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Articles 2 and 5 of the Convention. Averaging of hours of work. The Committee notes that, under section 2(1)(b) of Legislative Decree No. 854 on hours of work (consolidated by Supreme Decree No. 007-2002-TR), the employer can fix the hours of work in such a way that they are greater than eight hours on certain days and less than eight hours on other days, on condition that weekly hours of work do not exceed an average of 48 hours. It also notes that, under section 2(1)(c) of the same Decree, the employer may reduce or increase the number of working days during the week through the distribution of the daily hours of work, on condition that an average of 48 hours per week is not exceeded. In the case of extended or untypical days of work, the daily hours of work may not exceed an average of ten hours over the period under consideration. The Committee also notes that section 2(2) imposes the obligation on the employer in this case to consult and negotiate with the union concerned or otherwise with the representatives of the workers.

The Committee recalls that the basic rule established by the Convention is observance of a twofold limit on hours of work, namely eight hours per day and 48 hours per week and that, as it emphasized in its General Survey of 2005 on hours of work (paragraph 57), “these limitations … should be viewed as strict maximum limits which are not liable to variation or waiver at the free will of the parties”. Article 2(b) of the Convention allows, within certain limits, the uneven distribution of hours of work over the week instead of averaging the weekly hours of work, especially when no reference period is fixed for such averaging. Moreover, Article 5 of the Convention, which authorizes the distribution of hours of work over a period longer than a week, applies only in exceptional cases which make the limits established by the Convention regarding daily and weekly hours of work inapplicable. This provision requires the conclusion of an agreement on this subject between employers’ and workers’ organizations and the approval thereof by the competent national authorities. The Committee trusts that the Government will amend the provisions of Legislative Decree No. 854 in order to restrict the possibility of averaging weekly hours of work to exceptional cases which make the normal limits of eight hours per day and 48 hours per week inapplicable. It requests the Government to provide information on any further developments in this regard.

Article 2(c). Shift work. With reference to its previous comments, the Committee notes with interest the decision handed down on 17 April 2006 by the Constitutional Court, which upheld the appeal lodged by the Toquepala Workers’ Union (STTA) against the decision of the High Court of Justice of Tacna, which had rejected the appeal lodged by this organization requesting the hours of work imposed by the Southern Peru Copper Corporation to be declared illegal (namely, 12-hour working days for four days, followed by three rest days). It notes that the decision of the Constitutional Court is based on the provisions relating to hours of work contained not only in the Constitution but also in ILO Convention No. 1, the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, and the Additional Protocol to the American Convention on Human Rights. It notes that, on the basis of the analysis of the abovementioned provisions and taking into account the hazardous nature of work in mines, the Constitutional Court concluded that the working arrangements established by the Southern Peru Copper Corporation were contrary to the Constitution and the daily hours of work in mines should not exceed eight hours.

The Committee also notes the resolution of the Constitutional Court of 11 May 2006, which provides additional explanations relating to the abovementioned decision and reproduces extracts from the General Survey of 2005 on hours of work. It also notes that this resolution emphasizes that in all sectors of activity, including mining, schemes for the organization of working time in which the averaging of hours of work over a maximum three-week period exceeds eight hours per day and 48 hours per week are contrary to the Constitution. However, it notes that the resolution makes the limitation on hours of work in the mining sector subject to a “protection test” comprising a number of cumulative conditions: (a) a case-by-case evaluation taking account of the characteristics of the mining establishment; (b) examination of whether or not the employer complies with occupational safety and health conditions; (c) verification of whether or not guarantees are provided by the employer with regard to health requirements and adequate supplies of food for long days of work; (d) whether or not the employer grants adequate rest periods during the working day; and (e) whether or not the employer complies with the obligation to reduce working hours where work is done at night. The Court also raises the possibility of taking account of an additional criterion, namely whether or not to include provisions limiting daily working time to eight hours in the applicable collective agreement. The Constitutional Court maintains the conclusion which it reached in the case referred to above, namely that the work schedule established by the Southern Peru Copper Corporation is unconstitutional, but considerably reduces the scope of the limitation on hours of work in the context of shift work.

The Committee recalls that, under the terms of Article 2(c) of the Convention, hours of work in the case of shift work may be extended beyond the normal limits laid down by the Convention, namely eight hours per day and 48 hours per week, on condition that the average number of hours over a period of three weeks or less does not exceed eight per day and 48 per week. This provision, which already provides flexibility for taking account of particular working arrangements in certain enterprises, does not permit exceptions as would be allowed by application of the “protection test” mentioned by the Constitutional Court. The Committee therefore requests the Government to take the necessary steps to ensure strict compliance with this rule in all the enterprises to which the Convention is applicable, including mining enterprises.

The Committee is also addressing a request concerning a number of other points directly to the Government.