Observation (CEACR) - adoptée 2022, publiée 111ème session CIT (2023)

Convention (n° 98) sur le droit d'organisation et de négociation collective, 1949 - Pérou (Ratification: 1964)

Autre commentaire sur C098

Observation

Demande directe

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The Committee notes the observations of the Autonomous Workers’ Confederation of Peru (CATP), the International Trade Union Confederation (ITUC) and the Coordination of Trade Union Confederations of Peru (which groups together the General Confederation of Workers of Peru (CGTP), the Single Confederation of Workers of Peru (CUT-Peru), the CATP and the Confederation of Workers of Peru (CTP)), and the National Confederation of Private Business Institutions (CONFIEP), received on 1 September 2022, which relate to matters examined by the Committee in the present comment. The Committee notes the Government’s response to all these observations. It also notes the Government’s response to the CATP’s observations of 2018.

Legislative developments. The Committee notes that Presidential Decree No. 014-2022-TR, published on 24 July 2022, amended the Regulations of the Collective Labour Relations Act (LRTC) and observes that, among other measures, the Decree:

–indicates that the protection of trade union rights also includes delegates of trade union chapters and the leaders of unions, federations and confederations, or representatives nominated by the latter, and the parties may agree through a collective agreement to extend the protection of trade union rights to other workers or increase their period of protection. Trade union representatives on social dialogue bodies are also covered by the protection of trade union rights (section 12).
–includes section 23-A specifying the scope of the judicial dissolution of a trade union due to the loss of the minimum number of members, with the indication that, for the calculation of the number of members, unionized workers who have been dismissed or whose dismissal has not yet been approved by the courts or who have denounced acts of anti-union discrimination to the labour inspection services are still taken into account.
–indicates that employers are not empowered to extend unilaterally the effects of the collective agreement to workers not covered by its scope of application (section 28).
–provides that, in the event of the dissolution of the trade union, the operative clauses of the collective agreement shall continue to apply (section 30).
–introduces section 33-A into the Regulations of the LRCT, with the indication that in the event of disagreement on the level of collective bargaining, alternative dispute resolution machinery may be used.
–specifies the scope of the right to information of trade unions for collective bargaining, and establishes the minimum level of information that shall be provided and the period within which the employer shall provide it (section 38).
–introduces section 40-A, setting out the minimum content of the requirement to negotiate in good faith provided for in section 54 of the LRCT.
–amends section 59 of the Regulations, to provide that a judicial appeal against an arbitration award does not suspend its application, unless so decided by the courts.
–amends section 61-A of the Regulations on the conditions governing compulsory arbitration.

The Committee notes that the trade union confederations consider that the Decree can contribute to mitigating the serious situation with regard to trade union rights. The Committee notes that the CONFIEP: (i) indicates that the Decree should have been referred for consultation to the National Labour and Employment Promotion Council (CNTPE), in accordance with the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144); and (ii) considers that the amendments to the Regulations of the LRCT will have an impact on labour relations between workers and employers. The CONFIEP indicates that “the list of information that shall be provided by the employer affects the protection of the personal data of workers; that collective bargaining by branch of activity is being promoted (required): trade unions are exclusively able to seek compulsory arbitration and it is provided that employers may not unilaterally extend the effects of the collective agreement to workers not included within its scope of application, thereby necessarily promoting trade union membership”.

