Report in which the committee requests to be kept informed of development - Report No 324, March 2001

Case No 1880 (Peru) - Complaint date: 09-APR-96 - Closed

Allegations: Various acts of anti-union discrimination and interference, obstruction of collective bargaining

1. 829. The Committee last examined this case at its March 1999 meeting and on that occasion presented an interim report to the Governing Body [see 313th Report, paras. 151-168, approved by the Governing Body at its 274th Session in March 1999]. The FTLFP sent additional information and new allegations in its communications of 6 April, 22 June, 5 July, 5 August, 29 September and 20 October 1999.
2. 830. The Government sent partial observations in communications dated 8 and 10 February, 28 August 2000 and 18 January 2001.
3. 831. 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).

A. Previous examination of the case

1. 832. At the Committee's March 1999 meeting, a number of allegations remained pending concerning various acts of anti-union discrimination and interference by the enterprises Electro Ucayali SA, Servicio Público de Electricidad del Oriente SA, Electro Sur Este SA and Electrosur SA, which continued to occur and dated back to 1997:
   • - various acts of anti-union discrimination and interference against the Ucayali SA branch of the Light and Power Workers' Union, calculated to eliminate and cause the disappearance of trade union activity, including obstruction of collective bargaining, anti-union dismissals, coercion and threats against workers belonging to the Electro Ucayali SA trade union branch;
   • - the Electro Ucayali SA enterprise making the granting of open-ended contracts of employment conditional on workers belonging to the Ucayali SA branch of the Light and Power Workers' Union giving up their membership;
   • - the transfer of the majority of workers belonging to the above trade union to places other than those specified in their contracts of employment, under the control of the Electrocentro SA enterprise;
   • - hostility towards and obstruction of trade union activity, interference in the internal affairs of the abovementioned union, intimidation of union officials and hinting at the creation of another trade union organization to evade their obligations under prior collective agreements;
   • - the collective dismissal of 19 unionized workers and coercion by the Ucayali SA enterprise of workers to give up their union membership, threatening to include them in the collective dismissal if they refuse (as a result, recognition of the trade union was cancelled as the number of members was reduced to fewer than 20, the legal minimum);
   • - unfair dismissal of trade union officer Mr. Jaime Tuesta Linares by the Eastern Regional Public Electricity Supply Company;
   • - a systematic campaign of threatened dismissal and harassment against trade union officers and unionized workers in the Electro Sur Este SA enterprise, which has caused serious problems for the workers' union branch in Electro Sur Este Abancay; specifically: (1) trade union officer Mr. Moisés Zegarra Ancalla was transferred; (2) the Electro Sur Este SA enterprise (Puno subregion) threatened trade union officer Mr. Adriel Villafuerte Collado with dismissal and suspended him for 30 days without pay;
   • - threats of sanctions and dismissals against trade union officers at the Tacna and district branch of the Light and Power Workers' Union by the Electro Sur SA Company, which considered that the trade union officers were guilty of serious misconduct for not having dropped their action to enforce a court order in favour of the workers concerning salary increments due to 111 workers [see 313th Report, para. 164].
2. 833. In this regard, the Committee made the following recommendations [see 313th Report, para. 168]:
   • - Concerning the allegations of anti-union discrimination and interference in the Electro Ucayali SA, Eastern Regional Public Electricity Supply Company and Electro Sur Este SA enterprises, the Committee regrets that the Government has not carried out an investigation and is merely relying on the existence of legislation against acts of anti-union discrimination and interference and the possibility that the victims have of lodging judicial appeals, and once again urges the Government to carry out an investigation without delay into the allegations and to take all the necessary measures to remedy these serious acts of anti-union discrimination if they are proved. The Committee requests the Government to keep it informed in this respect.
   • - Concerning the dismissal of trade union officer Mr. Walter Linares Sanz (Electro Sur SA enterprise) and the suspension of the trade union allowance paid to trade union officer Mr. Guillermo Barrueta Gómez since 30 June 1992 by the Electro Sur Este SA enterprise, the Committee requests the Government to keep it informed regarding the outcome of the proceedings under way.

B. New allegations of the complainant

1. 834. In its communication of 6 April 2000, the Federation of Peruvian Light and Power Workers (FTLFP) alleges that Mr. Adriel Grispin Villafuerte Collado, General Secretary of the Single Trade Union of Workers of Electro Sur Este SA Puno and a member of the FTLFP National Executive Committee, was dismissed on 11 December 1998; the reasons given for the dismissal were: failure to comply with technical standards, unfair competition, misappropriation and giving false information to the employer. The complainant denies these accusations and maintains that the dismissal was motivated by the fact that Mr. Villafuerte Collado occupied an official union position and participated in trade union activities. The complainant also alleges that the trade union official in question has initiated legal proceedings for annulment of the dismissal and reinstatement, and that on 3 March 2000 a judicial conciliation hearing took place but the parties were unable to reach an agreement. The complainant emphasizes that on a previous occasion in this case it had been alleged that the union official in question had been threatened with dismissal and had been suspended without pay for a period of 30 days for anti-union reasons.
