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Previous comment on Convention No. 1: Observation

Previous comment on Convention No. 14: Direct request

Previous comment on Convention No. 52: Direct request

Previous comment on Convention No. 101: Direct request

Previous comment on Convention No. 106: Direct request

In order to provide a comprehensive view of the issues relating to the application of the ratified Conventions on working time, the Committee considers it appropriate to examine Conventions Nos 1 (hours of work, industry), 14 (weekly rest, industry), 52 (holidays with pay), 101 (holidays with pay, agriculture) and 106 (hours of rest, commerce and offices) in a single comment.
The Committee notes the observations of the National Confederation of Private Business Institutions (CONFIEP) on the application of Conventions Nos 1 and 52, received on 31 August 2023, and the observations of the Autonomous Workers’ Confederation of Peru (CATP) on the application of Conventions Nos 1, 14, 52, 101 and 106, received on 1 September 2023.
The Committee notes the decision by the tripartite committee set up to examine the two separate representations made in 2020 under article 24 of the Constitution of the ILO by the Federation of Mineworkers of the Shougang Hierro Peru and Others and the Santa Luisa de Huanzalà Mineworkers Union. The Committee notes that the tripartite committee did not find violations of Convention No. 1 in relation to the alleged violation of working time limits during COVID-19. The Committee also notes that, taking into account the context of the acute health crisis caused by the COVID-19 pandemic during which the representations were made, the tripartite committee emphasized the importance of engaging in broad social dialogue with all representative organizations of workers and employers in the relevant sectors when taking action to find effective and sustainable solutions to crises (such as the crisis caused by the COVID-19 pandemic), as well as in the context of collective bargaining. The tripartite committee also recalled the impact of excessive working hours on the health and safety of workers and emphasized the fundamental nature of the occupational safety and health Conventions, as recently recognized by the ILO.

A. Hours of work

Article 2(b) of Convention No. 1. Averaging of hours of work within the weekly limits. In its previous comments, the Committee noted the lack of conformity with the Convention of section 2(1)(b) of the single consolidated text of Legislative Decree No. 854 on hours of work, overtime hours and work, as amended by Act No. 27,761 (Presidential Decree No. 007-2002-TR of 4 July 2002), which allows employers to adopt an uneven distribution of working hours in the same week, without establishing maximum limits for daily hours of work. The Committee notes that the Government has not provided information on this subject. The Committee recalls that the Convention establishes an overall daily limit of nine hours in the case of the variable distribution of working hours within a week. The Committee requests the Government to take the necessary measures to bring section 2(1)(b) of the single consolidated text of the Act on working time and overtime hours and work into conformity with Article 2(b) of the Convention with a view to guaranteeing that, in the case of the variable distribution of working hours within a week, an overall daily limit of nine hours is established in addition to the weekly limit of 48 hours. The Committee requests the Government to provide information on the measures adopted or envisaged to ensure the application of this provision in practice.
Article 6(1)(b) and (2). Overtime hours. Circumstances in which temporary exceptions may be permitted, Overtime pay and maximum number of hours permitted. With reference to its previous comments, the Committee notes the Government’s indication that overtime hours are of an exceptional nature in accordance with section 9 of the single consolidated text of the Act on hours of work and overtime hours and work. However, the Committee notes that section 9 provides that overtime work shall be voluntary and shall only be compulsory in cases of unforeseen circumstances or force majeure. The Committee also notes that the CATP, in its observations, indicates that in certain sectors the limits on working time are exceeded and that, for example in the context of subcontracting, workers have to accept very long working days. The Committee requests the Government to take the necessary measures to ensure that overtime hours are only worked in exceptional cases of unforeseen pressure of work and are only allowed to enable enterprises to cope with unforeseen cases of pressure of work, in accordance with Article 6(1)(b) of the Convention.
Furthermore, in its previous comments, the Committee noted the absence of conformity of section 10 of the single consolidated text of the Act on hours of work and overtime hours and work, as it allows overtime pay to be replaced by compensatory rest. The Committee notes that the Government has not provided any further information on this subject. The Committee also notes the absence of legislative provisions establishing the maximum number of overtime hours that may be allowed in each case. With reference to compensation for overtime hours, the Committee requests the Government to take the necessary measures to bring section 10 of the single consolidated text of the Act on hours of work and overtime hours and work into conformity with Article 6(2) of the Convention in order to guarantee that overtime hours are paid at a rate of not less than 125 per cent of the regular rate, irrespective of any compensatory rest afforded to workers. The Committee also requests the Government to indicate the maximum number of additional hours that may be allowed in practice.

