Definitive Report - Report No 262, March 1989

Case No 1445 (Peru) - Complaint date: 09-MAR-88 - Closed

1. 79. The complaint appears in a communication from the Unified Trade Union of Workers of the Lima Metropolitan Welfare Corporation, dated 9 March 1988. This organisation submitted additional information and new allegations in a communication of 22 April 1988. The Government replied in a communication of 24 October 1988.
2. 80. Peru has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and the Labour Relations (Public Service) Convention, 1978 (No. 151).

A. The complainant's allegations

1. 81. The Unified Trade Union of Workers of the Lima Metropolitan Welfare Corporation alleges that this corporation has engaged in the following acts of anti-union interference and discrimination with a view to destroying the trade union and promoting the creation of a parallel and more compliant trade union:
   • - In September 1986 the corporation's general manager suspended the trade union functions (and privileges) of Mr. Víctor Otoya, General Secretary, and three other trade union leaders, under the pretext that a new executive committee had not been elected. Subsequently, on two occasions, the courts ordered the general manager to refrain from interfering in the activities and operations of the trade union; following another appeal, the matter is currently before the Supreme Court of Peru.
   • - In November 1986 a disciplinary administrative procedure was instituted against Mr. Víctor Otoya, General Secretary, which culminated on 25 May 1987 with his dismissal, on the grounds of public and repeated offences against officials of the corporation. According to the complainant, Mr. Otoya's dismissal was an act of reprisal for the trade union's denunciations of financial mismanagement by the Welfare Corporation's general manager, who was subsequently tried in a criminal court on charges of prevarication, mismanagement, fraud, etc. According to the complainant organisation, Mr. Otoya cannot appeal his dismissal in court until the corporation formally reconsiders his dismissal, something which it has not done because of the alleged "loss" of the pertinent administrative file.
   • - The general manager of the Welfare Corporation has promoted the formation of a more compliant trade union. In this connection, the complainant points out that on 25 November 1986 the general manager of the Welfare Corporation addressed a circular to all workers, notifying them that a meeting would be held to discuss the trade union's situation, stipulating that attendance at this meeting was mandatory, and appointing Messrs. Dikey Fernández and Augusto Medina to chair it. In May of 1987 these two individuals, claiming to represent the workers, signed with the corporation an instrument concerning economic and labour conditions, bypassing the trade union. Subsequently, in November 1987, a trade union sponsored by the Welfare Corporation applied for official recognition; its application was returned so that a number of observations formulated by the National Personnel Directorate might be taken into account.
   • - In a memorandum of 5 February 1988, the general manager of the corporation informed the National Institute for Public Administration (INAP) that the complainant organisation had failed over a period of two years to elect its first (permanent) executive committee, and asked that the matter be referred to the Supreme Court with the request that the trade union be dissolved. In the same memorandum the general manager reported that another trade union was being formed "with the vast support of the workers" and requested the INAP to determine with which trade union organisation the Welfare Corporation should negotiate. In reply, the INAP stated that any agreement with the new trade union would be considered null and void, and that the executive committee of the existing trade union should be elected "as soon as possible after the conclusion of the proceedings pending before the Supreme Court" (relating to the suspension of the trade union privileges of Mr. Otoya).
   • - In April 1988 the trade union backed by the Welfare Corporation invited all workers to a luncheon with orchestra, food and drinks provided by the corporation; the luncheon included a "salute to the workers by the corporation's manager".
2. 82. In addition, the complainant alleges that despite a request it made in November 1987 for the payment of a Christmas bonus as provided for in the collective agreements, the corporation's general manager presented a counter-offer in a lesser amount, which was subsequently paid without any discussion with the trade union. Likewise, in March 1988, the general manager unilaterally granted an education and clothing allowance envisaged in the collective agreements.

B. The Government's reply

1. 83. In its communication of 24 October 1988, the Government states that the dismissal of Víctor Otoya Petit, pursuant to a managerial resolution dated 25 May 1987, was based on a number of offences which were substantiated during the course of an administrative procedure in which Mr. Otoya had the opportunity to defend himself, and which took place in accordance with legal requirements. Moreover, Mr. Otoya's appeal against this resolution is still pending.
2. 84. The Government denies that the Welfare Corporation is promoting and financing a trade union (the so-called United Trade Union of Workers), since all that can be inferred from the circular of 25 November 1986 is that the corporation recommended the holding of a meeting to inform workers of the situation of the corporation's trade union; rather than suggesting interference, this shows that workers were offered special facilities for trade union purposes. As regards the general manager's memorandum of 5 February 1988, the Government states that it did not constitute an act of interference: although the corporation appealed to the National Institute for Public Administration, it was merely with the intention of safeguarding industrial peace by requesting the INAP to identify the trade union organisation with which the corporation should bargain, inasmuch as the Unified Trade Union of Workers did not have a legally elected representative, and because there was another organisation of workers in the corporation, known as the United Trade Union of Workers, which had presented a list of claims. As regards the trade union's dissolution in accordance with current legal provisions (section 21 of Presidential Decree No. 003-82-PCM), the INAP was requested to take part in the matter under the procedure established by law, for the sole purpose of ensuring that the trade union rectify the situation and provide a legitimate representation for the corporation's workers.
3. 85. The Government also states that it is true that a friendly luncheon was held to celebrate the Day of Public Sector Workers; however, the luncheon was organised and financed by the corporation, and not by the United Trade Union, as suggested by the complainant organisation.
4. 86. Lastly, the Government states that the amounts of the Christmas bonus and the education and clothing allowance, envisaged in the collective agreements, were limited by the Welfare Corporation's poor financial situation.

