Allegations: Anti-union practices by the company Shougang Hierro Peru SAA against
the majority trade union (the complainant), including acts of favouritism towards the
minority trade union, acts of discrimination and violations of the right to collective
bargaining
- 802. The complaint is contained in a communication from the General
Confederation of Workers of Peru (CGTP) and the Trade Union of Miners of Shougang Hierro
Peru and Others (SOMSHYA) dated 20 November 2013.
- 803. The Government sent its observations in a communication dated 14
April 2014.
- 804. Peru has ratified the Freedom of Association and Protection of the
Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective
Bargaining Convention, 1949 (No. 98), the Labour Relations (Public Service) Convention,
1978 (No. 151), and the Collective Bargaining Convention, 1981 (No. 154).
A. The complainants’ allegations
A. The complainants’ allegations- 805. In its communication dated 20 November 2013, the CGTP and SOMSHYA
explain that in terms of the company’s workforce, SOMSHYA is the most representative
trade union (the company has a total of 1,260 workers, of which 933 are trade union
members of SOMSHYA, which represents 74 per cent of workers).
- 806. However, the complainants state that the company has been carrying
out a series of acts intended to affect the functioning of the trade union, in line with
the findings of the Administrative Labour Authority in Report No. 67-2013 of 14 June
2013. These include, in particular, acts of interference in the establishment and
functioning of the minority trade union, the “Trade Union for the Integration of Workers
of Shougang Hierro Peru SAA”, by granting its members favours and advantages, such as
only offering and granting housing to them or scheduling them for overtime hours. These
acts of interference are contained in the Report of 30 April 2013, Inspection Order No.
083-2013-MTPE/2/16, of the Administrative Labour Authority. Furthermore, the company has
also been manipulating the functioning of the minority trade union by making the
recruitment of new workers contingent upon becoming members of that union. In addition,
the company signed a collective agreement with this trade union on 1 June 2013.
- 807. In contrast, the 2013–14 bargaining demands submitted by the most
representative, majority trade union have not, to date, been dealt with; it is the
company’s aim to make bargaining contingent upon the content of the collective agreement
of the minority trade union.
- 808. The complainants highlight that the Collective Labour Relations Act
(hereafter the Act) the single consolidated version of which was approved by Supreme
Decree No. 001-2003-TR, stipulates that the majority trade union is to represent the
workers for the purposes of negotiating collective agreements in the relevant field,
applicable to all workers whether they are trade union members or not, including workers
who are members of the minority trade union. Therefore, if negotiations are permitted
with the minority trade union, its members would receive benefits in addition to the
benefits of the majority trade union, thus harming the majority trade union with the aim
of undermining it and causing members to leave the union.
- 809. The complainants state that they are not calling into question the
trade union status bestowed on the minority trade union, nor by any means its capacity
legitimately to represent the interests of its members, but rather the fact that this
union organization does not have the bargaining capacity since it operates in the same
field as a more representative trade union. In this regard, the complainants state that
article 9, paragraph 1 of the single consolidated text of the Act establishes “in
matters of collective bargaining, the trade union with the absolute majority of members
amongst workers in its field assumes the representation of all these workers, even if
they are not members of the trade union”. Article 47 of the Act establishes: “(a) the
relevant trade union or, in its absence, the expressly elected representatives by an
absolute majority of workers are entitled to negotiate collectively on behalf of the
workers …”. Article 34 of the Regulations under the Collective Labour Relations Act
establishes:
- … in accordance with the provisions of
articles 9 and 47 of the Act, in matters of collective bargaining, representation of
all workers in a given field, with the exception of management and employees in
positions of trust, shall be carried out by the trade union whose members constitute
an absolute majority of the total number of workers in the relevant field. To this
end, ‘field’ is understood to mean the various levels of an undertaking or a
category, section or branch thereof; and the various levels of activity, trade union
and sector as referred to in article 5 of the Act. Where no trade union in the same
field has an absolute majority of workers therein, it shall represent only its
members …
- 810. The complainant organizations state that Violation Report No.
67-2013, resulting from Labour Inspection Order No. 00000101-2013-MTPE/2/16, reports a
series of acts contrary to the exercise of the right to freedom of association, which
include, based on the statement of the minority trade union leader, blatant unlawful
acts of interference in the establishment of the said trade union with the intention of
affecting the majority trade union most representative by making the renewal of the
contracts of minority trade union members easier, scheduling them to work overtime
shifts, giving them economic benefits and providing housing.