2. 835. In its communication of 22 June 1999, the complainant states that there is no collective bargaining at national level in the electricity sector, owing to the restrictions imposed by the Collective Labour Relations Act. Before this Act came into force, wages policy with regard to unionized electricity sector workers was determined through enterprise-level agreements between representatives of the trade union organizations and the enterprises. However, under the terms of the recent Emergency Decree No. 011 and Ministerial Decision No. 075-99-EF of 1 April 1999, electricity sector enterprises during 1999 must base their wages policies on the award of a single lump-sum productivity payment within the framework of collective talks; that payment may not have a remunerative character (it must be only a one-off payment), and is conditional on prior performance appraisal, simplification of the system of remuneration and, above all, on the availability of the necessary budget resources and approval thereof by the Office for State Institutions and Bodies (OIOE). For such bonuses to be paid, three fundamental conditions must be met, namely: (a) workers must undergo performance appraisal; (b) the system of remuneration must be simplified and/or comprehensive pay agreements must be concluded; and (c) the bonus must be proposed and awarded only during collective talks. Once those conditions have been met, the directors of the state electricity companies must apply to the Office for State Institutions and Bodies (OIOE) for approval of the agreement with the trade unions; this allegedly violates the right of collective autonomy of the parties.
3. 836. The complainant also alleges that, apart from the restrictions on free collective bargaining imposed by the above provisions, and given that the new round of talks for 1999-2000 was due to begin in June, the privatized electricity companies (Electronoroeste SA, Electro Norte SA and Electrocentro SA and, in the month of October, Electronorte Medio-Hidrandina SA) from April 1999 onwards launched an anti?union campaign aimed at cancelling the trade union registration of those company trade unions with fewer than the minimum number of 20 members required under section 20 of Legislative Decree No. 25593 (the Collective Labour Relations Act). Specifically, the enterprise Electrocentro SA since April 1999 has submitted applications for such cancellations of union registration to the labour authorities of Cerro de Pasco, Huánuco, Tingo María, Chanchamayo, Huancavelica and Ayacucho. The purpose of this was to cancel the trade union registrations of at least six of the company's eight trade union organizations, namely: the Single Trade Union of Light and Power Workers and Allied Workers of Cerro de Pasco; the Single Trade Union of Light and Power Workers and Allied Workers of Electro Centro Huánuco; the Single Trade Union of Light and Power Workers and Allied Workers of Selva Central; the Single Trade Union of Light and Power Workers and Allied Workers of Huancavelica; and the Single Trade Union of Light and Power Workers and Allied Workers of Ayacucho. According to the complainant, as a result of this anti-union action, the labour authorities of Cerro de Pasco on 28 April 1999 cancelled the trade union registration of the Single Trade Union of Light and Power Workers and Allied Workers of Cerro de Pasco; and the labour authorities of Tingo María on 12 May 1999 cancelled the registration of the Single Trade Union of Light and Power Workers and Allied Workers of Tingo María. Similarly, the labour authorities of Chanchamayo on 14 May 1999 cancelled the registration of the Single Trade Union of Light and Power Workers and Allied Workers of Selva Central; the labour authorities of Huancavelica on 20 May 1999 cancelled the registration of the Single Trade Union of Light and Power Workers and Allied Workers of Ayacucho. Only the Single Trade Union of Light and Power Workers and Allied Workers of Electro Centro Huánuco lodged an appeal on 21 May 1999 before the Huánuco labour authority against the order cancelling their registration, and is now awaiting a ruling on the matter from the Regional Labour Directorate. There is also the danger that the other trade union organizations of Electro Centro SA (the Single Trade Union of Light and Power Workers and Allied Workers of Electro Centro Huancayo and the Single Trade Union of Light and Power Workers and Allied Workers of Tarma) may be involved in proceedings to cancel their union registration at the company's request, despite the fact that each of these organizations has more than 20 members, the aim of this being to de-rail talks on unions' claims for 1999-2000.