B. Weekly rest

Article 5 of Convention No. 14 and Article 8(3) of Convention No. 106. Compensatory rest. In relation to its previous comments, the Committee notes that the Government refers in its report to section 3 of Legislative Decree No. 713 of 8 November 1991, which consolidates the legislation on paid leave for workers subject to the labour regulations governing the private sector, but does not provide additional information, and indicates that the national legislation is in conformity with the provisions of the Conventions. In this regard, the Committee notes the CATP’s indication that section 3 of Legislative Decree No. 713 has still not been amended, in contravention of the provisions of the Conventions on weekly rest. It adds that this situation not only endangers the health and life of workers, but also the well-being of their families. The Committee recalls that the rationale for compensatory rest is the need to protect the health and well-being of workers and emphasizes the importance that any financial compensation is in addition to, and not in lieu of, the requisite compensatory rest (2018 General Survey concerning working-time instruments, paragraph 267). The Committee requests the Government to take the necessary measures to bring section 3 of Legislative Decree No. 713 into conformity with the Conventions with a view to ensuring that workers who are subject to exceptions to the principle of weekly rest are entitled to compensatory rest of not less than 24 consecutive hours in each period of seven days, irrespective of any financial compensation.

C. Holidays with pay

Article 4 of Convention No. 52 and Article 8 of Convention No. 101. Monetary compensation for leave not taken. Partial relinquishment of holidays. In relation to its previous comments, the Committee notes that the Government refers to section 23 of Legislative Decree No. 713, which establishes the remuneration and compensation which shall be received by workers in the event that they do not take their holidays within the year following that in which they became due. The Committee recalls that Article 4 of Convention No. 52 and Article 8 of Convention No. 101 provide that any agreement to relinquish the right to annual holiday with pay, or to forgo such holiday, shall be void. The Committee therefore requests the Government to take the necessary measures to bring section 23 of Legislative Decree No. 713 into conformity with the Convention in order to ensure that workers benefit effectively from the right to annual holidays with pay in the form of a period of rest and leisure that is sufficiently long to preserve their health and well-being.
The Committee is raising other matters in a request addressed directly to the Government.

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Article 8(3) of the Convention. Compensatory rest. The Committee recalls its previous comment, in which it noted the Government’s indication that the competent departments intended to continue their discussions on section 276 of the draft General Labour Act – which entitles employees who work on their weekly rest day without a compensatory rest day during the following seven days to a bonus remuneration representing 100 per cent of normal pay – to ensure that the national legislation is in conformity with the Convention. Although the Government’s latest report does not contain updated information on the process of revision of the General Labour Act, the Committee understands that the national Committee of Experts responsible for revising and updating the General Labour Act, pursuant to Ministerial Resolution No. 257-2011 of 1 September 2011, reviewed the matter following consensus of the National Council for Labour and the Promotion of Employment (CNTPE) and on 23 February 2012, approved the text of draft section 276 and merely proposed amending its title to “Bonus of 100 per cent”. Recalling that the Committee has been commenting for a considerable number of years on the need to amend section 3 of Legislative Decree No. 713 (which provides only for monetary compensation in case of work on a weekly rest day), and also recalling that a period for rest and leisure every week is essential for the workers’ health and well-being, the Committee requests the Government to take appropriate measures without further delay to ensure that workers who are asked to work on a weekly rest day receive compensatory rest regardless of monetary compensation.

