REPRESENTATION (article 24) - PERU - C004, C041, C045, C102 - 1996

Report of the Committee set up to consider the representation made by the General Confederation of Workers of Peru (CGTP) under article 24 of the ILO Constitution alleging non-observance by Peru of the Night Work (Women) Convention, 1919 (No. 4); the Night Work (Women) Convention (Revised), 1934 (No. 41); and the Underground Work (Women) Convention, 1935 (No. 45)

Decision

1. Convention No. 102: Non-receivable. Procedure closed (GB. 264/17/2). Conventions Nos. 4, 41 and 45: The Governing Body adopted the report of the tripartite committee. Procedure closed.

Complaint Procedure

1. I. Introduction
2. 1. By a communication dated 21 August 1995, the General Confederation of Workers of Peru (CGTP) made a representation under article 24 of the ILO Constitution alleging the non-observance by the Government of Peru of the Night Work (Women) Convention, 1919 (No. 4); the Night Work (Women) Convention (Revised), 1934 (No. 41); the Underground Work (Women) Convention, 1935 (No. 45). Peru ratified these three Conventions on 8 November 1945.
3. 2. The provisions of the Constitution of the International Labour Organization concerning representations are as follows:
4. Article 24
5. In the event of any representation being made to the International Labour Office by an industrial association of employers or of workers that any of the Members has failed to secure in any respect the effective observance within its jurisdiction of any Convention to which it is a party, the Governing Body may communicate this representation to the government against which it is made, and may invite that government to make such statement on the subject as it may think fit.
6. Article 25
7. If no statement is received within a reasonable time from the government in question, or if the statement when received is not deemed to be satisfactory by the Governing Body, the latter shall have the right to publish the representation and the statement, if any, made in reply to it.
8. 3. The procedure to be followed in the event of a representation is governed by the revised Standing Orders adopted by the Governing Body at its 212th Session in March 1980.
9. 4. In accordance with article 2, paragraph 1, of the Standing Orders, the Director-General brought the representation before the Officers of the Governing Body.
10. 5. At its 264th Session (1995), the Governing Body decided, on the recommendation of its Officers, that the representation was receivable for Conventions Nos. 4, 41 and 45 and set up a committee to examine it, composed of Mr. Ducreux (Government member, Panama, President), Mr. Durling (Employer member, Panama) and Mr. Ramirez Leon (Worker member, Venezuela). In accordance with article 4, paragraph 1, subparagraphs (a) and (c) of the Standing Orders, the Committee invited the Government to submit its observations on the representation by 1 February 1996. The Government made observations in a letter dated 5 February 1996 (received by the Office on 4 March 1996).
11. 6. The Committee met in Geneva on 19 June 1996 to examine the representation as well as the observations received.
12. II. Examination of the representation
13. 1. Allegations made by the General Confederation of Workers of Peru
14. 7. The General Confederation of Workers of Peru (CGTP) alleges that Peru, by adopting Law No. 26513, which repeals a certain number of legislative and regulatory texts, does not ensure application of the provisions of Conventions Nos. 4 (Night Work (Women), 1919), 41 (Night Work (Women) (Revised), 1934) and 45 (Underground Work (Women), 1935).
15. 8. The adoption of this Law, given executive approval by Presidential Decree No. 05-95 TR (published in the official journal "El Peruano" on 18 August 1995) repealed provisions limiting: night work by women and minors; the maximum length of a normal work day for these two categories of workers; the prohibition on employing women in mines and underground work; and -- in general -- in all places which could present a danger for their health. The provisions granting one paid hour daily for women to nurse their children under one year were also repealed, as well as the requirement to set up a crèche for children less than a year old, and the provision for granting special payments in cases of arbitrary dismissal of women and in particular pregnant women etc. Consequently, the CGTP considered that the Government of Peru had not respected its obligation to effectively apply the provisions of the aforementioned international labour Conventions.
16. 2. The Government's observations
17. 9. In its observations, the Government admitted that the third complementary transitional provision, definitively repealing Law No. 26513, modifying Decree No. 728, repealed two Laws Nos. 2851 and 4239 which provided certain advantages for women at work.
18. 10. The Government indicated that apparently the repeal of these two Laws left a gap in the law concerning the prohibition of work for women in places which affected their health, such as mines or quarries. It recalled, however, that the ratified Conventions formed a part of the Peruvian legal order and that it was not necessary for laws to repeat what was contained in the Conventions, other than to develop certain points. The prohibition remained in force in that the ratified Conventions had not been denounced. No legislative or regulatory provision authorizing underground work for women had been adopted, therefore, there was no violation of the Convention.
19. 11. The case concerning Conventions Nos. 4 and 41, which set limits on night work by women was, in the Government's opinion, different. In Peruvian society there was the possibility of shift work, in particular at night, which along with the ever-increasing demand for work by young people entering the labour market makes it difficult if not impossible to maintain these restrictions.
20. 12. The Government stated that the special commission in charge of preparing draft legislation concerning working mothers, which was composed of representatives of the Government, employers, and workers, had recommended to the Ministerial Cabinet, by a communication dated 14 November 1995, that Conventions Nos. 4 and 41 on night work by women and No. 45 on underground work by women should be denounced in order to place the problem of working women in a legally coherent context. The Peruvian Government had not intended to violate these Conventions and had not adopted measures which violate them. There existed, on the other hand, a desire to promote better employment of women by equalizing the cost based on men's work.