4. 837. In its communications of 5 July, 29 September and 20 October 1999, the complainant records that at its March 1999 meeting, the Committee recommended to the Government that it inform the Committee of the outcome of proceedings initiated by the Electrosur Este SA enterprise in the Constitutional and Social Division of the Supreme Court of Justice against the ruling of the Second Civil Division of the Cuzco Superior Court of Justice, which had ruled in favour of the trade union official, Mr. Guillermo Barrueta Gómez, in his action against the enterprise for failure to comply with a collective agreement and an arbitration ruling concerning the payment of his trade union allowances. In this regard, the complainant states that the Constitutional and Social Division of the Supreme Court of Justice on 25 June 1998 ruled that the appeal by the Electrosur Este SA enterprise was without foundation and consequently restored the entitlement of the worker and trade union official in question to payment of the trade union allowances owed to him since 1992. The complainant also adds that on 26 April 1999, the Supreme Court notified both parties of the contents of the ruling and immediately referred the case back to the original court (in the city of Cuzco) for execution of the ruling. The complainant states that the labour court judge in Cuzco, in clear and open contravention of the law, ruled that the payment of the trade union allowances owed to Mr. Guillermo Barrueta Gómez between September 1995 and September 1999 was inadmissible, and ordered payment only of the 11,221 new soles owed up to 30 August 1995. According to the complainant, the ruling of the Cuzco labour court that the payment of the accrued trade union allowances was inadmissible is a clear indication of a blatantly discriminatory and anti-union attitude towards the trade union official in question.
5. 838. The complainant also alleges that a communication of 31 August 1999 accused Mr. Guillermo Barrueta Gómez of serious misconduct in that he insulted, slandered and libelled officials of the Electrosur Este SA enterprise, and that in the end he was dismissed by a communication dated 9 September 1999. The complainant argues that he was in fact dismissed for giving voice to demands and views consistent with his trade union mandate, and that this constitutes anti-union discrimination.
6. 839. In its communication of 5 August 1999, the complainant states that as of 16 July 1999, the first session of direct talks for 1999-2000 took place between executive managers of Electrosur Este SA and members of the negotiating committee representing the company's trade unions. The complainant alleges that a group of Electrosur Este SA officials, acting outside the collective talks, passed on information to trade union officials according to which Electrosur Este SA was planning staff cuts, mainly affecting unionized workers including trade union officials, following the creation of the new enterprise ELECTROPUNO SA within the Department of Puno; this would involve reducing staff currently employed at the Cuzco headquarters and replacing them with staff currently employed in the Puno jurisdiction. The officials in question also indicated that such a decision would be taken more rapidly if the members of the negotiating committee did not accept the company's offer of a non-remunerative one-off productivity payment for all employees during 1999. According to the complainant, all the unionized workers and their representatives feel threatened with regard to their stability of employment and restricted in the exercise of their right to free collective bargaining and freedom of association.
7. 840. The complainant also alleges that, apart from these threats, there have also been recent acts of harassment and intimidation by the general manager of the Machupicchu Electricity-Generating Enterprise SA (EGEMSA) against the General Secretary of the Single Trade Union of Workers of Electrosur Este Cuzco and the regional General Secretary for the south-eastern region of the federation, Mr. Nazario Arellano Choque, following his statements published in the República del Gran Sur according to which EGEMSA had appointed five of its unionized employees to new positions of trust, which meant that the number of members of the Single Trade Union of Workers of the Machupicchu Power Plant SUTEM (of EGEMSA) had been reduced to 17, thereby triggering the cancellation of the trade union's registration. To justify its attitude, the company, in a letter dated 19 April 1999 addressed to the trade union official in question, accused him of slander and threatened legal action if he refused to withdraw statements which, in the company's view, contributed to an adverse climate and damaged the company's public image.

C. The Government's reply

1. 841. In its communications of 8 and 10 February, 28 August 2000 and 18 January 2001, the Government states, with regard to the allegations, that the Government makes it a condition of concluding collective agreements that they be officially approved and comply with Act No. 27012 (the Public Sector Budget Act) and with the directives contained in Ministerial Decision No. 075-99-EF, that in accordance with article 28 of the political Constitution of Peru, the State recognizes the rights to organize, engage in collective bargaining and strike, by safeguarding the democratic exercise of those rights and promoting collective talks aimed at achieving a peaceful solution to labour disputes. To that end, the Government of Peru, in deference to the international conventions in this area, has established constitutional protection of workers' fundamental rights. Under the terms of section 11 of Emergency Decree No. 11-99 of 14 March 1999, state-owned enterprises during the 1999 budget exercise would base their wages policies for all their staff (whether covered by collective talks or not) on the award of a one-off productivity bonus (BUP) which was not of a remunerative character and would be governed by a Decision of the Minister of Economics and Finance. On 10 April 1999, Ministerial Decision No. 075-99-EF was promulgated and established a number of conditions for granting the BUP. In the case of enterprises covered by collective bargaining, those requirements are as follows: (a) prior assessment of workers for the award of the BUP; (b) simplification of the remuneration system and/or conclusion of comprehensive wages agreements; and (c) the bonus should be proposed and awarded only within the context of collective talks. Once these conditions are met, the agreement in question must be submitted to the OIOE for approval, in accordance with Act No. 27012 (the Public Sector Budget Act) and Ministerial Decision No. 075-99-EF. In this regard, the Government states that these requirements are not intended in any way to be an obstacle or an illegal or unreasonable bureaucratic hindrance to the free exercise of workers' constitutional rights in such enterprises, but seek to establish reasonable principles for administering these benefits. To that end, the provisions referred to here seek to complement, rather than restrict, the scope of those benefits.