- 811. It is worth noting that, in the context of the inspections arising
from Inspection Order No. 00000101-2013-MTPE/2/16, the order issued to Shougang Hierro
Peru SAA of 11 June 2013 stated:
- First: the abovementioned
company must take the necessary steps to ensure compliance with the provisions in
force regarding freedom of association, which is understood, without prejudice to
the scope of the violation report, to mean that the company must refrain from acting
in such a way as to violate the freedom of association of the trade union leaders
and members of the Trade Union for Workers of Shougang Hierro Peru SAA and the Trade
Union of Miners of Shougang Hierro Peru and Others, as such acts interfere with
matters that are within the individual and collective preserve of members, by
promoting the establishment of trade union organizations and favouring the members
thereof by offering them better working conditions and guaranteeing the conclusion
and renewal of work contracts.
B. The Government’s reply
B. The Government’s reply- 812. In a communication of 14 April 2014, the Government provides a copy
of the comments and information from the company Shougang Hierro Peru SAA concerning the
complaint submitted by the CGTP and SOMSHYA.
- 813. The company states that it respects the right to freedom of
association as recognized under article 28 of the Constitution of Peru, whereby the
fundamental principle of freedom of association guarantees that all workers should enjoy
adequate protection against acts of anti-union discrimination in respect of their
employment, such as dismissal, demotion, transfer or other prejudicial measures.
- 814. With regard to Violation Report No. 67-2013 of 14 June 2013
mentioned by the complainant trade union which suggests imposing a fine of 40,700 nuevos
soles (PEN) for the violation of trade union rights, anti-union discrimination and the
infringement of collective bargaining rights, the company states that it has submitted
the relevant evidence for its defence, in relation to which administrative proceedings
are currently under way.
- 815. This process is provided for in the General Labour Inspection Act
(No. 28806). Article 45(c) stipulates that once the violation report has been issued,
the relevant party has 15 working days to submit the evidence for its defence which it
considers relevant. It is “the administrative labour authority that assesses the case in
the proceedings imposing sanctions, including the evidence put forward by the party
being inspected in order to establish whether the latter actually infringed social and
labour laws”, and, where this is the case, it imposes the appropriate fine in accordance
with the law. The company states that it denies the allegations made by the complainant
trade union, maintaining that it does not interfere, and never has, with the
establishment of any trade union, and much less threatened workers, forcing them to
withdraw from their trade union organization under duress. The defendant states that the
creation, establishment or formation of a trade union, whichever it may be, fall outside
its sphere of competence, interference or participation, since it obtains the relevant
status from the competent administrative labour authority by entry in the register.
Therefore, it respects the decision of workers to form the trade unions which they
believe to be relevant, especially with regard to minority trade unions which have
received trade union status from the labour authority, particularly bearing in mind that
Peruvian labour legislation covers the establishment of trade unions. The company
indicates that it has respected the workers’ rights.
- 816. With regard to the alleged acts of favouritism, the company states
that it did not persuade workers to leave their trade union in exchange for economic
benefits and housing, especially bearing in mind that article 3 of the single
consolidated text of the Act establishes that “membership is free and voluntary. The
employment of a worker cannot be made conditional upon membership, lack of membership or
resignation from membership, a worker cannot be obliged to join a trade union nor can he
be stopped from doing so”. Moreover, paragraph 4 of point 7 under the heading “verified
facts” in Violation Report No. 67-2013 states “… the statements are only indicia or
pieces of evidence and do not constitute conclusive proof”. Membership is granted to
workers by the trade union, and not the company.
- 817. With regard to the conclusion of the collective agreement with a
minority trade union, the Government reports that contrary to the complainants’ claims,
it is perfectly legal to conclude agreements with minority trade unions.
- 818. Article 9, paragraph 1, of the Act, referred to by the complainants
to support their argument, only establishes that, in terms of collective bargaining, the
majority trade union undertakes the representation of the entire workforce, regardless
of whether workers are members of the trade union organization. This is the only
prerogative recognized under the Peruvian legal system as a preferential right of the
majority trade union, since the scope of the rights cannot be extended beyond that which
is expressly provided for. This means that the regulation in question may not be relied
on to attempt to strengthen so-called exclusive bargaining, which certainly is not what
is provided for or even suggested in that legal provision.
