Report in which the committee requests to be kept informed of development - Report No 327, March 2002

Case No 2098 (Peru) - Complaint date: 14-AUG-00 - Closed

Allegations: Dismissal of a trade union official, request for the cancellation of the registration of a trade union and refusal to bargain collectively, non-observance of a collective agreement

1. 738. The Committee examined this case at its June 2001 meeting and presented an interim report [see 325th Report, paras. 524-546, approved by the Governing Body at its 281st Session (June 2001)].
2. 739. The Graphics Federation of Peru (FGP) submitted allegations in a communication dated 11 May 2001. The General Confederation of Workers of Peru (CGTP) submitted new allegations in communications dated 12 and 25 June 2001.
3. 740. The Government sent its observations in communications dated 23 July, 31 August, 3 September and 3 October 2001 and 28 January 2002.
4. 741. 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. 742. At its June 2001 meeting, the Committee made the following recommendations on the allegations that remained pending [see 325th Report, para. 546]:
   • The Committee requests the Government to keep it informed about the ruling handed down by the Supreme Court concerning the dismissal of the trade union official, Mr. Amílcar Zelada.
   • The Committee requests the Government to take measures to amend the legislation with a view to reducing the minimum number of workers established by law to constitute non-enterprise trade unions, and urges the Government not to cancel the registration of the Trade Union of Ticket Sellers and Ushers in Cinematographic Enterprises and clearly to recognize the right to collective bargaining of this trade union with cinematographic enterprises, at least on behalf of its members. The Committee requests the Government to keep it informed in this regard.
   • The Committee requests the Government to provide its observations concerning the recent communications of the CGTP, dated 23 and 27 April 2001.
2. 743. In its communication dated 23 April 2001, the CGTP alleges that, under the protection of Legislative Decree No. 854, the Minera Milpo SA enterprise has amended the rules for working hours and the working day (14 consecutive days of 12 hours each followed by seven consecutive days of rest) in violation of the provisions of the collective agreement, which provides for an eight-hour day and a 48-hour week with Sundays off.
3. 744. In its communication dated 27 April 2001, the CGTP alleges that the Editora El Comercio, Compan~ía Peruana de Radiodifusión del Perú and Empresas Cinematográficas del Perú companies have directly requested the Ministry of Labour to cancel the registration of their enterprise trade unions (Single Trade Union of Workers of the Editora El Comercio Enterprise and the Union of Workers of the Broadcasting Corporation) on the basis that they have supposedly ceased to fulfil one of the conditions for their existence and that the Ministry has processed these applications [the Graphics Federation of Peru supported the CGTP’s complaint in a communication dated 11 May 2001].

B. The complainants' new allegations

1. 745. In its communication dated 12 June 2001, the CGTP alleges that the Agroindustrial San Jacinto SA enterprise dismissed Mr. Timoteo Hipólito Luna Melgarejo, Secretary-General of the enterprise’s Single Trade Union of Workers, on 10 March 2001 because of his position in the trade union. In addition, it alleges that the Agroindustrial Laredo SA enterprise dismissed the Secretary-General and seven leaders of the enterprise’s Single Trade Union of Workers (Dionisio Cruz Ramos, Pablo Rojas Valderrama, Maximaliano Perez Fernandez, José Alfaro Alvarado, Jesús Castillo Reyes, William Cruz Prada and Henri Mendoza Ramirez) in March 2001 because of their positions in the trade union.
2. 746. In its communication dated 25 July 2001, the CGTP alleges the dismissal of Mr. Carlos Alberto Paico and Mr. Alfredo Guillermo de la Cruz Barrientos (members of the Board of the Trade Union of Workers of the Industrial Nuevo Mundo Company) and that of the union members (and former leaders) Mr. Alfonso Terrones Rojas and Mr. Zósimo Riveros Villa.

