Interim Report - Report No 226, June 1983

Case No 1181 (Peru) - Complaint date: 24-NOV-82 - Closed

1. 388. The National Trade Union of Workers of the Banco de la Nación presented its complaint in a communication dated 24 November 1982 and sent additional information in a communication dated 21 March 1983. The Government replied in a communication dated 12 April 1983.
2. 389. Peru has ratified both the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining convention, 1949 (No. 98).

A. The complainant's allegations

1. 390. In its communication dated 24 November 1982, the National Trade Union of Workers of the Banco de la Nación alleges that the Ministry of Labour has not yet taken action on its request for registration, in spite of the fact that it was set up in June 1978 and was recognised by the Banco de la Nación in August 1978, and that it is not being allowed to join the Federation of Bank Employees on the grounds that the Union's membership does not comprise workers in the private sector.
2. 391. The complainant also alleges that on 17 August 1978 it signed a collective agreement with the legal representatives of the Banco de la Nación whereby the Bank undertook, among other things, to guarantee job security, to deduct union dues from members' pay, to grant permanent authorisation to members of the Union's executive committee to engage in trade union activities and to make arrangements with the competent authorities to give employees of the Banco de la Nación the same status as employees in the rest of the public and private banking system, in accordance with Act No. 4916. In spite of this, the Banco de la Nación, has, since July 1982, persistently refused to deduct union dues from members' pay and has been making deductions or holding back the earnings of nine national trade union leaders (whose names are listed by the complainant) for taking advantage of the permanent authorisation granted under the collective agreement. According to the complainant, the Banco de la Nación contends that, under Act No. 1'377 - which is applicable to public employees and denies them the right to submit grievances and other rights - the Bank's employees cannot sign collective agreements and that the agreement reached in 1978 is therefore null and void. The complainant points out in this respect that article 59 of the constitution implies that the status of public employees does not include workers in state undertakings or semi-public companies and that the employees of the Banco de la Nación, which is a public law enterprise, should therefore have the status of private sector workers.
3. 392. The complainant adds that the Banco de la Nación has launched a campaign of reprisals against the leaders of the trade union, has dismissed (supposedly for dereliction of duty) Carlos Mata Durán, Noé Ugarte Ochoa and Pérez González and has transferred Gilberto Rivera to another place of work. Moreover, the Bank has declared redundancies and consequently dismissed 210 workers from its Alcohol and Beverages Division, thus ignoring its obligation to guarantee job security as stipulated in the 1978 collective agreement.
4. 393. The complainant further alleges that it signed another collective agreement with the representatives of the Bank on 22 September 1980 in which the Bank undertook to take part in a tripartite committee to resolve the matter of the workers' status, which was to submit a bill to the Legislature specifically providing for the right to conclude collective agreements. In spite of this, and although the committee had been set up and had convened, the Bank prevented it from reaching a decision or the matter and transmitted to the Legislature a bill under which the employees of the Banco de la Nación would have the status of public sector workers, thereby denying them many trade union rights. The complainant states that, in the legislative chambers, parliamentarians of all political parties have nevertheless ruled in favour of the position adopted by the workers in respect of the status and legal situation of the employees of the Banco de la Nación.
5. 394. In its communication dated 21 March 1983, the complainant alleges that the Banco de la Nación has dismissed two national members of the new executive board elected on 28 November 1982 (René Fernández Barra and Guillermo Tamayo Pinto) for alleged dereliction of duty, thereby ignoring the right to engage in trade union activities which, in the complainant's opinion, has been an acquired right since the signing of the collective agreement on 17 August 1978.

