REPRESENTATION (article 24) - PERU - C011, C087, C098, C100, C111, C122 - 1996

Latin American Central of Workers, Single Confederation of Workers of Peru

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Report of the Committee set up to examine the representation alleging non-observance by Peru of the Right of Association (Agriculture) Convention, 1921 (No. 11), the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87), the Right to Organize and Collective Bargaining Convention, 1949 (No. 98), the Equal Remuneration Convention, 1951 (No. 100), Discrimination (Employment and Occupation) Convention, 1958 (No. 111) and Employment Policy Convention, 1964 (No. 122), made under article 24 of the ILO Constitution by the Latin American Central of Workers (CLAT) and the Single Confederation of Workers of Peru (CUT)

Report of the Committee set up to examine the representation alleging non-observance by Peru of the Right of Association (Agriculture) Convention, 1921 (No. 11), the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87), the Right to Organize and Collective Bargaining Convention, 1949 (No. 98), the Equal Remuneration Convention, 1951 (No. 100), Discrimination (Employment and Occupation) Convention, 1958 (No. 111) and Employment Policy Convention, 1964 (No. 122), made under article 24 of the ILO Constitution by the Latin American Central of Workers (CLAT) and the Single Confederation of Workers of Peru (CUT)

Decision

Conventions Nos. 100, 111, 122: The Governing Body approved the final report (GB.267/15/2) (November 1996) and declared the procedure closed. Conventions Nos. 11, 87, 98: Referred to the Committee on Freedom of Association (Case No. 1796, 304th Report, paras. 417-473, June 1996 and 306th Report, paras. 496-508, March 1997).

Complaint Procedure

I. Introduction
1. By letters dated 15 September and 13 November 1995, the Latin American Central of Workers (CLAT), referring to article 24 of the Constitution of the International Labour Organization, submitted a representation alleging non- observance by Peru of the Right of Association (Agriculture) Convention, 1921 (No. 11), the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), the Discrimination (Employment and Occupation) Convention, 1958 (No. Ill), and the Employment Policy Convention, 1964 (No. 122).
2. By a letter dated 14 December 1995 (received in the ILO on 21 February 1996) the Single Confederation of Workers of Peru (CUT), also referring to article 24 of the ILO Constitution, submitted a representation alleging the non- observance by Peru of the Right of Association (Agriculture) Convention, 1921 (No. 11), the Freedom of Association and Protection of the Right to Organise' Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), the Equal Remuneration Convention, 1951 (No. 100), and the Discrimination (Employment and Occupation) Convention, 1958 (No. 111).
3. Conventions Nos. 11, 87, 98, 100, 111 and 122 have been ratified by Peru and are in force for that country.
4. The provisions of the Constitution of the ILO concerning submission of representations are as follows:
Article 24
In the event of any representation being made to the International Labour Office by an industrial association of employers or of workers that any of the Members has failed to secure in any respect the effective observance within its jurisdiction of any Convention to which it is a party, the Governing Body may communicate this representation to the government against which it is made, and may invite that government to make such statement on the subject as it may think fit.
Article 25
If no statement is received within a reasonable time from the government in question, or if the statement when received is not deemed to be satisfactory by the Governing Body, the latter shall have the right to publish the representation and the statement, if any, made in reply to it.
5. The procedure to be followed in case of representations is governed by the revised Standing Orders adopted by the Governing Body at its 212th Session in March 1980.
6. In accordance with articles 1 and 2, paragraph 1, of the Standing Orders, the Director-General acknowledged receipt of the representations and informed the Government of Peru, and brought the representations before the Officers of the Governing Body.
7. At its 265th Session (March 1996), the Governing Body, on the recommendation of its Officers, decided that the representations were receivable and set up a committee to examine the matter, composed of Mr. A. Antonio Ducreux (Government member, Panama), Mr. W. Durling (Employer member, Panama) and Mr. F. Ramirez Leon (Worker member, Venezuela).
8. In accordance with article 4, paragraph l(a) and (c), of the Standing Orders, the Committee decided: (a) to invite the complainant organizations to communicate any additional information before 31 May 1996; (b) to invite the Government to submit its observations regarding the representations before 31 May 1996, it being understood that any additional information received from the complainant organizations would be communicated to the Government; and (c) to refer the allegations relating to trade union rights, under Conventions Nos. 11, 87 and 98, to the Governing Body's Committee on Freedom of Association, in accordance with article 3, paragraph 2, of the Standing Orders (if a representation, which the Governing Body decides is receivable, relates to a Convention dealing with trade union rights, it may be referred to the Committee on Freedom of Association for examination in accordance with articles 24 and 25 of the Constitution). (Endnote_1)
9. The Government presented certain initial observations in a communication of 16 April 1996 and, by a communication dated 22 May 1996, requested an extension of the deadline for a response, given that more time was needed to collect practical information on the matter which was the subject of- the representations. The Committee agreed to an extension for a complete Government reply until 31 July 1996, and the Government was informed of this consent by a letter dated 4 June 1996.
10. The CLAT provided further comments in support of its representation in a letter dated 31 May 1996.
11. The Government provided its further comments on the representations in a letter dated 2 August 1996.
II. Examination of the representations
A. Allegations of the complainant organizations concerning Conventions Nos. 100 and 111
12. In its letters, the CLAT alleges that Act No. 26513 of 27 July 1995, entitled the Promotion of Employment Act,(Endnote_2) infringes the principles set out in the Conventions cited.
13. Regarding Convention No. Ill, the CLAT alleges that the new Act, which adds further reasons for dismissal, involves the possibility of direct discrimination in employment against workers who exercise freedom of expression in particular their opposition to any policy implemented by the Government which infringes acquired labour rights. This is said to violate directly Article 1, paragraph l(a), of the Convention which prohibits any distinction, exclusion or preference made on the basis of, inter alia, political opinion. Trade union leaders would be the first victims since, under the new legislation, they can be dismissed individually or collectively. The situation also affects any worker in an enterprise, since instability in employment is generalized at all levels.
14. Regarding Conventions Nos. 100 and 111, the CUT alleges that non- observance of ILO Conventions has increased during the Government of President Alberto Fujimori. It refers to Act No. 26513 which amends Legislative Decree No. 728 of November 1991,(Endnote_3) also called the Promotion of Employment Act (LFE), as violating Conventions Nos. 100 and 111. This is because discrimination in employment is said to result directly from the atypical and non-labour based types of contracting promoted by the legislation. It claims that they are, in practice, aimed at eliminating both equality of opportunity and treatment in employment and occupation and equal remuneration between men and women for work of equal value.
15. The CUT claims that workers in a precarious and unprotected situation, particularly women and youth, are affected by the LFE. Women are affected because of their greater difficulty in acceding to the labour market; yet discrimination on the basis of sex in access to employment and in terms and conditions of employment is expressly prohibited by Convention No. 111.