2. 842. With regard to the allegation that de-registration of trade unions with fewer than 20 members was made a condition for collective bargaining, the Government states that, in accordance with sections 14 and 20 of Legislative Decree No. 25593 (the Collective Labour Relations Act), a trade union's registration is cancelled if it ceases to meet any of the conditions for its establishment and continued existence. Under the terms of the provisions in question, in the case of company trade unions such as the organizations involved in this case, they must have at least 20 members in order to continue operating. Having verified that those requirements were no longer met, the companies' response - which was to apply to the labour authority for de-registration - was consonant with the regulations in force. It should also be noted that the labour authority will have to verify compliance with the established conditions for cancellation of registration before approving the application. The Government states that, through the Ministry of Labour and Social Promotion, it is attempting to promote and develop the principles established in the international conventions and in current national legislation on protection of workers' rights, and that it is developing policies aimed at providing mechanisms to protect workers' fundamental rights, as provided for in its own laws and in accordance with international conventions. The Government therefore flatly denies that there is any campaign by the labour authorities to put the trade unions out of action.
3. 843. With regard to the allegation concerning the unilateral suspension of the trade union allowances owed to Mr. Guillermo Barrueta Gómez, the Government states that the failure by the Electrosur Este SA enterprise to comply with the collective agreements of 5 December 1980, 8 March 1982 and 28 September 1987 by unilaterally suspending (from 30 June 1992 onwards) the trade union allowances in question could have been challenged under existing labour law. From the facts set out by the complainant, it would appear that payment of the allowances in question was legally recognized in a ruling given on 5 July 1999 by the Constitutional and Social Division of the Supreme Court of Justice. However, the entitlement of the trade union official in question was recognized only with regard to trade union allowances payable up to 30 August 1995. These aspects are purely procedural and do not come within the remit of the executive branch, given that under the country's political Constitution the judiciary is autonomous. Similarly, Supreme Decree No. 017-93-JUS (single text of the Organic Law on the Judiciary) guarantees that autonomy, which allows the courts complete independence in their rulings, and the Ministry of Labour and Social Promotion may therefore not intervene in any way. The right of the trade union official Mr. Guillermo Barrueta Gómez to apply to the labour court to enforce the ruling of the Constitutional and Social Division of the Supreme Court of Justice is legally protected, and information is currently awaited on the execution of the ruling. Clearly, procedural labour law provides the mechanisms needed to implement judicial rulings.
4. 844. As regards the allegation concerning the dismissal by the Electrosur Este SA enterprise of the trade union official Mr. Guillermo Barrueta Gómez, the Government states that in an official letter, No. 9974, dated 17 August 1999 from the company, the union official in question was accused of grave misconduct within the meaning of section 25(f) of Supreme Decree No. 003-97-TR (the Act respecting labour productivity and competitivity), in particular, that he had insulted and libelled company officials, as evidenced by a circular sent by the Federation of Peruvian Light and Power Workers containing accusations that were injurious to the honour and good name of those officials and prejudicial to the company's public image. The Government states that the law provides for mechanisms to ensure that trade union officials are not dismissed for engaging in activities of this type. In this regard, Legislative Decree No. 25593, which governs labour relations of workers in the private sector, guarantees trade union immunity, which means that certain workers may not be dismissed or transferred to other establishments at the same enterprise without just cause being duly demonstrated or without the workers' consent. The Government adds that it is bound to point out that the exercise of trade union activities does not include serious misconduct; the legitimacy of activities involving such misconduct is questionable, even if the mechanisms referred to previously for protecting workers or trade union members are not. The Government states with regard to the "insulting" nature of the statements made by the trade union official Mr. Guillermo Barrueta Gómez, which led to his dismissal, that the right to present petitions, as he has done, is a legitimate activity for trade union organizations which is in conformity with the provisions of Decision No. 447. However, in the specific case in question, it was not simply a question of a petition presented by the trade union official. The decision to dismiss him followed the break-up of Electrosur Este SA and the establishment of ELECTROPUNO. Serious misconduct is regarded as just cause for dismissal, and under the terms of section 26 of the instrument in question, the nature of any serious misconduct must be examined in accordance with established procedure. To that end, national labour law provides a protective mechanism which enables workers who believe they have been unfairly dismissed to seek redress through judicial channels. On the other hand, national law also provides mechanisms to protect those who believe they may have been harmed by false statements. According to the Government, the allegation of discrimination made by the complainant is offset against the arguments put forward by the Electrosur Este SA enterprise for the dismissal of the trade union official in question. However, the law also provides mechanisms to protect the rights of workers, whether or not they are trade union officials, which shows that the Government complies with the international labour Conventions on freedom of association which it has signed.
