Direct Request (CEACR) - adopted 2023, published 112nd ILC session (2024)

Previous comments: C.1, C.52 and C.101

In order to provide a comprehensive view of the issues relating to the application of the ratified Conventions on working time, the Committee considers it appropriate to examine Conventions Nos 1 (hours of work, industry), 52 (holidays with pay) and 101 (holidays with pay, agriculture) in a single comment.

Hours of work

Article 8(2) of Convention No. 1.Application in practice. The Committee notes the indication of the Autonomous Workers’ Confederation of Peru (CATP) that limits on working hours are exceeded in certain cases (for example, in port enterprises, in the road transport sector and the urban passenger transport sector, in micro-, small and medium-sized enterprises and in the context of subcontracting) and that the labour inspection services only engage in limited action in this regard. The CATP adds that, according to the latest report of the National Institute of Statistics and Information Technology, only two out of ten workers are in the formal sector, as a result of which 80 per cent of workers do not have labour rights and have to work more than eight hours a day. The Committee requests the Government to provide its comments in this regard

Holidays with pay

Articles 2(3) and 8 of Convention No. 52 and Articles 5(d) and 10 of Convention No. 101. Illness that occurs during holidays. Public and customary holidays. The Committee notes the Government’s indication that section 13 of Legislative Decree No. 713 provides that periods of incapacity shall not be taken into consideration during holiday periods. It also indicates that the national legislation does not deduct from annual holidays interruptions of work due to illness or accident and that, on the contrary, in accordance with section 12 of Legislative Decree No. 713, for the purposes of the vacation record, the holiday period for the previous year, as well as absences for common illnesses, employment injury and occupational diseases, are considered as effective days of work. It therefore adds that absences from or interruptions of work do not affect the right of workers to annual holidays.

The Committee notes the concern expressed by the CATP in its observations at the application in practice of section 13 of Legislative Decree No. 713. It indicates in particular that, in order to avoid the long delay in the processing of their benefits by social security institutions, when workers take more than 20 days of leave for illness, they prefer to use their days of holiday during this period so that it is their employer that pays their monthly earnings. The Committee also notes the CATP’s indication that the National Labour Inspection Authority (SUNAFIL) does not have a plan of action to monitor or verify that holidays are accorded correctly and that they are not used to cover the illness or injury of workers. The CATP adds that section 13 of Legislative Decree No. 713 should be reformulated to specify that the employer shall not count public holidays during the period of holiday leave, and that workers are entitled to benefit from their days of leave without public holidays being counted as part of their holidays. The Committee requests the Government to provide its comments in this regard.

Specific issues related to holidays with pay in agriculture

Article 3 of Convention No. 101. Minimum duration of annual holiday with pay. With reference to its previous comments, the Committee notes that the Government reports the adoption of Act No. 31 110 on the agricultural labour system and incentives for the agricultural and irrigation sector, agricultural exports and agro-industry, published on 31 December 2020, and its regulations published on 30 March 2021. In this regard, the Committee notes the Government’s indication that, under section 12 of the Regulations of Act No. 31 110, the right of agricultural workers to holidays is regulated by the provisions of Legislative Decree No. 713. The Committee therefore observes that workers covered by the system set out by Act No. 31,110 are entitled to 30 calendar days of holiday for each complete year of work (section 10 of Legislative Decree No. 713). The Committee notes this information, which responds to its previous request.

Observation (CEACR) - adopted 2023, published 112nd ILC session (2024)

Previous comment on Convention No. 1: Observation

Previous comment on Convention No. 14: Direct request

Previous comment on Convention No. 52: Direct request

Previous comment on Convention No. 101: Direct request

Previous comment on Convention No. 106: Direct request

In order to provide a comprehensive view of the issues relating to the application of the ratified Conventions on working time, the Committee considers it appropriate to examine Conventions Nos 1 (hours of work, industry), 14 (weekly rest, industry), 52 (holidays with pay), 101 (holidays with pay, agriculture) and 106 (hours of rest, commerce and offices) in a single comment.

The Committee notes the observations of the National Confederation of Private Business Institutions (CONFIEP) on the application of Conventions Nos 1 and 52, received on 31 August 2023, and the observations of the Autonomous Workers’ Confederation of Peru (CATP) on the application of Conventions Nos 1, 14, 52, 101 and 106, received on 1 September 2023.

The Committee notes the decision by the tripartite committee set up to examine the two separate representations made in 2020 under article 24 of the Constitution of the ILO by the Federation of Mineworkers of the Shougang Hierro Peru and Others and the Santa Luisa de Huanzalà Mineworkers Union. The Committee notes that the tripartite committee did not find violations of Convention No. 1 in relation to the alleged violation of working time limits during COVID-19. The Committee also notes that, taking into account the context of the acute health crisis caused by the COVID-19 pandemic during which the representations were made, the tripartite committee emphasized the importance of engaging in broad social dialogue with all representative organizations of workers and employers in the relevant sectors when taking action to find effective and sustainable solutions to crises (such as the crisis caused by the COVID-19 pandemic), as well as in the context of collective bargaining. The tripartite committee also recalled the impact of excessive working hours on the health and safety of workers and emphasized the fundamental nature of the occupational safety and health Conventions, as recently recognized by the ILO.

A. Hours of work

Article 2(b) of Convention No. 1. Averaging of hours of work within the weekly limits. In its previous comments, the Committee noted the lack of conformity with the Convention of section 2(1)(b) of the single consolidated text of Legislative Decree No. 854 on hours of work, overtime hours and work, as amended by Act No. 27,761 (Presidential Decree No. 007-2002-TR of 4 July 2002), which allows employers to adopt an uneven distribution of working hours in the same week, without establishing maximum limits for daily hours of work. The Committee notes that the Government has not provided information on this subject. The Committee recalls that the Convention establishes an overall daily limit of nine hours in the case of the variable distribution of working hours within a week. The Committee requests the Government to take the necessary measures to bring section 2(1)(b) of the single consolidated text of the Act on working time and overtime hours and work into conformity with Article 2(b) of the Convention with a view to guaranteeing that, in the case of the variable distribution of working hours within a week, an overall daily limit of nine hours is established in addition to the weekly limit of 48 hours. The Committee requests the Government to provide information on the measures adopted or envisaged to ensure the application of this provision in practice.