The Committee notes the Government’s indication that, far from affecting the balance of industrial relations between employers and workers, the Presidential Decree has its origins in the observation of the worrying current situation of freedom of association in the country. The Government emphasizes that, in 2021, the unionization rate at the national level was a mere 5 per cent and that 4.42 per cent of workers in the formal private sector were covered by collective bargaining that year. The Government adds that in 2021, only 429 lists of claims were put forward, thereby maintaining the tendency for their number to decrease which commenced in the 1990s. The Government indicates that the number of claims that were resolved fell from 1,762 in 1990 to 186 in 2021. The Government further indicates that, although in May 2022 the CNTPE, with its tripartite composition, agreed to formulate a statement reaffirming and calling for the strengthening of social and labour dialogue, in July 2022 the employers’ organizations indicated that they were suspending their participation in the CNTPE claiming that the approval of the statement had been prevented by the adoption of Presidential Decree No. 014-2022-TR. Recalling the crucial importance of social dialogue and consultations with employers’ and workers’ organizations for the preparation and formulation of legislation on collective labour relations, the Committee firmly hopes that the Government will ensure that substantive tripartite consultations are held on legislative initiatives of this type. The Committee also hopes that any concerns relating to the Presidential Decree will be duly examined within the framework of tripartite social dialogue in the CNTPE and that any obstacles preventing the functioning of that body will be resolved rapidly. It requests the Government to provide information in this regard.

Article 1 of the Convention. Adequate protection against anti-union discrimination. The Committee previously observed with concern that, despite the implementation of the Act on Labour Procedure of 2010, the duration of court proceedings relating to infringements of trade union rights had increased considerably, and it requested the Government to take measures to ensure that such proceedings are carried out swiftly and to provide information on their duration, and on the penalties imposed in cases of anti-union discrimination. The Committee notes with regret that the Government has not provided information on the duration of such proceedings and observes the claims by the trade union confederations that: (i) the Act on Labour Procedure is still not given effect throughout the national territory and the duration of labour proceedings continues to be very long, particularly when rulings are appealed, which is a strategy that is often used by employers; and (ii) complaints against trade union representatives are a recurrent anti-union practice which create a climate of intimidation, as there is no appropriate administrative or judicial mechanism that protects members and leaders against anti-union practices.

The Committee notes that, according to the Government’s report, during the period between 2017 and 2021, the National Superintendence of Labour Inspection (SUNAFIL) generated 2,886 inspection orders in relation to complaints concerning collective agreements and trade union membership and resolved 2,350 of them, with 964 resulting in a violation report and 1386 in a report. In this regard, the trade union confederations indicate that this information does not reveal the extent to which inspections identified violations of trade union rights in the inspection orders issued, whether they have the result of the effective restoration of trade union rights and whether the penalties were executed. They add that issues relating to trade union rights account for fewer than 2 per cent of all the matters on which inspections are carried out over a year and that in March 2021 the Labour Inspection Court of the SUNAFIL started to be operational, with the function of resolving appeals for the review of punishment procedures and that it is issuing decisions that do not contribute to the protection of trade union rights.

The Committee also observes that Presidential Decree No. 014-2022-TR provides that trade union protection also covers the delegates of trade union chapters and the leaders of unions, federations and confederations, or representatives nominated by them and that the parties may agree through collective agreements to extend the right to trade union protection to other workers or increase the duration of protection and include within such protection trade union representatives on social dialogue bodies. The Presidential Decree also provides that, for the calculation of the minimum number of members, unionized workers whose dismissals have not yet been confirmed by the courts or who have submitted complaints of anti-union acts to the labour inspection services will continue to be taken into account. The Committee notes the Government’s indication that this prevents the use of unjustified anti-union dismissals as a strategy for persecuting trade union leaders and dissolving trade unions. The Government adds that a proposed preliminary draft of the Labour Code, prepared at the beginning of 2022 by the Ministry of Labour and Employment Promotion and shared through the CNTPE, adopts the same approach as the Presidential Decree. The Committee takes due note of this information, and particularly the aspects of Presidential Decree No. 014-2022-TR that are intended to reinforce protection against acts of anti-union discrimination. The Committee once again requests the Government to provide information on the length of labour proceedings relating to infringements of the right to freedom of association and collective bargaining and to take the necessary measures to ensure that they are carried out swiftly. It also requests the Government to provide detailed and updated information on the penalties imposed in cases of anti-union discrimination and any action adopted in this regard. Recalling that the labour inspection services contribute to ensuring the application of the Convention, the Committee requests the Government to take the necessary measures for the concerns set out above to be duly examined through social dialogue in the CNTPE, which should also assess the effectiveness of the system of protection against acts of anti-union discrimination and the impact of the application of Presidential Decree No. 014-2022-TR in this regard. The Committee requests the Government to report on these discussions and their outcome. The Committee also requests the Government to keep providing information about any progress made with regard to the preliminary draft of the Labour Code.