B. Allegations concerning Convention No. 122
16. The allegations relating to the non-observance of this Convention cover a number of provisions in the consolidated text of the Promotion of Employment Act (including the amendments introduced by Act No. 26513). According to the complainant organizations, even though only a small minority benefit from stable employment, these provisions aim at generalizing situations of precarious employment where workers find themselves deprived of most of their individual and collective rights, and aims at transforming labour into a mere commodity. The deregulation of the labour market undertaken by the Government has not led to the creation of jobs but to increased inequality between the employer and the worker in the employment relationship. The gap between high levels of economic growth on the one hand, and unemployment, underemployment, loss of purchasing power and job precariousness on the other shows that social policy is completely subordinated to economic policy, in violation of Article 1 of Convention No. 122, as well as Paragraphs I and II of the Declaration of Philadelphia of 1944: the stated aim of "employment promotion" is said to bear no relation to the ILO definition.
17. It is also alleged that the Promotion of Employment Act contains provisions which allow the relations between workers and employers to be removed from the ambit of labour law by permitting various types of subcontracting: special "temporary service" or "supplementary service" enterprises set out in sections 165 to 174 of the Act in fact mark a return to the old system of enganchadoras. The creation of workers' cooperatives under sections 143 to 148 of the Act is another way open for employers to transform the labour relationship into a commercial or civil one. Up to 20 per cent of the workers in an enterprise can thus be deprived of the rights available to other workers. The Act also is said to encourage the exploitation of young workers by introducing contracts for so-called "youth occupational training", which injure their dignity by not recognizing their status as workers. According to sections 24 to 36 of the Act, although young people are subjected to almost the same work requirements as other workers, they do not receive the same salary. What they get is an "economic subsidy" equivalent to the minimum wage, and they are deprived of all the rights arising from an employment relationship, in particular job security and social security. In the most recent amendments, the Act extends the possibilities of recourse to such types of contracts by raising the age limit from 21 to 25 years, by prolonging their duration from 18 to 36 months and by increasing the maximum number of staff which could be involved per enterprise from 15 to 30 per cent. As no mechanism has as yet been established to verify whether these persons are really being trained in a manner to enable their reinsertion in the labour market or whether they are simply being used as cheap labour, it is feared that the enterprises will have greater and greater recourse to these contracts so as to diminish their costs, which in turn would only lead to a deterioration of working conditions for all workers. In addition, the Act increases the types of fixed-term contracts by allowing, in Title III, up to nine "employment contracts subject to special conditions" renewable for a period of up to 5 years. Finally, the dismissal procedures have been made extremely flexible. Dismissal is practically at the whim of the employer, who is no longer obliged to reinstate the worker in cases of unlawful dismissal.
18. In its communication of 31 May 1996, the CLAT states that Act No. 26513 has had a greater impact than could have been imagined. It has attacked the trade union rights of Peruvian workers, in particular through the massive expulsion of workers and the selective expulsion of union leaders.
19. According to the CLAT, the Act has introduced into the legislation free and groundless dismissal through section 67 read together with section 71 concerning "arbitrary dismissal" by means of (a) no reason having to be given, or (b) not being able to have judicial verification of the reason. The worker has the right, as the only redress for damage suffered, to compensation equivalent to one month's usual remuneration for each full year of service, up to a maximum of two months' remuneration. Reinstatement has thus disappeared as a remedy for cases of unjustified dismissal. The employer can also dismiss arbitrarily without any payment whenever this non-payment does not annul the dismissal, thus obliging the worker to start two or three years' litigation before the labour courts in an attempt to obtain the compensation. The Act allows a serious fault to be involved falsely and capriciously as a basis for dismissal, upon which it is the worker who must bring a case claiming arbitrary dismissal; and, following many years of litigation, the worker might only get the above-mentioned compensation. The new provision permits employers to carry out mass dismissals on the basis of serious fault. When this has occurred the worker is offered a chance to substitute "voluntary resignation" for the dismissal in return for payment of the compensation. As this offer allows workers to get some form of redress without the time and expense involved in a court case, many feel obliged to resign before being dismissed. So hundreds of such dismissals have taken place in enterprises throughout the country. The Peruvian Telephone Company is even said to have sent out standard dismissal letters, with the possibility of getting additional compensation if the voluntary resignation option was taken up. When such workers leave, they are replaced by other workers on "youth occupational training" contracts, apprenticeship contracts or intermediary work contracts using workers' cooperatives or centrist enterprises.
20. The CLAT also considers that the Act disregards the rights of trade union leaders. Section 82, as amended, allows workers protected by trade union immunity (fuero sindical) to be included in collective lay-offs. Moreover, section 62 allows the dismissal of trade union leaders, including those benefiting from immunity, on the false ground of serious fault referring to their public statements. An example is the dismissal of four leaders of the Chinese Shougang Hierro Peru SA company. Another example is the dismissal of three leaders of the Peruvian Telephone Company, where the union had been granted a sum of money for activities in favour of the employees, but the leaders were falsely charged with illegal misappropriation of funds and dismissed for serious fault along with 1,000 workers.
21. The CLAT points out that on 24 January 1996, Supreme Decree No. 001-96-TR containing the Regulations under Legislative Decree No. 728, was adopted. It adds a series of factors prejudicial to trade union rights. The CLAT lists sections 24 ff. (if the Administrative Labour Authority does not verify the reasons given by an employer when suspending operations, then the reason is deemed to be valid); 30 (automatic and mandatory retirement); 39 (consequences following an illegal strike arise from the day the employer not, as previously, the Administrative Labour Authority so notifies the trade union); 46 (the protection of fuero sindical status only continues up to 90 days after having ceased to enjoy that office); and 52 (the burden of proving that dismissals were null and void because, based on trade union activities, pregnancy, discriminatory motives or for having made a complaint).
C. The Government's replies
22. The Government, in its communication of 16 April 1996, considers that the CLAT's allegations concerning Convention No. 122 are subjective, abstract and baseless. It stresses that in an effort to attenuate unemployment and underemployment it is necessary to put in place a model of labour relations which permits growth in productive efficiency and, in the framework of an appropriate labour law, to improve substantially the living conditions for the whole country as well as for each worker. It states that to say that dismissal is at the whim of the employer shows ignorance of sections 55 ff. of the Promotion of Employment Act, which require that there be a justifiable reason as a basic precondition for dismissal. The youth training agreements meet the Government's aim of creating training mechanisms which allow young persons subsequently to have better employment conditions: if these agreements do not have the status of employment contracts it is because they are but one step in the job training process, the fulfilment of which requires strict collaboration between the enterprise and the Labour Adninistrative Authority. They constitute a legal framework adapted to the search for a solution to the problem of youth unemployment.
23. In its letter of 2 August 1996, the Government points out first, as regards the youth training agreements, that the relationship between the trainee and the employer is not an employment relationship, but rather one of education prior to the labour contract. Peru opted for this type of agreement in order to solve three serious problems: (a) access of youth to adequate qualifications since only a minority have access to higher education and better job opportunities (in this way young people between 16 and 25 years of age have the possibility of learning a profession through a channel different from that of formal education and the enterprise offering the training is obliged to give the responsibility for the training to a tutor and to award the corresponding Certificate of Aptitude once the training is completed); (b) unemployment, which mostly affects youth (the learning is compensated for economically so that trainees are sustained while being trained for employment); and (c) the creation of a well-prepared labour force which will allow Peruvian employers to be able to count on workers qualified for the needs of workplaces and who have practical experience in those factories and offices, which would lead to efficient production in the immediate future. The Government points out that the aim is put clearly in section 8 of the Promotion of Employment Act: "The purpose of youth work training is to provide young persons aged between 16 and 25 who have not completed their studies or who having done so are not pursuing technical or higher studies, with the theoretical and practical Icnowledge in work to enable them to engage in economic activity in a specific occupation." If the relationship were to be a work one, then that would amount to continuing the situation of youth unemployment since employers would prefer to hire qualified persons or those having work experience.
