Report in which the committee requests to be kept informed of development - REPORT_NO360, June 2011

1. 960. The complaint is contained in a communication from the General Confederation of Workers of Peru (CGTP), the Autonomous Confederation of Workers of Peru (CATP) and the Single Confederation of Workers of Peru (CUT) dated 17 December 2009.
2. 961. The Government sent its observations in a communication dated 8 February 2011.
3. 962. Peru has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainants’ allegations

1. 963. In their communication dated 17 December 2009, the complainant organizations indicate that national conditions resulting from the application of the national legislation respecting the right to organize and collective bargaining, as well as the application in practice of a policy articulated around undermining the exercise of these rights, are impeding and creating obstacles for a large number of workers in the collective negotiation of their terms and conditions of employment, and that the State has not taken any measures to modify or resolve this situation. The complainant organizations indicate that the following cases are of particular concern: workers with temporary contracts, workers who are victims of employment intermediation and outsourcing, State workers covered by the public careers system and State workers governed by private sector employment rules. In these latter cases, despite their right to organize and collective bargaining being set out in law, the workers are not able to assert these rights effectively in practice. The complainant organizations emphasize that the law and practice referred to have resulted in a drastic fall in the union membership rate and in the coverage of collective bargaining at the national level.
   • Lack of recognition of the right to organize in law and practice
2. 964. Workers in micro-enterprises. The complainant organizations indicate that the labour market is characterized by a concentration of over one quarter of the working population in micro- and small enterprises of between one and 20 workers (24.1 per cent) and one-fifth in so-called micro-enterprises. Small and micro-enterprises are subject to specific and different legal rules, with lower standards of protection than those envisaged by the general rules applying to other workers. The recent reform of the legislation by Legislative Decree No. 1086 provides that “workers in small enterprises shall exercise collective rights in accordance with the rules governing employment in private activities”, but contains no reference to the exercise of the trade union rights of workers in micro-enterprises, who are not covered by legal provisions for the exercise of their right to freedom of association.
3. 965. The complainant organizations indicate that, in accordance with the legal rules, 20 workers are required to establish an enterprise union, which implies that those who work in enterprises with fewer than 20 workers cannot establish this type of union. Nevertheless, although the law envisages the establishment of branch unions, which could make it possible for workers in enterprises with fewer than 20 workers to engage in collective bargaining at the branch level, there currently exist very few unions at this level as the legislation decisively discourages the establishment of this type of union by preventing collective bargaining at the sectoral level. Moreover, the Act on collective labour relations provides that, in the event of disagreement between the parties concerning the level at which collective bargaining is first undertaken, it shall take place at the enterprise level. According to the complainant organizations, this demonstrates that the legislation favours enterprise unions and collective bargaining at the enterprise level. There accordingly exists a situation of contradiction designed to prevent in practice access to collective bargaining for the majority of workers in the Peruvian economy.
4. 966. Workers engaged under training arrangements. The complainant organizations explain that, despite the fact that training arrangements involve the provision of personal and subordinate services, Act No. 28518 does not contain any reference to the possibility of establishing trade unions or engaging in collective bargaining. This means that the workers covered by the Act are prevented from establishing trade union organizations and engaging in collective bargaining and, in practice, there are no trade unions for workers engaged under training arrangements.
5. 967. State workers covered by Administrative Services Contracts (CAS). The complainant organizations point out that over 60,000 workers in the public administration are covered by this new system of contracts regulated by Legislative Decree No. 1057. This system of engagement, which is of a temporary nature, does not include provisions respecting the exercise of the right to freedom of association of the workers concerned. Moreover, these contracts can be renewed at will and without any limit by employers in public bodies and, according to the complainant organizations, the renewal of contracts is subject to the condition that the workers do not establish or join trade unions. In practice, no trade union organizations for workers covered by the CAS system are registered with the Ministry.
6. 968. Undeclared workers. The complainant organizations add that a high percentage of the wage-earning population provide services without enjoying the protection afforded by the labour legislation. According to the data of the Ministry of Labour, in 2007, 62.6 per cent of wage earners did not have any type of employment contract. Indeed, the smaller the size of the enterprise unit, the higher the percentage of undeclared workers. The complainant organizations emphasize that there are also high rates of undeclared workers in larger enterprises operating in the formal economy. The lack of political will by the State to enforce the declaration of workers is having a direct impact on the possibility of exercising the right to freedom of association.
