Constitutional Court, Juan José Gorriti and more than 5,000 citizens v. Congress of the Republic of Colombia, 12 August 2005, Case No. 008-2005-PI/TC
Constitution of Peru
The list of rights set out in this chapter does not exclude any others guaranteed by the Constitution, those of an analogous nature or based on the dignity of man, the principles of the sovereignty of the people, the democratic State of law and the republican form of government.
Treaties ratified by Peru and in force form part of domestic law.
Treaties must be adopted by Congress before their ratification by the President of the Republic, whenever they deal with the following subjects: 1. Human rights; 2. The nation’s sovereignty, dominion or territorial integrity; 3. National defence; 4. Financial obligations of the Government.
Article 57, paragraph 2
Whenever a treaty affects constitutional provisions, it must be approved through the same procedure governing constitutional reform before being ratified by the President of the Republic.
Final transitional provision No. 4
Provisions concerning the rights and freedoms recognized by the Constitution are interpreted in accordance with the Universal Declaration of Human Rights and with treaties and international agreements dealing with the same issues and ratified by Peru.
Labour Procedure Law (No. 29497 of 2010)
Supplementary provision n°10
In accordance with the provisions of the fourth final and transitional provision of the Political Constitution of Peru, individual and collective labour rights shall be interpreted in accordance with the Universal Declaration of Human Rights and the relevant international treaties and agreements ratified by Peru, in addition to the consultation of the pronouncements of the supervisory bodies of the International Labour Organization (ILO) and the opinions or decisions adopted by international courts constituted according to treaties to which Peru is party.
Right to strike , Freedom of association , Collective bargaining
Direct resolution of a dispute on the basis of international law
Freedom of association/ Collective bargaining/ Right to strike/ Direct resolution of a dispute on the basis of international law
During this process of unconstitutionality against Law No. 28175 “Framework Law on Public Employment”, the claimants argued that the aforementioned law contravened the Peruvian Constitution, since article 15 did not include in the list of rights of civil servants the rights to organize, collective bargaining and strike action. In its defence, the Congress of Republic of Peru argued that the fact that the law did not set out these rights did not mean that they had been disregarded, since these rights had been recognized by the Constitution and international conventions.
The Court concluded that there was no breach of the constitutional standards. The Court considered that the rights recognized by Law 28175 were not exhaustive and did not disregard the rights recognized by other legal provisions. The Court supported its argument using national and international standards, including ILO Convention No. 87 which, according to the Constitution, formed part of the legal system. In this regard, the Court pointed out that:
“Equally, in accordance with the Fourth Final and Transitory Disposition of the Supreme Law, international treaties on human rights must be applied when interpreting the rights and freedoms enshrined in the Constitution on labour matters. In effect, the labour rights of the public workers alluded to by the claimants must be interpreted in accordance with the provisions of Article 9 of Convention No. 87 concerning Freedom of Association and Protection of the Right to Organize; Article 8 of the International Covenant on Economic, Social and Cultural Rights; [...] and others.”2
With regard to the case of the right to collective bargaining, the Court indicated that this right was subject to restrictions, a fact that was recognized by ILO Convention No. 151. In the case of Peru, collective bargaining between the state and civil servants was restricted by budgetary matters:
“Article 7 of the aforementioned Convention [No. 151] establishes that measures appropriate to national conditions shall be taken where necessary to encourage and promote full development and utilization of negotiation procedures between the public authorities concerned and employers’ organizations [...] In effect, as part of the national conditions referred to in ILO Convention No. 151, the Constitution establishes standards concerning the public budget [...] Thus, in the case of collective bargaining with civil servants, such negotiations should be carried out taking the constitutional restrictions which demand a balanced and fair budget into consideration”.3
In conclusion, making use of ILO Convention No. 87, the Court found that the law allowed the exercise of the right to freedom of association, collective bargaining and strike action by civil servants, although the right to collective bargaining was subject to constitutional restrictions, a fact that was in line with the provisions of ILO Convention No. 151.