24. Regarding the CLAT's allegation that the Act does not set out the minimum requirements expected of employers apart from stating that the workers shall be subject to the labour regime of the private sector, the Government points out that, on the contrary, sections 13 ff. stipulate that youth work training programmes must follow the general lines established by the National Plans for Work Training. As for the CLAT's allegation that these agreements lead to a cheapening of the workforce, the Government denies this, stressing that the economic subsidy that the trainees receive must not be lower than the minimum basic remuneration, and that there is a possibility for the subsidy to be increased by agreement between the parties.
25. Regarding the CLAT's allegation that such agreements hide the fact that a real labour contract exists, the Government states that the real aim is a valid one of preparing youth for entry into the economic life of the country and one cannot impute responsibility on the State which adopts the standards for fraud which those applying them might exceptionally indulge in. The Ministry of Labour has a Subdivision of Inspection which checks the application of the labour provisions. In addition, the Act includes a limit on the percentage of youth job training agreements in each workplace (30 per cent of the total) and Supreme Decree No. 001-96-TR (containing regulations under Legislative Decree No. 728) gives in its section 7 a number of circumstances in which such agreements cease to be so and are deemed to be employment contracts, including if the participant is not trained in the specific occupation set out in the agreement, if the relationship continues beyond the termination date mentioned in the agreement, if the participant had worked previously in the enterprise and was under a direct or indirect contract for such work, if the number of participants exceed the 30 per cent limit set out in the Act, and if the participant shows that there was pretense or fraud in applying the provisions of the Act or of the Regulations.
26. Regarding workers' cooperatives, the Government points out that they had existed for many years and that the Promotion of Employment Act sought to standardize their activity in a context where the enterprises found it impossible to contract through third parties the temporary or supplementary services that they required. Workers' cooperatives act as a means of access to the labour market by a group of workers who also benefit from the profits as a result of the system of distribution between cooperative members.
27. The Government points out that Act No. 26513 introduced a number of amendments in order to improve the situation of those providing their services by means of the cooperatives; these included bringing pay and working conditions of members of cooperatives in line with those in the user enterprise carrying out similar work which the CLAT has also declared a good idea. The CLAT's main concern is that there are cooperatives providing temporary or accessory services to user enterprises which do not have their own staff carrying out similar work, thus making it impossible to make a comparison (for example, guards, messengers, cleaners, etc.). This situation has been provided for by the law which establishes a minimum wage for cooperative members, which can be increased as the result of agreement between the parties.
28. According to the Government, Act No. 26513 upholds the limit already existing on the number of workers able to provide services in an enterprise under this system (20 per cent of the total of workers of this enterprise), which guarantees the stability of the regular staff in the enterprise. There are express provisions under section 144 which is under discussion stating that when there is failure to comply with this limit, it is considered that there is a direct relationship between the user enterprise and the number of cooperative workers exceeding this limit.
29. The CLAT alleges the possibility of fraud in contracts providing services concluded by workers' cooperatives and user enterprises, given that the original text of Legislative Decree No. 728 establishes under section 173 that contracts of this nature might be concluded for a maximum period of three years and that the Constitution of 1993 stipulates in article 62 that contractual provisions may not be changed by law or other regulations. This is the same situation in the case of youth training agreements; the legislation has been drafted to promote employment, not to encourage false working relationships which deprive workers of their rights. In the hypothetical event that these contentions might be correct, workers would be able to exercise their right to initiate the corresponding judicial proceedings.
30. Furthermore, a distinction must be drawn between two aspects: the contracts for provision of services concluded between the cooperative and the user enterprise and the links between the cooperative and its members. The first is regulated in all respects by the Civil Code: relationships between cooperative members and the cooperative are regulated by labour law provisions pertaining to cooperatives.
31. As regards fixed-term recruitment, the Government states that it is not true that the employer can freely conclude labour contracts subject to specific conditions. In principle, any labour contract is assumed.to be for an indefinite period; consequently, the exceptional recruitment proceedings can only be applied in specific cases which are duly verified. Furthermore, section 111 of Legislative Decree No. 728 lists a series of grounds on which a contract subject to specific conditions may lose its validity and be considered as a contract without limitation of time.
32. In addition, the CLAT points out that fixed labour contracts no longer require authorization from the Labour Administration Authority. The Government points out that although the original text of Legislative Decree No. 728 stipulated under section 116 that this type of labour contract had necessarily to be approved by the Labour Administration Authority, this approval, according to the actual text of this article, was automatic upon presentation of the corresponding request, leaving the Authority with the power to order the subsequent verification of the authenticity of the sworn statement which had to be attached with the application. The present text amended Legislative Decree No. 728 providing, under section 82, that the verification of the authenticity of the information given in the copy of the contract kept by the Labour Administration Authority would be carried out by the latter. The new wording upholds the automatic approval by providing that contracts subject to special conditions should be communicated to the Authority for approval and registration; the Authority then verifies compliance with the requirements, in accordance with its mandate. As concerns the allegation that the present legislation allows the individual or collective dismissal of workers and trade union officials, the Government points out that the legislation states that no trade union official may be dismissed without justifiable grounds which have been duly approved and specifically laid down in the labour legislation. Any dismissal which does not comply with these strict requirements is null and void and the official concerned has the right to be reinstated. Indeed, section 62 of Legislative Decree No. 728 states that: "the following shall not constitute valid grounds for dismissal: (a) membership of a trade union or participation in trade union activities". This protection therefore extends to all trade union members. This type of dismissal cannot be described as "arbitrary" because the legislation has always provided for protection of workers dismissed without justifiable grounds (i.e. the grounds specifically established under the legislation). The only aspect that has changed has been the consequences drawn by the authorities on the significance of the term "arbitrary"; formerly the dismissed worker was able to opt for reinstatement or compensation for dismissal. In the vast majority of cases, the dismissed worker always opted for compensation, because by the time the legal proceedings had ended (between one and two years) he was already working for another employer. It was with this consideration in mind that the labour reform opted for a solution whereby the employer would have to pay a fine for an arbitrary dismissal, thereby compensating the dismissed worker with full pay for every year he or she had worked. This compensation does not replace or exclude other benefits earned throughout the labour relationship (such as length of service compensation, triple compensation for holidays not taken, etc.). Furthermore, the concept of reinstatement has not disappeared from labour legislation; indeed, Legislative Decree No. 728 lists a number of grounds on which this may be applied (amongst others: dismissal on grounds of colour, race, sex and others, and membership of a trade union). The Deputy Labour Inspectorate of the Ministry of Labour looks into the validity of arbitrary dismissals at the request of the party concerned and encourages conciliation through a conciliation office, in an attempt to avoid both parties having to settle their dispute through legal channels.