   • Workers who, despite the recognition of their right to organize and collective bargaining, are limited in the exercise of these rights in practice
7. 969. Workers with temporary contracts. The complainant organizations indicate that the legislation that is in force encourages the use of temporary contracts. They emphasize the drastic fall in the unionization rate corresponding to the unparalleled increase in temporary contracts, which shows that temporary workers are in a particularly vulnerable situation with regard to anti-union discrimination. In light of this special vulnerability, in the opinion of the complainant organizations, special and reinforced protection should be provided to ensure the effective observance of the right to freedom of association.
8. 970. Workers subject to outsourcing and employment intermediation. The complainant organizations indicate that the main effect of outsourcing and employment intermediation in a context of trade union organization at the enterprise level promoted by the law is the fragmentation of production units and the reduction in the number of potential members of enterprise unions, as well as the decline in the coverage of collective bargaining. The complainant organizations add that the law provides that where there is no previous bargaining, in the absence of agreement between the parties on the bargaining level, it shall take place at the enterprise level. Furthermore, if there has already been previous bargaining at the enterprise level, the level at which bargaining takes place cannot be changed without the agreement of the parties. Accordingly, although workers are formally able to negotiate at the enterprise level, such bargaining is not effective as it does not enable workers to enjoy real participation in decisions affecting their terms and conditions of employment.
9. 971. State workers without participation in the determination of their terms and conditions of employment. Finally, the complainant organizations indicate that, in the case of State workers covered by the public careers system and by the labour rules governing the private sector, even where their right to establish unions is recognized, their possibilities of engaging in collective bargaining are restricted by various means. The rules applicable to State workers governed by the public careers system formerly envisaged a consultation procedure for the formulation of draft changes to the single remuneration system in the public administration. However, the provisions establishing this participation machinery were repealed, as a result of which trade union organizations do not have any mechanism through which they can participate in the determination of remuneration conditions. Nor is it possible to negotiate conditions of work which do not imply additional budgetary allocations.
10. 972. Moreover, although the Government frequently indicates that the General Labour Bill is currently being examined and that it will take into account the observations made by the ILO supervisory bodies, in reality approval of the Bill is not being promoted, despite the support of 85 per cent of the social partners in a social dialogue process. The General Labour Bill has been among the draft legislations due to be examined by Parliament for over four legislatures, without it actually being included on the agenda of the sessions of the Congress.

B. The Government’s reply

1. 973. In its communication dated 8 February 2011, the Government indicates that, with a view to promoting freedom of association, the following action has been taken through the Ministry of Labour and Employment Promotion:
   • – on 18 February 2010, the Office for Consultations with Trade Unions was established with the following functions: (i) to provide legal guidance on collective rights and administrative procedures of interest to them; and (ii) to offer formats and models for by-laws. During the period from February to December 2010, consultations were held with trade unions on 499 occasions;
   • – on 1 February 2010, a new system was established for the registration of trade union organizations which reduced the processing time from a maximum of three days to three hours from the application being lodged by the officers of the parties to the automatic registration certificate being issued;
   • – during the period from July 2006 to December 2010, a total of 458 trade unions were registered by the Trade Union Registry Division;
   • – monthly meetings have been held with the most representative trade union confederations, federations and unions in the country to address their labour-related problems and resolve them immediately, thereby maintaining industrial peace;
   • – similarly, the claims made by workers’ and employers’ organizations are duly addressed in the National Labour and Employment Promotion Council (CNTPE), which is the natural forum for dialogue on social and labour issues, as it is the tripartite advisory body of the Ministry of Labour and Employment Promotion.
2. 974. The Government adds that four interpretation criteria have been published for application by officials of the Ministry of Labour and Employment Promotion and regional governments with a view to: (i) guaranteeing collective bargaining in any private labour relationship, including where the State is the employer and the trade union represents workers in public employment; (ii) respecting the trade union independence set forth in the rules of trade union organizations, thereby contributing to consolidating trade union organization; (iii) promoting collective bargaining, and allowing the possibility of delegating the representation of trade unions to those that they freely and explicitly select to engage in collective bargaining on their behalf; and (iv) guaranteeing the establishment and registration of trade unions.
