Observation (CEACR) - adopted 2015, published 105th ILC session (2016)

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

The Committee notes the observations of the International Trade Union Confederation (ITUC) received on 1 September 2014 and 1 September 2015, as well as the observations of the Single Trade Union of Workers of the Judiciary-Lima (SITRAPOJ) received on 11 September 2015, which contain allegations of anti-union discrimination and obstacles to the right to collective bargaining in specific public institutions and private enterprises, as well as legislative and institutional issues addressed by the Committee in its comments. While noting the Government’s general reply to the observations submitted by various trade unions in 2011 and 2012, the Committee requests the Government to provide its detailed comments on the alleged violations in practice contained in the abovementioned trade union observations of 2014 and 2015.

Article 1 of the Convention. Protection against any acts of anti-union discrimination. Workers with fixed-term contracts in the private sector. The Committee notes that the ITUC reports that workers with fixed-term contracts are especially vulnerable to discriminatory non-renewal of their contracts, and that the routine use of this contractual modality enables employers to prevent their workers from joining a trade union. Noting that this issue has been the subject of several cases before the Committee on Freedom of Association, the Committee requests the Government to engage in dialogue on the subject of protection against anti-union discrimination against workers with fixed-term contracts with the workers’ and employers’ organizations concerned and to report on the outcome.

Workers with fixed-term contracts in the public sector. The Committee notes that the ITUC states that the public workers engaged under administrative service contracts (CAS) are especially vulnerable to anti-union discrimination owing to the determined duration of their contracts. The ITUC denounces that the contracts of workers in this category who join a trade union are either terminated or not renewed. The Committee, in so far as the CAS can be used to employ public sector workers who are not engaged in the administration of the State, refers to its previous comments under the Labour Relations (Public Service) Convention, 1978 (No. 151). The Committee once again requests the Government to engage in dialogue with the public sector trade unions on the subject of the protection against anti-union discrimination against workers under CAS and to report on the outcome.

Article 4. Promotion of collective bargaining. Public sector workers. The Committee notes that the ITUC and SITRAPOJ indicate that for 20 years the annual budget legislation has prevented negotiation of the economic conditions of public sector workers and that the Civil Service Act No. 30057 of 2013 endorses that prohibition. The Committee recalls that, in its observation relating to Convention No. 151 published in 2015, it noted with concern that the public sector budget legislation for the fiscal years 2013 and 2014, and sections 42, 43 and 44(b) of the Civil Service Act of 2013 deny to the entire public sector the right to collective bargaining concerning the determination of wages or other matters of economic nature. The Committee also indicates that, in its March 2015 meeting, the Committee on Freedom of Association regretted to observe that the Government had disregarded its recommendations in previous cases, and that the applicable legislation continued to exclude from negotiation subjects relating to wages or of economic nature throughout the public sector (Case No. 3026, 374th Report, paragraph 666).

The Committee also observes that, in a ruling of 3 September 2015 (Cases Nos 0003-2013-PUTC, 0004-2013-PI/FC and 0023-2013-PUTC), the Constitutional Court of Peru, on the basis of this Convention and Convention No. 151 and of the corresponding comments of the ILO supervisory bodies: (i) declared unconstitutional the prohibition of collective bargaining for salary rises contained in the public sector budget legislation for the years 2012–15; and (ii) called upon Congress to approve the regulation of collective bargaining in the public sector starting with the first ordinary term of 2016–17. While it welcomes the Constitutional Court ruling, the Committee notes with renewed concern that the legislation in force continues to prohibit all collective bargaining on subjects of economic nature throughout the public sector. Without prejudice to the specific obligations of the Government under Convention No. 151 with respect to the right of public employees engaged in the administration of the State to participate in the determination of their remuneration, the Committee urges the Government to, in consultation with the trade unions concerned, take the necessary measures to revise the Civil Service Act of 2013 and all relevant legislation so that public sector workers who do not work in state administration can exercise their right to collectively negotiate matters relating to wages or of economic nature in conformity with the Convention.

Promotion of collective bargaining. Workers under training schemes. In its previous observations, the Committee had noted that neither Act No. 28518 and its Regulations nor the General Education Act recognize the right to collective bargaining of workers covered by training schemes. In this respect, the Committee notes the Government’s indication that, while the right to collective bargaining of workers under training schemes is not expressly recognized in any specific provision in national legislation, it is recognized by the Peruvian legal framework overall in so far as the Peruvian Constitution broadly recognizes the rights of association and collective bargaining, and the right to strike, and confers constitutional status on the ratified international human rights conventions, including the present Convention. While it takes due note of these elements, the Committee observes that Act No. 28518 and its Regulations provide that workers under training schemes are excluded from the scope of application of labour legislation, with the consequence that they are not covered by the collective bargaining legislation. The Committee therefore once again requests the Government to revise the relevant legislation to expressly recognize the right of collective bargaining of workers under training schemes.

The Committee is raising other matters in a request addressed directly to the Government.