C. The Government's reply

1. 747. In its communications dated 23 July, 31 August, 3 September and 3 October 2001 and 28 January 2002, the Government states that, according to the Minera Milpo SA company, no international labour standards have been violated and the implementation of the atypical accumulative working shifts was conducted in accordance with Peruvian labour legislation and the ILO Conventions ratified by Peru. It also states that the atypical accumulative working shifts complies with the voluntary agreements signed at the individual level with workers within the framework of the constitutional and legal standards and those contained in the Conventions, since at the time of implementation of the current working hours there was no collective agreement in existence between the company and the workers.
2. 748. The company adds that the atypical working shifts of 14 actual days of work, with a ten-hour working day and seven days’ rest is in compliance with the Constitution, the legislation and the Conventions, since it corresponds to productive working hours and complies proportionally with the maximum working time permitted under the labour legislation in force; hence, it does not represent a violation of freedom of association.
3. 749. The Government, after detailing the constitutional and legal norms relating to working hours and the norms contained in the collective agreement dated 10 July 2001 (which entered into force on 28 October 2000 and remained in force until 27 October 2001), explained its position on the problem described by the trade union. It stated that there was a problem with the interpretation of the relevant clauses of the collective agreement and that in its view the issue should be resolved through the judiciary if the party that considered itself injured so wished. The basic issue should be the subject of a special judicial review to provide an appropriate solution. The relevant clauses of the collective agreement are as follows:
4. 1. 1 Productivity
   • The parties agree that they shall continue to make every effort to increase productivity, which will assist the company’s survival and hence preserve our source of work, making it competitive domestically and internationally. The company shall for its part continue and maintain efforts to improve: working conditions, technology, staff training and worker motivation.
5. 1. 2 The working day
   • In order to facilitate the above-mentioned increase in productivity, the parties reaffirm that the working day shall consist of eight hours, in accordance with the established schedules and the relevant legal norms. The parties also agree that the working day shall be used productively.
6. 750. With regard to the dismissals at the Industrial Nuevo Mundo Company, the Government states that the individual labour contracts were concluded under Decree No. 728 (Productivity and Labour Competitiveness Act) for purely administrative and production reasons. The Government refers extensively to legal provisions, including penalties, that protect against discrimination (including on the inadmissibility of dismissal based on trade union membership or activities and the procedures and remedies available, which can lead to reinstatement), the measures adopted to strengthen the judiciary and the new general act on labour inspection and the defence of workers. The Government takes the view that, given the existence of the abovementioned labour legislation and its applicability to the case in point, and given that the dismissals are being contested before the Peruvian judiciary, it should be possible to resolve the problem this way. Even if this is not a usual remedy under ILO procedures, the Government considers that the judiciary could provide an adequate solution to the problem.
7. 751. In connection with the dismissals at the Agroindustrial Laredo SA (seven trade union leaders) and Agroindustrial San Jacinto enterprises (one union leader), the Government states that these dismissals were challenged in the courts and the Minister of Labour cannot intervene. The Government indicates that it will keep the Committee informed of the relevant judgements and recalls that Supreme Decree No. 003-97-TR offers protection against anti-union discrimination since it nullifies all dismissals due to trade union membership or activities. The Agroindustrial San Jacinto SA enterprise stated that the trade union leader Timoteo Hipolito Luna Melgarejo was dismissed by virtue of section 25(f) of Legislative Decree No. 728 (according to the enterprise, this leader had written a letter containing serious accusations against the majority shareholders and the company directors, using disrespectful and offensive expressions). On the other hand, the Government sent the text of a judgement ordering the reinstatement in his job of the trade union leader of the Agroindustrial Laredo SA enterprise, Dionisio Cruz Ramos.
8. 752. As regards the allegations concerning the employers’ request that the Ministry of Labour cancel the registration of their respective trade unions, the Government states that article 14 of Legislative Decree No. 25593 on Collective Labour Relations provides that trade unions, in order to be established and remain in existence, must have at least 20 members if they are enterprise trade unions or 100 if they are another type of trade union. Under article 24 of the same Act, endorsed by Supreme Decree No. 011-92 TR, any physical or legal person with a legitimate interest may ask the administrative authority on labour to cancel a union’s registration if it no longer satisfies the necessary criteria. Article 4 of the Act stipulates that the State, the employers and their representatives shall refrain from any acts liable to obstruct, restrict or impair in any way workers’ right to organize and interfere in any way in the establishment, administration or maintenance of trade unions created by workers. According to the allegations, it appears the employer did not have the authority under article 24 to request cancellation of the registration of the trade union established by its own workers.
9. 753. The Government takes the view that such a criterion is incorrect in the sense that it should not be regarded as interference when the employer seeks to verify the conditions that form the basis of the union’s capacity to act as representative of the workers. It should be remembered that the union’s capacity to act as a legitimate participant in collective bargaining and all other acts of representation is based on its meeting the requirements established by law. Hence, the employer’s request that a trade union’s registration be cancelled cannot be regarded as an act of interference, since the employer has a legitimate interest in the existence of the trade union that was registered initially.
10. 754. Article 20 of Legislative Decree No. 25593 stipulates that the labour authorities may only cancel a registration in the case of dissolution, amalgamation or takeover, or where one of the legal requirements for establishment or continued existence is no longer met. The Act states that it is for the labour authorities to determine, through the appropriate departments, whether the trade union has ceased to meet one of those requirements and registration should consequently be cancelled.
11. 755. Moreover, the executive authority has submitted to Congress a draft amendment to Legislative Decree No. 25593 incorporating the Committee on Freedom of Association’s observation to the effect that the registration of trade unions may be cancelled only on the basis of a relevant resolution by the judiciary. Until the draft amendment is approved by the legislative authority, the labour authority finds itself obliged to cancel the registration of trade unions that have ceased to meet one of the conditions for establishment or continued existence if it receives a communication from any person with a legitimate interest in requesting the aforementioned cancellation.