Article 6(1)(b) and (2). Overtime hours. Circumstances in which temporary exceptions may be permitted, Overtime pay and maximum number of hours permitted. With reference to its previous comments, the Committee notes the Government’s indication that overtime hours are of an exceptional nature in accordance with section 9 of the single consolidated text of the Act on hours of work and overtime hours and work. However, the Committee notes that section 9 provides that overtime work shall be voluntary and shall only be compulsory in cases of unforeseen circumstances or force majeure. The Committee also notes that the CATP, in its observations, indicates that in certain sectors the limits on working time are exceeded and that, for example in the context of subcontracting, workers have to accept very long working days. The Committee requests the Government to take the necessary measures to ensure that overtime hours are only worked in exceptional cases of unforeseen pressure of work and are only allowed to enable enterprises to cope with unforeseen cases of pressure of work, in accordance with Article 6(1)(b) of the Convention.

Furthermore, in its previous comments, the Committee noted the absence of conformity of section 10 of the single consolidated text of the Act on hours of work and overtime hours and work, as it allows overtime pay to be replaced by compensatory rest. The Committee notes that the Government has not provided any further information on this subject. The Committee also notes the absence of legislative provisions establishing the maximum number of overtime hours that may be allowed in each case. With reference to compensation for overtime hours, the Committee requests the Government to take the necessary measures to bring section 10 of the single consolidated text of the Act on hours of work and overtime hours and work into conformity with Article 6(2) of the Convention in order to guarantee that overtime hours are paid at a rate of not less than 125 per cent of the regular rate, irrespective of any compensatory rest afforded to workers. The Committee also requests the Government to indicate the maximum number of additional hours that may be allowed in practice.

B. Weekly rest

Article 5 of Convention No. 14 and Article 8(3) of Convention No. 106. Compensatory rest. In relation to its previous comments, the Committee notes that the Government refers in its report to section 3 of Legislative Decree No. 713 of 8 November 1991, which consolidates the legislation on paid leave for workers subject to the labour regulations governing the private sector, but does not provide additional information, and indicates that the national legislation is in conformity with the provisions of the Conventions. In this regard, the Committee notes the CATP’s indication that section 3 of Legislative Decree No. 713 has still not been amended, in contravention of the provisions of the Conventions on weekly rest. It adds that this situation not only endangers the health and life of workers, but also the well-being of their families. The Committee recalls that the rationale for compensatory rest is the need to protect the health and well-being of workers and emphasizes the importance that any financial compensation is in addition to, and not in lieu of, the requisite compensatory rest (2018 General Survey concerning working-time instruments, paragraph 267). The Committee requests the Government to take the necessary measures to bring section 3 of Legislative Decree No. 713 into conformity with the Conventions with a view to ensuring that workers who are subject to exceptions to the principle of weekly rest are entitled to compensatory rest of not less than 24 consecutive hours in each period of seven days, irrespective of any financial compensation.

C. Holidays with pay

Article 4 of Convention No. 52 and Article 8 of Convention No. 101. Monetary compensation for leave not taken. Partial relinquishment of holidays. In relation to its previous comments, the Committee notes that the Government refers to section 23 of Legislative Decree No. 713, which establishes the remuneration and compensation which shall be received by workers in the event that they do not take their holidays within the year following that in which they became due. The Committee recalls that Article 4 of Convention No. 52 and Article 8 of Convention No. 101 provide that any agreement to relinquish the right to annual holiday with pay, or to forgo such holiday, shall be void. The Committee therefore requests the Government to take the necessary measures to bring section 23 of Legislative Decree No. 713 into conformity with the Convention in order to ensure that workers benefit effectively from the right to annual holidays with pay in the form of a period of rest and leisure that is sufficiently long to preserve their health and well-being.

The Committee is raising other matters in a request addressed directly to the Government.

Direct Request (CEACR) - adopted 2013, published 103rd ILC session (2014)

Article 2(3) of the Convention. Illness or injury that occur during holidays. In previous comments, the Committee requested the Government to clarify whether, under section 13 of Legislative Decree No. 713, interruptions of attendance at work due to sickness are included in a worker’s annual holidays with pay. In the absence of any explanations in this regard, the Committee again requests the Government to indicate the legal provisions which prohibit interruptions of attendance at work due to sickness or accident to be deducted from annual leave even when such periods of incapacity for work occur during the period of annual leave. The Committee notes, parenthetically, that because of the difficulties experienced by many countries in complying with this requirement, particularly in the mandatory form used in this Article of the Convention, Article 6(2) of the Holidays with Pay Convention (Revised), 1970 (No. 132), was deliberately drafted in more flexible terms leaving it to the competent authority to determine the conditions under which periods of incapacity for work resulting from sickness or injury might not be counted as part of the minimum annual holiday with pay.

Articles 4 and 6. Monetary compensation for leave not taken. The Committee notes that under section 23 of Legislative Decree No. 713, where workers have not used their entitlement to leave in the year following the one in respect of which the entitlement was acquired, in addition to their regular pay they receive compensation and allowance for the days of holidays lost. The Committee recalls, in this respect, that even though the Convention does not contain any provision on the postponement or accumulation of holidays, the essence of annual holidays is that, in the course of the year, workers must be granted at least part of their leave in order to enjoy a minimum amount of rest and leisure. According to the spirit of the Convention, therefore, days of annual leave not taken should not be lost or compensated, except in the case of termination of the employment contract. The Committee recalls that the same principle is reflected in Articles 11 and 12 of Convention No. 132. The Committee accordingly requests the Government to take appropriate measures to ensure that the national legislation is fully aligned with the letter and spirit of the Convention in this respect.