5. 845. With regard to the allegation concerning acts of discrimination at the Electrosur Este SA enterprise, in particular against trade union officials, the Government states that the alleged policy of intimidation and harassment by the complainant is based on nothing more than speculation. Nevertheless, the Government states that the law provides all the mechanisms needed to prevent abuses by the Electrosur Este SA that are detrimental to the rights of trade union members at that company. At the constitutional level, trade union members, whether holders of trade union office or not, are protected by article 28 of the Constitution, by Legislative Decree No. 25593 and by Legislative Decree No. 728. The Government states that, with regard to the alleged threat to employment stability, section 29(a) of Supreme Decree No. 003-97-TR (single text of Legislative Decree No. 728, the Act respecting labour productivity and competitivity) stipulates expressly that a dismissal motivated by membership of a trade union or participation in union activities is null and void. Trade union members, whether or not they hold union office, need not feel threatened by dismissal on those grounds. The law in question provides two options to a worker whose claim is upheld. The first is reinstatement, and the second is compensation for arbitrary dismissal amounting to one-and-a-half times the worker's monthly wages for each completed year of service, up to a maximum total sum of 12 times the worker's monthly wages. As regards the statements made by Nazario Arellano Choque, General Secretary of the Single Trade Union of Workers of Electrosur Este Cuzco and regional General Secretary (south-east region) of the federation, the Government states that the statements in question refer to the reduction in the membership of the Single Trade Union of Workers of the Machupicchu Power Plant SUTEM (of EGEMSA) to 17 following the appointment of five trade union members to positions of trust. The Government states that the complainant considered that this was intended to bring about the de?registration of the trade union, given that under the terms of section 14 of Legislative Decree No. 25593 the continued existence of a trade union depends on it having at least 20 members; however, the trade union here is focusing narrowly on a supposed attempt to bring about cancellation of its registration and disregarding the potential benefits to the workers concerned of their new appointments.
6. 846. As regards the allegation concerning the dismissal by the Electrosur Este SA enterprise of Adriel Crispín Villafuerte Collado, the Government states that the official letter, No. 571?98, dated 25 November 1998 that was sent by the company's head of administration and finance accused the General Secretary of the Single Trade Union of Workers of Electrosur Este SA Puno of serious misconduct of the type referred to in section 25 of Supreme Decree No. 003-97-TR (single text of Legislative Decree No. 728). In December 1998, the company dismissed the worker in question for failure to comply with technical standards, unfair competition, misappropriation and giving false information to the employer. The Government states that the protection given by legislation to workers, whether trade union officials or not, was clear and effective. Allegations of harassment are being investigated by the courts which, under the political Constitution, are autonomous. It is thus the judicial branch that will determine whether or not the dismissal was justified, and if it was not, the worker's claims will be upheld and he will be reinstated.
7. 847. As regards the dismissal of the trade union official, Walter Linares Sanz, the Government states that the official letter of the Supreme Court's Interim Division of Constitutional and Social Law (No. 066 of 16 June 2000), this case, No. 581-99, was to be heard on 10 July 2000 and the outcome of the hearing will be communicated as soon as the court's ruling is available.
8. 848. As regards the allegation that resignation from the Single Trade Union of Light and Power Workers of Ucayali SA was made a condition of obtaining an open-ended contract of employment, the Government states that the complainant has failed to support this assertion with evidence and that resignation from the union is a matter for the workers to decide, in accordance with section 3 of Act No. 25593 (the Collective Labour Relations Act). Similarly, under section 4 of that Act, the State, employers and the representatives of both are required to refrain from committing any acts limiting, restricting or impairing in any way the workers' right to organize, and from interfering in any way in the establishment, administration or maintenance of the trade union organizations set up by the workers. If the complainant provides evidence to support its assertion, the employer will be liable to legal action for violation of Act No. 25593 (the Collective Labour Relations Act), which is itself based on the constitutionally recognized right to freedom of association (article 28 of the political Constitution).
