Report in which the committee requests to be kept informed of development - Report No 323, November 2000

Case No 2059 (Peru) - Complaint date: 30-SEP-99 - Closed

Allegations: Dismissals and anti-union practices

1. 457. The complaint is contained in a communication of the Federation of Employees of Banco Continental (CFEBC) dated 30 September 1999. The Government sent its observations in a communication dated 4 August 2000.
2. 458. 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. The complainant's allegations

1. 459. In its communication dated 30 September 1999, the Federation of Employees of Banco Continental (CFEBC) alleges that Banco Continental has been pursuing an anti-union policy, carrying out intimidation against unionized workers to pressure them to leave the trade union and discourage new members from joining it. It states the following in support of its allegation:
2. - the trade union had had more than 1,200 members; as a result of a programme of economic incentives for voluntary resignation (with dismissal as the only alternative) stimulated by the Government through the Act respecting privatization (which began in the bank in 1993), membership was reduced by 50 per cent. The current number of members is 170;
3. - the bank has been pursuing a policy of intimidating staff by hiring young persons under the Youth Training Programme laid down in the Employment Promotion Act, who work in exploitative and dehumanizing conditions that are contrary to human dignity, and who are warned that they run a risk if they join the trade union;
4. - Banco Continental's anti-union policy is reflected in anti-union discrimination in awarding promotions or salary increases virtually exclusively to non-unionized workers or using raises to encourage workers to leave the trade union. It is also reflected in the use of restructuring and the introduction of new systems or technologies as a pretext to move large numbers of workers to new offices and workstations, where they are obliged to perform work they had never done before;
5. - the bank has launched an intimidation campaign, compelling workers to sign a letter of voluntary resignation, primarily targeted at unionized workers;
6. - as an act of anti-union discrimination, Mr. Juan Manuel Oliveros Martínez (candidate for press and information secretary of the trade union) and Mr. Jorge Mercado Puente de la Vega (secretary for internal affairs, minutes and external affairs) have been dismissed on account of their trade union office.
7. 460. As regards Mr. Juan Manuel Oliveros Martínez, the complainant points out that this occurred when the worker ran for trade union office on the "Trade Union Unity" list for the period 1998-2000. Despite the fact that section 29(b) of Presidential Decree No. 003-97-TR and section 46(a) of the regulations made under it, Presidential Decree No. 001-96-TR, prescribe a period of protection against dismissal for workers who are duly registered as candidates for election as workers' representatives (30 days before and 30 days after the election of trade union executives), Banco Continental dismissed him without giving any reason for the dismissal, during the period in which he was protected according to the principle of freedom of association, after he had been ordered by a representative of the bank to withdraw his candidature; after his dismissal he was elected as press and information secretary. He brought a suit for nullity against his dismissal, but the court of first instance ruled that his suit was unfounded and an appeal is now pending before the Second Labour Court of Lima.
8. 461. As regards trade union officer Mr. Jorge Mercado Puente de la Vega, the complainant states that he was invited by the head of industrial relations at the bank to tender his "voluntary resignation" because the bank had decided to make him redundant on the grounds that they needed to bring in younger staff. As he refused to resign, he was dismissed without being given the reason for the dismissal. He has brought a suit for nullity against the dismissal, in which a ruling has not yet been handed down by the court of first instance.
9. B. The Government's reply