33. The possibility of a collective termination of contracts does exist; however, this is not considered a dismissal because it does not depend on the will of the employer. There must be objective grounds for the termination of employment contracts, as verified by the labour authority and the corresponding branch of the enterprise in question or the National Supervisory Committee for Enterprises and Investment (CONASEV). Termination of contracts is also subject to prior participation of the trade union in a search for solutions which might advert or at least limit the effects of termination. Indeed, they are the culmination of proceedings in which the trade union itself, the State and the employer must be involved. Another situation which differs from that of the collective termination of employment, mentioned by the CLAT, is the suspension of work on objective grounds; it points out that Supreme Decree No. 001-96-TR seriously undermines workers by stating that if the labour authority does not verify the grounds given by the employer within six days of the suspension being communicated, this is taken as definite. In fact, the law is designed to protect workers because on many occasions the authority has decided on the merits of the case after the maximum time-limit has already expired. In fact, it establishes that the grounds cited for the suspension of labour must be verified within a maximum time period of six days after the communication has been received and that this is the responsibility of the duly appointed official or officials. The law attempts to guarantee that the Ministry of Labour and Social Promotion carry out the corresponding verification within the maximum authorized period, because the failure to carry out an inspection or any delay might be harmful to the workers or to the enterprise deciding upon this measure. The absolute assumption that the grounds prompting the suspension of labour are valid provides legal security for the proceedings and is only applied when the verification has not been carried out on grounds for which the employer is not responsible; failure on the part of the labour authority to verify is penalized under the law.
34. Concerning the CLAT's criticism that the Regulations made under the Promotion of Employment Act provides for compulsory and automatic retirement and that this is a forced retirement tantamount to dismissal, the Government states that nothing could be further from the truth. Retirement is a right of all workers and the legislation is only attempting to ensure that the system is more efficient. The automatic and compulsory nature of retirement was not introduced by the Regulations; this was already established by the Promotion of Employment Act which laid down the conditions for retirement subject to an agreement to the contrary. Supreme Decree No. 001-96-TR states that in the event of exercising this right retirement is automatic, irrespective of the fact that regular procedures might otherwise have been initiated to obtain the corresponding pension.
35. As regards the allegation that the Regulations restrict trade union immunity to 90 days after termination of trade union functions, the Government explains that trade union immunity is a measure designed to protect trade union officials; it is therefore incompatible with the nature of this immunity that it should be granted permanently to persons who have ceased exercising trade union functions. It is for this reason that this right was limited.
III. The Committee's conclusions
A. Conventions Nos. 100 and 111
36. The Committee notes that one of the complainant organizations refers to the impact of the Promotion of Employment Act as being contrary to Convention No. 100 without giving details on how the principle of equal remuneration between men and women workers for work of equal value has been violated. It limits itself to a general statement concerning the poor employment conditions of women workers. The Government does not specifically reply to this general statement in its replies. The Committee accordingly considers that this aspect of the representations need not be pursued.
37. As regards Convention No. Ill, one complainant organization alleges that the new law discriminates in employment on the basis of the atypical, non- labour type of contracting involved and on the basis of political opinion in that trade union leaders can be subject to arbitrary dismissal for criticizing government policy in their trade union work. The second complainant organization alleges that, since women workers are particularly affected in practice by the new provisions (because of their greater difficulty in acceding to the labour market, and their precarious employment situation in general), the new Act amounts to violation of Convention No. Ill on the ground of sex.
38. First, the Committee notes that Article 1, paragraph l(a), of Convention No. Ill lays down seven specific grounds of prohibited discrimination, which do not include "type of contract". While Article 1, paragraph l(b), permits ratifying States to determine, after consultation with representative employers' and workers' organizations, any other distinction, exclusion or preference which has the effect of nullifying or impairing equality of opportunity and treatment in employment, Peru has not added any further ground to that list of seven specific reasons. The Committee accordingly intends to concentrate its examination of this aspect of the representations from the point of view of, firstly, discrimination on the ground of political opinion and, secondly, on the ground of sex.
39. The CLAT alleges that the new legislation (both Act No. 26513 and the Regulations issued thereunder) involves discrimination in employment by exposing trade union leaders who exercise their freedom of expression to criticize any government anti-labour policy to a number of reprisals, in particular arbitrary dismissal, the removal of reinstatement as a form of redress for unjustified dismissal, and reduction of the time-limit of trade union immunity (fuero sindical) after leaving office. It provides examples of the dismissal of four trade union leaders at the Chinese Shougang Hierro Peru SA company and of three leaders at the Peruvian Telephone Company, where, in both cases, false reasons were given for the dismissals (the first being "serious fault" in view of their public statements, the second being illegal misappropriation of funds). The CLAT gives no details on how this discrimination is directly linked to the political opinions of the trade union leaders, beyond implying that, in their trade union work, public statements might criticize the Government's policies.
40. The Government explains that protection against discrimination because of trade union membership or activities remains in the law, citing section 62: "Dismissal on the following grounds shall be null and void: (a) membership in a trade union or participation in trade union activities; (b) participation as a candidate to represent the workers or acting or having acted in this capacity". In addition, section 82 reads:
The termination of employment contracts on the grounds provided for in paragraph (b) of section 80 shall be subject to the following procedures: (a) the enterprise shall provide the trade union, or in the absence of the latter the workers, or their authorized representatives in the absence of a trade union, with relevant information indicating exactly the reasons invoked and the names of the workers concerned. The inclusion on the list of workers enjoying trade union protection (fuero sindical) requires specific justification. This process shall be notified to the Ministry of Labour and Social Promotion for the initiation of the respective proceedings.
The Government also explains that the remedy of compensation rather than reinstatement in certain cases is maintained in the Act because in reality, reinstatement had proved not to be the preferred option of dismissed workers. According to the Government, by the time redress was ordered, following often lengthy judicial proceedings, the worker was already in employment elsewhere. Moreover, it points out that reinstatement is still possible under Legislative Decree.No. 728. The Government states that the limit of post-office trade union immunity to 90 days, contained in the Regulations, has the realistic aim of avoiding permanent immunity when a worker is no longer involved in trade union functions. The Government does not specifically mention the dismissals in the Chinese Shougang Hierro Peru SA company and the Peruvian Telephone Company.
41. The Committee notes that the Governing Body Committee on Freedom of Association, in Case No. 1796, has examined the alleged anti-union bias of Act No. 26513. In particular, it examined instances of unjustified dismissals in several enterprises (not being those mentioned in these representations). The present Committee particularly notes that the Committee on Freedom of Association concluded, after specific reference to sections 82 and 62 of the Act (cited by the Government, above), that the legislation seemed to provide some protection against acts of anti-union discrimination but that it requested the Government to take the necessary steps to guarantee the application in practice of provisions aimed at such protection,(Endnote_4) and that the Committee on Freedom of Association asked the Government to provide more detailed information on the real cause for certain electricity sector dismissals(Endnote_5) and to proceed with an investigation into the other dismissals mentioned in the case.(Endnote_6) The present Committee notes that membership of a trade union is not in itself a prohibited ground of discrimination under Article 1 of Convention No. 111; but that the expression of political opinion alleged in the present representations is so closely linked to activity as an officer of a trade union that the two are difficult to separate. Nevertheless, in the absence of precise allegations in the present representations, indicating a direct link between the expression of political opinion by the trade union leaders and their dismissal, the Committee can only reiterate the position expressed by the Committee on Freedom of Association that the Government take measures to ensure that, in the future, dismissals which take place under this law are not occasioned by the expression of political opinion by trade union leaders.