3. 975. The Government adds that other mechanisms have been introduced: (i) an early warning system for collective disputes at the national level, with a view to addressing, preventing and resolving such disputes in due time; and (ii) an alternative “non-regulated” dispute settlement mechanism known as “extra-procedural meetings”. This mechanism constitutes an additional effort to find an agreed solution to the dispute. It is a mechanism that is designed more to achieve solutions of equity and labour harmony than the strict application of the law; (iii) the General Directorate of Fundamental Rights at Work and Occupational Safety and Health, which is responsible for formulating public policies and developing action to promote fundamental rights at work, including freedom of association and collective bargaining; and (iv) dispute settlement machinery has been promoted and consolidated through conciliation and extra-procedural settlements, based on the training of the responsible officials and the development of basic guidelines for action.
   • Lack of recognition of the right to organize in law and practice
4. 976. Workers in micro-enterprises. The Government indicates that Legislative Decree No. 1086 recognizes in section 3 the right of workers to establish trade unions and non-interference with the right of workers to choose and join, or not, legally established organizations. Accordingly, all workers covered by these provisions enjoy the explicit right to organize, in accordance with the Single Codified Text of the Act on collective labour relations and its corresponding regulations. The Government adds that it is not valid to argue that the number of workers in this type of enterprise is a limiting factor on the exercise of the right to organize, as the legislation provides that enterprises in which the number of workers is below that required to establish a union may select two delegates to the employer and to the labour authorities.
5. 977. Workers covered by training arrangements. The Government explains that vocational training arrangements are special types of agreements combining theoretical and practical learning through the performance of planned activities of capacity building and vocational training. In accordance with the special rules respecting training arrangements, any of five types of agreements for such arrangements may be concluded, each for a specific duration. The parties are under the obligation to comply with the specific requirements set out in each of the arrangements, as is the case for the corresponding plans and programmes for each type of vocational training. The Government emphasizes that these agreements are not subject to the labour legislation in force, but to specific provisions respecting vocational promotion and training, which remains the case provided that such arrangements do not constitute an employment relationship. Finally, the Government indicates that training arrangements do not give rise to labour-related benefits as they do not constitute an employment relationship, unless they meet one of the conditions set out in the rules which change the nature of the relationship.
6. 978. State workers covered by CAS. The Government indicates that administrative services contracts are a special arrangement specific to State administrative law. The right to freedom of association for persons covered by CAS was recognized by the Constitutional Court in the plenary jurisdictional ruling dated 31 August 2010 (case No. 000022010PI/TC) and its clarification of 11 October 2010, which found that the necessary regulations needed to be issued so that workers covered by the CAS system could exercise the right to organize and to strike, as set out in article 28 of the Constitution. According to the Government, the ruling indicates that section 1 of Legislative Decree No. 1057 shall be interpreted so that the CAS system is understood as a “special” system of labour contracts for the public sector.
7. 979. Undeclared workers. The Government explains that the Ministry of Labour and Employment Promotion, with a view to reducing the informality rate, has undertaken inspection campaigns as part of the Plan for the Declaration of Workers on the Payroll (Plan Reto), with the objectives of: (i) extending the coverage of labour inspection to sectors that are not covered by any labour legislation and do not have access to social security; and (ii) strengthening continued guidance and inspection action in various economic sectors with a view to the massive integration of workers into electronic registration and the reduction of the existing informality rate in the country. The Government emphasizes that between December 2008 and December 2010, in the context of the Plan Reto, over 34,000 enterprises were inspected, resulting in the registration of almost 41,000 workers.