10. 462. In its communication of 4 August 2000, the Government states that the fact that the complainant organization had 1,200 members at one time and its membership has now been reduced by 50 per cent is not due to an anti-labour policy on the part of the State. A worker who decided to opt for voluntary resignation or to accept a package of incentives would be covered by the grounds for termination of the contract of employment laid down in section 16(b) of the consolidated text of Legislative Decree No. 728 respecting productivity and competitiveness, approved by Presidential Decree No. 003-97-TR. Opting to accept an incentive package terminates the contract of employment and this decision taken by the worker, in which the State does not intervene, implies that it is also the worker's intention to terminate the relationship with the trade union. Hence it is incorrect to assert that the State of Peru does not respect freedom of association, since termination of the relationship is the worker's wish and takes place according to his or her decision, and this act on the part of the worker cannot be described as infringing his or her freedom of association. In any case, the worker is authorized by law to contest in the courts any act by the employer that is prejudicial to his or her rights. Hence the assertion that the State of Peru is engaged in an alleged anti-labour or anti-union policy, reflected in economic incentive programmes, is entirely unfounded.
11. 463. The Government states further that it is incorrect to allege that there is a policy of intimidation against unionization of young persons who have concluded youth training agreements in support of the assertion of violation of Conventions Nos. 87 and 98 by the State of Peru, to the detriment of unionized workers' rights, since the legal status of these young persons is not that of a worker.
12. 464. The Government points out in this respect that national legislation provides for protective mechanisms against harassment perpetrated by the employer against any worker, prescribed by the consolidated text of Legislative Decree No. 728 respecting productivity and competitiveness, approved by Presidential Decree No. 003-07-TR. The purpose of the Youth Training Programme, however, is to provide young persons aged between 16 and 25 years with theoretical and practical knowledge at work so that they may take up an economic activity in a specific occupation. The consolidated text of Legislative Decree No. 728, the Job Training and Promotion Act, approved by Presidential Decree No. 002-97-TR, describes the objectives and formalities of the system but at no point does it give the young trainee the status of a worker. Hence the provisions on workers' labour relations laid down in Legislative Decree No. 25593 are not applicable to young persons in the Youth Training Programme.
13. 465. Concerning the allegation of anti-union discrimination with regard to the workers' economic status, reflected in the award of promotions virtually exclusively to non-unionized workers or using salary increases to encourage workers to leave the union, the Government states that a policy of this kind, expressed in specific cases, could be contested in court, which is in fact the normal procedure in comparative law legislation, for reviewing and judging acts by the employer. Competence for determining and judging anti-union discrimination does not lie with the Ministry of Labour and Social Welfare, but with the judicial branch, especially in the case of an act of harassment or an anti-union act. Where anti-union discrimination is found to have taken place, legislation provides for machinery to protect unionized workers. Thus, in the case of harassment, the worker may bring a suit to put a stop to the harassment, and if the suit is upheld the employer will be ordered to cease the harassment and pay a fine commensurate with the seriousness of the offence. Another option in this case would be to terminate the contract of employment, in which case the worker will demand payment of the compensation prescribed by law, irrespective of the fine or social benefits owing to him or her. Moreover, the Political Constitution of 1993 guarantees freedom of association in the following terms:
14. Article 28. "The State recognizes the rights of unionization, collective bargaining and strikes. To protect its democratic exercise, the State:
15. 1. guarantees trade union freedom;
16. 2. encourages collective bargaining and promotes the peaceful settlement of labour disputes. Collective agreements are binding on the contracting parties;
