Report of the Committee, paragraphs 551-556). The Committee also notes the observations of the United Union of Technicians and Specialized Auxiliary Workers of the Peruvian Social Security Institute but observes that -- they do not relate to the application of the Convention.

With regard to section 21 of the Bill which was criticized by the Federation and allows the inclusion of workers who enjoy protection on the list of collective dismissals resulting from an objective cause, the Committee notes the Government's information according to which this exceptional case would arise as a result of external factors that make continuation of the employment relationship impossible (unforeseen circumstances and force majeure, economic, technological, structural or other similar reason, dissolution and liquidation of a company, restructuring of assets) and are not connected with trade union activity. The Government also indicates that under the terms of legislation, there are procedures, applicable in every case of objective reasons for the termination of employment contracts, by which the objective circumstances cited as the cause of the termination can be fully examined, and that workers affected can contest the administrative decision.

The Committee points out that, although national legislation provides some protection against acts of anti-union discrimination, for that protection to be effective, courts must be able to give a ruling without delay when allegations of anti-union acts are made.

With regard to section 26 of the Bill, according to which no union officer is entitled to take more days of leave than the number of days actually worked by him or her in one year, the Committee notes the Government's information and points out that such a provision would constitute an unjustifiable restriction on collective bargaining and should therefore not be applied while there exists a collective agreement that is more favourable to the workers, as envisaged in section 20 of the Rules under the Industrial Relations Act currently in force. The Committee requests the Government to take the necessary measures to amend section 26 of the Bill in the appropriate way.

With regard to the allegation of restrictions on the right to collective bargaining in the construction sector under the terms of Bill No. 2266 (Case No. 1906), the Committee notes the Government's statement that the Industrial Relations Bill supercedes Bill No. 2266 and removes such restrictions. The Committee also requests the Government to ensure that the Bill in question is in full conformity with the terms of the Convention, in particular that all restrictions on the right to collective bargaining in the construction industry are removed, and to keep it informed of progress made in this regard.

The Committee further notes the drafting by the President of the Congressional Labour and Social Security Committee of a new draft substitute Industrial Relations Bill.

In this respect, the Committee observes with interest that the substitute text in question does not reinstate the obligation to renegotiate collective agreements in force (fourth transitional and final section and section 43(d) of Act No. 25593), a provision that had been criticized by the Committee of Experts.

Nevertheless, the Committee notes that the text in question does not take into account the following points raised by the Committee of Experts:

-- the absence of effective and sufficiently dissuasive sanctions to guarantee the protection of workers against anti-union discrimination (for example, at the time of hiring, acts detrimental to workers other than dismissal, acts of interference by employers in the affairs of trade unions) (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 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).

In addition the Committee observes that the substitute text contains a number of provisions which could pose problems of conformity with the Convention and concerning which the Committee would make the following comments:

-- with regard to sections 30 and 40 of the substitute text, the Committee considers that these sections should safeguard the right to collective bargaining of a minority trade union, at least on behalf of its members, where no majority trade unions exists;

-- with regard to the final paragraph of section 39 according to which "in the absence of an agreement, negotiations should be conducted at the level indicated in section 38(a) of the present Act" (meaning at enterprise level) the Committee considers that this section should be amended to avoid imposing negotiations at enterprise level;

-- with regard to the requirement of an absolute majority, both of the number of workers of a branch of activity or occupation and of enterprises, in order to conclude a collective agreement for the branch of activity or occupation in question (section 41), the Committee takes the view that the requirement is excessive and will in many cases make negotiations impossible at the level indicated, and for this reason the percentages required should be reduced to half;

-- lastly, in the Committee's view, the Act should provide expressly for the right of federations and confederations to bargain collectively.

The Committee hopes that the new draft text of the Industrial Relations Act will take into account the foregoing comments and that it will be adopted in the very near future. The Committee requests the Government to inform it in its next report of any progress made in this regard.