2009 Annual Survey of violations of trade union rights - Peru
|Publisher||International Trade Union Confederation|
|Publication Date||11 June 2009|
|Cite as||International Trade Union Confederation, 2009 Annual Survey of violations of trade union rights - Peru, 11 June 2009, available at: http://www.refworld.org/docid/4c52cad0c.html [accessed 28 February 2017]|
|Disclaimer||This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.|
ILO Core Conventions Ratified: 29 – 87 – 98 – 100 – 105 – 111 – 138 – 182
The trade union and workers' rights situation has not improved compared with previous years. The dismissal of trade union leaders and members continues, aided by a policy of labour flexibility and the lack of political will by the labour authorities to prevent and penalise workers' rights abuses.
Trade union rights in law
Freedom of association: The Constitution recognises the right of public and private sector workers to organise. Workers may form unions with prior authorisation on the basis of their occupation or geographical location. The unions may also affiliate to international workers' organisations.
There are some restrictions on this right, however. Temporary workers, for example, are not allowed to join the same union as permanent workers. A minimum of 20 members are required to form a union in some cases, and the maximum requirement is 50 in others. In the case of companies, that requirement is too high by international standards, and as a result there are no unions at all in small- and medium-sized enterprises.
The Law on Productivity and Competitiveness imposed by Fujimori remains in force. 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 this requires prior approval by the administration, the Administrative Labour Authority has 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.
Export processing zones (EPZs): Export processing zones 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. There are six EPZs in the country: Ilo (Moquegua), Desaguadero (Puno), Zofratacna (Tacna), Matarani (Arequipa), Tumbes and Paita (Piura).
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 public administration restricts the scope for collective bargaining, excluding pay-related issues.
Right to strike: The right to strike is recognised in the Constitution. Requirements for a strike to be legal include authorisation from the Ministry of Labour and a vote in favour by half plus one of the workers in an enterprise, which must be certified by a lawyer. The Ministry of Labour has the power to end a strike if it poses a serious risk to the enterprise or the sector of production or if it could have serious consequences due to its size. Under the terms of Directive 003-2004-DNRT, it is the responsibility of the Administrative Labour Authority to declare whether a strike is legal or not, contrary to ILO principles, which state that this should be decided by the judicial authorities.
In 2008, Law 28988 established that the provision of basic education was a public service and that a minimum service should be provided in the event of a strike, which is not incompatible with the terms of Convention 87 according to the ILO. However, the creation of a national register of substitute teachers to replace striking teachers (Ministerial Resolution 00800-2007-ED) is against the spirit of the Convention, as is the power of the Administrative Labour Authority to decide the extent of the minimum service to be provided by essential public services during a strike, in the event of a disagreement between the parties.
Trade union rights in practice and violations in 2008
Background: Relations between the Apra party government and the trade union movement grew increasingly strained. There was a national strike on 9 July against the government's economic and social policies. The Miners' Federation called a national strike to protest at the failure to approve the Utilities Act. The government approved a law that reduces the labour rights of the majority of private sector workers, within the framework of the legislative powers given it to adapt legislation to the Free Trade Agreement with the United States. There were mass dismissals in export-related sectors, in several cases with disciplinary measures against the trade union organisations.
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 whilst making it harder for workers to organise.
Informal workers: Around 70% of the active population is employed in the informal economy, receiving salaries of between 300 and 330 sols. There are laws to protect domestic workers and porters, but they are not enforced, thus leaving them with no protection.
Legal persecution of trade union leaders: The year ended with complaints from the national trade union centre Confederación General de Trabajadores del Perú (CGTP) of legal persecution by the government. Buenaventura Vera Pérez, General Secretary of the Lima and Balnearios Civil Construction Workers' Union (STTCCLB), was arrested by police on 20 December, days after they had arrested the trade union representative from Cañete, Favio Carbonero, who was held for 28 days without trial. A further 13 leaders were facing arrest (including Olmedo Auris from the Single Peruvian Education Union) or trial (Efraín Yépez of the Cusco Civil Construction Workers' Federation and Héctor Mamio of the Madre de Dios branch of the CGTP, amongst others).