9. 849. With regard to the alleged transfers to workplaces other than those indicated in the contracts of employment of workers belonging to the Single Trade Union of Light and Power Workers of Ucayali SA, the Government states that it requires supporting evidence from the complainant to ensure that effective use is made of the protective mechanism established under section 30 of Act No. 25593 (the Collective Labour Relations Act), which, among other guarantees of trade union immunity, states that certain workers may not be dismissed or transferred to other establishments of the same enterprise without just cause being duly demonstrated or without the workers' consent, the purpose of this being to safeguard the exercise of their trade union rights. The Government also points out that, if the alleged transfer of workers to another establishment is shown to have taken place, then under the terms of section 30 of the single text of the Act respecting labour productivity and competitivity, approved by Supreme Decree No. 003-97-TR, such transfers could be regarded as acts of harassment against the workers concerned. As can be seen, the aforementioned provisions are intended as effective sanctions for any act of anti-union discrimination by the employer which threatens the collective rights of workers. However, the effective enforcement of those rights requires that evidence be provided in support of the complainant's allegations, and it is on the basis of such evidence that the employer may be liable to sanctions imposed by the courts.

D. The Committee's conclusions

1. 850. The Committee notes that the allegations that had remained pending in the present case refer to numerous cases of anti-union discrimination and interference dating from 1997 in the enterprises Electro Ucayali SA, Electro Centro SA, Electricidad de Oriente SA and Electro Sur Este SA (Puno subregion). In this regard, the Committee notes that the complainant has presented new allegations of anti-union discrimination (dismissals and threats of dismissal), attempts to obstruct collective bargaining and cancellation of trade union registration in a number of companies in the electricity sector; some of these companies were mentioned in the allegations presented in the original complaint.
2. 851. First, the Committee notes with deep concern the large number of allegations concerning anti-union discrimination in enterprises in the country's electricity sector, even after this complaint was originally presented.
3. 852. With regard to the allegations which had remained pending during the previous examination of the case, and which had concerned the following various acts of anti-union discrimination and interference against the Ucayali SA branch of the Light and Power Workers' Union, calculated to eliminate trade union activity, including obstruction of collective bargaining, anti-union dismissals, coercion and threats against workers belonging to the Electro Ucayali SA trade union branch:
4. (1) hostility towards and obstruction of trade union activity, interference in the internal affairs of the abovementioned union, intimidation of union officials and hinting at the creation of another trade union organization to evade their obligations under prior collective agreements;
5. (2) the collective dismissal of 19 unionized workers and coercion by the Ucayali SA enterprise of workers to give up their union membership, threatening to include them in the collective dismissal if they refuse (as a result, recognition of the trade union was cancelled as the number of members was reduced to fewer than 20, the legal minimum);
6. (3) unfair dismissal of trade union officer Mr. Jaime Tuesta Linares by the Eastern Regional Public Electricity Supply Company;
7. (4) a systematic campaign of threatened dismissal and harassment against trade union officers and unionized workers in the Electro Sur Este SA enterprise, which has caused serious problems for the workers' union branch in Electro Sur Este Abancay; specifically: (i) trade union officer Mr. Moisés Zegarra Ancalla was transferred; and (ii) the Electro Sur Este SA enterprise (Puno subregion) threatened trade union officer Mr. Adriel Villafuerte Collado with dismissal and suspended him for 30 days without pay;
8. (5) threats of sanctions and dismissals against trade union officers at the Tacna and district branch of the Light and Power Workers' Union by the Electro Sur SA Company, which considered that the trade union officers were guilty of serious misconduct for not having dropped their action to enforce a court order in favour of the workers concerning salary increments due to 111 workers [see 313th Report, para. 164],
   • the Committee deeply regrets that, once again, the Government has communicated only its observations concerning the first two allegations, and reiterates its previous comments, i.e. that the complainant had not provided evidence to support its allegations, and that there exist legal provisions and judicial proceedings that the latter had not used. Furthermore, the Government states that the complainant has not made the inquiries requested from it. Under these circumstances, the Committee urges the Government to take immediate measures to begin investigations into all these allegations, which go back more than three years, and to keep the Committee informed of the outcome of those investigations. The Committee requests the Government, in the event that the allegations are found to be true, to take steps to rectify the acts of discrimination that have been committed and to punish those responsible for them. In this regard, the Committee recalls that: "No person should be dismissed or prejudiced in his or her employment by reason of trade union membership or legitimate trade union activities, and it is important to forbid and penalize in practice all acts of anti-union discrimination in respect of employment" [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 696]. Under these circumstances, the Committee requests the Government to ensure that this principle is fully respected by enterprises in the electricity sector.
9. 853. As regards the allegation regarding the dismissal on 11 December 1998 of the General Secretary of the Single Trade Union of Workers of Electro Sur Este SA Puno, Mr. Adriel Grispin Villafuerte Collado, the Committee notes that the Government and the complainant have given contradictory accounts. While the Government maintains that the company dismissed the worker in question for failure to comply with technical standards, unfair competition, misappropriation and giving false information to the employer, the complainant alleges that he was dismissed for being a trade union official and for participating in legitimate trade union activities. In this regard, the Committee notes that both parties indicate that the union official in question has begun legal proceedings in relation to his dismissal. Under these circumstances, the Committee hopes that the judicial authorities will rapidly hand down their decision and that this decision will be in full conformity with the principles of freedom of association. The Committee urges the Government, if this decision concludes that there have been acts of anti-union discrimination, to take the necessary measures to ensure that the trade union official is reinstated in his post. The Committee requests the Government to keep it informed in this regard and of the final ruling handed down by the courts.
