With certain limitations, labor laws and regulations protect freedom of association, the right to strike, and collective bargaining, and they prohibit employer intimidation and other forms of antiunion discrimination. Regulations allow workers to form unions without seeking prior authorization. However, the minimum membership required by law to form a union--20 employees for a workplace-level union and 50 employees for a sector-wide union--was prohibitively high in some instances, particularly for small and medium-sized enterprises. The law specifies that public- and private-sector workers have the right to organize, bargain collectively, and strike, but it stipulates that the right to strike must be “in harmony with broader social objectives.” Judges, prosecutors, and members of the police and military are not permitted to form or join unions.
The law allows unions to declare a strike in accordance with their statutes. Private- and public-sector union workers must give advance notice of a strike--at least five working days for private sector workers and 10 for the public sector--to employers and the Ministry of Labor. The law also allows nonunion workers to declare a strike with a majority vote as long as the written voting record is notarized and announced at least five working days prior to a strike. During the year the Ministry of Labor registered 89 national-level strikes, of which 65 were declared illegal for failure to meet legal requirements.
Unions in essential public services, as determined by the government, are permitted to call a strike but must provide 10 working days’ notice, receive the approval of the Ministry of Labor, have the strike approved by a simple majority of workers, and provide a sufficient number of workers during a strike to maintain operations, as jointly determined by the union and labor authorities on an annual basis. Workers who strike legally cannot be fired for striking, but illegal strikers in the private sector can be fired on the fourth day of absenteeism and public-sector strikers after an administrative procedure.
Unless there is a preexisting labor contract covering an occupation or industry as a whole, unions must negotiate with companies individually. The law establishes processes for direct negotiations and conciliation. If those fail, workers can declare a strike or request arbitration. A 2011 decree outlines the process that authorizes the use of arbitration to end collective labor disputes. The decree gives a party the ability to compel the other party to submit to arbitration (whether worker- or employer-initiated) if either of the parties cannot reach an agreement in the first collective bargaining negotiation, or if a party does not engage in good faith during collective bargaining by delaying, hindering, or avoiding an agreement. If the parties disagree over whether or not a prerequisite for binding arbitration has been met, the law also allows a party to submit the matter to independent, nongovernmental arbitrators for an initial decision. The Ministry of Labor restructured the timeline with the goal to resolve labor conflicts in an average of six months.
The law prohibits employers from refusing to hire an individual because of union membership and also prohibits other forms of antiunion discrimination. Workers fired for union activity have the right to reinstatement. However, the law allows companies to fire employees without justification if they offer severance pay as fixed by law.
The law forbids businesses from hiring temporary workers to perform core company functions, requires businesses to monitor their contractors with respect to labor rights, and imposes liability on businesses for the actions of their contractors. The law governing the general private-sector labor regime sets out nine different categories of employment contracts that companies may use to hire workers based on particular circumstances. Sector-specific laws limit the associational rights of workers in nontraditional export sectors (e.g., fishing, wood and paper, nonmetallic minerals, jewelry, textile, and the agriculture industry). The law allows employers to hire workers on a series of short-term contracts without requiring that the workers be made permanent, creating conditions that in effect prevent organizing or affiliating with unions.
Despite a 2011 decree that provides employees in the Administrative Service Contracts short-term employment hiring system (CAS) the right to form unions, hundreds of unionized CAS workers did not have their contracts renewed at the end of 2011 and through the first few months of 2012. Reportedly, unionized CAS workers were disproportionately not rehired, compared with nonunionized CAS workers. On March 26, Congress passed Law 29849, which aims to eliminate over time the CAS that applies to public-sector workers; no specific date for elimination is included in the law. CAS workers made up almost 20 percent of the 900,000 members of the public-sector workforce. CAS worker unions criticized the law, stating that it did not provide employment stability until 2013, leaves room for public employers to limit benefits according to budget availability, and leaves CAS workers vulnerable to unjustified contract cancellation, which may violate constitutional protection against arbitrary dismissal.
The government did not effectively enforce the law in all cases. Labor conflicts were not always resolved within six months as required by law. Workers faced prolonged judicial processes and lack of enforcement following strike-related dismissals. A study during the year by local and international NGOs of 53 labor rights cases found three instances of noncompliance with arbitrators’ decisions. The study found that employers challenged arbitrator decisions based on flaws in the formal notification of the interested parties, violation of budget laws (in the case of public-sector employers), and lack of coherence between the original bargaining petition and the final decision presented by the arbitrator panel. The study assessed that protective measures employers file in court that conflict with arbitrator decisions are a violation of arbitral jurisdiction.
Workers faced some challenges in exercising their rights of freedom of association and collective bargaining. Unions were generally independent of government and political parties. Employers continued to dismiss workers for exercising the right to strike. Dismissal of striking workers and delays in reinstatement of these workers, in both legal and illegal strikes, were the main tactic used by employers to dissuade workers from going on strike.
The National Textile Workers Union Federation reported that in March Textiles Camones fired 215 workers for forming a union. At year’s end 115 of the workers had been rehired, but only after signing and sending a notarized letter to the union renouncing their membership. In September the textile company Topy Top fired 52 workers after the courts denied a legal request for protection from antiunion harassment at the plant. Topy Top reinstated the workers one week later after receiving public and international pressure.
Significant delays in the collective bargaining process due to employers’ lack of interest in concluding agreements proved to be a common obstacle to compliance with workers’ right to bargain collectively. For instance, in the past the National Tax Administration (SUNAT) failed to comply with certain elements of laws related to collective bargaining, including deadlines for launching collective bargaining negotiations for the 2008-09 and 2010-11 periods. On March 16, SUNAT and the National Union of Tax Administration Workers (SINAUT) attended arbitration for the 2008-09 bargaining period. On March 29, an arbitral panel issued SINAUT each of the requests contained in its bargaining proposal, including the economic issues, although in amounts less than the union had requested. On April 12, SUNAT appealed this award; the appeal was pending at year’s end. For the 2010-11 bargaining period, SUNAT and SINAUT each appointed an arbitrator, but an arbitral panel had not met by year’s end.
Workers employed under initiatives to promote the textile and apparel and agriculture industries faced obstacles to exercise the right to collective bargaining. Palm oil workers employed by Grupo Romero in Uchiza, San Martin, and workers at Agricola Viru in La Libertad were unable to obtain the financial information legally required to negotiate a collective agreement successfully, and they had not concluded an agreement seven months after bargaining began.
Employers engaged in antiunion practices, including using subcontracting to avoid direct employment relationships and the associated legal requirements. Such subcontracting also limited the size of the company workforce, making it more difficult to reach the 20-employee threshold necessary to form a union. Many businesses hired temporary or contract workers who were effectively barred from participating in unions due to fear that their contracts might not be renewed. Employers also circumvented restrictions regarding hiring temporary workers to perform core company functions in a number of ways.
Temporary, project, or seasonal contracts typically dissuaded workers from unionizing and left them vulnerable to nonrenewal of contracts. In March the firm Ingeneria, Quimicos, Fluidos, S.A. dismissed nine union leaders the same day they filed for union registration. The Sindicato de Trabajadores de Telefonica en el Peru (telephone workers’ union) reported that on August 7, the telecommunications company terminated 31 unionized technicians on a temporary contract after workers conducted a one-day strike calling for renewal of short-term contracts.