Report in which the committee requests to be kept informed of development - Report No 364, June 2012

Case No 2898 (Peru) - Complaint date: 08-AUG-11 - Closed

Allegations: Discriminatory rules under the current system for artists’ unions to authorize, in exchange for the corresponding payment, performances by foreign artists

1. 897. The complaint is contained in a communication from the Peruvian Union of Bullfighting Professionals and Artists (SIPAT–PERU) dated 8 August 2011.
2. 898. The Government sent its observations in communications dated 1 December 2011 and 24 February 2012.
3. 899. 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. 900. In its communication dated 8 August 2011, the SIPAT–PERU, registered in 2010, alleges that according to a report by the director of the Ministry of Labour’s Bureau for Labour Policy and Regulations dated 27 October 2010, only trade union organizations on the list contained in Ministerial Decision No. 053-91-TR are entitled to issue “inter-union passes” (which authorize, in exchange for the corresponding payment, foreign artists to perform on national territory) for activities associated with bullfighting, thus favouring certain trade union organizations simply because they were established earlier.
2. 901. According to the allegations, the list of trade union organizations established in 1991 is not a true reflection of reality in 2011: of the seven trade unions on the 1991 list, two no longer exist, and as the complainant trade union, registered in 2010, is not on the list it cannot issue inter-union passes.
3. 902. The complainant organization alleges that this situation constitutes discriminatory treatment against it by the authorities vis-à-vis the other two trade unions that operate in the bullfighting sector, both of which are authorized to issue inter-union passes.

B. The Government’s reply

1. 903. In its communications dated 1 December 2011 and 24 February 2012, the Government states that inter-union passes are a concept recognized in article 29 of Act No. 28131, the Performers Act, for trade unions made up of artists involved in the speciality or genre in which the foreign artist specializes. Article 16 of the implementing regulation of this Act, approved by way of Supreme Decree No. 058-2004-PCM, establishes that these passes must be issued in conformity with the provisions of the Ministry of Labour and Employment Promotion. Following on from this, Ministerial Decision No. 053-91-TR remains applicable and sets out in article 1 the trade union organizations that are authorized to issue inter-union passes. In order to comply with the right to organize, Act No. 28131, the Performers Act (article 29), must be applied with a degree of flexibility to allow trade union organizations to participate on an equal footing in the granting of inter-union passes.
2. 904. The Government adds that the need has now been recognized to replace Ministerial Decision No. 053-91-TR with a more efficient system as follows:
   • ■ in addition to currently registered trade unions, unions covering the same speciality or artistic genre that are subsequently established in accordance with the law should also be included;
   • ■ the trade union organization that will issue the inter-union pass will be the one that represents the most artists involved in the speciality or genre practised by the foreign artist; where there is a divergence between two or more trade union organizations, the administrative labour authority will determine the majority union, on the basis of the following criteria:
     • – when the divergence relates to two trade union organizations, the majority union will be considered to be the one that represents the absolute majority of artists involved in the speciality or genre practised by the foreign artist. Where there is no absolute majority, the majority union will be considered to be the one that represents the highest number of artists involved in the speciality or genre practised by the foreign artist;
     • – when the divergence relates to more than two trade union organizations, the majority union will be considered to be the one that represents the highest number of artists in the speciality or genre practised by the foreign artist.
3. 905. The Government states that the current system for issuing inter-union passes does not violate freedom of association, given that Ministerial Decision No. 053-91-TR – which is what is under discussion – is not a case of the State intervening to affect the normal running of trade union activities, but rather, on the contrary, was originally intended to recognize the most representative organizations by speciality or artistic genre, in order to promote and/or encourage voluntary association in order to establish strong and united trade union organizations.
4. 906. Lastly, the Government notes that on the basis of the above information the complaint is unfounded.