8. 980. Precarious and vulnerable workers. The Government indicates that the new Labour Procedures Act (Act No. 29497) has been approved and was published on 15 January 2010, and constitutes a major reform in this area. A fundamental principle of the reform is the holding of oral hearings, which will make it possible to speed up judicial procedures, reducing them to six months. The new Labour Procedures Act includes the following machinery in relation to freedom of association and collective bargaining: (i) trade unions can participate in labour procedures to represent themselves in defence of collective rights and their leaders and members; (ii) trade unions act in defence of their leaders and members without the need for special authorization for representation, although the claim or challenge must identify each member individually with her or his respective claims; (iii) claims deriving from breaches of the right to non-discrimination in access to employment or violations of the prohibition of forced and child labour may be lodged by a trade union; and (iv) the trade union, workers’ representatives, or any worker or provider of services in the context may act as plaintiffs in cases of breaches of the rights of freedom of association, collective bargaining, strike, occupational safety and health and, in general, when a right corresponding to a group or category of service providers is affected. The Government adds that, as from January 2010, the Ministry of Labour and Employment Promotion has been implementing a programme for the dissemination of the provisions of the new Act at the national level and has coordinated training for trade union leaders. The new Labour Procedures Act is currently being implemented progressively in the judicial districts of the country, and is being welcomed by the parties to procedures.
9. 981. Workers with temporary contracts. The Government indicates, with regard to the system of employment contracts for non-traditional exports, criticized by the trade union confederations as being one of the types of temporary contract affecting trade union organization, that Legislative Decree No. 22342, the Act to promote non-traditional exports, was developed in the context of a policy to promote non-traditional exports and to create enterprises. For this purpose, special labour rules were adopted under which enterprises may recruit personnel, in the numbers that they require, to cater for the demand for non-traditional exports, provided that the volume of exports amounts to at least 40 per cent of their production. The specific requirements set out in the respective law have to be complied with when this type of contract is concluded. Nevertheless, with a view to ensuring compliance with the conditions established in the Act, and to ensure that it is not open to abuse by export enterprises, in 2008 the Ministry of Labour and Employment Promotion developed guidelines No. 002-2008-MTPE/2/11.4 on “Action to be taken by the labour inspectorate in textile sector enterprises”, with a view to preventing the abuse of contracts by textile sector enterprises and achieving compliance with their socio-labour and occupational safety and health obligations.
10. 982. The Government adds that the Constitutional Court, in its ruling in Case No. 011482010PA/TC, provided a number of clarifications on the constitutionality of the special labour rules for non-traditional export products envisaged in Legislative Decree No. 22342, including the conditions under which model labour contracts concluded under these special labour rules are no longer covered by the system. In this respect, the Constitutional Court specified that: (i) it is constitutional for workers in an enterprise exporting non-traditional products to be covered by the special labour rules established by Legislative Decree No. 22342; and (ii) a labour contract subject to specific conditions concluded under the special labour rules established by Legislative Decree No. 22342 will no longer be considered to be covered by those rules if it does not explicitly set out the objective reason for the contract, which may be an export agreement, a purchase order or an export production programme. The Government specifies that these rules are currently subject to debate in the Congress of the Republic, as two legislative initiatives have been tabled with the objective of repealing them. The opinions on the draft legislation, which is being given priority, are awaiting examination by the Plenary of the Congress. The Labour Commission has issued a favourable opinion, while that of the Foreign Trade Commission is unfavourable. The Government finally indicates that the national legislation guarantees that workers covered by specific types of contracts and those subject to the rules of the non-traditional export system have the same rights as workers with contracts without limit of time, and that these rights include the right to organize, to collective bargaining and to strike.
11. 983. Workers subject to outsourcing and employment intermediation. The Government indicates that contracts which envisage the sending of personnel to productive units or the premises of the principal enterprise are not intended to affect the labour rights of workers. Workers engaged under outsourcing arrangements, irrespective of the type of labour contract used, enjoy the right to freedom of association, collective bargaining and to strike. The Government indicates that the legislation prohibits the use of outsourcing for the purpose of limiting or prejudicing freedom of association, the right to collective bargaining, trade union activities, striking workers or the employment situation of leaders protected by their trade union status. The Government also emphasizes that, in accordance with the law, employment intermediation is void in law where its objective is to undermine or limit the exercise of the collective rights of workers. Accordingly, protection of the exercise of collective rights is guaranteed for workers in these situations. The Government concludes that both sets of rules recognize the right to organize, collective bargaining and to strike, guarantee that it is exercised in a democratic manner and ensure compliance with the fundamental rights of workers.
