Rapport définitif - Rapport No. 248, Mars 1987

Cas no 1367 (Pérou) - Date de la plainte: 21-MARS -86 - Clos

148. The complaint concerning Case No. 1363 appears in a communication from the Federation of Banking Employees of Peru dated 25 February 1986; this organisation sent additional information in a communication dated 10 March 1986.

1. 148. The complaint concerning Case No. 1363 appears in a communication from the Federation of Banking Employees of Peru dated 25 February 1986; this organisation sent additional information in a communication dated 10 March 1986.
2. 149. The complaint concerning Case No. 1367 appears in a communication from the Trade Union of Crew Members of the Humboldt Shipping Company SA dated 21 March 1986; this organisation sent additional information in a communication dated 15 May 1986.
3. 150. The Government replied in communications dated 7, 9, 23 and 27 October 1986.
4. 151. 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. A. The complainants' allegations

• Case No. 1363
  1. 1 Allegations of the complainant organisation
  152. 152 The Federation of Banking Employees of Peru alleges that section 1 of Supreme Decree 0107-85-PCM is an infringement of Convention No. 98 and the acquired rights of employees in state banks regarding hours of work and remuneration established by collective agreements in so far as it stipulates that with a view to stimulating the economic recovery of the country: From 1 January until 31 March 1986 the hours of work of employees in the public administration and workers in undertakings subject to public law, state undertakings subject to private law or mixed undertakings in which the State is the majority shareholder, irrespective of whether ownership is direct or indirect, will be from 7.45 a.m. to 3.45 p.m., including 30 minutes for lunch. Compliance with the provisions of the above paragraph does not entail an increase in the remuneration which is normally received by the official or the payment of overtime except in those cases when work is performed outside the hours of work established by this Decree.
  153. 153 The complainant organisation explains that the above-mentioned Supreme Decree extended without any additional remuneration the summertime (January, February, March) hours of work by 90 minutes, contrary to the provisions of collective agreements and legal texts in force for many years (which the complainant organisation annexes to its communication).
  154. 154 The complainant organisation submits a copy of the ruling of the Twenty-second Magistrate's Court of Lima dated 31 January 1986 which states that the Supreme Decree in question does not apply to the Federation of Banking Employees of Peru. One of the grounds given in support of the ruling is that article 87 of the Constitution prohibits "a Supreme Decree such as that in question (and which is of less importance) from modifying or revoking an Act or collective agreement, especially when the benefits enjoyed by the members of the plaintiff constitute acquired rights which therefore may not be rescinded, and the exercise and observance of which are guaranteed by the Contitution ...". This ruling was appealed by the Attorney-General of the Republic on 3 February 1986.
  2. 2 The Government's reply
  155. 155 The Government states that Supreme Decree No. 0107-85-PCM dated 28 December 1985 established the hours of work of officials in the public service and workers in undertakings subject to public law, state undertakings subject to private law and mixed undertakings in which the State is the majority shareholder (irrespective of whether ownership is direct or indirect) from 7.45 a.m. to 3.45 p.m. during the period between 1 January and 31 March 1986 and that the observance of this work schedule does not entail an increase in remuneration or the payment of overtime. The Federation of Banking Employees, lodged an appeal for protection (amparo) on 6 January 1986, alleging the nullity and lack of legal force of Supreme Decree No. 0107-85-PCM since it considered that it violated the Political Constitution of the State and the rights acquired by these workers through collective agreements.
  156. 156 The Government adds that the Attorney-General of the Republic responsible for judicial matters in the Office of the President of the Council of Ministers, in an appeal dated 17 January 1986, denied and refuted the allegation and requested that the claim be declared either unacceptable, contrary to law or without foundation. The Twenty-second Magistrate's Court of Lima, on 27 January 1986, issued a ruling in support of the request for protection and annullment of the application of Supreme Decree No. 0107-85-PCM made by the Federation of Banking Employees of Peru, thus re-establishing the status quo as it existed prior to the date of the Decree. The Attorney-General lodged an appeal against this ruling on 8 February 1986, which is still pending.
  157. 157 The Government states that it will forward the opinion of the Director-General of Labour Relations on this matter as well as the information requested from the Attorney-General of the Republic on the outcome of the appeal lodged. The Government states that the Supreme Decree in question remained in force for only three months (January, February, March 1986), as indicated in section 1. Case No. 1367 1. Allegations of the complainant organisation
  158. 158 The Trade Union of Crew Members of the Humboldt Shipping Company SA alleges that at the beginning of February 1986 the Government issued Supreme Decree No. 009-86-TR which amends Supreme Decree No. 006-71-TR regulating the collective bargaining procedure. The new Supreme Decree reduces from 20 to eight days the maximum duration of the conciliation stage which, furthermore, may be terminated automatically following the failure to appear by any of the parties following the first request to do so. This procedure makes it impossible to establish a satisfactory dialogue and a direct knowledge of the real economic situation and the actual capacity of employers to satisfy labour claims. The conciliation stage is followed automatically by one designed to "resolve the list of claims by the labour authority." The complainant organisation adds that a strike is declared illegal by the authorities when this stage is reached and it includes in the annex a copy of an administrative resolution dated 26 April 1986 which states that a strike is illegal if a matter is being resolved by the administrative authority.
