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10. Trade Unions and Employers Associations

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10. Trade Unions and Employers Associations

Brief Description of Employees’ and Employers’ Associations

In this regard, we must point out that unions find full recognition and development in article 28 of our Political Constitution of the State, stating:

Article 28.- “The State recognises the rights to unionise, collective bargaining and strike. Caution its democratic exercise:

  1. Guarantees freedom of association.
  2. It encourages collective bargaining and promotes forms of peaceful resolution of labour conflicts. The collective agreement has binding force in the scope of the agreement.
  3. Regulates the right to strike so that it is exercised in harmony with the social interest. Point out its exceptions and limitations.

Freedom of association and the right to organise have been interpreted in accordance with the Fourth Final and Transitory Provision of the Constitution and Article V of the Preliminary Title of the Constitutional Procedural Code, they impose the state obligation to adopt the necessary and appropriate measures to guarantee workers and employers the free exercise of unionisation and prevent any act of discrimination tending to undermine freedom of association. But in the same way, the scope of action of the workers’ unions has been regulated, which not because they constitute a force that seeks to balance the difference in powers between employers and workers are exempt from the rules and duties that they must comply with as workers.

Unionisation is free and voluntary. Employment cannot be conditioned by the worker’s decision to join or not to join the company’s union, or to withdraw from the union. A worker cannot be obliged to form part or prevented from forming part of a union. The State and the employers, including both State and employer representatives, should refrain from participating in any act that may somehow force, restrict or impair in any way the workers’ right to unionise and participate in any manner whatsoever in the creation, administration or maintenance of unions.

Rights and Importance of Trade Unions

2.1          Collective Bargaining

Collective bargaining refers to the negotiations held between the employer and the union in order to reach a collective agreement establishing economic benefits, work conditions, productivity levels, and other aspects that facilitate the labour relationship.

2.2          Parts of the Process

Collective bargaining includes direct negotiations, conciliation or mediation, and arbitration.  However, it can come to an end at any such stage. If collective bargaining ends after holding direct negotiations or a conciliation meeting, then the agreement is called collective agreement. However, if the negotiation ends after an arbitration process, then it will be called an arbitration award.

2.3          Collective Agreement

When an agreement is reached, either by direct negotiation or through conciliation meetings, the collective agreement will be signed and will go into effect on the day following the expiration of the previous agreement.

2.4          Term of the Collective Agreement

The minimum term of the collective agreement is one (1) year. The parties can agree on longer terms for the whole agreement or a part of it. Upon expiration of the agreed term, the agreement will continue in effect as long as it is not modified by a subsequent collective agreement.

3.1          Strike

Strike is the collective suspension of work agreed upon on a majority basis by the workers.  It is voluntarily and peacefully performed by the workers, with the consequent abandonment of the workplace. Consequently, workers are not allowed to:

  1. Resort to any form of violence, either against people and/or company assets.
  2. Remain inside the workplace during the strike. In this sense, workers must necessarily abandon the workplace.
  3. Prevent or hinder access to the workplace.
  4. Perform any irregular form of strike, like suddenly bringing work to a halt, bringing operations to a halt in a neuralgic company area or section, work without zest, work at a slow rate, deliberately reduce performance, etc.

3.2          Inadmissibility of the Strike

The strike will be declared “inadmissible” if any of the requirements mentioned in the prior section is not fulfilled. The Labour Authority will check the fulfilment of the legal requirements. Notwithstanding, the company can provide the Labour Authority with written notice of any deficiency it may detect.

3.3          Illegality of the Strike

The strike will be declared “illegal” when it is held in spite of having been declared “inadmissible”; if it results in violent acts against property or people; if it is irregularly performed; if the workers abandon “indispensable services”; or, if it is not stopped after service of a notice of a resolution or an arbitration award ending the conflict.

  1. Types of Representation

As can be seen, the functions of the union are limited both to the representation of its members in their interests both collectively and individually -if the worker allows or requests it- and to the promotion of its members through savings mechanisms and cultural, educational training.

In summary, the functions of the union must be directed to action in favour of its members, its scope of action is focused only on promoting progress and the protection of the professional and economic rights of its members through, for example, negotiation collective.

As has already been mentioned, union organisations fulfil, in principle, a balancing function, seeking to compensate for the asymmetry of power between the individual worker and the employer, improving the position of workers in an obviously unequal situation.

The assembly is the maximum organ of the union. In the trade unions it is constituted directly by its members. In others, as well as those whose members work in different locations, it can be formed through delegates whose decision powers will be granted beforehand or subsequently ratified by the bases.

The duties of the general assembly are:

  1. To elect the board of directors.
  2. Modify the statute.
  3. Agree on the merger or absorption with other similar trade union organisations, or their dissolution.
  4. Agree on affiliation or disaffiliation to federations and confederations, and to international trade union organisations.
  5. Agree on the direct or indirect disposal of assets of the union assets.
  6. Decide on the expulsion of any affiliate or the imposition of disciplinary sanctions.
  7. Any others that indicate the legal norms or the statute.
  1. Tasks and Obligations of Representatives

The law has foreseen what the objectives and functions of the union are:

“Article 8.- The purposes and functions of trade union organisations are:

  1. Represent the group of workers included within its scope, in conflicts, controversies or claims of a collective nature.
  2. Celebrate collective labour agreements, demand compliance and exercise the rights and actions that originate from such agreements.
  3. Represent or defend its members in disputes or claims of an individual nature, unless the worker acts directly voluntarily or by mandate of the law, in which case the union may act as an advisor.
  4. Promote the creation and encourage the development of cooperatives, savings banks, funds and, in general, organisations that provide assistance and social promotion for their members.
  5. Promote cultural improvement, general, technical and professional education of its members.
  6. In general, all those that are not at odds with its essential purposes or with the laws.”

 

  1. Employees’ Representation in Management

The board of directors has the legal representation of the union and will be constituted in the manner and with the powers determined by the statute. To be a member is required to be a worker of the company. This requirement will not be required in the case of federations and confederations.

Other Types of Employee Representative Bodies

The number of people that make up the Occupational Health and Safety Committee is defined by agreement of the parties and cannot be less than four (4) or more than twelve (12) members. Among other criteria, the level of risk and the number of workers may be considered.

In the absence of agreement, the number of Committee members is not less than six (6) in employers with more than one hundred (100) workers, adding at least two (2) members for every one hundred (100) additional workers, up to a maximum of twelve (12) members.

This electoral process is in charge of the majority trade union organisation, in accordance with the provisions of article 9 of the Single Ordered Text of the Law on Collective Labour Relations, approved by Supreme Decree No. 010-2003-TR. Otherwise, it is the responsibility of the union organisation that affiliates the largest number of workers in the company or employer.

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