- 819. Therefore, at the same time as strictly complying with the mandate
provided for in article 9, paragraph 1 by undertaking collective bargaining with the
majority trade union and implementing the agreements adopted with that trade union for
the benefit of all the workers in that field, there is nothing to prevent the employer –
if it sees fit – from establishing, on a voluntary basis, agreements with minority trade
unions, which will have a limited effect since they only affect the members of that
trade union.
- 820. The company states that it is fundamental to bear in mind that
freedom of association also involves respecting the principle of free and voluntary
membership and refraining from any act that obstructs or hinders the establishment or
activities of minority trade union organizations. Such obligations – applicable both to
the employer and other trade union organizations – derive from the provisions of article
3 of the Act, which states that “membership is free and voluntary. The employment of a
worker cannot be made conditional upon membership, lack of membership or resignation
from membership, a worker cannot be obliged to join a trade union nor can he be stopped
from doing so”.
- 821. According to the complainants, when agreements are concluded with
the minority trade union, additional benefits are granted to its members, thereby
unjustifiably differentiating between workers in the same field and category. In this
regard, the Government indicates that the benefits obtained by the minority trade union
are the result of a different bargaining process than that with the majority trade
union; each bargaining process is based on a set of factors that are not comparable such
as: different bargaining committees, different closing dates, different stages or
circumstances in which the agreement is concluded, a different overall duration of the
bargaining process, etc. This situation constitutes a reasonable and objective criterion
which justifies an eventual differentiation between the benefits obtained by the workers
who are members of one union or another, and which can, therefore, hardly be deemed to
be discrimination in the light of constitutional jurisprudence.
- 822. The Constitutional Court, in its ruling handed down in a different
case (No. 02974-2010-PA/TC of 24 October 2011), clarified that:
- … not all inequality is necessarily discrimination, since not all types of
differential treatment in the exercise of fundamental rights are banned; equality
will only be infringed where unequal treatment cannot be objectively and reasonably
justified (Álvarez Conde, E. curso de Derecho Constitucional [course of
Constitutional Law], Volume I., Madrid, Tecnos, 4th edition, 2003, pp. 324–325). The
application, therefore, of the principle of equality does not exclude unequal
treatment and that principle is not infringed when different treatment is
established, provided that it is based on objective and reasonable grounds. These
clarifications must go hand in hand with a proper understanding of the difference
between two constitutional law concepts, namely differentiation and discrimination.
It must be noted that, in principle, differentiation is permitted under the
Constitution, since not all unequal treatment is discriminatory. In other words,
differentiation is where unequal treatment is based on objective and reasonable
grounds …
- 823. However, despite being members of different trade unions, it must be
pointed out that in the present case, the benefits granted to the minority trade union
for the period 2013–14 under the agreement concluded on 1 June 2013 are in fact lower
than those obtained for the same period by the majority trade union (Regional
Directorate Decision No. 016/017-2013-GORE-ICA-DRTPE). This situation actually required
benefits to be brought into line with each other so that workers of the minority trade
union could access the greater benefits obtained by the majority trade union for the
workforce.
- 824. The complainants allege that the agreement concluded between
Shougang Hierro Peru SAA and the minority trade union is an attempt to breach the erga
omnes principle solely to undermine SOMSHYA by introducing unlawful differences between
workers. Nevertheless, none of the adverse and/or unlawful effects alleged by the
complainants have occurred since Shougang Hierro Peru SAA states that: (a) it has not
breached the principle of erga omnes as it extended to all the workers that fall within
that category of work benefits obtained by the majority trade union in the collective
bargaining agreement for 2013–14, strictly in line with article 9, paragraph 1 of the
Act; and (b) it has not in any way, differentiated between workers; it has aligned
benefits in such a way as to allow workers of the minority trade union to access the
greater benefits obtained by the majority trade union.
- 825. In light of the above, the Government requests the Committee to
declare the case closed.