Direct Request (CEACR) - adopted 2013, published 103rd ILC session (2014)

Article 3 of the Convention. Minimum duration of annual holiday with pay. The Committee notes the Government’s indication that the Agricultural Sector Promotion Act No. 27360 of 2000, section 7.2(b) of which provides for 15 calendar days of annual leave for agricultural workers after one year of service, is in the process of revision with a view to improving the employment conditions of agricultural workers and providing them with the same benefits that other private sector workers enjoy, including 30 days of annual paid leave. The Committee requests the Government to provide updated information concerning the status of any legislative reform in the agricultural sector which would have an impact on the application of the Convention and to transmit a copy of any new legal instrument once it has been adopted.

Observation (CEACR) - adopted 2013, published 103rd ILC session (2014)

Articles 2 and 5 of the Convention. Averaging of hours of work. In its previous comment the Committee noted that section 2(1)(b) and (c) of Legislative Decree No. 854 on hours of work (consolidated by Supreme Decree No. 007 2002-TR), that allows the uneven distribution of working hours in the same week, or the reduction or increase of the number of working days during the week, on condition that weekly hours of work do not exceed an average of 48 hours, is not consistent with the requirements of Articles 2(b) and 5 of the Convention. Noting that the Government’s report does not provide new information on this point, the Committee is bound to recall that the Convention permits the variable distribution of working hours within a week on condition that the daily limit of eight hours is not exceeded by more than one hour (Article 2(b)) and also permits the averaging of hours of work over a period longer than a week only in exceptional cases where it is recognized that the limits on normal daily and weekly hours of work cannot be applied (Article 5). The Committee accordingly asks the Government to consider the possibility of revising the relevant provisions of the Legislative Decree No. 854 to ensure that they are brought fully into line with these Articles of the Convention and inform the Office of any revision.

Article 6. Circumstances in which temporary exceptions may be permitted. Overtime pay. The Committee has been commenting on sections 9 and 10 of Legislative Decree No. 854 which do not define the circumstances in which overtime work may be carried out and also allow for overtime pay to be replaced by compensatory rest. In this connection, the Committee notes the comments of the Single Confederation of Workers of Peru (CUT), which were received on 25 June 2013 and transmitted to the Government on 9 July 2013. The CUT indicates that the legislation on overtime work is not complied with, especially in the case of small enterprises where workers are often assigned specific tasks that need to be completed irrespective of the number of hours of work involved. In addition, the CUT denounces cases where employers alone establish that work is urgent and necessary, and therefore overtime work becomes compulsory. The CUT also refers to cases in which only time off, instead of extra pay, is offered in compensation of overtime. In its reply, the Government states that the allegations regarding lack of effective supervision are not corroborated by any facts and refers to labour inspection data that show that the number of overtime-related infringements recorded in the period between 2010 and 2012 has been on the increase. The Committee once again recalls that under the Convention overtime work may only be authorized in exceptional cases of pressure of work and overtime pay at a rate at least 25 per cent higher than the normal wage rate must be paid in all cases. The Committee accordingly asks the Government to take the necessary measures to ensure compliance with the Convention on these points.

Direct Request (CEACR) - adopted 2008, published 98th ILC session (2009)

The Committee notes with interest the information provided by the Government concerning its efforts to fully reflect in its report the comments made by the most representative employers’ and workers’ organizations.

Article 6, paragraph 1(b), of the Convention – Temporary exceptions. The Committee notes that, under section 9 of Legislative Decree No. 854 on hours of work (consolidated by Supreme Decree No. 007-2002-TR), overtime must be carried out on a voluntary basis, except in cases of force majeure. However, it notes that this text does not set out the circumstances in which overtime work is authorized, regardless of whether or not workers have given their consent. The Committee draws the Government’s attention to the fact that Article 6, paragraph 1(b), of the Convention restricts this possibility to cases in which the employer must deal with an abnormal pressure of work. It hopes that the Government will take steps to ensure compliance with the Convention on this point.

Article 6, paragraph 2. Remuneration of overtime. The Committee notes that section 10 of Legislative Decree No. 854 provides that overtime must be remunerated at a rate at least 25–35 per cent higher than the normal rate. It also notes that, according to section 10(4), the worker and the employer may reach an agreement to compensate the overtime worked with equivalent periods of rest. The Committee emphasizes that Article 6, paragraph 2, of the Convention provides for an overtime rate of pay at least 25 per cent higher than the normal rate in any case, i.e. whether or not compensatory rest is granted to the worker concerned. It requests the Government to take steps to ensure that the granting of compensatory rest, on the basis of an agreement between the employer and the worker concerned, for overtime worked does not replace but supplements the higher rate of pay prescribed by section 10 of Legislative Decree No. 854.

Part IV of the report form. The Committee notes with interest the detailed information provided by the Government with regard to labour inspection activities to enforce the legal provision relating to hours of work. It requests the Government to continue providing information on the application of the Convention in practice, including extracts from reports of the inspection services indicating the number and nature of infringements reported and any measures taken in response, information on the number of workers covered by the legislation relating to hours of work, and copies of any collective agreements containing provisions relating to working time arrangements.

Direct Request (CEACR) - adopted 2008, published 98th ILC session (2009)

The Committee notes the Government’s explanations concerning the application of Article 1 (holidays for officials exercising political or confidential functions); Article 2, paragraph 2 (holidays for young workers and apprentices) and Article 8 (system of sanctions) of the Convention. It would like to draw the Government’s attention to the following points.

Article 2, paragraphs 1 and 4, of the Convention. Deferral of holidays. The Committee notes the Government’s indication that the provisions applicable to workers subject to the administrative career system are those of Legislative Decree No. 276 issuing basic regulations on the administrative career system and public sector pay, which is due to be revised soon as part of the reform of the civil service. The Committee hopes that the Government will take this opportunity to bring its legislation into conformity with the Convention on this point, limiting the deferral of holidays to exceptional cases and in respect of the part of the holidays in excess of the minimum of six working days. It requests the Government to keep the Office informed of any developments in this field and to supply a copy of any relevant legislative text once it is adopted.

Article 2, paragraph 3. Illnesses or accidents occurring during holidays. Further to its previous comment, the Committee notes that the Government’s report does not contain any new information on this point. The Committee requests the Government once again to indicate the legislative or regulatory provisions which ensure that interruptions of attendance at work due to sickness or accident are not counted in the period of annual holiday with pay, as required by this Article of the Convention.

