With certain limitations, labor laws and regulations provide for freedom of association, the right to strike, and collective bargaining. The law prohibits employer intimidation and other forms of antiunion discrimination and requires reinstatement of workers fired for union activity, unless they opt to receive compensation instead. Regulations allow workers to form unions without seeking prior authorization. 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 police and military members may not form or join unions. New unions must register in the Ministry of Labor and Employment Protection’s Subdirectorate of Conflict Prevention under a process that takes up to four days, during which time employers may dismiss unionized workers and leaders.
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 to the employer and the Ministry of Labor and Employment Protection. Private sector workers must give advance notice of at least five working days, and public sector workers must give at least 10 days’ notice. 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. Unions in essential services are permitted to call a strike but must provide 15 working days’ notice, receive the approval of the ministry, be approved by a simple majority of workers, and provide a sufficient number of workers during a strike to maintain operations. Workers who strike legally may not be fired for striking, but illegal strikers in the private sector may be fired on the fourth day of absenteeism, and public sector strikers after an administrative procedure. The ministry was tasked with issuing judgments regarding the legality of a proposed strike.
Unless there is a pre-existing 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 may declare a strike or request arbitration. The law outlines the process that authorizes the use of arbitration to end collective labor disputes. The law gives a party the ability to compel the other party to submit to arbitration (whether worker- or employer-initiated) whenever either of the parties cannot reach an agreement in the first collective bargaining negotiation, or 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 law 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 short-term employment contracts that companies may use to hire workers based on particular circumstances. The law sets time limits for each of the categories and contains a five-year overall limit on the consecutive use of short-term employment contracts when contracts from different categories are used together. A sector-specific law covering the nontraditional export sectors (e.g., fishing, wood and paper, nonmetallic minerals, jewelry, textiles and apparel, and the agriculture industry) exempts employers from this five-year limit and allows employers in those sectors to hire workers on a series of short-term contracts indefinitely, without requiring a conversion to the permanent workforce.
The government did not effectively enforce labor law in all cases. Resources remained inadequate, including for the labor ministry and its National Superintendency of Labor Inspection (SUNAFIL). Penalties for violations of freedom of association and collective bargaining range from 7,400 to 74,000 new soles ($2,240 to $22,400). Such penalties were insufficient to deter violations and, according to labor experts and union representatives, were rarely enforced. Workers faced prolonged judicial processes and lack of enforcement following dismissals resulting from trade union activity. For example, NGOs reported that emblematic cases of labor arbitration dating from 2012 remained suspended, with the implementation of arbitrators’ decisions delayed by judicial appeals processes. These cases involved unions that represented public and private sector workers at Shougang mine, the national tax authority, and inspectors from the labor ministry. NGOs also reported instances of noncompliance with arbitrators’ decisions.
Workers faced challenges in exercising their rights of freedom of association and collective bargaining. Unions and labor experts reported that the labor ministry refused to register newly affiliated union members after the initial union registration period concluded. Employers continued to dismiss workers for exercising their right to strike. Dismissals 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. For instance, union members who participated in a national strike called by the National Mine, Metal, and Steel Workers Federation in May reported retaliation, including loss of vacation days, suspensions of union leaders, and denial of employer-provided meals. This was particularly acute at the Marsa and Shougang mines that have majority-subcontracted workforces. Labor union representatives and labor sector experts continued to report cases of employers who filed criminal charges that alleged material damages against workers who engaged in strikes. These charges then served as the basis for dismissing union officers and workers who participated in strikes. Union members expressed concern that employers were using criminal investigations as an intimidation tactic prior to impending collective bargaining activities.
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 worker rights to bargain collectively. Workers employed under laws to promote the textile, apparel, and agriculture industries faced obstacles, such as allegations of delayed negotiations and legal threats, to exercise of the right to collective bargaining.
Employers engaged in antiunion practices, including using subcontracting to avoid direct employment relationships. Such subcontracting also limited the size of a company’s permanent workforce, making it more difficult to reach the 20-employee threshold necessary to form a union.
Many businesses, including export industries, hired temporary workers, who were effectively barred from participating in unions because they feared their contracts might not be renewed. Employers also circumvented restrictions regarding hiring temporary workers to perform core company functions. Unions, NGOs, and some multi-national apparel brands criticized the law on nontraditional export sectors and its exemption from limits on the consecutive use of short-term employment contracts, asserting that workers employed under it and who attempted to organize or affiliate with unions did not have their contracts renewed. In a July 23 report, the International Labor Rights Forum and several labor organizations in the country alleged that the government was failing to enforce labor laws in the garment, textile, and agro-export sectors and that its law permitting the unlimited use of short-term contracts in those sectors allowed employers to undermine worker freedom of association.
NGOs also reported management interference in labor-management health and safety committees. Management sometimes interfered in the election of worker representatives, held committee sessions without full worker representation, and failed to notify elected worker representatives when labor inspectors conducted workplace inspections.