C. The Committee’s conclusions
C. The Committee’s conclusions- 826. The Committee observes that the allegations made by the CGTP and
SOMSHYA refer to the following: (1) acts of favouritism by Shougang Hierro Peru SAA
towards the members of a minority trade union involving, for example, loans, housing and
overtime (to the detriment of SOMSHYA, the complainant organization); (2) the company
has made the recruitment of new workers contingent upon them becoming members of the
minority trade union; (3) the conclusion of a collective agreement with the minority
trade union (a fact which has also been noted by the labour inspectorate in March 2013)
despite the fact that legislation establishes the principle of erga omnes (that is,
applying the collective agreement reached with the majority trade union to the entire
workforce, regardless of whether they are trade union members). According to the
allegations, the above was intended to undermine the majority trade union (the
complainant organization) and cause workers to leave their trade union. The complainants
state, however, that they are not calling into question the legal status bestowed on the
minority trade union, but rather its bargaining capacity within an erga omnes system,
such as that of Peru. The complainant organizations underline that the labour
inspectorate suggested imposing a large fine on the company for infringement of trade
union rights.
- 827. The Committee notes that based on the statements provided by the
Government, the company denies the allegations of the complainant organizations and
indicates that administrative proceedings are under way regarding the violation report
of the labour inspectorate of June 2013. The Committee notes that the company denies
that it infringed trade union rights, that it interfered with the establishment of the
minority trade union or that it threatened workers, forcing them to resign from the
majority trade union. With regard to the latter point, the company refers to the labour
inspectorate’s conclusions regarding the lack of conclusive proof. The Committee notes
that the company denies all allegations of acts of favouritism (economic benefits,
housing, etc.) and underlines that the statements in the Violation Report are only
indicia or pieces of evidence and do not constitute conclusive proof. The Committee
notes, however, that the Violation Report of the labour inspectorate identifies acts of
discrimination against the members of the complainant trade union and acts of
favouritism towards members of the other trade union.
- 828. The Committee observes that the Government declares that, in
accordance with legislation and collective bargaining, it is lawful to conclude
collective agreements with minority trade unions, which affects their respective
members, and that this is compatible with the collective agreement with the majority
trade union which affects the entire workforce. The Committee notes that the Government
justifies the different types of specific benefits in the collective agreements with the
minority trade union on the basis of the different bargaining committees, closing dates,
duration of the bargaining process, etc. However, it states that the present complaint
refers to the collective agreement 2013–14, in which the minority trade union obtained
lower benefits than those obtained by the majority trade union. The Committee observes,
however, that the articles in the legislation provided by the complainant organization
only provide for collective bargaining rights of minority trade unions where no trade
union has an absolute majority of worker members. The Committee also notes the
observation made by the labour inspectorate concerning the fact that the conclusion of
an agreement with the minority trade union while an agreement was being concluded with
the complainant organization (that is, the majority trade union) was an anti-union
practice. The Committee wishes to highlight that while Convention No. 98 is compatible
both with systems that grant bargaining rights to the most representative organization
which affect the entire workforce erga omnes and systems which allow minority trade
unions to bargain on behalf of their members, in the former case it is not consistent
also to grant collective bargaining rights in the same field to minority trade unions
and, in practice, doing so may lead to anti-union practices.
- 829. The Committee regrets the excessive delay of the administrative
authorities which have still not concluded the administrative proceedings concerning the
violation report against the company and recalls that justice delayed is justice denied
[see Digest of decisions and principles of the Freedom of Association Committee, fifth
(revised) edition, 2006, para. 105].
- 830. Observing that the Violation Report of the labour inspectorate
(March 2013), finding that the complainant trade union’s rights were violated, suggested
imposing a fine on the company (PEN47,000) for “very serious infringements”, the
Committee requests the Government to keep it informed of the outcome of the relevant
administrative proceedings regarding the various anti-union practices alleged in the
present case and expects the proceedings will be concluded without further delay.
- 831. The Committee also expects that if the alleged acts of
discrimination and favouritism are confirmed by the labour inspectorate, the necessary
measures will be taken to remedy the situation.
The Committee’s recommendations
The Committee’s recommendations- 832. 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 keep it informed of the outcome of the relevant
administrative proceedings in the Violation Report regarding the various anti-union
practices alleged in the present case in order to have all the evidence at its
disposal, and regrets the excessive delay in resolving these proceedings and expects
them to be concluded without delay.
- (b) The Committee also expects that if
the alleged acts of discrimination and favouritism are confirmed by the labour
inspectorate, the necessary measures will be taken to remedy the
situation.