Article 2, paragraph 5. Gradual increase of the annual holiday with pay. The Committee notes the Government’s statement to the effect that there are no legislative provisions which require the duration of the annual holiday with pay to increase with the length of service, but that the current legislation does not prohibit such an arrangement in the context of collective agreements or individual contracts, or made unilaterally by the employer. The Committee requests the Government to supply copies of collective agreements which provide for such an increase.

Part V of the report form. The Committee requests the Government to supply general information on the manner in which the Convention is applied in practice, including, for example, extracts of the reports of the inspection services indicating the number and nature of infringements reported and penalties imposed, information on the number of workers covered by the legislation, etc.

Direct Request (CEACR) - adopted 2008, published 98th ILC session (2009)

The Committee notes the information supplied by the Government concerning the application of Article 5(a) (apprentices and young workers), Article 5(c) (proportionate holidays) and Article 10 (system of inspection) of the Convention. It wishes to draw the Government’s attention to the following points.

Article 4. Scope of application. Associations and cooperatives. The Committee notes the Government’s statement to the effect that associations and cooperatives are governed by Act No. 26.887 of 19 November 1997 on companies and also by the unified text of the General Act on cooperatives (approved by Supreme Decree No. 074-90-TR). As the Committee understands it, although the non-associated workers of these enterprises are covered by the provisions applicable to the private sector, the associated workers (socios-trabajadores) are subject to regulations which are due to be adopted shortly. The Committee requests the Government to supply more detailed information on this subject and to indicate the legislative or regulatory provisions governing these workers’ entitlement to annual holidays with pay.

Article 5(b). Gradual increase in the duration of annual paid holidays. The Committee notes the Government’s statement that the legislation does not contain any provision relating to increases in annual paid holidays on the basis of workers’ years of service. The Committee requests the Government to indicate, as it did in its last report relating to Convention No. 52, whether such an increase is provided for by collective agreements in the agricultural sector and, if so, to supply copies of the relevant collective agreements.

Parts IV and V of the report form. Court decisions and practical application. The Committee notes with interest the decision of the Constitutional Court rendered on 21 November 2007, which refers to the provisions of the Convention. The Committee requests the Government to continue supplying copies of any court decisions relating to the area covered by the Convention. It also requests the Government to supply general information on the way in which the Convention is applied in practice, including, for example, extracts from reports of the inspection services indicating the number and nature of infringements reported with regard to annual holidays with pay in agriculture and penalties imposed, information concerning the number of agricultural workers covered by the legislation, copies of collective agreements containing clauses relating to holidays with pay, etc.

Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

Articles 2 and 5 of the Convention. Averaging of hours of work. The Committee notes that, under section 2(1)(b) of Legislative Decree No. 854 on hours of work (consolidated by Supreme Decree No. 007-2002-TR), the employer can fix the hours of work in such a way that they are greater than eight hours on certain days and less than eight hours on other days, on condition that weekly hours of work do not exceed an average of 48 hours. It also notes that, under section 2(1)(c) of the same Decree, the employer may reduce or increase the number of working days during the week through the distribution of the daily hours of work, on condition that an average of 48 hours per week is not exceeded. In the case of extended or untypical days of work, the daily hours of work may not exceed an average of ten hours over the period under consideration. The Committee also notes that section 2(2) imposes the obligation on the employer in this case to consult and negotiate with the union concerned or otherwise with the representatives of the workers.

The Committee recalls that the basic rule established by the Convention is observance of a twofold limit on hours of work, namely eight hours per day and 48 hours per week and that, as it emphasized in its General Survey of 2005 on hours of work (paragraph 57), “these limitations … should be viewed as strict maximum limits which are not liable to variation or waiver at the free will of the parties”. Article 2(b) of the Convention allows, within certain limits, the uneven distribution of hours of work over the week instead of averaging the weekly hours of work, especially when no reference period is fixed for such averaging. Moreover, Article 5 of the Convention, which authorizes the distribution of hours of work over a period longer than a week, applies only in exceptional cases which make the limits established by the Convention regarding daily and weekly hours of work inapplicable. This provision requires the conclusion of an agreement on this subject between employers’ and workers’ organizations and the approval thereof by the competent national authorities. The Committee trusts that the Government will amend the provisions of Legislative Decree No. 854 in order to restrict the possibility of averaging weekly hours of work to exceptional cases which make the normal limits of eight hours per day and 48 hours per week inapplicable. It requests the Government to provide information on any further developments in this regard.

Article 2(c). Shift work. With reference to its previous comments, the Committee notes with interest the decision handed down on 17 April 2006 by the Constitutional Court, which upheld the appeal lodged by the Toquepala Workers’ Union (STTA) against the decision of the High Court of Justice of Tacna, which had rejected the appeal lodged by this organization requesting the hours of work imposed by the Southern Peru Copper Corporation to be declared illegal (namely, 12-hour working days for four days, followed by three rest days). It notes that the decision of the Constitutional Court is based on the provisions relating to hours of work contained not only in the Constitution but also in ILO Convention No. 1, the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, and the Additional Protocol to the American Convention on Human Rights. It notes that, on the basis of the analysis of the abovementioned provisions and taking into account the hazardous nature of work in mines, the Constitutional Court concluded that the working arrangements established by the Southern Peru Copper Corporation were contrary to the Constitution and the daily hours of work in mines should not exceed eight hours.