42. Regarding discrimination on the basis of sex, the CUT claims that women, being in a precarious and unprotected employment situation, are affected by the new legislation, in particular since they would have greater difficulty in acceding to the labour market. However, no details or statistical data are presented as evidence of the deteriorating employment situation of women workers, and no specific provisions of the legislation are cited as being prejudicial directly or indirectly to the equal employment opportunities of women. The Government does not refer to this aspect of the representations in its replies.
43. The Committee is aware, however, that, since 1994, the ILO Committee of Experts on the Application of Conventions and Recommendations has been noting in direct requests information received from the Government on Act No. 728 in relation to promoting equality of opportunity in respect of employment. In the most recent direct request (1995), the Committee of Experts noted
the Government's statement that a Programme on Training Young People for Employment and Work Experience has been established in order to promote the generation of work for the unemployed and underemployed, and that it provides technical and legal advice for participants wishing to set up a micro-enterprise or small enterprise. (...) The Committee asks the Government to provide statistics on the number of applicants for the Programme and the number of actual participants, disaggregated by sex, together with information on the measures taken by the Government to support and promote the admission of women to the Programme.
44. From a reading of Legislative Decree No. 728, as amended by Act No. 26513, together with the Regulations issued thereunder in January 1996, the Committee cannot detect any direct discrimination against women workers. To be able to assess whether the legislation was giving rise to indirect discrimination on the basis of the sex of the worker, much more detail would be required as to how it operated in practice. This is precisely why the ILO Committee of Experts has merely noted the existence of the development and has asked for details on how it affects women workers. Without that information, this Committee considers that it is not in a position to examine this aspect of the representations further. It nevertheless would express the hope that, once the regular supervision of Peru's application of Convention No. Ill resumes following the closure of these representations, the Government will provide all the details requested by the Committee of Experts.
B. Convention No. 122
45. The Committee notes that the allegations relating to the non-observance of Convention No. 122 concern the provisions of the Promotion of Employment Act which establish youth vocational training agreements, encourage recourse to subcontracting enterprises, multiply the possibilities of fixed-term contracts and facilitate dismissal. In the complainant organizations' opinion, these provisions tend to generalize precarious employment and subordinate social policy to economic policy in violation of the provisions of Article 1 of the Convention. For its part, the Government feels that these allegations are all the more unfounded because the Act in question is precisely designed to combat unemployment by providing a better training for young people and a more efficient functioning of the labour market.
46. The Committee recalls that Convention No. 122 imposes on the ratifying State the obligation to declare and pursue, as a major goal, an active policy designed to promote full, productive and freely chosen employment (Article 1), and to decide on and keep under review, within the framework of a coordinated economic and social policy, the measures to be adopted to achieve this objective (Article 2), in consultation with the representatives of the persons concerned (Article 3). The Convention thus stipulates in general terms the objectives and means of applying employment policy and leaves the ratifying State considerable flexibility in the choice of measures to take and the instruments to use. The Committee notes, in this respect, that the Government has made the reform of labour legislation a vital component of its employment policy,; this may be witnessed by the adoption of a wide range of provisions setting up new schemes for training and individual working relationships since November 1991, under the Promotion of Employment Act. The Committee of Experts on the Application of Conventions and Recommendations had noted this in its observations in 1992 and 1994, as had the Committee on the Application of Standards during its discussion on the application of the Convention by Peru at the 1994 June Session of the International Labour Conference. In its observation of March 1995, the Committee of Experts noted the objections made against certain of these provisions, especially with respect to the employment of young people.
47. As regards the youth vocational training agreements, the Committee recalls that under Article 1, paragraph 2, of the Convention, employment policy should aim, amongst other things, at guaranteeing that there is "the fullest possible opportunity for each worker to qualify for, and to use his skills and endowments in, a job for which he is well suited". It is of the opinion that these Conventions might be consistent with the measures advocated by the Employment Policy (Supplementary Provisions) Recommendation, 1984 (No. 169) to promote the employment of young people, provided that their implementation is "carefully monitored to ensure that the they result in beneficial effects on young people's employment" and that they are consistent "with the conditions of employment established under national law and practice" (Paragraph 17 of the Recommendation). Noting the assurances given by the Government concerning the monitoring of the enterprises' respect of their obligation to dispense training in the framework of these agreements, the Committee feels bound to point out that it is up to the Government to ensure that this provision concerning the vocational training of young people should not lose sight of its objective to insert those concerned in employment in an effective and lasting way. The Committee also feels that the Government should pay heed to the possible repercussions of this provision on the employment of other age categories in the active population. In this respect, the Committee notes that although the Government states that the system of training agreements is designed to combat the unemployment of young people by supplementing their training, it does not provide any indication as to the reasons Which prompted it to extend considerably the possibilities of working under this type of contract by raising the age limit from 21 to 25 years, extending its duration from 18 to 36 months and raising the maximum number of young workers authorized by the enterprise from 15 to 30 per cent. In the Committee's opinion, an extended period of supplementary practical training at such an age can only be justified in training for highly specialized skills. As regards the situation in which young persons being trained might account for 30 per cent of the total number of workers in the enterprise, this would be scarcely propitious for the efficient training of those concerned. In application of Article 2 of the Convention, the Government should review these provisions in the light of the results obtained with respect to the promotion of employment of young people, taking into account the possible repercussions on the employment of other age categories in the active population. The Committee also recalls that under Article 8 of the Employment Service Convention, 1948 (No. 88), also ratified by Peru, "special arrangements for juveniles shall be initiated and developed within the framework of the employment and vocational guidance services".
48. As regards the provisions of the law concerning subcontracting by temporary service enterprises, auxiliary service enterprises and workers' cooperatives, the Committee recalls that the Convention sets out to promote employment in general including, for example, in the form of self-employment or the setting up of cooperatives and not to enable existing enterprises to maintain or increase their own payroll. Noting the Government's statements on the role of cooperatives as a means of access to the labour market and regulations relating to subcontracting by cooperatives, the Committee urges it to take the necessary measures to ensure that, in accordance with terms of reference of the cooperatives, the relevant provisions of the Promotion of Employment Act actually encourage the creation of new jobs rather than the mere redistribution of existing jobs between user enterprises and subcontracting enterprises.
49. As regards the provisions of the Act concerning employment contracts subject to special conditions and dismissal, the Committee feels that, although these matters are not expressly covered by the Convention, it is up to the Government to ensure that measures to promote greater fluidity of the labour market are compatible with the objective of full employment. In this respect, the Committee notes that the attainment of job security is one of the basic principles under section 2 of the Act, whereas section 37 assumes that there is an employment contract of unspecified length in any paid and dependent employment relationship, an understanding supported by section 111 which provides that the categories of employment contracts might be changed subject to special conditions in the event of irregularities. In view of the fact that the various contracts subject to special conditions were placed on the statute books in order to promote employment by making the labour market more flexible, the Committee invites the Government to take the necessary steps to ensure that they contribute effectively to the creation of new jobs.
