2012 Annual Survey of Violations of Trade Union Rights - Peru

Population: 29,207,700
Capital: Lima

ILO Core Conventions Ratified:

29 (Forced Labour (1930))
87 (Freedom of Association and Protection of the Right to Organise (1948))
98 (Right to Organise and Collective Bargaining (1949))
100 (Equal Remuneration for Work of Equal Value (1951))
105 (Abolition of Forced Labour (1957))
111 (Discrimination in Employment and Occupation (1958))
138 (Minimum Age for Employment (1973))
182 (Worst Forms of Child Labour Convention (1999))

Reported Violations – 2012

Dismissals: 10

Documented violations – actual number of cases may be higher

Introduction

Anti-union dismissals, disregard for collective agreements and bargaining rights, and union bashing in the private sector continued to be common practice in 2011. Workers in the agribusiness, civil aviation, electricity, mining and construction industries were among the worst affected, together with public servants, subcontracted and temporary workers.

Background

Presidential and legislative elections were held in Peru in 2011. The left leaning nationalist candidate Ollanta Humala of the Gana Perú alliance was elected president for a five-year term in the second round on 5 June. The alliance also secured a majority of the seats in parliament, followed by Fuerza 2011, headed by Keiko Fujimori, presidential candidate and daughter of former president Alberto Fujimori.

In October 2011, the Labour Ministry announced plans to promote the ratification of ILO Convention 189 on domestic labour.

Trade union rights in law

While fundamental trade union rights are recognised, certain problems exist in the law. Both public and private sector workers are free to form and join trade unions without prior authorisation, however the minimum membership required by law to create unions is too high. Temporary workers are not allowed to join the same union as permanent workers. The law does not protect workers against anti-union actions, as it allows employers to sack workers without any justification in return for payment of severance pay.

The right to collective bargaining is guaranteed in the Constitution, although the scope for bargaining is restricted for workers in public administration.

The right to strike is also recognised, but is undermined by the fact that authorisation from the Ministry of Labour is required to call a strike. Furthermore, the Ministry 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. The Administrative Labour Authority – and not the courts – has the responsibility for declaring whether or not a strike is legal, and can also determine the extent of the minimum service if the parties fail to reach an agreement. Finally, a Ministerial Resolution provides for the creation of a national register of substitute teachers to replace striking teachers.

Link to additional detailed information regarding the legislation on the ITUC website here

In practice

Proposed general labour law to exclude majority of workers:

A committee of experts was formed on 1 September 2011 to revise the General Labour Bill, which includes provisions aimed at eliminating abusive temporary employment contracts, promoting job security, establishing severance pay rates and regulating the various levels of collective bargaining. The document will be presented to the National Labour and Employment Promotion Council (CNTPE) in January 2012, pending its presentation to the Executive, through the Council of Ministers, and to the Congress of the Republic for discussion and approval.

It should be pointed out that the bill fails to cover over 13 million workers across the country. With an economically active population (EAP) of 15.6 million, this means that the new legislation would only benefit two million people (less than 15% of the EAP). Those forming part of the "not included" group are workers belonging to the 29 "special regimes", such as civil construction, industrial fishing, non traditional export and domestic workers, etc.

The changes proposed strip the law of its general nature. Moreover, the bill contains no economic analysis indicating the cost of these measures for the state and private employers, which raises doubts as to whether the proposal is viable and whether it will, in fact, contribute to combating casualisation and informal economy employment and promote economic growth.

Collective bargaining violations: According to Labour Ministry figures released in December 2011, 18 collective disputes remained unresolved across the country. Failure to recognise collective bargaining rights was at the root of the disputes in 11 out of the 18 companies in the electrical and civil aviation sectors; three disputes were related to pay and working conditions in construction companies; one was over failure to comply with the collective agreement and the remaining three were linked to workers' rights.

Barriers to collective bargaining compounded by gaps in legislation:

The state has shown little or no interest in promoting collective agreements at branch level. There is currently no labour legislation specifying the scope of branch-level collective bargaining. By failing to specify the rules needed to make it viable, the law neither fosters nor guarantees collective bargaining.