The Committee also notes the resolution of the Constitutional Court of 11 May 2006, which provides additional explanations relating to the abovementioned decision and reproduces extracts from the General Survey of 2005 on hours of work. It also notes that this resolution emphasizes that in all sectors of activity, including mining, schemes for the organization of working time in which the averaging of hours of work over a maximum three-week period exceeds eight hours per day and 48 hours per week are contrary to the Constitution. However, it notes that the resolution makes the limitation on hours of work in the mining sector subject to a “protection test” comprising a number of cumulative conditions: (a) a case-by-case evaluation taking account of the characteristics of the mining establishment; (b) examination of whether or not the employer complies with occupational safety and health conditions; (c) verification of whether or not guarantees are provided by the employer with regard to health requirements and adequate supplies of food for long days of work; (d) whether or not the employer grants adequate rest periods during the working day; and (e) whether or not the employer complies with the obligation to reduce working hours where work is done at night. The Court also raises the possibility of taking account of an additional criterion, namely whether or not to include provisions limiting daily working time to eight hours in the applicable collective agreement. The Constitutional Court maintains the conclusion which it reached in the case referred to above, namely that the work schedule established by the Southern Peru Copper Corporation is unconstitutional, but considerably reduces the scope of the limitation on hours of work in the context of shift work.

The Committee recalls that, under the terms of Article 2(c) of the Convention, hours of work in the case of shift work may be extended beyond the normal limits laid down by the Convention, namely eight hours per day and 48 hours per week, on condition that the average number of hours over a period of three weeks or less does not exceed eight per day and 48 per week. This provision, which already provides flexibility for taking account of particular working arrangements in certain enterprises, does not permit exceptions as would be allowed by application of the “protection test” mentioned by the Constitutional Court. The Committee therefore requests the Government to take the necessary steps to ensure strict compliance with this rule in all the enterprises to which the Convention is applicable, including mining enterprises.

The Committee is also addressing a request concerning a number of other points directly to the Government.

Observation (CEACR) - adopted 2005, published 95th ILC session (2006)

Further to its previous comment, the Committee notes the Government’s explanations concerning the system of inspection, including standard and special visits, responsible for ensuring compliance with the national legislation on working time, as provided for in section 13 of Supreme Decree No. 007-2002-TR.

In addition, the Committee notes the comments made by the Trade Union of Toquepala Workers (STTA), dated 1 August 2003, alleging abusive practices with respect to working hours in the Southern Peru Copper Corporation. According to the trade union organization, as of 10 April 2000, the southern Peru mining company imposed a compulsory 12-hour working day and 60-hour working week to 300 mineworkers in violation of article 25 of the National Constitution and also in contravention with section 22 of the collective agreement concluded by the enterprise on 24 October 2001. The STTA denounces this unilateral decision taken under section 9 of Supreme Decree No. 003-97-TR, Act on productivity and labour competitiveness (Legislative Decree No. 728) that allows employers to modify work schedules according to their needs. The trade union organization further alleges that the long working hours have already had serious consequences on the health and safety of workers, including some fatal accidents. Moreover, the Committee notes that, following legal action taken by the STTA against the Southern Peru Copper Corporation, the Constitutional Tribunal rendered a decision on 27 September 2002 declaring the petition unfounded. The Committee requests the Government to transmit any observations it may wish to make in connection with the points raised by the STTA and also to specify the legal provisions currently regulating the averaging of working hours in industrial undertakings.

Part V of the report form. The Committee requests the Government to provide in its next report general information on the application of the Convention in practice, including, for instance, extracts from inspection reports showing the number of violations observed and the penalties imposed, the different categories and approximate number of workers covered by relevant legislation, copies of collective agreements including special working time arrangements, etc.

Direct Request (CEACR) - adopted 2004, published 93rd ILC session (2005)

Article 4 of the Convention. Scope - associations and cooperatives. Section 77 of Legislative Decree No. 653 (to promote agrarian sector investment) places agricultural workers under the private sector work regime. However, the same provision excludes from this regime workers who are members of an association or cooperative, who are subject to specific regulations. The Committee requests the Government to indicate the legislative provisions that apply to these workers and to provide a copy of them.

Article 5(a). Young workers. Section 51 of the Children’s and Young Persons’ Code sets the minimum age for agricultural work at 15 years. As the Committee has noted in its observation on the application of Convention No. 52, it infers from the Government’s information that under section 61 of the abovementioned Code, young workers who are not in education are likewise entitled to holiday with pay. The Committee requests the Government to specify the length of such holiday. Noting that work of apprentices are excluded from the scope of the Children’s and Young Persons’ Code and is covered by separate regulations, the Committee requests the Government to indicate the provisions on holidays with pay that apply to apprentices and to provide a copy of them.

Article 5(b). Gradual increase in the duration of annual paid holiday. The Committee requests the Government to state whether the duration of the annual holidays with pay increases with the worker’s length of service.

Article 5(c). Proportionate holiday. The Government is asked to specify whether workers whose period of continuous service is too short to qualify them for full annual holidays with pay pursuant to Legislative Decree No. 713 are entitled to proportionate holidays or payment in lieu thereof. The Committee also requests the Government to specify the minimum length of service, if any, for such entitlement.

Article 10 and Part III of the report form. The Committee requests the Government to provide information on the system of inspection and supervision responsible for ensuring the application of the Convention.

Article 11 and Part V of the report form. The Government is invited to provide information on the number and categories of workers protected by the Convention, and on the inspectorate’s activities that concern holidays with pay in agriculture.

Part IV of the report form. The Committee requests the Government to indicate whether courts of law have given decisions involving questions of principle relating to the application of the Convention and, if so, to supply a copy of them.

Direct Request (CEACR) - adopted 2004, published 93rd ILC session (2005)

Article 2, paragraph 5, of the Convention. Gradual increase of annual holiday. The Committee requests the Government to state whether the duration of the annual holiday with pay increases with the length of service, as prescribed by Article 2, paragraph 5, of the Convention.

Article 8. Sanctions. According to section 23 of Legislative Decree No. 713, where workers have not used their entitlement to leave in the year following the one in respect of which the entitlement was acquired, in addition to their regular pay they receive compensation for the days of holiday lost and allowance in an equivalent amount. The Committee requests the Government to indicate whether, in addition to financial compensation, the legislation provides for sanctions to be imposed where workers are deprived of their annual holiday entitlements. More generally, the Government is requested to provide information on the system of sanctions used to ensure the application of the provisions of the Convention.

