Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

The Committee notes the Government’s reply to the comments from the General Confederation of Workers of Peru (CGTP) dated 23 January and 16 May 2007.

The Committee also notes the comments from the National Coordinating Committee of Subcontracted Workers of the Ministry of Health dated 3 October 2008. The Committee requests the Government to send its comments in this respect.

The Committee also notes the various cases before the Committee on Freedom of Association which refer to the matters set out below.

Articles 1 and 2 of the Convention. The Committee recalls that it has been referring for a number of years to: (1) the lack of penalties for acts of interference by employers with regard to trade union organizations; and (2) the slowness of judicial procedures for dealing with complaints of anti-union discrimination or interference. The Committee notes that the International Trade Union Confederation (ITUC) refers in its comments to anti-union dismissals in various sectors.

The Committee notes with interest that, according to the Government’s report, section 25 of the Regulations relating to the General Labour Inspection Act, approved by Supreme Decree No. 019-2006-TR, as amended by Supreme Decree No. 019-2007-TR, classifies interference by the employer in the freedom of association of the worker or trade union and anti-union discrimination as serious offences. If these offences are proven during an inspection procedure, the applicable penalty varies between 5 per cent of 11 tax units (UITs) (1,925 nuevos soles, equivalent to US$630) and 100 per cent of 20 tax units (70,000 nuevos soles, equivalent to US$22,500), depending on the number of workers affected.

The Government adds that the draft General Labour Act prohibits interference (section 332) and anti-union discrimination (sections 355 and 358). With regard to the need to expedite proceedings, the draft Act also provides that any worker or trade union organization that considers that its rights with regard to freedom of association have been violated or are under immediate threat shall have the right of action via summary proceedings (section 353). In the event of the dismissal of workers who have trade union immunity, the judge may order the suspension of the effects of the dismissal at the worker’s request; within three days the employer must demonstrate that the dismissal did not take place on anti-union grounds, and within the following two days, the judge must rule on the matter (section 356). The Committee requests the Government to indicate whether the penalties laid down in the Regulations relating to the General Labour Inspection Act will continue to apply once the General Labour Act has been adopted.

Finally, with regard to the question of the level at which collective bargaining should take place in the construction sector, the Committee observes that the Government has not sent its comments in this respect. The Committee observes that this matter was dealt with by the Committee on Freedom of Association (Case No. 2375) on the basis of a decision by the Supreme Court of Justice determining that such collective bargaining should take place at the level of the branch of activity. The Committee recalls that the level at which bargaining takes place must be the subject of negotiation between the parties.