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Article 3, paragraph 3, of the Convention. Scope of application. The Committee notes the detailed information provided by the Government concerning the legislative provisions governing the weekly rest of persons employed in the post and telecommunications services and also in theatres and places of public entertainment.

Article 8, paragraph 3. Compensatory rest. The Committee notes the Government’s statement that section 3 of Decree No. 713 – which provides for monetary compensation in lieu of compensatory rest – has not been amended. However, the Committee notes the indication that discussions have begun within the labour and promotion of employment unit – forming part of the National Council for Labour and the Promotion of Employment (CNTPE) – in order to bring the national legislation into line with the provisions of the Convention. These discussions led to amendments to the sections relating to weekly rest, which have been transcribed into a draft General Labour Act.

More specifically, the Committee notes that section 273 of this draft provides that “where, for reasons connected with production, the employer chooses a different rest day from the one initially provided for, he has also to determine the day on which workers will have their compensatory rest, collectively or individually”. However, it notes that section 276 provides that “employees who work on their weekly rest day, without that day being compensated during the following seven days, must be remunerated with a bonus representing 100 per cent of normal pay”. The Government points out that section 276 is not in conformity with the Convention but that the competent departments intend to continue their discussions on this point in order to ensure that the national legislation is brought into line with the Convention. The Committee therefore requests the Government to keep the Office informed of any developments in this area and to send a copy of the amended text of the General Labour Act once it has been adopted.

Part V of the report form. Practical application. The Committee notes the detailed information supplied by the Government concerning inspections conducted in 2008. The Committee requests the Government to continue providing general information on the manner in which the Convention is applied in practice, including, for example, extracts from reports of inspection services indicating the number and nature of infringements reported and penalties imposed, information on the number of workers covered by the relevant legislation, etc.

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Article 2 of the Convention. Scope of application - Public administration. The Government attaches to its report a copy of Legislative Decree No. 800 of 30 December 1995, which provides in section 2 that the continuous working day in the public administration is 7 hours and 45 minutes, from Monday to Friday, which represents a weekly rest of two days. The Legislative Decree indicates that it amends section 1 of Legislative Decree No. 18223. The Committee requests the Government to provide a copy of this latter text.

Article 3, paragraph 3. Application of the Convention to additional categories of establishments. The Government indicates in its report that there are no specific provisions governing the weekly rest of persons employed in establishments, institutions and administrative services providing personal services, post and telecommunications services and theatres and places of public entertainment. It adds that Legislative Decree No. 713 and its implementing regulations No. 012-92-TR are applicable to these establishments. However, these texts only cover the private sector. The Committee requests the Government to indicate the weekly rest provisions applicable to such workers when they are employed in public establishments.

Article 8, paragraph 3. Temporary exemptions - Compensatory rest. In its report, the Government indicates that no amendment has been made to section 3 of Legislative Decree No. 713. Under the terms of this provision, employees who work on a rest day without compensatory rest during the course of the week benefit from an increase in their wage rate of 100 per cent. However, Article 8, paragraph 3, of the Convention establishes the obligation to grant compensatory rest to workers covered by a temporary exemption, whether or not they receive payment in compensation. The Committee urges the Government to indicate the measures adopted or envisaged to ensure compliance with the Convention on this point.

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The Committee notes the Government’s report and its response to previous comments. It requests the Government to provide further information on the following points.

Article 2 of the Convention. The Committee notes that section 25 of the Political Constitution of 1993 provides the right of workers to weekly rest and that its enjoyment and compensation shall be regulated by law or agreement. It further notes that Legislative Decree No. 276 of 6 March 1984 on the administrative career and remuneration in the public sector, and the rules approved by Supreme Decree No. 005-90-PCM of 17 January 1990 do not contain any such regulations of weekly rest for persons employed in public establishments, institutions or administrative services, whereas, according to the Government’s indication, section 2 of Legal Decree No. 800 provides a specific daily working time in the public administration from Monday to Friday. This would imply a weekly rest of two days. The Committee requests the Government to indicate further references (time and place of publication) of Legal Decree No. 800 and to supply a copy of its text.