Observation (CEACR) - adopted 2004, published 93rd ILC session (2005)

Article 1, paragraph 1, of the Convention. Scope - Public service. According to the information supplied by the Government in its report, the provisions on annual holiday with pay of Legislative Decree No. 276 issuing basic regulations on careers in the administration and public sector pay, apply as well to non-career public servants under contract and officials with political or confidential functions. Section 2 of Legislative Decree No. 276 provides that the two above categories are covered by the Legislative Decree only in respect of the provisions applicable to them. Furthermore, section 24 of the same Legislative Decree lists the rights - including rights to annual holiday with pay - only of career public servants and makes no express reference to non-career public servants under contract or officials with political or confidential functions. Article 40 of the Political Constitution of Peru provides that public officials with political or confidential functions do not have administrative careers. The Committee therefore requests the Government to provide more specific information on the application of the provisions of the Convention to non-career public servants under contract and officials with political or confidential functions.

The Committee notes the information supplied by the Government on the provisions that govern holidays with pay in the armed forces and the police. It requests the Government to provide copies of Supreme Decree No. 213-90-EF, and Legislative Decree No. 745 and its implementing regulations.

Articles 2, paragraph 1, and 4. Deferral of annual leave. Supreme Decree No. 121-2002-PCM set the dates at which public sector workers were required to take their holiday, namely from 16 December 2002 to 3 January 2003, i.e. a holiday period of more than six working days. However, this Supreme Decree applies only to this one specific year. Section 2(1) of Legislative Decree No. 276 still allows public servants to accumulate two holiday periods under agreements. The Committee recalls that the Convention allows holiday to be deferred from one year to the next only exceptionally and for the part of the holiday which exceeds the minimum of six working days. It requests the Government to indicate in its next report the legislative measures taken or envisaged to ensure that the Convention applies permanently as regards this point.

Article 2, paragraph 2. Young workers. Only persons over 18 years of age have access to careers in the administration and consequently, this provision of the Convention is not applicable to young workers in the public sector. As to the private sector, the Committee infers from the information sent by the Government that under section 61 of the Children’s and Adolescents’ Code, young workers who are not in the school system are likewise entitled to holidays with pay. The Committee requests the Government to specify the duration of holidays for workers under 16 years of age. Furthermore, it notes that apprentices are excluded from the scope of the Children’s and Adolescents’ Code and is governed by separate regulations. The Committee requests the Government to indicate the provisions that apply to apprentices in respect of holidays with pay and to provide a copy of them.

Article 2, paragraph 3. Illnesses or accidents that occur during holidays. Section 13 of Legislative Decree No. 713 states that annual holidays shall not be granted when the worker is unable to work due to sickness or an accident, unless such a cause occurs during the annual holiday. According to the information in the Government’s supplementary report in 2000, holidays entail a suspension of the employment relationship, which means that employers may not be required to compensate workers for days of holiday lost owing to sickness or accidents. However, Article 2, paragraph 3, of the Convention allows no exceptions to the prohibitions on including interruptions due to sickness in the annual holiday with pay. It accordingly asks the Government to bring the legislation into conformity with this provision of the Convention and to keep it informed of all progress in this regard.

The Committee raises other matters in a request addressed directly to the Government.

Observation (CEACR) - adopted 2002, published 91st ILC session (2003)

The Committee takes note of Legislative Decree No. 276 (Law of the Bases of the Administrative Career and Remuneration in the Public Sector) and the new Code of Children and Adolescents (Law No. 27337) of 7 August 2000.

Article 1, paragraph 1, of the Convention. The Committee notes that public servants are entitled to 30 days of paid annual leave, as provided for under section 24, paragraph (d), of Legislative Decree No. 276. It further notes section 2 of the Decree, which states that public servants under contract and officials with political or confidential functions are only covered by the provisions of the Decree, "as far as they are applicable", and that they are not applicable to the armed forces, the police forces and workers of state undertakings and of mixed companies. The Government is requested to indicate the legislative provisions that govern annual holidays with pay for these categories of workers in the public sector.

Article 2, paragraphs 1 and 4. The Committee notes that section 24, paragraph (d), of Legislative Decree No. 276 permits agreements on the accumulation of holidays up to two periods. It recalls that the Convention entitles the worker, after one year of continuous service, to a minimum annual holiday with pay of six working days. In special circumstances, any part of the annual holiday that exceeds the stated minimum duration prescribed by the Convention may be divided into parts. The Committee asks the Government to indicate in its next report the legislative measures taken or envisaged to ensure the application of the Convention in this respect.

Article 2, paragraph 2. The Committee notes from the report that equal rights for all persons are established in section 2 of the Constitution and that Legislative Decree No. 713 does not make any distinction in respect of age, sex or economic conditions. Thus, section 10 of the Decree also entitles young workers to 30 calendar days of paid annual holidays, after one year of continuous service. The Committee recalls, however, that the Decree is restricted to activities in the private sector. It therefore requests the Government to inform it of any legislation, which would ensure annual holidays with pay for young workers in the public sector. The Committee notes the indication in the report that young workers under 16 years of age, in general, still attend school. For this group, section 61 of the new Code of Children and Adolescents (Law No. 27337) requires the employer to make work compatible with regular school attendance and to grant annual holidays with pay simultaneously with school holidays, which usually last from the middle of December until April of the following year. Notwithstanding, it does not become clear from the text of the Code, whether, for instance, young persons under 16 years who do not go to school, have the right to at least 12 working days of paid annual holidays, after one year of continuous service, as required by the Convention. Please provide information as to how this requirement of the Convention is satisfied in the public as well as in the private sector.

Observation (CEACR) - adopted 2002, published 91st ILC session (2003)

The Committee requests the Government to refer to the comments that it has made under Convention No. 52.

Observation (CEACR) - adopted 2001, published 90th ILC session (2002)

The Committee notes the comments by the General Confederation of Peruvian Workers (CGTP) of 23 April 2001 and of 6 June 2001 concerning the application of the Convention, as well as the Government’s response of 3 September 2001. It further notes that according to the sworn statement of a group of mining workers of the mining company "Milpo SA", the employer, under the threat of terminating their employment, obliged them to accept a 14-day working schedule of 12 hours and seven days of rest.