Workers with fixed-term contracts in the private sector. The Committee previously requested the Government to provide information on any measures taken by the labour inspection services to ensure the effective protection of workers with fixed-term contracts against the potential non-renewal of their contracts for anti-union reasons. It also invited the Government to use the tripartite forum of the CNTPE to examine this issue and the possibility of amending the provisions of the Act on the Promotion of Non-Traditional Exports, which allow for the recurrent use of short-term contracts. The Committee notes the Government’s indication that the proposed preliminary draft of the Labour Code seeks to harmonize the labour legislation and reduce the use of fixed-term contracts and that it proposes the possibility of concluding contracts of different types with the same worker, provided that in total they do not exceed a maximum period of two years. The Committee observes the indication by the trade union confederations that: (i) the non-renewal of contracts tends to be used as a reprisal for trade union membership and engagement in trade union activities; (ii) in the area covered by the Act on the Promotion of Non-Traditional Exports, contracts can be renewed without any limits; (iii) in 2021, 91.2 per cent of new contracts in the country were for fixed-term jobs; and (iv) the legislation does not provide any type of protection for workers against the failure to renew temporary contracts as a reprisal against union membership and engagement in union activities. The Committee recalls that, when examining cases relating to this issue (in particular Cases Nos 3065, 3066 and 3170), the Committee on Freedom of Association has recalled that fixed-term employment contracts should not be used deliberately for anti-union purposes and that in certain circumstances the employment of workers with the successive renewal of fixed-term contracts for several years can be an obstacle to the exercise of trade union rights. Taking into account the indications relating to the high percentage of fixed-term contracts and the concerns expressed above, the Committee requests the Government to submit the issue of the protection of workers with fixed-term contracts against anti-union discrimination for thorough tripartite consultation in the CNTPE with a view to the identification of specific measures in this regard. Recalling that in the cases examined by the Committee on Freedom of Association, the Government referred to the possibility of revising the provisions of the Act on the Promotion of Non-Traditional Exports which allow the recurrent use of short-term contracts, the Committee once again invites the Government to include this issue in tripartite consultations and the current process of reforming the labour legislation. The Committee requests the Government to provide information on these discussions and their outcome.

Workers with fixed-term contracts in the public sector. Having noted the allegations of the mass dismissal of workers employed under administrative service contracts, the Committee previously requested the Government to engage in dialogue with public sector trade unions on the subject of the protection of these workers against anti-union discrimination. The Committee notes the information provided by the Government that: (i) Act No. 31131 containing provisions to eradicate discrimination in public sector scheme, published on 9 March 2021, prohibits administrative service contracts and provides that workers covered by such contracts are to be engaged under the system set out in Legislative Decree No. 728 (the Labour Productivity and Competitivity Act) and Legislative Decree No. 276 (the Basic Act on the administrative career and remuneration in the public sector); (ii) workers recruited as from 10 December 2021 who were covered by administrative service contracts benefit from permanent contracts, on condition that they have participated in a public competition for a permanent position, although personnel may be engaged under administrative service contracts for a fixed period if they are engaged as replacements or in transitional positions; and (iii) there are various unions covering this group of workers and public employees covered by administrative service contracts were represented in the negotiations relating to Act No. 31188. The Committee observes the indication by the trade union confederations that: (i) although Act No. 31131 establishes that administrative service contracts are for an indefinite period, a new form of temporary and irregular contract is being increasingly used known as third party contracts; and (ii) in 2020, over 127,000 persons were engaged through the hiring of services and in the majority of cases these were labour relations covered by apparent third party contracts under which the workers could not exercise their trade union rights as the reprisal would be the non-renewal of their contracts. While welcoming the legislative measures adopted in relation to administrative service contracts, and noting the concerns expressed above, the Committee requests the Government to submit the issue of protection against anti-union discrimination of workers who do not have permanent contracts for thorough consultation with the representative trade unions in the public sector. It requests the Government to report on these discussions and their outcome.