17. 3. regulates the right to strike so that it may be exercised in keeping with the national interest. The State determines exceptions and limitations to it."
18. 466. As regards the alleged anti-union discrimination by Banco Continental using the pretext of restructuring and introducing new systems or technologies to move large numbers of workers to new offices and workstations where they have to perform work that they had never done before, the Government points out that the Peruvian legal system also provides for protective mechanisms in situations of this kind. Legislative Decree No. 25593, the Industrial Relations Act, provides as follows:
19. Section 30. "Trade union immunity guarantees the right of certain workers not to be dismissed or transferred to other establishments of the same enterprise without just cause being duly demonstrated, or without the worker's consent. The worker's consent shall not be required if the transfer does not prevent the worker from performing trade union duties."
20. 467. It may be concluded from the above that trade union immunity provides substantial protection to trade union officers, and that in a case of alleged harassment in the form of unjustified transfer, they may institute proceedings before the jurisdictional body to demand that the employer cease the harassment, in accordance with section 4(2)(b) of Act No. 2663, the Labour Procedure Act:
21. Section 4. "Competence rationae materiae. Competence rationae materiae is determined by the nature of the claim and by the following provisions in particular:
22. (...)
23. 2. The labour courts are competent to examine individual or collective claims in legal disputes concerning:
24. (...)
25. (b) Cessation of harassment by an employer".
26. 468. As regards the allegation that the bank has been applying a programme of intimidation whereby workers are obliged to sign a letter of voluntary resignation, targeting mainly unionized workers, the Government states that if anti-union discrimination were taking place in Banco Continental, this would constitute a violation of the rights laid down in the legislation for unionized workers, for which judicial means of protection are laid down by the State, of which the trade union or complainant workers may avail themselves. Resignation is a voluntary act and cannot be imposed by the enterprise.
27. 469. As regards the allegation that, as an act of anti-union discrimination, Mr. Juan Manuel Oliveros Martínez and Mr. Jorge Mercado Puente de la Vega were dismissed on account of their trade union office, the Government points out that the consolidated text of Legislative Decree No. 728 respecting productivity and competitiveness, approved by Presidential Decree No. 003-97-TR, provides as follows:
28. Section 29. "A dismissal shall be null if it is motivated by: (a) membership in a trade union or participation in trade union activities (...)"
29. 470. If the worker was dismissed on account of his being a trade union member, he may bring an action before the judiciary as the competent body, and if it is upheld the worker has two options under section 34 of the same Act:
30. Section 34. "(...) In cases of null dismissal, if the worker's action is upheld he or she shall be reinstated, unless, in executing sentence, the worker opts for the compensation prescribed in section 38."
31. 471. In the two cases referred to by the complainant, both workers chose to take legal action as provided by law, and hence proceedings to nullify the dismissals are under way. The parties will have to abide by the court decision, as is the case of any domestic complaint.
32. 472. The Government concludes that the complaint of alleged violation of Conventions Nos. 87 and 98 does not provide sufficient evidence in support of these assertions and that the acts of discrimination referred to are cases covered by legislation, for which means of protection for the workers are in place. Moreover, the judicial proceedings instituted in the case of the two persons mentioned by the complainant effectively demonstrate the guarantee that exists to protect the rights of these workers, who in a situation of alleged infringement of their right of freedom of association availed themselves of the means of protection afforded by national legislation, and the present complaint was presented without awaiting the result of these proceedings.