The Committee recalls that under Article 2(c) of the Convention, where persons are employed in shifts, it shall be permissible to employ persons in excess of eight hours in any one day and 48 hours in any one week, if the average number of hours over a period of three weeks or less does not exceed eight per day and 48 per week. The Committee considers that the working time schedule described by the CGTP is not in compliance with Article 2 of the Convention, since the average weekly number of hours over a period of three weeks amounting to 56 hours per week would exceed the limit prescribed by Article 2(c) (48 hours per week).

The Committee further notes that copies of individual labour agreements concluded between workers and the mining company "Milpo SA", sent by the Government with its response, provide for a working day of ten hours for 14 consecutive working days and seven days of rest. This would amount to a working week of 46.7 hours, which is under the limit of 48 hours per week permitted by Article 2(c) of the Convention. The Committee asks the Government to indicate how it is ensured in practice that the actual working time does not exceed the working time specified in individual labour agreements (which should not exceed the standard prescribed by the Convention) and collective agreements and that it is set in compliance with standards prescribed by the Convention.

Observation (CEACR) - adopted 1999, published 88th ILC session (2000)

The Committee notes the Government's latest report on the application of the Convention and the information supplied in response to its observation of 1997. The Committee previously noted the adoption of Legislative Decree No. 854 on the duration of work, working hours and overtime hours and the comments by the General Confederation of Peruvian Workers (CGTP) to the effect that some provisions of the abovementioned Decree could lead to abuse and even contravene the Constitution.

The CGTP alleged that the discretion afforded to the employer by section 2 of Decree No. 854 to change unilaterally the length of the working day is excessive; it contravenes the rules established by collective agreements and is restricted only by the requirement that the working week shall not exceed 48 hours. In its reply, the Government indicates that the prerogatives granted to the employer by the Decree are offset by section 9 of Presidential Decree No. 008-97-TR, which allows recourse to a conciliatory or judicial body in the event of disagreement between the employer and the workers. The Government adds that, under sections 4 and 5 of the Presidential Decree, changes determined by the employer may not affect entitlement to weekly rest or rest on public holidays. In connection with these points, the Committee wishes to draw the Government's attention to the fact that the authorization granted to the employer by section 2 of the Decree to fix unilaterally a working day of more than eight hours (paragraph (b)) or the number of working days per week (paragraph (c)) is not among the exceptions envisaged by the Convention, in particular in Article 2(b), in that, in the workers' interest, the Convention expressly requires exceptions to be determined by collective agreements or a decision of the competent authority. Consequently, the Committee once again asks the Government to take the necessary steps to bring the national legislation into conformity with the abovementioned provisions of the Convention.

The CGTP further alleged that section 3 of Decree No. 854, which enables the employer unilaterally to extend a working day of less than eight hours, is in breach of article 62 of the Peruvian Constitution which guarantees that the provisions of laws or regulations in force at the time a contract is signed remain applicable to it notwithstanding the adoption of new laws or regulations. The Committee notes the Government's reply on this point.

Observation (CEACR) - adopted 1997, published 86th ILC session (1998)

1. The Committee notes the Government's report and the information provided in reply to its previous observation. It notes that, in the case of the brewery Backus and Johnston S.A., the Supreme Court of Lima handed down a decision confirming that the shift system denounced does not infringe the legislation in force, since provision is made for it in collective agreements approved by the parties concerned. The Committee also notes that in February 1996 the parties concluded a new collective agreement in order to put an end to the difference of opinion separating them.

2. Furthermore, the Committee notes the information provided by the Government, in accordance with Article 7, paragraph 1, of the Convention, on the collective agreements provided for in Article 5 which have been given the force of regulations.

3. Finally, the Committee notes the adoption of Legislative Decree No. 854 relating to the duration of work, working hours and overtime hours. In this regard, it also notes the comments made by the General Confederation of Peruvian Workers (CGTP). This body alleges that section 2 of the above Decree offers the unreasonable possibility to employers of unilaterally amending the length of the working day, in contravention of the very rules established by collective agreements. In addition, section 2, paragraphs (c) and (d), would enable an employer to employ persons in excess of 12 hours in any one day, provided that the length of the working week does not exceed 48 hours. The trade union Confederation adds that section 3 of the Decree, which enables an employer to extend unilaterally the length of a working day of less than eight hours, violates section 62 of the Peruvian Constitution which guarantees that the provisions of legislation or regulations in force at the time a contract is signed remain applicable to it, notwithstanding the adoption of new legislation or regulations. The Committee notes that the Government has not replied to the allegations made. It considers that the possibilities offered to an employer, under section 2 of the Decree, to fix unilaterally a working day of more than eight hours (paragraph (b)) or the number of working days per week (paragraph (c)) does not form part of the exceptions envisaged by the Convention, in particular in Article 2(b). The Committee requests the Government to reply to the observations made by the CGTP and to take the necessary measures to bring its legislation into conformity with the Convention in respect of the points referred to above.

Observation (CEACR) - adopted 1995, published 83rd ILC session (1996)

1. The Committee notes the Government's comments relating to the observation made by the Union of Workers of the Brewery "Backus and Johnston S.A.". According to the trade union, a shift system is applied in the enterprise under which, following seven weeks during which 56 hours a week have been worked, each worker is granted only one additional rest day to compensate for the extra days worked. The trade union referred the matter to the labour courts alleging violation of section 25 of the Political Constitution, of Convention No. 1 and of the collective agreements concluded between the parties. The court decision, which was transmitted to the Committee, recognizes that over the seven- week shift patterns worked by the teams covered by the collective agreement, 24 hours of rest were allowed for 48 hours of work, which does not appear to infringe the provisions of the legislation that is in force. The Government states to the Committee that the trade union's complaint is groundless and that the trade union, availing itself of the rights guaranteed under national legislation, appealed against the above-mentioned decision on the grounds of non-compliance with labour legislation and the Convention. The Committee would be grateful if the Government would supply the text of the ruling handed down by the higher court in the case brought by the Union of Workers of the Brewery "Backus and Johnston S.A." so that it is able to assess the manner in which effect has been given to the provisions of the Convention which, with the exception of the provisions of Article 4 relating to processes carried on continuously, do not authorize average working hours to exceed 48 in the week (Article 2(c) and Article 5, paragraph 2, of the Convention). The Committee therefore also requests the Government to provide, in accordance with Article 7 of the Convention, full information as to working of the agreements mentioned in Article 5, namely a list of the agreements with an indication of the industries and workers covered and, where possible, the text of the agreements. Please also indicate whether courts of law or other tribunals have issued decisions involving questions of principle relating to the application of the Convention.