Article 4. Promotion of collective bargaining. Workers in training schemes. In its previous comment, the Committee noted that the Government was engaged in the adoption of an Act on specific public sector pre-vocational and vocational practices and that it was revising the content of Act No. 28518 with a view to explicitly recognizing the right to collective bargaining of workers in training schemes. The Committee notes the Government’s indication that the preliminary draft text of the Labour Code prepared by the Ministry of Labour and Employment Promotion defines vocational training schemes in section 75 as special types of labour contracts, thereby recognizing them as labour contracts, which presupposes the possibility for workers engaged in vocational training schemes to have the right to establish trade unions and engage in collective bargaining. The Committee observes the indication by the trade union confederations that: (i) up to now, no initiative has been seen to amend Act No. 28518; (ii) the general recognition in the Constitution of trade union rights does not on its own entitle persons covered by training schemes to exercise such rights; and (iii) section 76 of the preliminary draft text referred to above provides that labour training schemes are not subject to general labour regulations, or in other words the preliminary draft maintains the approach adopted in the current legislation of not explicitly recognizing the trade union rights of workers in training schemes. The Committee hopes that the preliminary draft text of the Labour Code will be the subject of thorough tripartite consultation and that, within the context of this dialogue process consideration will also be given to the revision of the legislation to give explicit recognition to the collective rights of workers in training schemes. The Committee requests the Government to report any progress in this regard.

Promotion of collective bargaining at all levels. The Committee recalls that the issue of the right of the parties to determine freely the level of negotiation has been the subject of its attention for many years and has given rise to a series of cases before the Committee on Freedom of Association. The Committee observed previously that, under the terms of section 45 of the LRCT, in the event of disagreement between the parties and where a collective agreement does not exist, the legislation gave precedence to negotiation at the enterprise level, and it requested the Government to engage in consultations with the representative organizations of workers and employers on the amendments necessary to ensure that the level of collective bargaining and the mechanism for the settlement of disputes relating to the level at which collective bargaining must take place are determined freely by the parties concerned. The Committee notes with interest the indication by the Government that Act No. 31110 on the Agricultural Labour System and Incentives for the Agricultural and Irrigation Sector, Agricultural Exports and Agro-Industry, which entered into force on 1 January 2021, removed that last indent of the first paragraph of section 45 of the Regulations of the LRCT, which provided that, in the absence of agreement on the level of negotiation, it would take place at the enterprise level. The Committee observes that the amended version of section 45 provides that, in the event of disagreement concerning the level of negotiation, the matter shall be resolved through the use of alternative dispute resolution machinery. The Committee notes the indication by the trade union confederations that the second subsection of section 45 has not been amended and that it provides that, once the level of negotiation has been determined, it may only be changed with the agreement of the parties, with no alternative machinery being envisaged to resolve any disagreement concerning the modification of the level of negotiation. The trade union confederations understand this as impeding collective bargaining at levels other than the enterprise level. The Committee notes the Government’s clarification that the amendment covers both the first and second subsections of section 45, which means that, in the event of disagreement on the level of bargaining, either in relation to new collective bargaining or if there is already an agreement at some level, the disagreement may be resolved through the use of alternative dispute resolution machinery. The Committee requests the Government to provide information on the impact of the amendment to section 45 of the Regulations of the LRCT on collective bargaining. The Committee hopes that the Government will ensure that the autonomy of the parties prevails in the determination of the level of bargaining.