Article 3, paragraph 3. The Committee notes from the Government’s information that work and rest time for journalists are regulated by Law No. 24724 and Supreme Decree No. 001-8-TR, and for artists by Law No. 19479, Law of the Artist. It further notes that, in the absence of specific regulations, the general provisions of Legislative Decree No. 713 of 7 November 1991 on weekly rest apply, as far as the private sector is concerned. The Committee again asks the Government to provide further details on whether specific regulations exist on weekly rest for all persons employed in establishments, institutions and administrative services providing personal services, in post and telecommunication services and in places of public entertainment, whether public or private.

Article 7, paragraphs 1 and 2. The Committee notes that according to the Government, Official Communication No. 011-94-RR-PP of the Labour Ministry leaves it to the contracting parties of employers and workers to substitute a weekly rest day by a legal non-working day and does not affect the compulsory weekly rest day laid down in the Constitution and Legislative Decree No. 713. It further notes that Legal Decree No. 25921 of 27 November 1992 and National Directive No. 001-93-DNRT of the Labour Ministry govern the right of employers to modify working time and the procedure to be followed in such cases. The Committee requests the Government to supply a copy of National Directive No. 001-93-DNRT.

Article 8, paragraph 3. The Committee refers to its previous comments on section 3 of Legal Decree No. 713 and notes that the information provided by the Government does not reply to them. This provision conflicts with the Convention as long as it does not provide compensatory rest for the worker who has worked on a weekly rest day. The Committee reiterates that monetary compensation must not replace compensation by another rest day. It again requests the Government to indicate the measures taken or envisaged to ensure to the persons concerned the compensatory rest provided for Article 8, paragraph 3.

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The Committee notes the information in the Government's latest report. With reference to its previous comments, the Committee draws the Government's attention to the following points:

Article 2 of the Convention. The Committee requests the Government to indicate what specific legislative provisions govern the weekly rest of employees engaged in office work in public establishments, institutions and administrative services. It also would be grateful if the Government would supply the Office copies of such provisions.

Article 3. The Committee again requests the Government to consider communicating a declaration to the Office, in accordance with paragraph 2 of this Article, explicitly applying the Convention to persons employed in telecommunications services, newspaper undertakings and places of recreation and entertainment. Furthermore, the Committee repeats its request to the Government to indicate the extent to which effect has been given or is proposed to be given to the Convention to personal services, in accordance with paragraph 3 of this Article.

Article 7, paragraphs 1 and 2. The Government's report refers to the Labour Ministry's Official Communication No. 011-94-RR-PP, providing that for productivity reasons or in the interest of the parties, employers and workers may agree to substitute the weekly rest day by a legal non-working holiday. The Committee requests the Government to clarify how Official Communication No. 011-94-RR-PP affects the practical application of the right to weekly rest and to submit a copy of this communication to the Office.

Article 8, paragraph 3. Under section 3 of Legislative Decree No. 713, the worker who has worked on the weekly day of rest without substituting it with a day of rest during the same week, has the right to the corresponding remuneration plus a supplementary rate of 100 per cent for the work performed. The Committee wishes to call the Government's attention to the fact that, under this provision of the Convention, in a case of this kind, compensatory rest is compulsory regardless of monetary compensation. It therefore hopes that the Government will take the necessary measures to bring the legislation into conformity with the Convention on this point.

Article 10, paragraphs 1 and 2. The Committee reiterates its request to the Government to provide any information available on the inspection mechanism with respect to weekly rest, including the penalties which may be imposed to ensure the proper application of the regulations which give effect to the Convention.