Dismissed for trade union activities: The dismissal of trade union leaders in export-related sectors continued in 2008. The ILO's Committee on Freedom of Association condemned the anti-union practices of the San Sebastián Textiles company and recommended the reinstatement of dismissed workers and the recognition of the union.
The Ripley Group Workers' Union reported the unfair dismissal of three trade union leaders for being the representatives of the union created in February 2007 and also reported pressure by the company for the rest of its members to resign from the union.
Obstructing the right to strike and repression: Several unions reported hostility against their leaders for organising and taking part in strikes and stoppages at the company level. The Nestlé Peru Single National Workers' Union (SUNTRANEP) reported that the company had undermined the right to strike by replacing the striking workers with contract labour.
Police repression during a miners' protest against the Marsa company in the La Libertad department in May resulted in six miners receiving bullet wounds. One of them, Miguel Yupanqui Ramos, died shortly afterwards.
The National Miners, Metalworkers and Steelworkers Federation of Peru (FNTMMSP) demanded the reinstatement of 37 workers dismissed by Southern Peru Copper Corporation, Minera Barrick Misquichilca, Los Quenuales and Minera Hullanca, for taking part in a general strike in June.
The Campo Petrex and Allied Workers' Union (Sitracamp) denounced the multinational company ENI for dismissing 40 of its members who had taken part in a strike, allegedly for acts of violence. According to the union, the Iquitos regional Ministry of Labour sided arbitrarily with the enterprise.
Violation of freedom of association rights: Public Services International (PSI) reported that the Arequipa Drinking Water and Sewerage Service company (Sedapar) refused to grant trade union leave to Luis Isarra Delgado, Assistant General Secretary of the National Drinking Water and Sewerage Workers' Federation of Peru (FENTAP).
In March the workers' union at the Icadie company, linked to the Diseño y Color S. A. clothing company, submitted an appeal against the company's infringements of its rights, demanding the reinstatement of workers dismissed for setting up a union in 2007, despite the company's promise to recognise the union.
The Neptunia Workers' Union reported that the company responded to the creation of the union by dismissing its leaders (Juan Carlos Castillo, Emilio Girón Tume, Ricardo Arroyo and Abel Nemesio), allegedly for mistakes they had made over the preceding months.
In April, an insurance company from the ING group "Invita Seguros de Vida" tried to boycott the creation of the first union in the insurance sector, threatening to dismiss five of the union's leaders (its General Secretary, Organising Secretary, Rights Secretary, Economic Secretary and Press Secretary) and one other woman member of the union.
Complaints to the ILO Committee on Freedom of Association: In April the Shougang Hierro Mineworkers Union of Peru submitted a complaint to the ILO's Freedom of Association Committee for violation of collective bargaining rights and the right to strike. According to the union the company had used delaying tactics and had an intransigent attitude, restricting the finalising of collective agreements since 2002.
In August 2008, Nestlé Peru Single National Workers' Union (SUNTRANEP), together with the CGTP and the International Union of Foodworkers (IUF), lodged a complaint about the dismissal of David Rázuri, Secretary for the Defence of Workers' Rights, on 14 June 2007.
The National Federation of Petroleum, Energy and Allied Workers' Union of Peru (FENUPETROL) complained that several oil multinationals were undermining trade union rights.
Fraudulent sub-contracting: International Marine Inc. (IMI) still refuses to recognise the IMI Peru Mar y Tierra workers' union, will not grant trade union leave and has refused to enter into collective bargaining since 2006. In June the Ministry of Labour and Employment Promotion urged IMI del Peru to legalise the situation of 980 workers on irregular sub-contracts.
Discrimination: Workers from the Labour Bank complained of anti-union practices by the Scotiabank Group against the two unions in the company (Piura and Lima). In April the Bank created internal work areas to prevent unionised staff from having contact with the public and benefitting from any sales bonuses.
The AJEPER National Workers' Union denounced the dismissal of union leaders Jesús Arnaldo Acosta, Ramos Dagoberto Villarreal and Roger Mauro Flores, and the creation at the Huacho factory of an employer-sponsored union, which signed a 10-year agreement that did not include pay rises and trade union issues.