C. The Committee's conclusions

1. 756. The Committee notes that in this case the complainant organizations allege anti-union dismissals, the non-observance of a collective agreement and the processing of requests for the cancellation of trade unions’ registration.
2. 757. As regards the alleged dismissals, the Committee notes that the Government has not informed it of the ruling handed down concerning the dismissal of the trade union official Mr. Amílcar Zelada and asks the Government to promptly keep it informed of developments. As regards the dismissal of the trade union leaders Mr. Timoteo Hipólito Luna Melgarejo, of the trade union of the Agroindustrial San Jacinto SA enterprise, the Secretary-General and seven leaders of the Single Trade Union of Workers of the Agroindustrial Laredo SA enterprise, the Committee notes the Government’s indication that the union leader Dionisio Cruz Ramos (Agroindustrial Laredo SA enterprise) has benefited from a judicial order for reinstatement in his job. It further notes that the Government will keep it informed of the judgements to be handed down in respect of the dismissals of the other trade union leaders. As concerns the dismissals of Mr. Carlos Alberto Paico and Mr. Alfredo Guillermo de la Cruz Barrientos (members of the board of the Trade Union of Workers of the Industrial Nuevo Mundo Company) and that of the union members and former leaders Mr. Alfonso Terrones Rojas and Mr. Zósimo Riveros Villa, the Committee regrets that the Government refers in general terms, without going into detail, to administrative and production issues in the case of the dismissals at the Industrial Nuevo Mundo Company and merely points to the legal provisions that provide protection from anti-union discrimination (nullifying anti-union dismissals) and the procedures and remedies available, in addition to stating that the challenge to the dismissals should be brought before the judiciary. The Committee draws the Government’s attention to the fact that "no person shall be prejudiced in his employment by reason of his trade union membership or legitimate trade union activities, whether past or present" and that "protection against anti-union discrimination applies equally to trade unions members and former trade union officials as to current trade union leaders" [Digest of decisions and principles of the Freedom of Association Committee, 1996, paras. 690 and 691]. Additionally, "respect for the principles of freedom of association clearly requires that workers who consider that they have been prejudiced because of their trade union activities should have access to means of redress which are expeditious, inexpensive and fully impartial" [Digest, op. cit., para. 741]. The Committee requests the Government to investigate without delay the dismissals and, if it finds that the persons in question were indeed dismissed because of their trade union activities, take measures to ensure their reinstatement in their posts. The Committee requests the Government to keep it informed of the development of all legal proceedings connected with the dismissals.
3. 758. As regards the allegation of non-compliance with the clauses on the working day contained in the collective agreement concluded between the Minera Milpo SA company and its workers, the Committee took note of the company’s observations and those of the Government to the effect that there was a problem with the interpretation of the relevant clauses of the collective agreement and that the basic issue should be the subject of a special judicial review to provide an appropriate solution. In response to the company’s argument that voluntary agreements were concluded on an individual basis with the workers when there was no collective agreement yet in force, the Committee emphasized that, under the Collective Agreements Recommendation, 1951 (No. 91), Paragraph 3(2), "stipulations in such contracts of employment which are contrary to a collective agreement should be regarded as null and void and automatically replaced by the corresponding stipulations of the collective agreement". Noting that the collective agreement states expressly that the working day shall consist of eight hours, the Committee requests the Government to ensure the effective implementation of the provisions on the working day contained in the collective agreement of the Minera Milpo SA company.
4. 759. As regards the allegations concerning the employers’ request to the Ministry of Labour to cancel the registration of the Single Trade Union of Workers of the Editora El Comercio Enterprise and the Union of Workers of the Broadcasting Corporation, the Committee notes that the Government contends that an application by an employer for the cancellation of trade union registration where the trade union no longer has the minimum legal number of workers cannot be considered as an act of interference since the employer has a legitimate interest in the issue of the union’s ceasing to meet one of the requirements (minimum legal number of members) for its continued existence. The Committee notes that, according to the Government, the executive authority has submitted to Congress a draft amendment to Legislative Decree No. 25593 incorporating the Committee on Freedom of Association’s observation to the effect that the registration of trade unions may be cancelled only on the basis of a relevant resolution by the judiciary. The Committee draws the Government’s attention to Article 4 of Convention No. 87, according to which "workers’ and employers’ organizations shall not be liable to be dissolved or suspended by administrative authority", and emphasizes that the cancellation of a trade union’s registration, in the alleged cases, is equivalent to its dissolution by administrative authority. In these circumstances, the Committee urges the Government not to cancel the registration of the Single Trade Union of Workers of the Editora El Comercio Enterprise and the Union of Workers of the Broadcasting Corporation. The Committee once again urges the Government, in accordance with the recommendation made at the previous meeting, not to cancel the registration of the Trade Union of Ticket Sellers and Ushers in Cinematographic Enterprises.
5. 760. In the absence of observations on one of the recommendations made at the previous examination of the case, the Committee repeats its previous observation on the need for the Government to take measures to amend the legislation with a view to reducing the minimum number of workers required by law to constitute non-enterprise trade unions.