10. 854. With regard to the allegation concerning the suspension of trade union allowances owed to the trade union official, Mr. Guillermo Barrueta Gómez, by the Elecro Sur Este SA enterprise, the Committee notes the Government's statements to the effect that: (1) the allowances in question were legally recognized by the Supreme Court of Justice on 5 July 1999, but that the entitlements of the official in question were recognized only in respect of trade union allowances payable up to 30 August 1995; (2) the right of the trade union official in question to apply to the labour court for an order enforcing the Supreme Court ruling is legally protected; and (3) information is awaited on the implementation of the ruling. In this regard, the Committee notes the allegation of the complainant that the Supreme Court ordered payment of the trade union allowances in question from 1992 until the present, but that the Cuzco labour court ordered the payment only of those allowances that were owed up to 30 August 1995. Under those circumstances, the Committee regrets the delay in the payment of the allowances owed to Mr. Guillermo Barrueta Gómez for eight years, and requests the Government to ensure full compliance with the court ruling ordering payment of those allowances.
11. 855. With regard to the alleged dismissal of the trade union official, Mr. Guillermo Barrueta Gómez, by the Electro Sur Este SA enterprise on 9 September 1999, the Committee notes that the accounts given by the Government and by the complainant concerning the motives for the dismissal contradict one another. According to the Government, the official in question was dismissed for signing a circular containing accusations which were detrimental to the honour and good name of company officials and the company's public image; the complainant alleges that he was dismissed for putting forward demands and opinions consistent with his trade union mandate. Under the circumstances, the Committee requests the Government to take steps to undertake an investigation with the purpose of ascertaining the real motives for the dismissal of the trade union official in question and, in the event that it is confirmed that the dismissal was of an anti-union nature, to reinstate Mr. Barrueta Gómez in his post. The Committee requests the Government to keep it informed of the final outcome of that inquiry.
12. 856. With regard to Emergency Decree No. 011 and Ministerial Decision No. 075-99-EF of 1 April 1999, which have been challenged by the complainant on the grounds that they violate the right to collective bargaining by making collective agreements subject to the approval of the Office for State Institutions and Bodies (OIOE), the Committee notes that this allegation is already being examined in the context of another complaint presented against the Government of Peru (Case No. 2049). Under these circumstances, the Committee refers to its conclusions and recommendations in that case.
13. 857. With regard to the alleged anti-union campaign which is said to have been launched by companies in the electricity sector at the start of the 1999-2000 round of collective talks, a campaign which involved the de-registration of trade unions with fewer than the minimum required number of 20 members (the complainant gives the names of four trade unions whose registration was cancelled in this way), the Committee notes the Government's statements to the effect that: (1) under the terms of the Collective Labour Relations Act, de-registration takes place when trade union organizations no longer meet one of the basic requirements for their establishment and continued existence, and that in the case of company trade unions, they must have at least 20 members; (2) where it is found that this requirement is no longer met, the company in question applies to the labour authority in accordance with the law and the labour authority is required to verify that the conditions for de-registration are met; and (3) it flatly denies the allegation concerning a campaign by the administrative authorities to put the trade unions out of action. In this regard, the Committee draws the Government's attention to the fact that "The administrative dissolution of trade union organizations constitutes a clear violation of Article 4 of Convention No. 87" and that "Cancellation of a trade union's registration should only be possible through judicial channels" [see Digest, op. cit., paras. 665 and 670]. In this context, noting that the complainant has been alleging within the context of this case since 1997 that there has been a campaign of anti-union harassment and of anti-union dismissals in companies in the electricity sector, the Committee cannot rule out the possibility that the membership of trade unions whose registration has been cancelled has declined as a consequence of those actions. Under these circumstances, the Committee requests the Government to take steps to ensure that decisions to cancel the registration of all the trade union organizations referred to by the complainant are suspended until such time as a court ruling is given. The Committee requests the Government to keep it informed of any measures adopted in this regard.
14. 858. With regard to the allegation of threats made by the administration of the Electro Sur Este SA enterprise during the 1999-2000 collective talks to cut staff - mainly unionized workers - if workers did not accept the company's offer of a productivity bonus, the Committee notes the Government's statements to the effect that the allegations are mere speculation and that legal provisions are available to provide protection to trade union officials and workers who are dismissed for anti-union reasons. In this respect, taking into account that within the context of this case there have already been allegations concerning anti-union transfers and dismissals at the company in question, the Committee requests the Government to take steps to undertake an immediate investigation into the allegations and, if they are found to be true, to apply the sanctions provided for in the law.
