Ratified treaty¹ 

Amparo/ Collective bargaining/ National constitution/ Establishment of a jurisprudential principle based on international law

The Peruvian Chamber of Construction (Cámera Peruana de la Construcción, CAPECO) initiated constitutional “amparo” proceedings (a request for court protection of fundamental rights) against the Labour Ministry with the aim of achieving the declaration of inapplicability of the administrative rules that imposed collective bargaining on this employer on the level of branch of activity in the sector of civil construction, while the party filing the amparo proceedings aimed to negotiate at the level of enterprise or undertaking.

The Labour Ministry duly summoned, it responded to the claim by arguing that collective bargaining in the sector of civil construction should be regulated taking into account the particular characteristics of the sector, including the following: a) workers specialising in construction do not transfer from one branch to another; and b) construction work is seasonal, and therefore is subject to a high level of rotation between different companies and construction jobs, a factor that impedes the existence of a union organization on the level of enterprise or undertaking.

Entering into an in-depth analysis of the matter, the Constitutional Court began by referring to the framework of standards applicable in the resolution of the dispute, highlighting the Peruvian Constitution and ILO Convention No. 98. With regard to the latter, the Court stated that:

 “…Article 4 of ILO Convention No. 98 constitutes a fundamental precept for interpreting this issue, and should be referred to as a guide to the essential nature of collective bargaining, taking into account at all times that one of its main purposes is to improve the living and working conditions of its target groups.”²

It also pointed out that the Constitution adopts the mandate of ILO Convention No. 98 in that it declares that the State is obliged to encourage and promote collective bargaining.

Taking into account that collective bargaining is desired and promoted by the State, the point to be decided was the kind of collective bargaining that would be preferable in the case in hand, given that each party was aiming for different bargaining types: the enterprise aimed to negotiate on the level of enterprise or undertaking, while the union aimed to negotiate on the level of branch of activity. In this respect, there is a legal contradiction in the Collective Labour Relations Act No. 25563.

The Court analysed the problem in the following terms: the second paragraph of article 45 of Act 25563 establishes that, where there is an agreement on one level, all parties must reach a consensus in order to negotiate a substitute or complementary agreement on another level. The change of level cannot be established by administrative act or arbitration award.  Thus, since the collective parties in the sector of civil construction had previously negotiated on the level of branch of activity, this level of collective bargaining must be maintained unless both parties could agree otherwise. Nevertheless, the third transitional provision of Act 25563 states that in the case of those negotiations that were in progress at the level of branch of activity, parties should expressly confirm the mutual agreement to continue negotiating on that level or, on the contrary, if no agreement could be reached, then collective bargaining should take place on the enterprise level.

Given the necessity of unblocking this interpretative conflict, the Court analysed two possible solutions: favouring collective bargaining either on the level of branch of activity or on the level of enterprise or undertaking. The Court took into account the special situation of the economic sector involved – civil construction – and firmly indicated that in certain circumstances the act of making such a distinction is in itself an act of justice in that it recognizes a situation that requires the distinction to be made. In the case of civil construction, and given its characteristics, collective bargaining can only be taken forward in an effective manner when negotiations take place on the level of the branch of activity. Since the State has an obligation to encourage and promote collective bargaining through the application of the Constitution and ILO Convention No. 98, the Court therefore decided that the solution in this case was to validate the action taken by the Labour Ministry, imposing collective bargaining on the level of the branch of activity in the sector of civil construction.

¹ ILO Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

² Article 4 of ILO Convention No. 98 establishes the following: “Measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and utilisation of machinery for voluntary negotiation between employers or employers’ organisations and workers’ organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements.”