The Committee's recommendations

1. 761. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee once again requests the Government to promptly keep it informed of the ruling handed down concerning the dismissal of the trade union official Mr. Amílcar Zelada.
   • (b) As regards the dismissal of the trade union leaders Mr. Timoteo Hipólito Luna Melgarejo (of the trade union of the Agroindustrial San Jacinto SA enterprise), the Secretary-General and seven leaders of the Single Trade Union of Workers of the Agroindustrial Laredo SA enterprise, the Committee notes the Government’s indication that the union leader Dionisio Cruz Ramos (Agroindustrial Laredo SA enterprise) has benefited from a judicial order for reinstatement in his job and that it will keep the Committee informed of the judgements to be handed down in respect of the dismissals of the other trade union leaders. As concerns the dismissals of Mr. Carlos Alberto Paico and Mr. Alfredo Guillermo de la Cruz Barrientos (members of the Board of the Trade Union of Workers of the Industrial Nuevo Mundo Company) and that of the union members and former leaders Mr. Alfonso Terrones Rojas and Mr. Zósimo Riveros Villa, the Committee requests the Government to investigate without delay the dismissals and, if it finds that the persons in question were indeed dismissed because of their trade union activities, take measures to ensure their reinstatement in their posts. The Committee requests the Government to keep it informed of the development of all legal proceedings connected with the dismissals.
   • (c) As regards the allegation of non-compliance with the clauses on the working day contained in the collective agreement concluded between the Minera Milpo SA company and its workers, the Committee requests the Government to ensure the effective implementation of the provisions on the working day contained in the collective agreement of the Minera Milpo SA company.
   • (d) The Committee urges the Government not to cancel the registration of the Single Trade Union of Workers of the Editora El Comercio Enterprise and the Union of Workers of the Broadcasting Corporation. The Committee once again urges the Government, in accordance with the recommendation made at the previous meeting, not to cancel the registration of the Trade Union of Ticket Sellers and Ushers in Cinematographic Enterprises.
   • (e) The Committee repeats its previous observation on the need for the Government to take measures to amend the legislation with a view to reducing the minimum number of workers required by law to constitute non-enterprise trade unions.