C. The Committee's conclusions

1. 473. The Committee observes that in this case the complainant alleges that Banco Continental has pursued an anti-union policy reflected in various acts of discrimination or intimidation against workers and trade union officers, and in the dismissal of a candidate for trade union office (Mr. Juan Manuel Oliveros Martínez) and the dismissal of a trade union officer (Mr. Jorge Mercado Puente de la Vega).
2. 474. As regards the alleged anti-union campaign pursued by Banco Continental, the Committee observes that according to the complainant this policy is reflected in pressure brought to bear on unionized workers to leave the trade union, in the award of promotions or salary increases virtually exclusively to non-unionized workers, in anti-union transfers and in economic incentives to encourage workers - and unionized workers in particular - to resign from their jobs, with dismissal as the only alternative; all of this leading to a huge decrease in union membership. The Committee notes the Government's observations to the effect that: (1) the option to accept an incentive plan effectively terminates the contract of employment, but this decision is taken at the worker's will and moreover the law authorizes the worker to contest in the courts any act of the employer that is prejudicial to his or her rights; (2) if there has been a policy to award promotions or wage increases to non-unionized workers in specific cases, this could be contested in court; (3) trade union officers and other workers enjoying trade union immunity are protected by law against transfers and hence in such cases may take action before the courts; (4) legislation provides for judicial means of protection for workers compelled to sign a letter of voluntary resignation. In this respect, while the Committee notes the Government's statements to the effect that the complainant has not provided effective evidence in support of its assertions, and observes in this respect that the complainant has not provided the names of the persons who have been prejudiced in their rights, nor has it indicated whether the persons concerned have lodged administrative or judicial appeals, the Committee has to emphasize the seriousness of these allegations and the fact that, according to the complainant, the membership of the complainant organization has dropped from 1,200 to 170. The Committee therefore requests the Government to carry out, as a matter of urgency, an inquiry into these acts of anti-union discrimination and intimidation and to keep it informed in this respect.
3. 475. As regards the allegations concerning the young persons holding youth training contracts, the Committee observes that, according to the Government, the legislation does not deem them to be workers and they are not covered by the provisions concerning workers' industrial relations. The Committee would refer to the conclusions it formulated on this issue (see 304th Report, Case No. 1796, para. 464):
   • In this respect, the Committee draws the Government's attention to the fact that "under the terms of Article 2 of Convention No. 87 ratified by Peru, all workers - with the sole exception of members of the armed forces and police - should have the right to establish and to join organizations of their own choosing. The criterion for determining the persons covered by that right, therefore, is not based on the existence of an employment relationship, which is often non-existent, for example in the case of agricultural workers, self-employed workers in general or those who practice liberal professions, who should nevertheless enjoy the right to organize" (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 235). In the view of the Committee, persons hired under training agreements should also have the right to organize. The Committee therefore requests the Government to take the necessary steps so as to guarantee this right to the workers concerned both in law and in practice. Furthermore, the Committee requests the Government to ensure that the employment conditions of these workers are covered by the collective agreements in force in the enterprises where they are employed.
4. 476. Lastly, concerning the dismissal of a candidate to trade union office (Mr. Juan Manuel Oliveros Martínez) and the dismissal of a trade union officer (Mr. Jorge Mercado Puente de la Vega), the Committee notes that, according to the Government, the legislation provides that a dismissal is null if it is motivated by membership in a trade union or participation in trade union activities, and that both of these persons have chosen to nullify their dismissals. In this respect, the Committee notes that both proceedings have not been concluded, despite the fact that this complaint is dated 30 September 1999. In previous cases, the Committee has drawn attention to the fact that "cases concerning anti-union discrimination contrary to Convention No. 98 should be examined rapidly, so that the necessary remedies can be really effective. An excessive delay in processing cases of anti-union discrimination, and in particular a lengthy delay in concluding the proceedings concerning the reinstatement of the trade union leaders dismissed by the enterprise, constitute a denial of justice and therefore a denial of trade union rights of the persons concerned" (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 749). The Committee notes that the proceedings concerning the dismissal of the trade unionists, Mr. Juan Manuel Oliveros Martínez and Mr. Jorge Mercado Puente de la Vega, have already taken 14 months. Given that the procedure concerning allegations of anti-union discrimination should be rapid, the Committee requests the judicial authorities, in order to avoid a denial of justice, to pronounce on the dismissals without delay and stresses that any further undue delay in the proceedings could in itself justify the reinstatement of these persons in their posts. The Committee requests the Government to keep it informed in this respect.

The Committee's recommendations

1. 477. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government to carry out, as a matter of urgency, an inquiry into the alleged anti-union discrimination and intimidation perpetrated in the Banco Continental, and in particular into the allegations concerning pressure brought to bear on unionized workers to leave their union, the award of promotions or salary increases virtually exclusively to non-unionized workers, anti-union transfers, and economic incentives for workers - and unionized workers in particular - to resign from their employment, with dismissal as the only alternative. The Committee requests the Government to keep it informed in this respect.
   • (b) Considering that persons hired under training agreements should also have the right to organize, the Committee requests the Government to take the necessary steps so as to guarantee this right to the workers concerned both in law and in practice. Furthermore, the Committee requests the Government to ensure that the employment conditions of these workers are covered by the collective agreements in force in the enterprises where they are employed.
   • (c) The Committee notes that the proceedings concerning the dismissal of Messrs. Juan Manuel Oliveros Martínez and Jorge Mercado Puente de la Vega have already taken 14 months. The Committee, therefore, requests the judicial authorities, in order to avoid a denial of justice, to pronounce on the dismissals without delay and stresses that any further undue delay in the proceedings could in itself justify the reinstatement of these persons in their posts.