Article 11(b). The Committee once again requests the Government to indicate, in its next report, the types of circumstances which might be invoked under section 2 of Legislative Decree No. 713 resulting in temporary exemptions permitted under Article 8 of the Convention.

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Further to its previous comment, the Committee notes the information in the Government's latest report and, in particular, the adoption of Legislative Decree No. 713 of 8 November 1991 and Supreme Decree No. 012-92-TR concerning paid rest for workers in private activities. The Government is requested to provide further clarification on the following points.

Article 2 of the Convention. The Committee notes that the above-mentioned decrees would appear to apply only to workers in private undertakings. The Government is requested to indicate the manner in which the Convention is applied to public establishments, institutions and administrative services in which the persons employed are mainly engaged in office work, in accordance with this Article of the Convention.

Article 3. The Committee notes from the Government's report that telecommunications services, newspaper undertakings and places of recreation and entertainment are subject to special weekly rest schemes, but would seem, nevertheless, to be covered overall by the provisions of the legislation. The Government might, therefore, wish to consider the communication a declaration to the Office, under paragraph 2 of this Article, accepting the obligations of the Convention in respect of the establishments referred to in paragraph 1(b), (c) and (d). Furthermore, the Government is requested to indicate the extent to which effect has been given or is proposed to be given to the Convention in respect of personal services, in accordance with paragraph 3 of this Article.

Article 6, paragraph 4. The Government is requested to indicate the manner in which the traditions and customs of religious minorities are respected, as far as possible, as regards weekly rest.

Article 7, paragraph 1. The Committee notes that Legislative Decree No. 25921 sets forth the procedures to be followed with respect to decisions taken on the initiative of the employer to change, among others, the days of work. The Government is requested to indicate whether the changes which might be proposed by the employer in this regard must, nevertheless, meet the conditions set forth under section 2 of Legislative Decree No. 713.

Article 7, paragraph 2. The Committee notes that section 2 of Legislative Decree No. 713 provides that, whenever the requirements of production render it necessary, the employer may establish alternative schemes or the accumulation of workdays and rest days while respecting the legal proportion, or designate a day other than Sunday as a weekly rest day. It further notes the indication in the Government's report that this permits a rotation system whereby workers can periodically benefit from the right to weekly rest. The Government is requested to indicate whether the workers to whom special weekly rest schemes apply because of the nature of the work, the nature of the service performed, the size of the population to be served or the number of persons employed, in accordance with paragraph 1 of this Article, are guaranteed a rest period of at least 24 hours in respect of each period of seven days.

Article 10, paragraphs 1 and 2. The Government is once again requested to provide any information available on the working of inspection in relation to weekly rest, as well as the penalties which may be imposed to ensure the proper administration of the regulations which give effect to the Convention.

Article 11(b). The Government is requested to indicate, in its next report, the types of circumstances which might be invoked under section 2 of Legislative Decree No. 713 resulting in temporary exemptions permitted under Article 8 of the Convention.

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The Committee notes the information provided in the Government's first report. Please give further details on the following matters:

Articles 2, 3 and 4 of the Convention. While noting sections 1 and 2 of Law No. 3010 concerning Sunday rest, the Committee would be glad if the Government would indicate how far each of the activities referred to in these Articles is in practice covered by those provisions.

Article 5. Please indicate any special provisions relating to weekly rest in family undertakings or those in high managerial positions.

Article 7. The Committee notes the exceptions to the Sunday rest rule provided for in section 2 of Law No. 3010. Please indicate the persons and types of establishment in practice enjoying special arrangements under this section; and what consultations take place with any representative organisations of employers and workers.

Article 8. The Committee notes that some of the exceptions provided for in section 2 of Law No. 3010 would relate to temporary cases covered by this Article. Please indicate whether all the workers concerned enjoy a compensatory rest period as laid down in this Article; and what consultations of representative organisations of employers and workers take place.

Article 10. Please supply available information on the working of inspection in relation to weekly rest.

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