Effect given to the recommendations of the committee and the Governing Body - Report No 349, March 2008

Case No 2386 (Peru) - Complaint date: 25-AUG-04 - Closed

Effect given to the recommendations of the Committee and the Governing Body

1. 216. The Committee last examined this case at its March 2007 meeting [see 344th Report, paras 170–173], at which it regretted that despite the time that had elapsed, the Government had not sent the information requested in connection with the following recommendations:
   • (a) The Committee requests the Government to promote collective bargaining with the Unified Trade Union of Electricity Workers of Lima and Callao (SUTREL) in the Edelnor S.A.A. enterprise and to keep it informed of the outcome of the appeal lodged against the arbitral award which confirmed the validity of the collective agreement concluded with the non-unionized workers in the enterprise.
   • (b) The Committee requests the Government, if it is found that the workers of the Cam–Peru S.R.L. enterprise are affiliated to SUTREL and that this is the most representative trade union, to take measures to promote collective bargaining between this trade union and Cam–Peru S.R.L. Moreover, the Committee requests the Government to keep it informed of the outcome of the proceedings for protection of constitutional rights (amparo) initiated by SUTREL against the decision of the administrative authority which found that the enterprise’s refusal to engage in collective bargaining was justified.
   • (c) The Committee requests the Government to ensure that Cam–Peru S.R.L. deducts trade union dues as ordered by the judicial authority. As regards the failure to deduct trade union dues by Edelnor S.A.A., the Committee requests the Government to provide a copy of any ruling handed down in this regard, and to guarantee respect for the principle that the withdrawal of the check-off facility, which could lead to financial difficulties for trade union organizations, is not conducive to the development of harmonious industrial relations and should therefore be avoided. The Committee requests the Government to keep it informed of developments in both enterprises.
   • (d) The Committee urges the Government to carry out an inquiry concerning the payment of a bonus to workers for withdrawing from SUTREL and, if the complainants’ allegations are confirmed, to take the necessary measures to remedy the anti-union practices observed and their consequences. The Committee requests the Government to keep it informed of the results of this inquiry.
   • (e) As regards the alleged threats by Edelnor S.A.A. to restrict the activity of the SUTREL trade union branch with regard to the distribution of its newspaper, the Committee reminds the Government of the resolution concerning trade union rights and their relation to civil liberties, adopted by the International Labour Conference in 1970, which defines freedom of opinion and of expression, among others, as essential for the normal exercise of trade union rights. The Committee requests the Government to investigate the matter and, if necessary, to take the necessary measures to ensure that these rights are guaranteed.
   • (f) Lastly, recalling that trade union leave should not be unreasonably denied and that this matter is regulated by Peruvian legislation, the Committee requests the Government to ensure compliance with the legislation on this subject and to keep it informed of developments in this regard.
2. 217. Furthermore, the Committee requested the Government to send its observations concerning the comments submitted by the Unified Trade Union of Electricity Workers of Lima and Callao (SUTREL) in its communication dated 21 September 2006. Specifically, SUTREL alleges that the Compañía Americana de Multiservicios Peru SRL (Cam–Peru) enterprise is refusing to: (1) comply with the ruling of the Supreme Court of Justice of 20 January 2006 ordering recognition of the right of workers to join SUTREL, recognition of their trade union leaders and respect for the right to bargain collectively; (2) comply with the Subdirectorate Decision of 14 July 2005 and Directorate Decision No. 07-2006-MTPE/2/12.2 of 9 January 2006, issued by the administrative labour authority, which found that Cam–Peru’s opposition to the list of claims for the period 1 January to 31 December 2005 was unfounded; (3) respond to the call from the labour authority to participate in conciliation in relation to collective bargaining in the context of case No. 122384-2004-DRTPEL-DPSC-SDNC; (4) submit to arbitration for the settlement of the 2005 list of claims, thereby giving rise to a serious labour dispute, which could have unforeseen consequences; (5) recognize the right of members of SUTREL to engage in collective bargaining, by opposing the submission of the list of claims for the period 1 January to 31 December 2006, despite the fact that its position was held to be unfounded by the first-level labour authority in a decision of 23 June 2006; (6) deduct the extraordinary trade union dues, as duly requested by the trade union by notarized letters dated 13 March and 3 July 2006, in accordance with the agreement adopted by the assemblies of the SUTREL workers; and (7) receive and attend to communications sent by SUTREL drawing its attention to labour, social, economic, cultural and/or safety issues as they arise, therefore forcing SUTREL to send such communications through a notary.