2. The Committee notes the information on the activities of the labour inspectorate in 1993. It requests the Government to indicate in its next report, if the relevant statistics exist, the number of workers covered by the legislation, the number and nature of violations reported and the number of overtime hours worked in the cases referred to in Articles 3 and 6 of the Convention.

The Government is asked to report in detail in 1996.

Observation (CEACR) - adopted 1995, published 82nd ILC session (1995)

1. With reference to its previous comments, the Committee notes Legislative Decree No. 26136 of 1992, incorporating the provisions of the Convention into the national legislation. The Committee would be grateful if in its next report the Government would provide information, as it stated previously in its report dated 18 May 1993, on the practical application of this Legislative Decree provision (Part VI of the report form).

2. The Committee also notes a communication from the trade union of the employees of the Brewery Bakus and Johnston Ltd., referring to matters connected with the application of the Convention, which was received in the ILO in January 1995 and transmitted to the Government in February 1995. The Committee trusts that the Government will make any comments it deems appropriate on the above communication in its report.

Observation (CEACR) - adopted 1995, published 82nd ILC session (1995)

The Committee notes the adoption of Legislative Decree No. 713 of 7 November 1991 and Supreme Decree No. 012-92-TR of 2 December 1992 on paid rest for workers in private activities.

Article 1, paragraph 1, of the Convention. Act No. 9049 of 13 February 1940 (repealed by Legislative Decree No. 713) granted workers in public and private enterprises, 30 days of annual holiday with pay. Since Legislative Decree No. 713 apparently applies only to workers in private employment, the Committee requests the Government to indicate what legislative provisions govern annual holidays with pay to workers in public undertakings and establishments, and to supply a copy of this legislation in the near future.

Article 2, paragraph 2. The Committee requests the Government to indicate in its next report what legislation grants young workers the right to annual holidays and hopes that the Government will transmit the relevant text to the Office. It also trusts that the Government will ensure that in practice, young workers receive annual holidays with pay of at least 12 working days after one year of continuous service.

Article 2, paragraph 3(b). Section 13 of Legislative Decree No. 713 states that annual holidays shall not be granted when the worker is disabled due to sickness or an accident, unless such disability occurs during holiday leave. The Committee draws the Government's attention to Article 2, paragraph 3(b), of the Convention which requires employers not to include interruptions of attendance at work due to sickness in a worker's annual holidays with pay. It requests the Government to indicate whether such absences which occur during holidays are deducted from annual paid leave.

Observation (CEACR) - adopted 1995, published 82nd ILC session (1995)

The Committee requests the Government to refer to the comments that it has made under Convention No. 52, as follows:

The Committee notes the adoption of Legislative Decree No. 713 of 7 November 1991 and Supreme Decree No. 012-92-TR of 2 December 1992 on paid rest for workers in private activities.

Article 1, paragraph 1, of the Convention. Act No. 9049 of 13 February 1940 (repealed by Legislative Decree No. 713) granted workers in public and private enterprises, 30 days of annual holiday with pay. Since Legislative Decree No. 713 apparently applies only to workers in private employment, the Committee requests the Government to indicate what legislative provisions govern annual holidays with pay to workers in public undertakings and establishments, and to supply a copy of this legislation in the near future.

Article 2, paragraph 2. The Committee requests the Government to indicate in its next report what legislation grants young workers the right to annual holidays and hopes that the Government will transmit the relevant text to the Office. It also trusts that the Government will ensure that in practice, young workers receive annual holidays with pay of at least 12 working days after one year of continuous service.

Article 2, paragraph 3(b). Section 13 of Legislative Decree No. 713 states that annual holidays shall not be granted when the worker is disabled due to sickness or an accident, unless such disability occurs during holiday leave. The Committee draws the Government's attention to Article 2, paragraph 3(b), of the Convention which requires employers not to include interruptions of attendance at work due to sickness in a worker's annual holidays with pay. It requests the Government to indicate whether such absences which occur during holidays are deducted from annual paid leave.

Observation (CEACR) - adopted 1993, published 80th ILC session (1993)

Further to its previous observations, the Committee notes the Government's indications that Legislative Decree No. 26136 has been adopted to ensure that national law and practice are consistent with the Convention. The Government specifies that the above Legislative Decree covers both normal working hours and additional working hours; in this connection it mentions that section 10 establishes a working day of eight hours and a working week of 48 hours, and any work done outside the normal working day shall have a special rate of remuneration. The Government also points out that section 7 establishes an average working week of 48 hours for shift systems or cumulative systems.

The Committee asks the Government to provide a copy of Legislative Decree No. 26136 and detailed information on its practical application.

Observation (CEACR) - adopted 1989, published 76th ILC session (1989)

The Committee refers to its previous observation in which it noted the reservations or disagreements of employers' and workers' organisations concerning the draft presidential decree which would guarantee that working hours beyond eight hours per day and 48 hours per week would be authorised only under the conditions and within the limits provided for in Articles 3 to 6 of the Convention.

The Committee notes from the Government's report that this situation remains unchanged, but that the Government hopes to bring the legislation into conformity with the Convention either by carrying out further consultations with employers' and workers' organisations, or when the draft new labour legislation is adopted in the near future. The Government has stated in this connection that technical assistance from the ILO could prove very fruitful.

The Committee trusts that the Government will be able in the near future to take measures to ensure that the national law and practice are in conformity with the provisions of the Convention as concerns the regulation of additional working hours. A positive reply by the International Labour Office to the Government's request for technical assistance could bring a solution to these problems closer.