50. In making its recommendations, the Committee does not lose sight of the particular constraints weighing on the formulation and application of employment policy particularly the extent of the informal sector. It hopes that since the Government has opted to make adjustments to the labour legislation a vital component of this policy, it will ensure that the costs and social advantages of the ongoing reforms are fairly divided amongst all those concerned. In this context, the Committee would like to draw the Government's attention particularly to Article 3 of Convention No. 122 which stipulates that representatives of the persons affected by the measures to be taken, and in particular representatives of employers and workers, should be consulted concerning employment policies "with a view to taking fully into account their experience and views and securing their full cooperation in formulating and enlisting support for such policies".
IV. The Committee's recommendations
51. The Committee recommends the following to the Governing Body:
(a) As regards Convention No. 100, the Committee considers that given the general nature of the allegation made in this respect which has not been substantiated with any detail, this aspect of the representations need not be pursued.
b) As regards Convention No. 111 and more particularly the alleged discrimination against trade union leaders on the basis of political opinion, the Committee considers that the Government should in the future take the measures necessary to ensure that dismissals which take place under the Promotion of Employment Act are not occasioned by the expression of political opinion, in particular by trade union leaders.
c) As regards the alleged discrimination on the basis of sex contrary to Convention No. 111, the Committee notes that the HO Committee of Experts, in examining Peru's application of the Convention, has noted the introduction of Legislative Decree No. 728 and has asked for details on how it affects women workers in practice. As information which might have thrown light on this aspect of the general statement that the new law is discriminatory has not yet been submitted, the Committee considers that it is not in a position to examine this aspect of the representations further. It nevertheless would express the hope that, in its future reports on Peru's application of Convention No. 111, the Government will provide all the details requested by the Committee of Experts.
(d) Concerning Convention No. 122, the Government is invited to provide in its next report submitted under article 22 of the Constitution on the application of the Convention full information on:
(i) any available surveys on the results obtained by the youth training agreements (sections 8 to 16 of the Promotion of Employment Act), in which reference is made to the Song-term integration of those concerned, and on the possible repercussions of these programmes on the employment of other age categories in the active population;
(ii) the measures taken or foreseen to ensure that the application of the provisions of the Promotion of Employment Act with respect to employment contracts subject to special conditions (sections 87-1117), the promotion of self-employment (sections 137-144) and special enterprises (sections 165-174) contribute effectively to the creation of new jobs;
(iii) the effect given to the provisions of Article 3 of the Convention; in order to enable the Committee of Experts on the Application of Conventions and Recommendations to continue its examination of the problems raised by the application of the Convention.
(e) Finally, in view of the specific difficulties young people seem to encounter in finding a suitable job, the Committee feels that the Government should also provide, in its next report submitted under article 22 of the Constitution on the application of Convention No. 88, detailed information on the special arrangements made for young people within the framework of employment and vocational guidance services.
Geneva, 14 November 1996.
(Signed)
Mr. A. Ducreux,
Chairperson.
Point for decision: Paragraph 51.
Extracts from the Promotion of Employment Act (Legislative Decree No. 728, amended by Act No. 26513)
Section 2. The aims of this Act are to:
(a) promote widespread access to productive employment within the framework of the overall economic policy of the Executive Power and to promote employment through special programmes;
(b) significantly improve levels of appropriate employment in the country and combat unemployment and underemployment in particular that affecting young people in the labour force;
(c) encourage full use of existing installed capacity in enterprises in the context of economic recovery programmes;
(d) stimulate productive investment in the private sector, especially in branches with significant labour absorption capacity;
(e) guarantee security of employment and income for workers in accordance with the constitutional provisions on employment stability;
(f) facilitate an appropriate and effective interrelationship between labour market supply and demand;
(g) promote vocational training of workers as a means of improving employment income and productivity;
(h) encourage a move away from employment in low-income and low-productivity urban and rural occupations, and to other higher productivity areas; and
(i) bring uniformity to employment contract provisions and consolidate existing social benefits.
Title I. Vocational training
Chapter I. Training for young people
Section 8. The objective of vocational training for young people shall be to provide theoretical and practical knowledge and skills for young people between the ages of 16 and 21 for the purpose of integrating them into economic activity in specific occupations.
Section 9. Enterprises or bodies employing workers who are subject to the private sector labour regime may provide vocational training for young people through agreements with the persons concerned. Such agreements must make reference to the provisions of the preceding section.
Section 10. Agreements to provide vocational training for young people shall be made in writing and shall state the following:
(a) the name or business of the individual or legal entity making provision for vocational training;
(b) the name, age and personal details of each young person undertaking training, including the name of his legal guardian in the case of a minor;
(c) the occupation for which training is being provided;
(d) the amount of the monthly grant, which shall be no less than the minimum living wage at the place where training takes place during the normal working hours at the enterprise. Where fewer hours are worked, payment shall be proportional thereto; and
(e) the conditions on which the agreement may be amended, suspended or terminated.
Section 11. The youth labour training agreement shall have a duration of no more than 36 months and shall be notified to the corresponding departments of the Ministry of Labour and Social Promotion. Intermittent or extended periods of youth work training taken together may not exceed 36 months in the same enterprise.
Section 12. The names of young persons undergoing work training shall be entered into a Special Register, maintained by the enterprise, and authorized by the competent department of the Ministry of Labour and Social Promotion on presentation.
Section 13. The obligations of the enterprise shall be as follows:
(a) to provide technical guidance and the necessary means for the systematic and integrated work training in the occupation covered by the agreement;
(b) to pay the agreed monthly allowance on time;
(c) to make no charge whatsoever for the training;
(d) to conclude a health and accident insurance policy or to assume direct responsibility for the cost of such contingencies;
(e) to issue the respective labour training certificate.
Section 14. The holder of the labour training certificate to which paragraph (e) of section 13 refers shall obtain the corresponding technical qualification after compliance with the requirements fixed by the Ministry of Education. Section 15. The Labour Administrative Authority may at any time carry out inspections with a view to monitoring compliance with the provisions of section 13. The number of young persons in vocational training may not exceed 30 per cent of the total staff of an enterprise, including permanent staff and staff recruited under any form.
Section 16. The obligations of a young person receiving training shall be as follows:
(a) to comply diligently with the obligations entered into;
(b) to observe the standards and regulations established in the enterprise.
Title II. Employment contracts
Chapter II. Probationary period
Section 43. The probationary period shall be three months, after which a worker shall be entitled to protection against arbitrary dismissal.
Chapter IV. Extinction
Section 62. Dismissal on the following grounds shall be null and void:
(a) membership in a trade union or participation in trade union activities;
(b) participation as a candidate to represent the workers or acting or having acted in this capacity.
Chapter V. Workers' rights
Section 67. The dismissal of a worker on grounds related to his conduct or capacity shall not give rise to compensation.
Chapter VII. Collective termination for objective reasons
Section 82. The termination of employment contracts on the grounds provided for in paragraph (b) of section 80 shall be subject to the following procedures:
(a) the enterprise shall provide the trade unions, or in the absence of the latter, the workers, or their authorized representatives in the absence of a trade union, with relevant information indicating exactly the reasons invoked and the names of the worker concerned. The inclusion on the list of workers enjoying trade union protection (fuero sindical) requires specific justification. This process shall be notified to the Ministry of Labour and Social Promotion for the initiation of the respective proceedings.