C. The Committee’s conclusions

1. 907. The Committee observes that in the present complaint, the complainant union alleges that according to the current system only trade union organizations on the list contained in Ministerial Decision No. 053-91-TR of 1991 are entitled to issue “inter-union passes” (which authorize, in exchange for the corresponding payment, foreign artists to perform on national territory) for activities associated with bullfighting, thus favouring certain trade union organizations simply because they were established earlier.
2. 908. The complainant organization specifies that the 1991 list of trade union organizations is not a true reflection of reality in 2011: for example, two of the seven trade unions on the list no longer exist, and the complainant trade union, registered in 2010 (in other words after the 1991 list was drawn up), cannot issue inter-union passes, which implies discrimination vis-à-vis the other two trade unions of bullfighting artists contained in the 1991 list.
3. 909. The Committee notes the Government’s acknowledgement that article 1 of Ministerial Decision No. 053-91-TR of 1991 establishes the trade union organizations that are authorized to issue inter-union passes and indicates that in order to comply with the right to organize Act No. 28131, the Performers Act (article 29), must be applied with a degree of flexibility to allow trade union organizations to participate on an equal footing in the granting of inter-union passes. The Committee also notes the Government’s statement that the need has been recognized to replace Ministerial Decision No. 053-91-TR with a more efficient system as follows:
   • ■ in addition to currently registered trade unions, unions covering the same speciality or artistic genre that are subsequently established in accordance with the law should also be included;
   • ■ the trade union organization that will issue the inter-union pass will be the one that represents the most artists involved in the speciality or genre practised by the foreign artist; where there is a divergence between two or more trade union organizations, the administrative labour authority will determine the majority union, on the basis of the following criteria:
     • – when the divergence relates to two trade union organizations, the majority union will be considered to be the one that represents the absolute majority of artists involved in the speciality or genre practised by the foreign artist. Where there is no absolute majority, the majority union will be considered to be the one that represents the highest number of artists in the speciality or genre practised by the foreign artist;
     • – when the divergence relates to more than two trade union organizations, the majority union will be considered to be the one that represents the highest number of artists involved in the speciality or genre practised by the foreign artist.
4. 910. The Committee concludes that the changes that the Government says are needed in the system may solve the specific problem of discrimination affecting the complainant trade union vis-à-vis two other trade unions with respect to the issuing of inter-union passes. Nevertheless, observing that the changes planned for the system would only grant inter union passes to trade union organizations that already have them, as well as to the most representative trade union, the Committee wishes to draw the Government’s attention to the following principle [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 346]:
   • The Committee has pointed out on several occasions, and particularly during discussion on the draft of the right to organize and collective bargaining Convention, that the International Labour Conference referred to the question of the representative character of trade unions, and, to a certain extent, it agreed to the distinction that is sometimes made between the various unions concerned according to how representative they are. Article 3, paragraph 5, of the Constitution of the ILO includes the concept of “most representative” organizations. Accordingly, the Committee felt that the mere fact that the law of a country draws a distinction between the most representative trade union organizations and other trade union organizations is not in itself a matter for criticism. Such a distinction, however, should not result in the most representative organizations being granted privileges extending beyond that of priority in representation, on the ground of their having the largest membership, for such purposes as collective bargaining or consultation by governments, or for the purpose of nominating delegates to international bodies. In other words, this distinction should not have the effect of depriving trade union organizations that are not recognized as being among the most representative of the essential means for defending the occupational interests of their members, for organizing their administration and activities and formulating their programmes, as provided for in Convention No. 87.
5. 911. Consequently, the Committee firmly expects that in accordance with the principles above, the changes planned for the concession system for inter-union passes will be introduced soon and will allow trade union organizations in the bullfighting sector, without distinction whatsoever, to issue inter-union passes. The Committee requests the Government to keep it informed of developments.

The Committee’s recommendations

1. 912. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee firmly expects that the changes that the Government considers necessary for the concession system for “inter-union passes” in the bullfighting sector will be introduced soon and in accordance with the principles enounced in the conclusions, so that trade union organizations in the bullfighting sector, without distinction whatsoever, can issue inter-union passes.
   • (b) The Committee requests the Government to keep it informed of developments.