Telefónica del Peru, one of the most profitable companies in the country, is sticking to its policy of refusing branch-level collective bargaining, systematically rejecting the collective bargaining rights of employees of companies that form part of the Telefónica Group in Peru. As a result, discrimination in terms of working conditions is suffered by workers employed by companies not directly owned by Telefónica del Perú, but which provide services and operations for it and belong to the telecommunications sector.

In August 2011, the Chilean company Ripley finally agreed to engage in the collective negotiations it had been refusing to hold since 2010 with the Sindicato Único de Trabajadores del Grupo Ripley (Sutragisa). The union's demands were aimed at improving pay and working conditions for Ripley's 5,000 workers. An agreement was ultimately reached in October 2011 under pressure from the Labour Ministry, urging the company to discuss the union's demands.

Violations

Miners' strike violently repressed: Workers at Shougang Hierro Perú S.A staged a strike from 28 September to 14 October in protest at the mining company's failure to comply with the wage equalisation payments ordered by the government. The national police violently charged against the miners' wives who had gathered during the strike in front of the regional government headquarters in the city of Ica. The Ministry finally forced the company to comply with the government order.

Union-crushing policy at Backus y Johnston brewing company and textile firm Topy Top:

In June 2011, the Sindicato Nacional de Obreros de la Unión Cervecera Peruana Backus y Johnston denounced the company's anti-union policy. The brewery drew up codes of conduct whereby workers had no right to defend themselves and dismissed several employees for exercising their right to organise.

In November 2011, the Sindicato de Trabajadores Obreros de Topy Top denounced the textile firm's anti-union policy, including its constant failure to respect the workers' rights, threats and intimidation in reprisal for reports of violations, and relentless anti-union dismissals, which has brought the number of unionised employees down to 180. The company has fired 200 union members.

Harassment during collective bargaining and interference in SATRASUFISA:

Although the Sindicato Autónomo de Trabajadores de Sudamérica de Fibras (SATRASUFISA) has succeeded in signing collective agreements with the company since 2008, the management refuses to honour the commitments undertaken. The workers find themselves being forced to accept the miserable pay increases the company decides on. The company is still not deducting the union members' dues at source and does not allow trade union representatives to take part in the collective bargaining negotiations.

In addition, despite the proven distortion of the non traditional export contracts provided for by Law 22342, which the ILO has called on the government to amend or repeal, companies continue to employ workers under this heading, claiming that their activity is non traditional despite it being carried out in Peru for over 30 years.

Subcontractor Multiservicios y Contratistas Sailors SAC union leaders dismissed:

After providing staff transport services for over five years to the Minera Yanacocha company without a formal contract, a union with 90 members was formed.

The mining company dismissed the two union leaders on the spot and terminated its contracts with several union members, forbidding their access to the worksite. The workers were pressed to leave the union under threat of dismissal. Some were offered financial incentives to withdraw their membership. All of these measures were taken in collusion with the Ancash region's labour authority, which never went to inspect the Yanacocha mine. Only 20 unionised workers were left at the end of the year and it is unlikely that the union will survive given the climate of fear created: the workers dismissed are unable to find work with other subcontractors, having been blacklisted by Minera Yanacocha.

Anti-union dismissals and interference:

The main practice used to block union activity continues to be the dismissal of trade union leaders on "administrative" grounds, as was the case with the general secretary of the Sindicato del Banco Falabella del Perú. The bank is currently facing legal action and a complaint has also been lodged with the ILO Committee on Freedom of Association.

Other common tactics include inciting members to leave unions by offering greater financial benefits to non-unionised workers, encouraging the formation of company-controlled unions, and undermining the most representative union's power to negotiate, thus stifling any legitimate collective bargaining.

In December 2011, the agricultural export firm Euro S.A. sacked ten workers, including four trade union representatives, after a union was formed at the company. The Federación de Trabajadores del Sector Agroindustrial de Ica (FRETSAI) and the Federación Regional de Trabajadores de Ica (FRTI) filed complaints with the labour authorities.