15. 859. With regard to the allegation concerning threats against the General Secretary of the Single Trade Union of Workers of Electro Sur Este Cuzco, Mr. Nazario Arellano Choque, (which referred to an accusation of libel following statements made in La República concerning the reduction in membership of the Single Trade Union of Workers of the Machupicchu Power Plant to 17 members following the appointment of five unionized workers to positions of trust with the aim of cancelling the union's registration), the Committee notes with regret that the Government confines itself to stating that the complainant has sought to focus on an alleged intention to cancel the union's registration rather than on the potential advantages to the workers concerned of their new appointments. In this respect, noting that the Government acknowledges that the statement made by the trade union official in question drew attention to the reduction in a trade union's membership, which is a part of legitimate trade union activity, the Committee requests the Government to ensure that Mr. Nazario Arellano Choque does not face legal proceedings for having made such a statement. Similarly, the Committee requests the Government to ensure that the registration of the Single Trade Union of Workers of the Machupicchu Power Plant is not cancelled by administrative authority because of the fall in the union's membership as a result of the appointment of five of the union members to positions of trust, and recalls that an excessively broad interpretation of the concept of "worker of confidence", which denies such workers their right of association, may seriously limit trade union rights [see Digest, op. cit., para. 233].
16. 860. With regard to the proceedings now under way concerning the dismissal of the trade union official, Mr. Walter Linares Sanz, from the Electro Sur SA enterprise, the Committee notes that the case was referred to the Supreme Court on 10 July 2000 and that as soon as the outcome of that hearing is known it will be communicated to the Committee. In this regard, the Committee hopes that the judicial authorities will give a ruling in the near future, and urges the Government to keep it informed of any ruling handed down.

The Committee's recommendations

1. 861. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) Noting with deep concern the large number of allegations of anti-union discrimination in the country's electricity sector, the Committee recalls that no person should be dismissed or prejudiced in his or her employment by reason of trade union membership or legitimate trade union activities, and it is important to forbid and penalize in practice all acts of anti-union discrimination in respect of employment; the Committee requests the Government to ensure that this principle is fully respected by the enterprises in the electricity sector.
   • (b) As regards the allegations that had remained pending at the previous examination of the case in March 1999 and was set out in the foregoing conclusions, the Committee urges the Government to take immediate steps to conduct investigations into all the allegations which go back more than three years and to keep it informed of the outcome of those investigations. The Committee requests the Government, if the allegations are found to be true, to take measures to rectify the acts of discrimination that have been committed and punish those responsible.
   • (c) As concerns the dismissal of the trade union official Mr. Adriel Grispin Villafuerte Collado at the Electro Sur Este SA Puno enterprise, the Committee hopes that the judicial authorities will rapidly hand down their decision and that this decision will be in full conformity with the principles of freedom of association. The Committee urges the Government, if this decision concludes that there have been acts of anti-union discrimination, to take the necessary measures to ensure that the trade union official is reinstated in his post. The Committee requests the Government to keep it informed in this regard and to keep it informed of the final ruling handed down by the judicial authority.
   • (d) The Committee requests the Government to ensure full compliance with the law by ordering the payment of the trade union allowances owed to the union official Mr. Guillermo Barrueta Gómez.
   • (e) The Committee requests the Government to take the necessary measures to ensure that an investigation is carried out into the motives for the dismissal of the trade union official Mr. Barrueta Gómez and, if they are found to have an anti-union character, to reinstate him in his post. The Committee requests the Government to keep it informed of the outcome of this investigation.
   • (f) The Committee requests the Government to take steps to ensure that the decisions to cancel the registration of all the trade union organizations mentioned by the complainant are suspended until the courts give a ruling on the matter. The Committee requests the Government to keep it informed of any measures adopted in this regard.
   • (g) The Committee requests the Government to ensure that Mr. Nazario Arellano Choque does not face legal proceedings as a result of statements that he made concerning the reduction in the membership of the Single Trade Union of Workers of the Machupicchu Power Plant. Similarly, the Committee requests the Government to ensure that the registration of the trade union in question is not cancelled by the administrative authority as a result of the fall in its membership following the appointment of five of its members to positions of trust.
   • (h) With regard to the allegation of threats by the administration of the Electro Sur Este SA enterprise during the 1999-2000 round of collective talks to dismiss workers - mainly unionized workers - if they did not accept the company's offer of a productivity bonus, the Committee requests the Government to take steps to undertake an investigation into this matter and, if the allegation is found to be true, to ensure that the sanctions provided for in the law be applied.
   • (i) The Committee expresses the hope that the judicial authorities will give a ruling in the near future on the dismissal of the trade union official Mr. Walter Linares Sanz, and requests the Government to keep it informed of the final ruling.