2007 Annual Survey of violations of trade union rights - Peru
|Publisher||International Trade Union Confederation|
|Publication Date||9 June 2007|
|Cite as||International Trade Union Confederation, 2007 Annual Survey of violations of trade union rights - Peru, 9 June 2007, available at: http://www.refworld.org/docid/4c52ca14c.html [accessed 24 November 2017]|
ILO Core Conventions Ratified: 29 – 87 – 98 – 100 – 105 – 111 – 138 – 182
Rejection of freedom of association and obstruction of collective bargaining are still recurrent practices in Peru. Most labour laws still date back to the dictatorship. A demonstration against the unfair dismissal of three trade union leaders in an iron ore company was brutally repressed by the police. Telefónica sacked six workers for taking collective action.
Trade union rights in law
Freedom of association: The Constitution recognises the right of public and private sector workers to organise and establishes freedom of association as an indicator of that right. Workers may form unions on the basis of their occupation, employer affiliation or geographic territory. The unions may also affiliate to international workers' organisations.
Some restrictions: Temporary workers are not allowed to join the same union as permanent workers. A minimum of ten members are required to form a union, however in certain occupations the threshold is 20 and the maximum requirement is 50. That requirement is too high by international standards and as a result there are no unions at all in small- and medium-sized enterprises.
There are also some restrictions on the foreign workers' membership of trade unions or on their access to leadership posts. Similar restrictions apply to migrant workers.
Collective bargaining: The Constitution enshrines the right of workers in the private and public sector to bargain collectively. It stipulates that a union has to represent at least 20 workers to become an official collective bargaining agent. The law governing workers in the public administration restricts the scope for collective bargaining.
Right to strike – Ministry has veto: Workers have the right to strike, but this right is limited by the fact that unions must have the permission of the Ministry of Labour.
The Law governing Productivity and Competitiveness imposed by Fujimori remains: After the demise of Fujimori almost all the repressive laws were revoked, though not Decree No. 728 or, therefore, the 1997 Law governing Productivity and Competitiveness. That law legalised unfair dismissals, i.e. the option of sacking workers without any justification in return for payment of severance pay fixed by the law. That way companies could put pressure on union members to accept the compensation set by the law. The law also made the various forms of contractual relationship extremely flexible. Faced with the threat of their contract not being renewed, workers have been choosing not to join a union. The law also established the possibility of collective dismissals in various circumstances. Although that requires prior approval by the administration, the Labour authorities have no legal competence to decide whether the collective dismissal includes an unfair number of trade union leaders or members, so the procedure has also been used for anti-union purposes.
The trade union movement has repeatedly criticised the employers' obstruction of the adoption of the new Labour Law.
Export processing zones (EPZs): There are six EPZs in the country, in Ilo (Moquegua), Desaguadero (Puno), ZOFRATACNA (Tacna), Matarani (Arequipa), Tumbes and Paita (Piura). They are governed by special regulations, which allow for greater flexibility in labour contracts, the widespread use of temporary labour and the setting of wages on the basis of supply and demand, all of which restricts the ability of unions to organise and bargain collectively.
Trade union rights in practice
Peru remains a country where the flouting of trade union rights is a common occurrence. Despite the official return of democracy, many of the government's actions, and those of employers, rely on anti-union laws and policies that were inherited from the dictatorship and not replaced by the outgoing government of Alejandro Toledo, despite his promises at national and international level.
"Tercerización": the increasing use of contract labour: The government is continuing the trend of contracting out many government services, leading to more job losses in state-owned enterprises and in public administration and making it harder for workers to organise.
Discrimination against union leaders: A series of laws and regulations have been introduced, beginning with the 2002 Law on Collective Dismissals, to counteract the massive job losses in State owned enterprises and local government during the Fujimori era. When it comes to reinstatement however, the trade unions report that union leaders and activists are being discriminated against, and are not being given the chance to return to work.
Collective bargaining: The national trade union centre, CUT (Central Unitaria de Trabajadores), reports that in practice, collective bargaining is limited by the attitude of employers, who prefer to settle matters on an individual, financially-motivated and ad hoc basis and to avoid collective agreements. It is also restricted by the aforementioned fear of dismissal amongst employees.
Temporary contracts favoured to undermine unions: Some employers hire as many workers as they can on a temporary basis, partly in order to restrict the number of union members. Although the law limits the number of temporary workers in an enterprise to 20 per cent of the total workforce, it has been reported that not all employers respect this limit.
Informal workers: Sixty one per cent of the working population is employed in the informal economy. There are laws to protect domestic workers and porters, but they are not enforced, and all other informal economy workers fall outside the protection of the law.