3. 218. The Committee notes the communication dated 22 March 2007 from the General Confederation of Workers of Peru (CGTP) reiterating the allegations made by SUTREL, in particular those relating to the refusal of Cam–Peru to engage in collective bargaining.
4. 219. In a communication dated 12 March 2007, the Government points out with regard to CamPeru that it was indicated by means of official letter No. 976-2006-MTPE/9.1 that the reply from the 12th Civil Court in Lima was still pending concerning the outcome of the amparo appeal initiated by SUTREL against the Cam–Peru. By means of official letter No. 2003-28131-0-0100-J-CI-12, the assigned judge of the 12th Civil Court of Lima (High Court of Lima) stated that ruling No. 8 of 19 May 2004 handed down by that court set aside the amparo appeal and that a ruling of 26 August 2005 of the First High Civil Chamber of Lima upheld the original ruling, as a result of which ruling No. 11 ordered that the proceedings be discontinued.
5. 220. In a communication dated 27 October 2007, the Government states that through an official letter dated 10 May 2007 it drew the attention of Edelnor SAA to the 338th Report of the Committee, approved by the Governing Body at its 294th Session (Geneva, November 2005) and containing the Committee’s examination of Case No. 2386 in paragraphs 12291256, and referred to the recommendations contained in paragraph 1257. By means of a communication dated 23 May 2007, in which it refers to the recommendation to promote collective bargaining with SUTREL in the enterprise, the enterprise submitted a copy of the collective agreement dated 21 March 2005 which was concluded with SUTREL and is valid until 31 December 2008. According to the enterprise, this document disproves the statement concerning the refusal of the enterprise to engage in collective bargaining with SUTREL. With regard to the Committee’s request to be kept informed of the outcome of the legal proceedings initiated in connection with the arbitral award which confirmed the validity of the collective agreement concluded with the non-unionized workers in the enterprise, the enterprise points out that there may have been a mistake as this collective agreement was never challenged, and the legal proceedings referred to in the Committee’s report actually relate to the appeal against the arbitral award lodged by SUTREL before the judicial authority by means of the administrative appeal under case No. 038-2004, which was declared unfounded in the first instance and upheld in the second instance, as can be seen, according to the enterprise, from the accompanying documents.
6. 221. The Government affirms that it is also important to highlight the statement in its report by the Regional Directorate of Labour and Employment Promotion in Lima-Callao in relation to this case: namely, that no summons was issued against Edelnor SAA in any of the legal proceedings instituted by the bargaining commission of the trade union branch of workers of Cam–Peru SRL and SUTREL. An analysis of the aforementioned report shows that the successive lists of claims presented by the complainant trade unions have one thing in common: they were rejected by the administrative labour authority, since the objection lodged by Cam–Peru was found to be justified in all cases except the one corresponding to the list of claims from 2005. In the latter case, an unnumbered subdirectorate decision dated 14 July 2005, upheld by Directorate Decision No. 07-2006-MTPE/2/12.2 dated 9 January 2006, declared the objection lodged by Cam–Peru SRL unfounded, and therefore the collective bargaining called for by the negotiating commission of the trade union branch of workers of Cam–Peru SRL of SUTREL was found to be justified, and Cam–Peru was ordered to engage in collective bargaining. In this regard it should be pointed out that arrangements were made on 15 February 2006 to begin collective bargaining, in accordance with the Industrial Relations Act, approved by Supreme Decree No. 010-2003-TR and the regulations issued thereunder. A request was then made by the workers’ representatives that the employer be required to submit the collective bargaining process to arbitration. On 21 February 2007, the parties were instructed to continue the collective bargaining process, without prejudice to their right to submit the dispute to arbitration, in accordance with the provisions of section 61 of the single consolidated text of the Industrial Relations Act, approved by Supreme Decree No. 010-2003-TR. By means