Effect given to the recommendations of the committee and the Governing Body - Report No 400, October 2022

Effect given to the recommendations of the committee and the Governing Body

1. 40. The Committee examined this case, in which the complainant organization challenged a ministerial decision requiring the parties involved in voluntary arbitration in collective bargaining in the public sector to use arbitrators appointed and trained by the State, at its November 2012 meeting [see 365th Report, paras 1228–1258]. On that occasion, the Committee observed that, although Act No. 29812 on the Public Sector Budget for the 2012 fiscal year provided for the establishment of a special council to appoint the chairperson of the Arbitration Tribunal in the event that the parties failed to agree on the appointment, the Act did not specify who the members of the special council would be. The Committee requested the Government to take the necessary steps to ensure that the members of the special council who would appoint the chairperson of the Arbitration Tribunal if the parties could not reach an agreement would be appointed in consultation with the social partners.
2. 41. The Committee notes that, in communications of 28 January and 13 February 2013, the Autonomous Workers’ Confederation of Peru indicates that, although the Government issued Supreme Decree No. 009-2012-TR establishing the special council provided for under Act No. 29812, the members of the council were appointed unilaterally by Government entities, without prior consultation with the social partners – thus failing to follow the Committee’s recommendation – and that the council functions and holds its meetings in accordance with wholly arbitrary guidelines or rules and without consulting the social partners, and had even held meetings without them present.
3. 42. The Committee notes that, in a communication of 28 September 2017, the Government reported that, as a result of a series of applications for a declaration of unconstitutionality submitted in 2013 concerning Act No. 29812, the Constitutional Court handed down rulings that resulted in the dismantling of the special council. The Government also reports that Supreme Decree No. 011 amending article 52 of the regulations of the Collective Labour Relations Act was issued in 2016 and that its current provisions state that if the employer is an enterprise falling within the scope of the business activity of the State, in the absence of an agreement on the appointment of the chairperson of the Arbitration Tribunal, any party may request the Labour Directorate to appoint the chairperson by public lottery from among the arbitrators on the National Register of Collective Bargaining Arbitrators who are specialized in collective bargaining in the public sector. The Government also indicates that under the fifth final transitional provision of the aforementioned regulations of the Collective Labour Relations Act, if there is no agreement between the parties, the chairpersons of arbitration tribunals will be appointed in accordance with article 52, until the Civil Service Support Commission established by the general regulations of the Civil Service Act No. 30057 is operational.