The Committee also observes that Act No. 31110 promotes in the agricultural and agricultural export sector the collective right to collective bargaining, particularly at levels higher than the enterprise level, as workers in agriculture and agricultural exports experience difficulties in the effective exercise of this right due to the discontinuous and seasonal nature of their activities (section 8). Recalling the need to guarantee that collective bargaining can be carried out at any level, whether at the level of the enterprise, multiple-enterprises, the sectoral or national level, and noting the statistical data provided by the Government, as referred to above, according to which there is very low coverage of collective bargaining in the country, the Committee notes with interest that legislative measures have also been adopted to promote collective bargaining at levels higher than the enterprise level. The Committee requests the Government to report the specific measures taken to promote collective bargaining at all levels, including higher than the enterprise level, and to provide information on the results.

Recourse to arbitration (arbitaje potestativo) in the event of disagreement on the level of bargaining and in relation to other situations. The Committee observed in previous comments that the LRCT and its Regulations provide for the possibility for any of the parties to collective bargaining to have recourse to arbitration (arbitraje potestativo) in the event that: (i) during a first negotiation, agreement is not reached on its level or content (where at least six direct negotiation or conciliation meetings have been held and three months have elapsed since the beginning of the negotiations); or (ii) where during the course of bargaining acts of bad faith are noted which have the effect of delaying, hindering or preventing the achievement of agreement. The Committee observes that Presidential Decree No. 014-2022-TR introduces certain amendments to the Regulations concerning the possibility of having recourse to arbitration (arbitraje potestativo): (i) it provides that this possibility is only available to workers’ representatives; (ii) the conditions for initiating arbitration (arbitraje potestativo) in the first circumstances envisaged by the Regulations (a first negotiation, in which the parties do not reach agreement on the level or content of the negotiations) are not cumulative, but rather alternatives (since at least six direct negotiation or conciliation meetings must have been held, or three months must have elapsed since the beginning of the negotiations); and (iii) in relation to point (i), it is specified that the acts of bad faith in the negotiations which may give access to arbitration (arbitraje potestativo) are those committed by the employer.

The Committee notes the indication by CONFIEP that the Presidential Decree exclusively allows workers’ organizations to request compulsory arbitration and omits the principal option of arbitration that is voluntary for the parties. The CONFIEP considers that establishing the compulsory nature of arbitration has the result of collective bargaining processes becoming a formal step, as there is an incentive to go to arbitration (arbitraje potestativo) so that the arbitration board awards better economic benefits to the workers, without giving importance to the fact that in some cases the financial situation of the enterprise would not permit this. The Committee notes the Government’s indication in this respect that: (i) section 62 of the LRCT provides that workers may either call a strike or have recourse to arbitration; and (ii) arbitration (arbitraje potestativo) when initiated by the employer runs the potential risk of affecting the right to strike, as there could be situations in which strikes called by workers and arbitration (arbitraje potestativo) initiated by the employer may run in parallel, thereby undermining recourse to strike action.

The Committee recalls that it has considered that compulsory arbitration is only acceptable in certain specific circumstances, namely: (i) in essential services in the strict sense of the term, that is those the interruption of which would endanger the life, personal safety or health of the whole or part of the population; (ii) in the case of disputes in the public service involving public servants engaged in the administration of the State; (iii) when, after protracted and fruitless negotiations, it becomes obvious that the deadlock will not be broken without some initiative by the authorities; or (iv) in the event of an acute crisis. The Committee also recalls that, while arbitration imposed by the authorities at the request of one party is generally contrary to the principle of the voluntary negotiation of collective agreements, it can envisage an exception in the case of provisions allowing workers’ organizations to initiate such a procedure for the conclusion of a first collective agreement. As experience shows that first collective agreements are often one of the most difficult steps in establishing sound industrial relations, these types of provisions may be considered to constitute machinery and procedures intended to promote collective bargaining (2012 General Survey on the fundamental Conventions, paragraphs 247 and 250). Observing that, in a context of the very low coverage of collective bargaining, Presidential Decree No. 014-2022-TR has made certain of the conditions more flexible for workers to be able to have recourse to arbitration, in the case of a first negotiation or where bad faith has been demonstrated by the employer, the Committee requests the Government to: (i) provide full information on the application of these new provisions so that the Committee can assess their impact on the free and voluntary nature of collective bargaining and its effective promotion; and (ii) engage in thorough dialogue with the representative social partners in the country on the application of these provisions and on any other measures envisaged in this regard.

