Trade union rights in Peru

Abstract

Trade union rights in Peru Gianina Echevarría (bio) Peru is one of the countries in South America where it has been more difficult to exercise trade union rights in recent decades. The major labour reform implemented in the early 1990s by the government of Alberto Fujimori, which was considered the most “flexible” reform in the region, has had very severe effects on the organisation of workers and the defence of their rights. Although there have been some improvements in the regulatory framework in several subsequent periods, the tendency towards reducing the exercise of trade union rights has not been reversed. For more than 10 years, the ILO Committee of Experts on the Application of Conventions and Recommendations (CEACR) and the Committee on Freedom of Association (CFA) have been formulating observations and recommendations related to aspects of Peruvian legislation that do not meet the universal minimum standards recognised by ILO conventions. Until ten years ago we had 105 complaints filed with the CLS, which made Peru the first country in the Andean region and the second worldwide with the most complaints during the period 1990-2012. The problematic features that remain in labour laws, and that directly or indirectly limit the exercise of trade union rights are: ■ The existence of many temporary hiring options that produce instability in employment and that make union organisation difficult; ■ The absence of effective protection measures against employer hostility towards unionised workers and their leaders; ■ Serious limitations to the exercise of collective bargaining, especially to implement bargaining at the sector level; ■ Many restrictions on exercising the right to strike. Likewise, the existing legal framework reinforces the model of unionisation at the company level, which is inadequate for building union power in a country in which more than 80 percent of workplaces are micro or small businesses, in which it is impossible to form unions because they do not employ the legal minimum of workers required by law to form a union. Even in the cases of companies with between 20 and 100 workers, the unions tend to be very weak, and it is a very difficult task to defend them from corporate hostilities. The fact that the government does not have a policy to favour unionisation, and that the labour inspectorate is inefficient in detecting and remedying anti-union acts committed by private and public sector companies adds further difficulties for union organising. For example, in 2020, only 2.2 percent of labour inspections dealt with matters related to trade union rights, and there are no statistics on the results of these inspections; that is to say that it is unknown whether the companies were penalised. It is important to point out that in the case of a union leader who has been dismissed without justification the labour inspectorate can do no more than make a finding; it cannot order reinstatement, nor does the inspectorate have competence to inspect public sector entities. In the judicial system, the processes in which cases related to trade union rights are litigated are very slow and with results that often affect the rights of workers. The processes are rarely resolved within three years. On the other hand, and no less important, there is a tendency for labour judges to interpret labour rights restrictively. The contested issues include trade union immunity, the unilateral extension by employers of the benefits of collective bargaining with the aim of weakening the union, or the sanctions that can be applied to workers when a strike is declared unlawful. These questions have not had an adequate result from the judiciary. In all these cases, judicial reasoning underestimates trade union rights and departs from the general principles of the right to freedom of association. To further aggravate the situation, the health emergency caused by Covid 19 had direct effects on production and employment, and also on the exercise of trade union rights. Three main effects of the health emergency can be identified, as well as the labour measures that were implemented by the government to deal with it. In the first place, the loss of life among workers (both union members and non-members) and of trade union representatives, as a result of unsafe work practices...