21. 13. The Government concluded from the above that the representation of the CGTP must be rejected.
22. 3. Examination of the application of Conventions by the supervisory bodies of the ILO
23. 14. The Committee of Experts on the Application of Conventions and Recommendations sent direct requests to the Government concerning the application of the Night Work (Women) Convention (Revised), 1934 (No. 41). The last direct request (1994) noted a bill which would have the effect of modifying the night period provided under Law No. 2851 in violation of the Convention. However, these provisions were not adopted, thereby respecting the provisions of Convention No. 41. Moreover, the Committee requested the Government to supply information on the practical application of article 1 of Decree Law No. 25921 of 27 November 1992, concerning the procedure for modifying shift work, days and hours of work. There were no pending comments concerning Conventions Nos. 4 (Night Work (Women), 1919) and 45 (Underground Work (Women), 1935).
24. III. The Committee's conclusions
25. 15. The Committee recalls that its mandate is limited to examining the application by Peru of the Night Work (Women) Convention, 1919 (No. 4), the Night Work (Women) Convention (Revised), 1934 (No. 41) and the Underground Work (Women) Convention, 1935 (No. 45), according to the decision adopted by the ILO Governing Body at its 264th Session on the basis of the report presented by its Officers. (Endnote 1) Consequently, according to the mandate set by the Governing Body, the Committee only examined the complainant's allegations and the Government's observations to the extent that they concerned Conventions for which the Governing Body had declared the representation receivable. (Endnote 2)
26. 16. Given the elements at its disposal, the Committee noted the Government's admission in its observations that the effect of the new legislation was to repeal Laws Nos. 2581 and 4239 which ensured the application in law of obligations undertaken by Peru in ratifying Conventions Nos. 4, 41 and 45. It noted that the Government developed two arguments and supported its position according to which there was neither violation nor intention to violate ratified international labour Conventions.
27. 17. The first of these arguments, which only concerned Convention No. 45 on underground work (women), is based on the fact that in Peru international labour Conventions form part of the internal legal order and are applied automatically to the extent that contrary provisions do not exist in the national legislation. The Committee recalled in this regard the principles which have been continuously applied by the Committee of Experts and the Conference Committee according to which:
28. (a) the incorporation of the provisions of ratified Conventions into national law is not sufficient to give effect to them internally in the case of provisions which are non-self-executing, i.e. provisions which require legislative or other special measures to make them effective;
29. (b) the need for such measures arises especially, in most cases, when legislation subsequent to ratification introduces provisions inconsistent with those of a ratified Convention;
30. (c) it is necessary to make more specific provision in respect of certain standards, to establish administrative machinery or to provide for methods of supervision or penalties. (Endnote 3)
31. 18. The Committee noted that the fact of not having adopted legislation or regulations authorizing underground work by women in mines could not be considered sufficient to ensure that the Convention, although forming a part of the Peruvian legal order, would be applied in law. The Committee considered that appropriate measures for publicity must be taken so that all concerned would be informed of the extent of modifications to the national legislation, thus avoiding any doubt as to the applicable state of the law.
32. 19. The second argument, based on questions of convenience, concerned Conventions Nos. 4 and 41 which prohibit night work of women in manual labour industry. The Committee noted that it followed from the explanations provided by the Government that the regulation giving effect to these instruments was repealed for factual reasons: the desire to promote better employment of women labourers, and equalizing their costs with those of men. It results from this repeal that, in so far as these instruments are in force for Peru, the international obligations undertaken by their ratification are not respected, in particular vis-à-vis member States which are bound by these Conventions.
33. 20. The Committee recalled that in 1990 the International Labour Conference adopted Convention No. 170 and Recommendation No. 178 on night work, and a protocol to Convention No. 89 on night work (women) which addressed both the concerns relating to the employment of women -- concerns shared by the Government of Peru with many other member States -- as well as the protection of women from forms of work which have a negative effect on their health, family, and social life.
34. IV. The Committee's recommendations
35. 21. In the light of the preceding conclusions, the Committee recommends the Governing Body:
36. (a) to adopt the present report, in particular the conclusions contained in paragraphs 18 and 19, concerning the application in law of the Night Work (Women) Convention, 1919 (No. 4), the Night Work (Women) Convention (Revised), 1934 (No. 41) and the Underground Work (Women) Convention, 1935 (No. 45);
37. (b) to request the Government to take necessary measures to ensure the respect of obligations undertaken in ratifying these Conventions and, in the framework of reports due under article 22 of the ILO Constitution, to provide information on the measures taken in this regard;
38. (c) to declare closed the present procedure initiated as a result of the representation in question.
39. Endnote 1
40. Document GB.264/17/2.
41. Endnote 2
42. As proposed by the Officers, the Governing Body considered that the representation concerning the application of the Social Security (Minimum Standards) Convention, 1952 (No. 102) was not receivable as the representation did not indicate on what points Peru had not ensured effective application of that instrument.
43. Endnote 3
44. ILC, 47th Session, Report III (4A), General Report, para. 35; see also ILC, 54th Session, Report III (4A), General Report, paras. 18-19.