Title III. Employment contracts subject to special conditions
Chapter I. Scope of application
Section 87. Employment contracts subject to special conditions may be made where the market demands, the increase in production in the enterprise or the temporary or casual nature of the service or work to be performed so require, except in the case of intermittent or seasonal contracts which by their nature may be permanent.
Section 88. Temporary contracts shall be comprised of:
(a) contracts for beginning or launching a new activity;
(b) contracts to meet market demand; and
(c) contracts for the restructuring of an enterprise.
Section 89. Incidental contracts shall be comprised of:
(a) casual contracts;
(b) replacement contracts; and
(c) emergency contracts.
Section 90. Contracts for a specific piece of work or service shall comprise:
(a) contracts for a specific service or piece of work;
(b) intermittent contracts; and
(c) seasonal contracts.
Chapter II. Temporary employment contracts
Section 91. Contracts to start up or increase activities. A temporary contract to start up a new activity is a contract between the employer and a worker as a result of the enterprise starting up a new activity. It may be for up to a period of three years. A new activity shall be deemed to be either the setting up of a productive activity, such as a new installation or the opening of new establishments or markets, or the setting up of new activities or the extension of already existing activities within the same enterprise.
Section 92. Contracts to meet market demand. A temporary contract to meet market demand is a contract between an employer and a worker for the purpose of meeting increased demands in production arising from significant variations in market demand, including where it covers ordinary work forming part of the normal activity of the enterprise which cannot be satisfied by the existing permanent personnel. It may be renewed within the time-limits established under section 108 of this Act. A temporary contract to meet market demand shall stipulate the reasons for the temporary nature of the contract. Such reasons shall be in response to a temporary and unforeseen increase in the normal rate of output, excluding the variations of a cyclical or seasonal nature which take place in some seasonal productive activities.
Section 93. Contracts for restructuring an enterprise. A temporary contract for the restructuring of an enterprise is a contract in response to the replacement, extension or modification of the activities of an enterprise and, in general, any technological change affecting machinery, equipment, methods of production, systems, production and management procedures. It may be for a period of up to two years.
Chapter III. Incidental employment contracts
Section 94. Casual contracts. A casual contract is a contract between an employer and a worker to meet casual needs different from the normal activity at the workplace. It may be for a maximum of six months in one year.
Section 95. Replacement contracts. A casual replacement contract is a contract between an employer and a worker for the purpose of replacing a regular employee in the enterprise whose labour relationship has been suspended on legally valid grounds or as a result of the provisions of an agreement applicable at the workplace. It may be for such period as required by the circumstances. In this case, the employer must reserve the post for its original holder who shall retain his rights to be readmitted to the enterprise, at which time the replacement contract shall be terminated. This type of contract shall include employment to cover a stable post, the holder of which has been required for management reasons temporarily to undertake other work at the same workplace.
Section 96. Emergency contracts. An incidental emergency contract is a contract to cover needs arising from an unforeseen event or force majeure. It shall be for the period of the emergency.
Chapter IV. Employment contracts for a specific piece of work or service
Section 97. Contracts for a specific piece of work or seiyice. A contract for a specific piece of work or service is a contract between an employer and a worker for a specified purpose and period. It shall be for the duration necessary to complete the piece of work or service concerned. This type of contract may be renewed as appropriate to complete the piece of work or service for which the worker has been contracted.
Section 98. Intermittent contracts. An intermittent service contract is a contract between an employer and a worker to cover the needs arising from activities of the enterprise which are by their nature permanent but not constant. Such contracts may be undertaken by the same worker who shall have a preferential right to be contracted, which may be stipulated in the initial contract and which shall operate automatically without need for a new contract or renewal.
Section 99. An intermittent employment contract must be in writing and state as precisely as possible the circumstances or conditions to be observed for resumption of the intermittent work which is the subject of the contract.
Section 100. The period of service and the social rights of the worker contracted in this manner shall be determined in accordance with the time effectively worked.
Section 101. Seasonal contracts. A seasonal contract is a contract between an entrepreneur and a worker for the purpose of responding to specific needs of the business of the enterprise or establishment which arise only at specific times of the year and which tend to be repeated for equivalent periods during each cycle in accordance with the nature of the productive activities.
Section 102. Seasonal contracts must stipulate the following:
(a) the duration of the season;
(b) the nature of the activity of the enterprise, establishment or operation; and
(c) the nature of the work to be performed by the worker.
Section 103. Where a worker has been contracted by the same employer for two consecutive seasons or three alternate seasons, he shall be entitled to be contracted for subsequent seasons.
Section 104. To exercise the right conferred in the preceding section, the worker must present himself at the enterprise, operation or establishment within the 15 days preceding the commencement of the season, after which his right to be rehired shall no longer be valid.
Section 105. Regular or periodic increases in the normal level of activity in the enterprise or operation, resulting from a substantial increase in demand during part of the year in the case of an establisliment or operation in which activity is continuous and permanent throughout the year, shall also be grounds for the establishment of temporary contracts. Similarly, temporary contracts may also be made to cover activity during holiday periods.
Chapter V. Formal requirements for contracts
Section 106. The employment contracts referred to under this Title must be made in writing in three copies and must expressly state their duration and the reasons for the contract as well as other conditions arising from the labour relationship.
Section 107. A copy of the contracts shall be submitted to the Labour Administration Authority within 15 days of their signature for information and registration purposes. The Labour Administration Authority may order subsequent verification of the authenticity of the information contained in the copy referred to in the above-mentioned paragraph with a view to the application of the provisions under section 111, paragraph (b); this does not affect the time imposed upon the employee in the event of an infraction. Chapter VI. Common provisions
Section 108. Several contracts may be made for lesser periods where the maximum periods established in the contractual requirements indicated in the preceding section do not, when added together, exceed the stated limit. Where appropriate, successive contracts may also be made with the same worker where such contracts are of different types at the same workplace in respect to the needs of the workplace and where they are for no more than five years in total.
Section 109. In such contracts the probation period established by law or collective agreement for which provision is made in this Act shall apply.
Section 110. Where the employer, upon expiry of the probationary period, terminates the contract unilaterally without valid reason, he shall, by way of indemnity, pay the worker the remuneration outstanding up until the expiry of the contract.
Chapter VII. Reclassification of contracts
Section 111. Fixed-term employment contracts shall be deemed to be for an indefinite period in the following cases:
(a) where the worker continues to work after the expiry of the period stipulated or after agreed extensions where these exceed the maximum authorized limit;
(b) where a contract is for a specific piece of work or service and the worker has continued to provide effective services after completing the work for which he was contracted without the contract being renewed;
(c) where the holder of the post being replaced does not resume his post on expiry of the period provided for by law or by agreement and the worker contracted continues to occupy that post;
(d) where the worker proves that there has been an infringement of the standards contained in this Act.
Section 112. A permanent worker who terminates, his contract may not be recontracted under any of the methods provided for in this Title for a period of one year thereafter.
Chapter VIII. Rights and benefits
Section 113. Workers contracted in accordance with this Title shall be entitled to the same benefits to which workers at the same workplace holding contracts for an indefinite period are entitled by law, agreement or custom, and to stability of work for the time for which they are contracted following the probationary period.