12. 984. Workers in the public administration. The Government emphasizes that the law guarantees the right to freedom of association and collective bargaining of workers in the public sector. Article 42 of the Political Constitution recognizes the right to organize and to strike of public servants, and provides that this does not include State officials exercising decision-making authority or those engaged in positions of trust and executive posts, or members of the armed forces and the national police force. The exercise of the right to collective bargaining by public servants is covered by two sets of regulations, depending on their employment status, whether private or public. The Government indicates that workers in State entities and/or enterprises covered by private employment rules are governed by the provisions of the Single Codified Text of the Act on collective labour relations (TUO of the LRCT), as approved by Supreme Decree No. 010-2003-TR. Nevertheless, the exercise of these rights by public servants must not be in breach of the specific rules restricting their exercise, in accordance with section 1 of the TUO of the LRCT. It adds, with reference to public servants, employees and workers covered by the administrative careers employment system (Legislative Decree No. 276), that they are able to negotiate all matters, with the exclusion of remuneration, as bargaining on remuneration is subject to the limits established by the corresponding budgetary laws.
13. 985. Promotion of collective bargaining and legislative amendments. In this respect, the Government indicates that the General Labour Bill is before the Congress of the Republic awaiting adoption. Various legislative amendments were proposed, in particular relating to the Act on collective labour relations and to collective bargaining. The Government adds that the determination of the level of bargaining for unions was discussed by the National Labour and Employment Promotion Council when it examined the General Labour Bill, although consensus was not reached on the issue. The proposal made by the Government at that time left the determination of the bargaining level to the parties, although the Labour Commission of the Congress of the Republic issued an opinion with a replacement text that is awaiting examination by the Plenary of the Congress and which provides that where agreement is not reached, bargaining shall take place at the enterprise level.

C. The Committee’s conclusions

1. 986. The Committee observes that in the present case the complainant organizations allege legal restrictions and difficulties in practice in the exercise of the right to organize and to collective bargaining for certain categories of workers, which is resulting in a decrease in membership rates and in the coverage of collective agreements.
2. 987. The Committee notes that according to the complainant organizations: (1) a very significant number of workers do not enjoy explicit recognition of their right to organize and to collective bargaining (workers in micro-enterprises, workers covered by training arrangements, State workers under CAS and undeclared workers); and (2) many workers are not able to give effect to these rights due to difficulties in practice, gaps in the legislation or legal restrictions (workers with temporary contracts, workers subject to outsourcing and employment intermediation, undeclared workers and State workers covered by the labour rules for the private sector).
3. 988. The Committee also notes the detailed comments provided by the Government, including the following information: (1) all the categories of workers referred to by the complainant organizations enjoy in law the right to freedom of association and collective bargaining; (2) with regard to collective bargaining and the amendments sought to the Act on collective labour relations, various proposals have been made; and (3) the General Labour Bill is before the Congress of the Republic awaiting adoption.
   • Lack of recognition of the right to organize in law and practice
4. 989. Workers in micro-enterprises. The Committee notes that, according to the complainant organizations, the recent reform of the legislation by Legislative Decree No. 1086 provides that “workers in small enterprises shall exercise collective rights in accordance with the employment rules for private activities”, but contains no reference to the exercise of the trade union rights of workers in micro-enterprises, who are not covered by legal provisions governing their right to freedom of association. The Committee notes that, according to the Government, Legislative Decree No. 1086 recognizes in section 3 the right of workers to establish trade unions and non-interference with the right of workers to choose and join, or not, legally established organizations. Accordingly, all workers covered by these provisions enjoy the explicit right to organize, in accordance with the Single Codified Text of the Act on collective labour relations and its corresponding regulations. The Committee notes in particular the allegation by the complainant organizations that the law provides for the establishment of branch unions, which could make it possible to engage in collective bargaining at that level for workers in enterprises with fewer than 20 workers, but that there currently exist very few unions at that level as the legislation decisively discourages the establishment of this type of union by raising obstacles to collective bargaining at the sectoral level. Micro-enterprises are not sufficiently well represented to be able to enter into bargaining at the enterprise level due to the insufficient number of members, and they encounter obstacles at the sectoral level. The Committee emphasizes the Government’s indication that the determination of the level of bargaining for unions is a matter which was discussed in the National Labour and Employment Promotion Council when it examined the General Labour Bill, but that no consensus was reached, for which reason the Government proposed to amend the legal provisions. The Committee observes that the text which will be examined by the Plenary of the Congress once again limits bargaining to the enterprise level in the event that agreement is not reached on the level of collective bargaining, which was not envisaged in the Government’s proposal. The Committee recalls that the issue of the level of collective bargaining was examined previously in a case relating to Peru (Case No. 2375), in which it found that the level of collective bargaining could be referred to the judicial authorities, for which reason the principle that the determination of the level of collective bargaining is to be left to the parties concerned would be respected in view of this possibility [see 338th Report, November 2005, para. 1222]. The Committee expects that the Government will take the necessary measures to ensure that the determination of the level of collective bargaining is left to the parties concerned.
