Definitive Report - Report No 307, June 1997

Case No 1855 (Peru) - Complaint date: 29-SEP-95 - Closed

Allegations: Restrictions on collective bargaining, discrimination and interference in union activities, anti-union dismissals and refusal of union authorization

1. 434. The Committee examined this case at its November 1996 meeting and submitted an interim report to the Governing Body (see 305th Report, paras. 413-433, approved by the Governing Body at its 267th Session (November 1996)).
2. 435. The Government sent further observations in a communication dated 28 February 1997.
3. 436. Peru has ratified 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). However, it has not ratified the Workers' Representatives Convention, 1971 (No. 135).

A. Previous examination of the case

1. 437. At its November 1996 meeting the Committee made the following recommendations on the allegations pending reply (see 305th Report, para. 433):
   • - as regards the allegations concerning the threats of dismissal and pressure placed on employees of the Banco de Crédito of Peru and Interbanc who are union members (a situation which has led a large number of employees to give up their FEB membership), the Committee requested the Government to forward its observations on the matter without delay;
   • - as regards the allegations concerning the dismissal of 66 unionized employees of the National Health Institute, including all the union leaders, the Committee requested the Government to keep it informed of the outcome of the appeal lodged on the grounds of unconstitutionality by FENUTSSA, and to take measures to redress any prejudice suffered if it is found that the dismissals occurred for trade union reasons, allowing the trade union leaders and members to be reinstated in their posts if they so wish; and
   • - as regards the allegations made by SUTEP relating to the Ministry of Education's refusal to respond to its petitions, as well as to the refusal of union authorization for its leaders, the Committee regretted to note that the Government had not replied and requested the Government to forward its observations on the matter without delay.

B. The Government's reply

1. 438. In respect of the allegations concerning the threats of dismissal and pressure placed on employees of the Banco de Crédito of Peru and Interbanc who are union members (a situation which has led a large number of workers to give up their FEB membership), the Government states that the country's labour legislation includes various provisions to protect unionized employees against arbitrary dismissal. These provisions provide employees with judicial protection whereby dismissals suffered as a result of membership of a trade union or participation in trade union activities are declared null and void, the employee having the choice of reinstatement in his or her post or financial compensation.
2. 439. As to the outcome of the appeal lodged on the grounds of unconstitutionality by FENUTSSA concerning the dismissal of 66 unionized employees of the National Health Institute (INS), including all the union leaders, the Government states that Specialized Civil Court No. 20 in Lima declared the appeal lodged on the grounds of unconstitutionality to be substantiated, rendering invalid the provisions of section 10 of the Regulation concerning the programme of assessment which provides that workers who do not attend the appraisal on the dates scheduled will be made redundant. On this basis a new assessment was made of the work performance of those INS employees who had not attended the corresponding tests. This took place in the presence of representatives of the Office of the Public Prosecutor nominated by the corresponding judicial authority. Following the assessment of their work performance, 60 INS employees were deemed redundant and were dismissed, their results being inadequate.
3. 440. As regards the Committee's request to take measures to redress any prejudice suffered if it is found that the dismissals occurred for trade union reasons, allowing the trade union leaders and members to be reinstated in their posts if they so wish, the Government states that the dismissal of the 60 INS employees is unrelated to trade union matters, being carried out in strict compliance with Act No. 26093 which, as indicated previously, authorizes decentralized public institutions to dismiss on the grounds of redundancy staff who fail the above-mentioned assessment.
4. 441. With reference to the allegations by SUTEP relating to the Ministry of Education's refusal to respond to its petitions, as well as to the refusal of union authorization for its leaders, the Government indicates that these allegations were dealt with in Case No. 1804 (Peru) and repeats its previous comments in this connection.