B. The Government's reply

1. 395. In its communication dated 12 April 1983, the Government states that the trade union of the Banco de la Nación has for some considerable time been requesting private sector status (Act No. 4916), whereas only 240 of an approximate total of 8,000 workers are in fact entitled to private sector status. The rest, who form the great majority are, according to Legislative Decree No. 19277, governed by Act No. 11377 on the status of the civil service and, for trade union matters, are therefore subjected to Supreme Decree No. 003-82-PCM of 22 January 1982 and, for the submission of annual lists of grievances concerning general working conditions, to Supreme Decree No. 026-82-JUS of 2 April 1982.
2. 396. Furthermore, continues the Government, the 1978 and 1980 agreements were concluded by public employees who, as such, had no representative status for concluding collective agreements, for establishing trade unions and, much less, for joining the Federation of Bank Employees, a trade union organisation comprising bark employees with private sector status. Since the promulgation of the aforementioned Decrees, they may submit such grievances and establish such unions as correspond to the status of public employees.
3. 397. The Government adds that, in view of the latest move by the members of the "Trade Union", the national Parliament is currently examining a bill designed" to establish the legal and labour status of employees of the Banco de la Nación.
4. 398. In the light of the foregoing, concludes the Government, the assertions of the "Trade Union" that Peru is violating or failing to respect collective agreements is untrue, inasmuch as the complainant lacked and still lacks representative status to conclude collective agreements and must remain subject to the provisions relating to public employees as regards both trade union affairs and the submission of grievances until such time as provisions have been adopted to the contrary.

C. The Committee's conclusions

1. 399. The Committee notes that the National Trade Union of workers of the Banco de la Nación allege that it has received no reply to its request for registration, that it has been prohibited from joining the Federation of Bank Employees on the grounds that the Union does not comprise private sector workers, that the Bark has failed to respect the collective agreements it signed on 17 August 1978 and 22 September 1980, and that trade union leaders and workers have been dismissed.
2. 400. With regard to the failure to respect the collective agreement concluded on 17 August 1978 and, specifically, the clauses relating to job security, the deduction of union dues from members' pay and the granting of permanent authorisation to national trade union leaders to engage in union activities, the Committee notes that, according to the Government, the agreements alluded to by the complainant were concluded by a body which lacked and still lacks the legal status to do so. In this respect, the Committee observes that the collective agreement concluded between the Trade Union and the Bank in August 1978 was in any case valid for one year, as indicated in the agreement itself, and that the alleged failure to respect the clauses of the agreement did not begin to occur until July 1982, i.e. after the agreement had expired.
3. 401. With regard to the Bank's failure to respect the collective agreement of 22 September 1980 in which it undertook to take part in a tripartite committee to resolve the matter of the workers' status, regarding which the collective agreement of 17 - August 1978 had previously provided that the Bank would make appropriate arrangements with the competent authorities for employees of the Banco de la Nación to have the same status as employees in the rest of the public and private banking system, the Committee observes that the allegations indicate that parliamentarians of all political parties have ruled in favour of the workers being given private sector status and that, according to the Government, the Parliament is currently considering a' bill designed to determine the legal and labour status of these workers. The Committee considers that it is not within its purview to express an opinion as to whether the workers should be given public law or private law status. Considering that Conventions Nos. 87 and 98 apply to all workers in the banking sector, however, the Committee expresses the hope that the said bill will be adopted in the near future and that it will recognise the right of the employees of the Banco de la Nación to conclude collective agreements and to join the federations of their choosing. The Committee requests the Government to keep it informed of developments in the legislative proceedings currently under way.
4. 402. Finally, the Committee observes that the Government has not replied to the allegations concerning the transfer of trade union leader Gilberto Rivera and the dismissal of union leaders Mata Durán, Ugarte Ochoa and Pérez González - all for alleged dereliction of duty - and of Fernández Bara and Tamayo Pinto, members of the new executive board elected in November 1982. The Committee requests the Government to send its observations on the subject and, in particular, to indicate the grounds for the said dismissals.

The Committee's recommendations

1. 403. In these circumstances, the Committee recommends the Governing Body to approve this interim report and, it particular, the following conclusions:
   • (a) Considering that the Parliament is currently examining a bill designed to determine the legal and labour status of the employees of the Banco de la Nación, the Committee expresses the hope that the said bill will be adopted in the near future and that it will recognise the right of these employees to conclude collective agreements and to join the federations of their choosing. The Committee requests the Government to keep it informed of developments in the legislative proceedings currently under way.
   • (b) The Committee requests the Government to send its observations on the transfer and dismissal of the trade union leaders referred to by the complainant and, in particular, to indicate the grounds for the dismissals.
     • Geneva, 26 May 1983. (Signed) Roberto AGO, Chairman.