Violations in 2006
Background: Alan García began a second term as President. The main trade union centres criticised the government's avoidance of social dialogue, given its intention to sign the FTA without first hearing the views of the various social actors. The government took no initiative towards reforming the Labour Code with a view to restoring the trade union rights that had been undermined by the dictatorship.
Sacked for attending a union meeting: The National Tax Authority (Superintendencia Nacional de Administración Tributaria, SUNAT) refused to grant Carlos Alberto Cuadros García, the General Secretary of the Customs and Tax Inspectors Union (Federación de Trabajadores Aduaneros y Tributarios del Perú) trade union leave to attend a MERCOSUR trade union meeting in Chile from 20 to 22 March. He had to use the unpaid personal leave that he was granted. After taking two days' legal sick leave and returning to work on 27 March, García was no longer able to enter his workplace and "clock in" electronically. He received no official explanation as to why this had happened.
Sacked for collective action: At the end of June, Telefónica del Perú, a subsidiary of the Spanish multinational, sacked six young workers who had asked the Ministry of Labour to carry out a labour inspection at their workplace. The inspector supported them, stating that they had been discriminated against compared to other employees at the plant who carried out exactly the same tasks. On 3 July, the members of the technical services union (Sindicato Unitario de Trabajadores de Telefónica-Servicios Técnicos, SUTTST), which had been formed two years earlier to protect workers against the discrimination they were suffering from the company, called a strike to protest against the dismissals. They took to the streets to publicise the abuses committed by Telefónica del Perú, including the continuous threats against trade union members that their contracts would not be renewed. In October they won their battle when it was announced that 42 young workers would receive permanent contracts.
Brutal repression of a trade union demonstration: On 7 August, the iron ore company Shougang Hierro Perú S.A.A. sacked three workers, all of whom were union leaders, without giving a reason. On the next day, the employees of Shougang, who are members of the union SERCOLIMA (SAC) and of two cooperatives ("Santo Domingo Ltda." and "Cooperativa del Solar Ltda.", or "COOPSOL"), called an indefinite strike to demand the reinstatement of the dismissed union leaders and respect of their basic rights, including the right to collective bargaining. On 10 August, a demonstration held by over 600 workers and their families was repressed by the police, resulting in four injuries, one very serious, two disappearances and 28 arrests. Shougang Hierro Perú S.A.A. is a subsidiary of the Chinese group Shougang, which has its head office in Beijing. It is the main producer of iron in Peru. It forces its employees to renew their contracts and changes the company's trading name every six months in order to prevent them enjoying their workers' rights, and especially those relating to organising and collective bargaining.
Collective bargaining obstructed and union leaders harassed at Petro-Tech: In January, the oil company Petro-Tech sacked two workers who were members of the union. The discussion on the collective agreement for 2006-2007 broke down since the company showed no interest in reaching a solution, but instead repeatedly questioned the union leaders' credentials for representing the workforce, despite the fact that the Ministry of Labour had noted that the union had fulfilled all the legal requirements.
Luz del Sur continues to block reinstatement of union leader: Following the dismissal three years ago (on 2 February 2003) of Luis Martín del Río Reátagui, then General Secretary of the electricity workers' union, SUTREL, and two legal rulings in favour of his reinstatement, the company Luz del Sur, S.A.A., his current employer, still refused to allow him to return to his post owing to the complaints he had made of financial irregularities at the company. Despite still paying his salary, the company refused to reinstate him.
Banco del Trabajo refuses to recognise union: Although back in August 2005 the Piura Labour Court had rejected the request by the Banco del Trabajo (owned by the Chilean multinational Altas Cumbres) to have the bank workers' union (Sindicato Único de Trabajadores del Banco del Trabajo-SUTRABANTRA) declared illegal, the bank continued to refuse to recognise the union. Following a complaint by the workers on 4 December criticising various violations of workers' rights by the bank, the management issued a statement that there was no legally constituted union at the bank, though in fact there were two: SUTRABANTRA, representing blue collar workers, and SUDEBANTRA (Sindicato Unitario de Empleados del Banco del Trabajo), representing employees.
IMI de-recognises the company union: Following the creation of a union at IMI Peru (the Sindicato Único de trabajadores Mar y Tierra de IMI del Perú S.A.C) on 18 September, four workers were sacked (all relatives of members of the union) as a means of threatening and coercing the staff. On 24 October, the workers submitted a list of demands to the company detailing the workers' situation and insisting that their rights be respected; however, the company replied by stating that it would not recognise the union until it produced the official minutes of its Constituent Assembly including details of the appointment of the members of its executive (the "Comisión de Defensa del Pliego"), and submitted a request to the Labour Authority to impugn the union. Although the Authority rejected that request more than once and ruled that a negotiation process should begin, the company denied the existence of the union, in effect, by refusing to attend any meetings.