C. The Committee's conclusions

1. 442. As regards the FEB's allegations concerning the threats of dismissal and pressure placed on employees of the Banco de Crédito of Peru and Interbanc who are union members (a situation which has led a large number of employees to give up their FEB membership), the Committee notes the Government's statement that national legislation protects employees against anti-union dismissal. However, it regrets that the Government has once again failed to give a specific reply to the alleged anti-union acts which led a large number of employees to give up their trade union membership in the institutions under reference. In this connection, the Committee requests the Government to take the necessary measures to ensure that employees also enjoy adequate protection in practice against any act of discrimination which could be detrimental to freedom of association in respect of their employment, particularly against any act calculated to make the employment of a worker subject to the condition that he or she shall not join a union or shall relinquish trade union membership, as provided in Article 1 of Convention No. 98.
2. 443. With respect to the result of the appeal lodged on the grounds of unconstitutionality by FENUTSSA concerning the dismissal of 66 unionized employees of the National Health Institute (INS), including all the union leaders, the Committee notes the Government's statement that the judge found the appeal lodged on the grounds of unconstitutionality to be substantiated, and therefore the INS proceeded to carry out another assessment of the work performance of those employees who had not attended the original tests. The Government indicates that following the new assessment, 60 INS employees were deemed redundant and were dismissed, on account of their poor results, in compliance with Act No. 26093 (which authorizes decentralized public institutions to dismiss on the grounds of redundancy staff who fail the labour assessment). The Committee considers that it does not have sufficient information to determine if the assessments were based on discriminatory criteria. The Committee recalls that it has already examined a similar case (see 304th Report, Case No. 1796, para. 458) regarding programmes of assessment of employee work performance provided for in Act No. 26093 and urges the Government to ensure that these programmes are not used in practice to perpetuate acts of anti-union discrimination. The Committee urges the Government to ensure in practice the application of this criterium.
3. 444. With reference to the allegations by SUTEP relating to the Ministry of Education's refusal to respond to its petitions, as well as to the refusal of union authorization for its leaders, the Committee observes, as the Government pointed out, that these allegations were dealt with in Case No. 1804 (Peru) and repeats the conclusions in that case (see 300th Report, paras. 322-324):
   • Concerning the refusal of the authorities to discuss a list of claims submitted by the SUTEP, the Committee recalls that teaching personnel should enjoy the right of collective bargaining. Similarly, the Committee feels bound to point out in view of the fact that true and constructive collective bargaining is necessary to establish and maintain a relationship of confidence between the parties, it is important that both employers - including the State in its capacity as employer - and trade unions bargain collectively in good faith, trying their utmost to reach an agreement, which presupposes that there is no unjustified delay in their discussions. Under the circumstances, the Committee requests the Government to take measures to bring the parties together and facilitate discussions between the SUTEP and the Ministry of Education.
   • As regards the authorities' refusal to grant trade union leave of absence to the SUTEP's Secretary of International Affairs, Nicolás Olmedo Auris Melgar, the Committee notes that the documentation enclosed by the trade union organizations reveals that: (1) in 1990 the Ministry of Education granted Mr. Melgar, who held the position of Secretary of International Affairs, the trade union leave of absence he requested; (2) in March 1994, the SUTEP once again requested that Mr. Melgar be granted trade union leave of absence; and (3) in April and August 1994 the authorities of the Ministry of Education declared that the request for trade union leave of absence was inadmissible on the grounds that "in accordance with section 80 of the regulations contained in the Act pertaining to the teaching profession, teachers representing their trade union shall be entitled to leave of absence with pay throughout the period of their term of office when they have been appointed Secretary-General, Deputy Secretary-General, Organizational Secretary, Secretary of Pedagogical Affairs, Secretary of Defence, Secretary of Economy, Secretary of the Interior, Secretary of Press and Propaganda, in so far as these are at the level of the national executive committee; as there is no position which the appellant was elected, i.e. Secretary of International Affairs, it is irrelevant to grant the trade union leave of absence requested".
   • In this respect, the Committee notes that section 80 of the regulations contained in the Act pertaining to the teaching profession stipulates in the last part of paragraph (a) that in addition to the persons carrying out the responsibilities mentioned by the Government, "four representatives of each of the educational levels in question" are also entitled to leave of absence with pay. In these circumstance, noting that under section 80 of the Act pertaining to the teaching profession Mr. Auris Melgar may be entitled to trade union leave of absence and taking into account that in 1990 the authorities of the Ministry of Education authorized him to take this leave, the Committee requests the Government to take measures to ensure that the trade union official in question be granted the trade union leave of absence requested and to keep it informed in this respect.

The Committee's recommendations

1. 445. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) As regards the FEB's allegations concerning the threats of dismissal and pressure placed on employees of the Banco de Crédito of Peru and Interbanc, the Committee requests the Government to take the necessary measures to ensure that employees also enjoy adequate protection in practice against any act of discrimination which could be detrimental to freedom of association in conjunction with their employment, particularly against any act intended to make an employee's employment conditional on his or her not becoming a member of a trade union or on giving up his or her membership of a trade union, as provided in Article 1 of Convention No. 98.
   • (b) With respect to the dismissal of 66 unionized employees of the National Health Institute (INS), including all the union leaders, following the assessment procedures, the Committee requests the Government to ensure that the evaluations are not used in practice for the commission of acts of anti-union discrimination.
   • (c) With reference to the allegations by SUTEP relating to the Ministry of Education's refusal to respond to its petitions, as well as to the refusal of union authorization for its leaders, the Committee observes, as the Government pointed out, that these allegations were dealt with in Case No. 1804 (Peru), and repeats its previous recommendations as follows:
     • - the Committee requests the Government to take measures to bring the parties together and facilitate discussions between SUTEP and the Ministry of Education;
     • - the Committee requests the Government to take measures to grant the trade union official of SUTEP, Mr. Nicolás Olmedo Auris Melgar, the trade union leave of absence requested and to keep it informed in this respect.