C. The Committee's conclusions

1. 87. The Committee notes that the complainant organisation in the present case has primarily alleged the suspension of the trade union functions of several trade union leaders by the general manager of the Welfare Corporation, the dismissal of the trade union's general secretary, Mr. Otoya, and a number of steps taken by the corporation with a view to disbanding the trade union and promoting the formation of a more compliant trade union.
2. 88. As regards the suspension from their trade union functions of four trade union leaders since September 1986, the Committee notes that the Government has not sent specific observations in this connection, and that this matter is the subject of a new judicial appeal, following two judgements in favour of the general secretary of the trade union, ordering the manager of the Welfare Corporation to refrain from interfering in the activities and operations of the trade union. In these circumstances, inasmuch as this suspension was not ordered by the trade union itself, or by the courts, but by the Welfare Corporation's general manager, the Committee deplores the fact that for over two years the trade union leaders concerned have been suspended from their functions and requests that the suspensions in question be rescinded as ordered in two court decisions.
3. 89. As regards the dismissal of Víctor Otoya, General Secretary of the trade union, the Committee notes that, according to the Government, he was dismissed in May 1987 for offences which were substantiated during the course of the pertinent administrative procedure, and that Mr. Otoya's appeal before the corporation is pending. In this respect, the Committee regrets that the Government failed to identify the specific offences with which Mr. Víctor Otoya was charged, whereas the complainant organisation, in referring to the administrative procedure for dismissal which invoked public and repeated offences against the corporation's officials, had specifically pointed out that the dismissal was motivated by the trade union's denunciation of financial mismanagement by the corporation's general manager, who was subsequently tried for various offences. Inasmuch as the Government has failed to refute expressly the statements of the complainant, the Committee concludes that there is reason to believe that Mr. Otoya's dismissal was due to his carrying out activities as a trade union leader. Moreover, the Committee regrets that in the year and a half since Mr. Otoya's dismissal, the corporation's management has yet to resolve his appeal for "reconsideration" owing, according to the complainant organisation, to the "loss" of the file, thereby making it impossible for Mr. Otoya to file an appeal in court. Consequently, and in the light of all these circumstances, the Committee urges the Government to take the necessary measures to have Mr. Otoya reinstated, and stresses the principle contained in Article 1 of Convention No. 98, and Article 4 of Convention No. 151, according to which workers shall enjoy adequate protection against acts calculated to cause the dismissal of or otherwise prejudice a worker by reason of union membership or because of participation in union activities.
4. 90. As regards the allegations of interference by the Welfare Corporation with a view to promoting the formation of a new, more compliant trade union, the Committee notes the observations supplied by the Government. In particular, the Committee notes that the Government states that contrary to the allegations of the complainant organisation, the workers' luncheon held in April 1988 was not organised by the rival trade union, but by the Welfare Corporation itself and was financed by it. However, the Committee wishes to emphasise that certain explanations provided by the Government concerning other allegations related to the formation of the rival trade union are not entirely satisfactory and, at any rate, are incomplete. In particular, the Committee does not understand why the corporation would organise a meeting to inform workers of the trade union's situation, or why it would have signed an agreement concerning working conditions, without the trade union's participation, with "the workers' representatives" who appeared to be the very persons in the process of forming the rival trade union. Also, in the light of the fact that the Welfare Corporation's general manager requested the administrative authority to dissolve the trade union, and considering the Committee's conclusions set forth in the preceding paragraphs concerning the suspension of trade union leaders by the corporation's manager, and the dismissal of one of them, the Committee must conclude that the management of the Welfare Corporation has violated Article 2 of Convention No. 98, and Article 5 of Convention No. 151, by engaging in a series of actions which prejudice the trade union and promote the establishment of another trade union organisation. Consequently, the Committee requests the Government to take the necessary measures to ensure that the Welfare Corporation will not interfere again in the activities of the trade union.
5. 91. Lastly, the Committee notes the Government's statements to the effect that the amount of the Christmas bonus and the education and clothing allowances envisaged in the collective agreements were not higher because of the Welfare Corporation's poor financial situation.

The Committee's recommendations

1. 92. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • a) The Committee notes that the trade union leader Véctor Otoya, dismissed by the Welfare Corporation, was hindered in appealing to the courts because the firm lost his file. It consequently requests that Mr. Otoya, who was unable to benefit from all the necessary legal safeguards, be reinstated.
   • b) The Committee requests that the suspensions affecting several trade union leaders be rescinded as ordered in two court decisions.
   • c) The Committee requests the Government to take the necessary measures to ensure that the management of the Welfare Corporation will not again interfere in trade union activities.