of appeal No. 055971-2007, Cam–Peru SRL stated its non-acceptance of the arbitration ordered by the Subdirectorate for Collective Bargaining on 9 March 2007. In this regard it should be pointed out that, as stated by Cam–Peru SRL in its communication of 15 May 2007, an administrative appeal was lodged in relation to this procedure, which is currently pending, and information on the outcome of this appeal will be submitted to the Committee as soon as it is available. Finally, with regard to the list of claims relating to 2006, which constitutes Case No. 213678-2005-DRTPEL-DPSC-SDNC, the decision of the Subdirectorate for Collective Bargaining dated 17 January 2007 found the objection lodged by Cam–Peru SRL in relation to the list of claims covering 1 January to 31 December 2006 to be justified. This decision is based mainly on the fact that, in response to the legal action instituted by the Unitary Trade Union of Workers of Electrolima, Electrical Concessionary and Related Enterprises (SUTEECEA), which relates directly to the matter covered by the objection lodged in so far as it principally concerns the recognition of trade union representation, the judicial authority found, in order to resolve the proceedings, that Cam–Peru SRL does not carry out individualized activities in the water, gas and/or energy fields, but instead complementary activities, as a result of which the enterprise could not be deemed to be carrying out work mainly in the electrical field. The ruling issued by the administrative labour authority also refers to paragraph 5.3 of section 5 of the General Administrative Procedure Act, which provides that, in specific cases, the purpose or content of the Administrative Act may not contradict, inter alia, final court orders. Furthermore, section 204 of this Act provides that Acts which have been upheld by a final court order, inter alia, shall under no circumstances be open to revision by the administrative authorities. This ruling was upheld by subdirectorate decision No. 020-2007-MTPE/2/12.2 of 26 March 2007, which ordered that the proceedings be discontinued. The Government indicates that file No. 293989-2007 MTPE/2/12.210 on the list of claims filed by SUTREL for the period 2008 is under review and was rejected by the Cam–Peru SRL company on the basis that the trade union cannot represent its workers given that they belong to a branch of activity other than the electricity sector. It also indicates that on 30 November 2005 a collective agreement was reached for the period 1 January 2006 to 31 December 2009. The Government indicates that according to the trade union the company belongs to the electricity sector as indicated by the Supreme Court in its decision of 20 January 2006. The trade union also presented a list of claims to the Edelnor SAA company but the latter opposed it. The trade union indicates that through Deed No. 31344-2008, the Edelnor SAA company ceded its activities relative to electricity to Cam–Peru SRL. The file in question is pending for decision. The Committee notes this information and requests the Government to take the necessary measures to promote collective bargaining between SUTREL and Cam–Peru.
7. 222. The Government points out that arrangements have been made for inspection activities to verify the request made by the Committee on Freedom of Association with regard to: ensuring that Cam–Peru SRL is deducting trade union dues as ordered by the judicial authority; the failure by Edelnor SAA to deduct trade union dues and the payment of a bonus to workers who withdraw from SUTREL; and the alleged threats by Edelnor SAA to restrict the activity of the trade union branch of SUTREL with regard to the distribution of its newspaper. The Government states that considering the severe difficulties which have arisen following the earthquake which affected the normal performance of the duties of the institution, these inspection activities have suffered some delay. Currently, inspections are being carried out in Edelnor SAA and Cam-Peru, based on inspection orders Nos 5555 and 5557 respectively. In the case of Edelnor SAA, violations of social and labour laws have been found. It remains now to issue the report. With regard to Cam–Peru, according to the latest information, the investigation is under way. The company has been ordered to present the relevant documents and the outcome will be communicated in due time. The Committee requests the Government to keep it informed of the outcome of the investigations conducted into these allegations.