Observation (CEACR) - adoptée 2007, publiée 97ème session CIT (2008)

The Committee notes the information supplied by the Government on the impact that the earthquake which took place last August in its country has had on its capacity to submit its reports. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous observation, which read as follows:

The Committee notes the information supplied by the Government in its report. It notes, in particular, with interest the report by the Insurance Standardization Office (ONP) on progress made regarding the action brought by the Association of Former Employees and Retirees of the National Ports Enterprise (ACJENAPU). Further to its previous comments, the Committee would like to draw the Government’s attention to the following points.

1. Effect of the new pension scheme on the application of the Convention. In its previous comments, the Committee requested the Government to provide information on the impact of the new pension scheme on the application of the Convention, including the information specified in the report form on this Convention, for each Article of the Convention.

In its report, the Government indicates that the private pension system (SPP) is an individual capital accumulation scheme in which the amount of pensions depend directly on the workers’ contributions, the earnings of the pension funds’ investments and vouchers (Bono de Reconocimiento), where applicable. The SPP is self-financing, in other words the worker’s future pension depends on his or her own contributions. The rate of compulsory contributions to the pension fund is worked out on the basis of technical criteria to achieve an adequate replacement rate. The pensions provided by the SPP are accordingly not determined in advance. The Committee takes note of this information. In view of the fact that under the private pension system it is not possible to determine the amount of benefits in advance, the Committee requests the Government to indicate how it ensures the application of Article 3(1)(a)(ii) of the Convention (minimum amount of pensions).

On the subject of collective financing of benefits, the Government indicates that the SPP has a minimum pension which allows state subsidization for members of the scheme who meet the age and contribution requirements laid down in Act No. 27617 and who have not accumulated enough resources to finance a pension themselves. The minimum pension is financed directly by the Treasury. The Committee notes this information. It observes that, contrary to Article 3, paragraph 2, of the Convention, under the private pensions system both the cost of the pension and administrative costs are borne solely by the insured persons. In the Committee’s view, the minimum pension which the State pays and which applies only to certain cases cannot be regarded as a contribution within the meaning of Article 3, paragraph 1(b) and paragraph 2, of the Convention. Peru’s private pension system is, on the contrary, an independent scheme in which the resources for payment of the benefits are obtained by means of contributions from the insured members. The Committee again reminds the Government that according to Article 3, paragraph 2, of the Convention, seafarers collectively shall not contribute more than half the cost of the pensions payable under the scheme. The Committee trusts that in its next report the Government will supply the statistics required by the report form under this Article of the Convention.

2. Payment of pensions to retired persons and former employees of the Peruvian Steam Ship Company (CPV). In its previous comments, the Committee asked the Government to supply information on developments in the situation regarding the payment of pensions to retirees and former employees of the CPV. It also requested the Government to provide information on the situation (vis-à-vis the Convention) reported by the Association of Crew Members for the protection of CPV workers, of former pensioners of this enterprise who have been excluded from the Pension Fund and have been unable to obtain reinstatement through a court ruling.

With regard to the first point, the Committee notes Report No. 136‑2005‑GL.PJ-21/ONP on the situation of the former workers of the CPV who took legal action to have their pensions adjusted. It also notes that the ONP will continue to have the same responsibilities in the event of the original entity being privatized, liquidated, disposed of and/or dissolved, as it had in December 2004, including that of representing the State in procedures before the courts and the Constitutional Tribunal. The Committee takes note of this information.

With regard to the legal action brought by the former pensioners of the CPV, the Government states that a decision was adopted on 3 November 2004 in which the court requires the ONP to “establish equivalent public positions in each case for the purpose of paying pensions to workers who, in accordance with the exception expressly established in the law, may receive a pension under Legislative Decree No. 20530 and who did not have the status of public servant at the time of separation. The equivalent positions shall be established in accordance with this decision.” The Committee takes note of this information with interest. It also notes that the ONP has filed an appeal against this decision, which has been admitted “without suspensive effect” but that appropriate measures have been taken to execute the abovementioned decision in accordance with the rules in force pending a ruling by the higher court on the abovementioned appeal. The Committee asks the Government to inform it of the outcome of the appeal and to provide any court decision pertaining to it.

3. Complaint by retirees of the National Ports Enterprise (ENAPU) seeking adjustment of their pensions. In its previous comments, the Committee noted once again that the ONP had still not established internal procedures to implement the court decision in favour of the ACJENAPU, and expressed the hope that the Government would take the necessary measures in this regard. The Committee asked for information on any further developments in this case and in particular: (i) whether the adjusted pensions are actually being paid to the retirees concerned; and (ii) whether the three persons whose pensions have not been adjusted by the ONP have had their pensions adjusted by the Ministry of Economic and Financial Affairs.

The Government indicates in this connection that the complaint brought by the ACJENAPU is now at the stage of the execution of ruling, the ONP having accepted the court’s decision regarding the adjustment for the workers of ENAPU MATARANI, except in one case, in which the administrative file was still under the competence of the original entity. The Committee notes this information. It requests the Government to report on the follow-up to this last case.

4. Communication from the Federation of Workers of Peru (FETRAPEP). The Committee notes a communication of October 2006 from FETRAPEP, referring to several issues relating to the application of the Convention. It will then examine the above communication together with the Government’s reply which it may wish to supply.

The Committee hopes that the Government will make every effort to take the necessary action in the very near future.