The Committee notes that section 28 of Presidential Decree No. 014-2022-TR provides that the employer may not unilaterally extend the effects of the collective agreement to workers not covered by its scope of application. The Committee observes that the CONFIEP considers that this section is intended to punish non-unionized workers by promoting the necessity of trade union membership. The Committee notes the Government’s indication that this view disregards section 9 of the LRCT, which provides that: “In relation to collective bargaining, the union which has in its membership the absolute majority of workers in the area covered shall represent all of those workers, even if they are not members. Where several unions exist in the same area, unions which jointly have over half the workers as members may jointly represent all the workers. In such cases, the unions shall determine the manner in which they exercise such representation, either pro rata in proportion to the number of members or entrusted to one of the unions. If there is no agreement, each union shall solely represent its own members.” The Committee notes these indications. The Committee recalls that systems under which the collective agreements concluded by the representative organization only apply to the signatories and their members (and not to all workers), and the opposite practice under which all the workers in a bargaining unit are covered, are compatible with the principles of the Convention (2012 General Survey, paragraph 225). The Committee further observes that the amendment introduced by Presidential Decree No. 014-2022-TR does not appear to preclude the parties from being able to decide themselves on the extension of the effects of the collective agreement to include workers who are not members of the union that negotiated the agreement.

Articles 4 and 6. Promotion of collective bargaining. Public sector workers. The Committee previously indicated to the Government the need to revise the Civil Service Act of 2013 and all relevant legislation, so that public sector employees who are not engaged in the administration of the State can exercise their right to collectively negotiate wages and economic matters. The Committee notes the publication on 2 May 2021 of Act No. 31188 on collective bargaining in the State sector, which establishes rules for the exercise of the right to collective bargaining in the public sector and provides that bargaining may cover all types of working and employment conditions, including remuneration and other conditions of work with an economic impact, as well as any aspect respecting relations between employers and workers, and relations between employers’ and workers’ organizations. The Committee observes that the Act repeals various provisions of the Civil Service Act, including sections 42, 43 and 44, which completely excluded the determination of wages and economic matters from collective bargaining throughout the public sector. The Committee notes that, according to the information provided by the Government: (i) Presidential Decree No. 008-2022-PCM was published on 20 January 2022 approving guidance for the implementation of the Act; (ii) the Act on the budget for the public sector for the 2022 financial year admits the financial increase agreed collectively; and (iii) the Centralized Collective Agreement 2022-23 was concluded on 30 June 2022, including very important benefits for all State workers (with the exception of public servants on special career paths in health and education, who will engage in decentralized sectoral bargaining). The Committee notes with satisfaction the conclusion of the Centralized Collective Agreement. The Committee notes the indication by the workers’ confederations that, although the Act constitutes progress in the recognition and effectiveness of the economic negotiation of all types of terms and conditions of employment for public employees, difficulties have been reported in its application. The Committee requests the Government to take the necessary measures to ensure that the Act and its respective Presidential Decree are implemented in such a manner as to contribute to ensuring the full and complete exercise by trade union organizations of State workers of the rights recognized therein and set out in the Convention. It requests the Government to provide information on the impact of their application. The Committee also refers to its comments in relation to the Labour Relations (Public Service) Convention, 1978 (No. 151).

The Committee firmly hopes that the action taken by the Government to give effect to the Convention will be preceded by thorough consultations with the social partners. The Committee recalls that ILO technical assistance is available to the Government.