Chapter IX. Other types of contracts subject to special conditions
Section 114. Employment contracts relating to the export of non-traditional products referred to in Legislative Decree No. 22342 shall be governed by separate provision. Notwithstanding this, the provisions of this Act in relation to the approval of contracts shall apply. Where an industry falls within the scope of Legislative Decree No. 22342, personnel employed in it shall be contracted in accordance with the provisions of that instrument.
Section 115. Temporary employment contracts in an export processing zone and under any other special regime shall be governed by special provisions.
Section 116. Any other type of service not specifically covered in this Title may be contracted where it is for a seasonal nature and for a period in accordance with the service to be performed.
Section 117. In the cases referred to in the preceding sections, the provisions of Chapters V and VIII of this Title shall also apply where there is no conflict with any provisions specific to such types of contract.
Title V. Promotion of employment
Chapter III. Promotion of self-employment
Section 137. The State promotes the achievement of full, productive and freely chosen employment through the promotion of associative forms of employment by workers wishing to establish their own enterprises, as an effective machinery to generate new workposts and as a support to the socio-economic market system as proposed in article 58 of the Constitution of Peru.
Section 138. Enterprises and their workers may, through collective or individual bargaining with their respective employees, set up incentive or aid programmes which promote the establishment of new, workers' enterprises by workers who freely choose to resign from the enterprise.
Section 139. The Executive Power, in the context of the process of privatization of public enterprises subject to the private sector common labour system, may choose to transfer such enterprises to the workers in such enterprises under the terms of the relevant legislation.
Section 140. The workers to whom this Title applies may choose between the following entrepreneurial methods of promoting autonomous employment:
(a) establishment of small and micro-enterprises in accordance with the provisions of the respective Act;
(b) shareholding programmes regulated by the respective Privatization Act;
(c) workers' cooperatives: labour and employment cooperatives and temporary work cooperatives;
(d) any other entrepreneurial schemes established in the general law concerning corporations and the commercial legislation.
Section 141. The cooperatives to which reference is made in paragraph (c) of section 140 of Legislative Decree No. 728, duly established and entered into the Public Registers, may provide their services to other so-called user enterprises. These cooperatives shall provide their worker members with remuneration and conditions of work which are not inferior to those of workers in the user enterprise carrying out similar work. If such a comparison cannot be made, the remuneration per worker member shall not be below the monthly minimum living wage. All the social benefits established in the labour regulations governing private activity must also be granted. The provision of services through temporary service enterprises and Complementary Services Enterprises shall be subject to the same regulations for which provision is made in the preceding paragraph and in section 144.
Section 142. The cooperatives listed under the foregoing section shall be of an associative nature. If it notes the existence of a workers' cooperative which is not of an associative nature and in which members do not take an active part in the steering bodies, or which does not dispense cooperative training or fails to respect the other principles established under the general legislation on cooperatives, the National Supervisory Committee for Enterprises and Investment (CONASEV) shall apply the financial penalties provided for under the relevant legislation and may strike the name of the cooperative off the national register of cooperatives it keeps. To this end, it may base its decision on the reports it is authorized to receive from the labour inspectorate and/or cooperative organizations. This provision shall apply without affecting the possibility of appeal the worker may lodge with the judiciary.
Section 143. The workers' cooperatives listed under the preceding sections may only provide to a contracting enterprise the services of associate workers under the supervision of member workers, providing, as appropriate, the goods and equipment necessary to perform the contract.
Section 144. The number of worker members who can provide services to so-called user enterprises which is alluded to in section 140(c) of Legislative Decree No. 728 will not exceed 20 per cent of the total number of workers of the user enterprise. The percentage referred to in the foregoing paragraph shall be reached by adding up the number of workers who, at the time the calculations are made, are providing their services to the user enterprise through temporary service enterprises and cooperatives in their various forms. If this percentage is not respected, it shall be deemed that there is a direct employment relationship between the user enterprise and the surplus auxiliary workers. The employment relationship referred to in the foregoing paragraph shall concern the auxiliary workers who joined the user enterprise after the limit was exceeded. The same penalty shall apply when the limit of 20 per cent is exceeded, as provided for under section 167 of this Act.
Title VI. Special enterprises
Chapter I. Temporary service enterprises
Section 165. A temporary service is one which contracts to provide services to a third party beneficiary by collaborating temporarily in the activities of the latter through work performed by individuals contracted directly by the temporary service enterprise, which shall have employer status. Temporary services as referred to in this section are those stipulated in Title III of this Act.
Section 166. Temporary service enterprises must be established as legal entities and their sole purpose shall be that stipulated in the preceding section.
Section 167. A user shall be any individual or legal entity contracting the services of a temporary service enterprise. The number of workers which may provide services through such enterprises may not exceed 20 per cent of the user's total number of workers.
Section 168. Workers in temporary service enterprises shall be classified as being either internal or external. Internal workers are those who perform their work on the staff and activities of the temporary service enterprise. External workers are those sent by the temporary service enterprise to its users or who undertake the work or services contracted by the latter.
Section 169. The Ministry of Labour and Social Advancement shall approve requests for authorization to operative temporary service enterprises which meet the requirements of this Act. The control and supervision of such enterprises shall be by the General Directorate of Employment of the Ministry of Labour and Social Advancement.
Section 170. For the purposes of the authorization required in the preceding section, the following shall be annexed to the application:
(a) a certificate of establishment of the enterprise;
(b) the deposit of social stock equal to or more than five UIT valid at the time of the establishment of the enterprise.
Section 171. Temporary service enterprises shall submit, when so requested by the Ministry of Labour and Social Advancement, statistical reports on labour supply and demand, frequency of placement, occupation, sectors of economic activity in which it participates, and salary amounts and scales. The Ministry of Labour and Social Advancement shall establish regulations concerning the submission of such reports.
Chapter II. Complementary service enterprises
Section 172. A complementary service enterprise is an enterprise which has as its main activity to make available to other enterprises, hereafter referred to as user enterprises, complementary maintenance, cleaning, surveillance, security or other activities of a specialized nature. Complementary activities of a specialized nature are those which do not form part of the main activities of the user enterprise and which call for highly skilled personnel.
Section 173. Before it provides any services, the service enterprise must make a service contract in writing with the user enterprise. The contract shall describe the duration, characteristics and method of the work, which must not form part of the main-activities of the user enterprise.
Section 174. Complementary service enterprises must obtain authorization to operate from the Ministry of Labour and Social Advancement in accordance with section 180 of this Act.
Endnote 1
The Governing Body Committee on Freedom of Association examined these allegations in the context of Case No. 1796, and reached interim conclusions thereon in its 304th Report, paras. 417-473 (ILO: Official Bulletin, Vol. LXXIX, 1996, Series B, No. 2).
Endnote 2
The Spanish version of this Act was reproduced in Labour Law Documents 1995/3, p. 113 ff. The relevant provisions are reproduced in the Annex.
Endnote 3
An English version of the consolidated text of Legislative Decree No. 728, as at April 1993, was reproduced in Labour Law Documents 1993-PER la.
Endnote 4
304th Reports op. cit, para. 468.
Endnote 5
304th Report, op. cit., para. 470.
Endnote 6
304th Report, op. cit., para. 471.