5. 990. Workers covered by training arrangements. The Committee notes that, according to the complainant organizations, Act No. 28518 does not contain any reference to the possibility to establish trade unions or engage in collective bargaining. This implies that the workers covered by the Act are prevented from establishing trade union organizations and from engaging in collective bargaining. The Committee notes that, according to the Government, the agreements concluded (training contracts) are not subject to the labour legislation in force, but to specific provisions respecting vocational promotion and training, which remains the case on condition that such arrangements do not constitute an employment relationship. The Committee emphasizes that this issue has already been addressed during the examination of Case No. 1796 and draws the Government’s attention to the fact that, in accordance with Article 2 of Convention No. 87, ratified by Peru, all workers – with the sole exception of members of the armed forces and the police – should have the right to establish and join organizations of their own choosing. The criterion for determining the persons covered by that right, therefore, is not based on the existence of an employment relationship, which is often non-existent, for example, in the case of agricultural workers and self-employed workers in general, who should nevertheless enjoy the right to organize [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 254]. In the Committee’s opinion, persons hired under training agreements should have the right to organize. The status under which workers are engaged with the employer, as apprentices or otherwise, should not have any effect on their right to join workers’ organizations and participate in their activities [see Digest, op. cit., paras 258 and 259]. The Committee therefore requests the Government to take the necessary measures to ensure that this right is guaranteed for the workers concerned in both law and practice.
6. 991. State workers covered by Administrative Services Contracts. The Committee notes that, according to the complainant organizations, this system of temporary contracts, governed by Legislative Decree No. 1057, does not include provisions respecting the exercise of the right to freedom of association of the workers concerned. The Committee also notes, in the same way as the Committee of Experts on the Application of Conventions and Recommendations at its session in November–December 2010 in relation to the application of Convention No. 87, that the right to freedom of association of persons covered by CAS was recognized by the Constitutional Court in its plenary ruling dated 31 August 2010 (Case No. 00002-2010-PI/TC) and the clarification dated 11 October 2010, which found that the necessary regulations needed to be issued so that workers covered by the CAS system could exercise the right to organize and to strike, as set out in article 28 of the Constitution. The Committee requests the Government to indicate whether the above regulations have been issued in accordance with the ruling of the Constitutional Court and, if not, to take the necessary measures for their adoption as soon as possible.
   • Workers who, despite the recognition of their right to organize and to collective bargaining, are limited in the exercise of these rights in practice
7. 992. The Committee notes that, according to the complainant organizations, these difficulties encountered in practice concern three categories of workers, namely: (1) workers with temporary contracts; (2) workers engaged under outsourcing and employment intermediation arrangements; and (3) workers in the public administration. The Committee also notes the Government’s indication that, with a view to promoting freedom of association, monthly meetings have been held with the most representative trade union confederations, federations and unions in the country to address their labour-related problems and resolve them immediately, thereby maintaining industrial peace. The Committee requests the Government to include these difficulties in the points to be discussed during these meetings with the employers’ and workers’ organizations concerned. The Committee also notes the Government’s indication that the General Labour Bill is before the Congress of the Republic awaiting adoption. Various amendments were proposed to the Act on collective labour relations and its regulations. The Committee requests the Government to keep it informed of current legislative reforms and expects that the Committee’s conclusions and recommendations will be taken into account when amending the provisions referred to by the complainant organizations with a view to improving the exercise in practice of the rights of freedom of association and collective bargaining.