  159. 159 The complainant organisation also alleges that previously, if negotiations had resulted in a collective agreement with the full approval of the parties or if a "solution" had been concluded with the labour authorities, a general wage increase was established along with two adjustment clauses (partial increases) to be applied at the end of the sixth and ninth months respectively during the annual period covered by the agreement. Following the publication of Supreme Decree No. 010-86-TR, from 1 January 1986 the second readjustment clause is eliminated thus leaving only one which is called the "additional renumeration increase" and which is fixed in accordance with the consumer price index (which is inaccurate in practice) and applied at the end of the sixth month during which the collective agreement or the authority's "solution" is in force. In this way workers are unable to recuperate their purchasing power.
  160. 160 The complainant organisation alleges that pursuant to subdirectoral resolution No. 069-86-ISD-NEC dated 24 February 1986 and directoral resolution No. 321-86-DR-LIM dated 6 March 1986, a leave of absence of 90 days for trade union purposes is granted to all leaders of the trade union whereas previously a permanent leave of absence for trade union purposes was granted to one or two leaders. The complainant organisation explains that it had reached an agreement with the undertaking, as can be seen from the conciliation document dated 22 November 1985, concerning the respect of rights and benefits established by the collective agreements previously signed between the Association of Shipowners of Peru and the Federation of Crew Members of Peru; this agreement recognised the above-mentioned permanent leave of absence which is especially important in the case of crew members since, if leaders are absent because they have been sent on a voyage by the undertaking, it becomes impossible for them to carry out their trade union activities given that they are not permitted to appoint representatives.
  161. 161 Finally, the complainant organisation refers to a series of matters which are not directly related to the application of Conventions Nos. 87 and 98. 2. The Government's reply
  162. 162 The Government states that Supreme Decree No. 09-86-TR dated 7 February 1986 made the following amendments to the collective bargaining procedure (Supreme Decree No. 006-71-TR):
       • - The period during which the Conciliation Board meets is reduced from 20 to eight days since, on the basis of existing statistics, very few lists of claims are settled at this stage.
       • - If either or both parties fail to attend the meeting of the Conciliation Board, the attempt at conciliation shall be deemed to be unsuccessful and their absence seen as a tacit expression of a lack of interest in resolving the dispute at this stage of the procedure. It is important to stress that at the first meeting of the Conciliation Board the employer is notified that he must within three days present the evidence required by the technical body of the sector for carrying out the economic and labour study. In this way the technical body can make an advance examination of the corresponding evidence on the basis of which the authority must take a subsequent decision.
       • - The period of the direct settlement and conciliation stages is reduced from ten to eight days and from ten to five days respectively. This provision has made it possible to reduce considerably the time required for the processing of claims and thus enable workers to enjoy at an early date the benefits resulting from collective bargaining.
  163. 163 As regards Supreme Decree No. 010-86-TR dated 7 February 1986, the Government states that this Decree established a new mechanism governing the increase of remuneration by collective agreement to come in force as from 1 January 1986 which may be agreed between employers and workers subject to the labour regulations governing the private sector. This "additional increment" is calculated on the basis of the cumulative variation in the consumer price index for metropolitan Lima during the first six months during which the collective agreement is in force. The consumer price index to be used is that established monthly by the National Institute of Statistics.
  164. 164 The Government adds that the purpose of the above-mentioned modification in the method of granting wage increases is to compensate during the period covered by the collective agreements for the loss in purchasing power of the wages as a result of inflation, thus protecting the workers and ensuring them greater advantages as compared with the previous system.

C. The Committee's conclusions

1. 165. As regards Case No. 1363, the Committee observes that the complainant organisation contested Supreme Decree No. 0107-85-PCM which provides for an increase of 90 minutes in the hours of work in state banks during the months of January, February, March of 1986. The complainant organisation considers that this Decree violates the provisions of Convention No. 98 and is contrary to the contents of collective agreements and the legal provisions in force for many years.
2. 166. The Committee hopes that the previous work schedule was a right acquired from collective agreements (not in force) and legal provisions, in pursuance of the constitutional principles establishing that the rights granted to workers may not be rescinded and that collective agreements have force of law, which in Peru would establish the right to maintain the working conditions acquired through a collective agreement even after it had expired.
3. 167. The Committee considers that it is for the judicial authority to determine whether the extension of the above-mentioned work schedule for three months is an infringement of the said constitutional principles. In this respect, the Committee takes notes of the fact that there has already been a legal ruling handed down by the Court of First Instance in favour of the complainant organisation.
4. 168. As regards Case No. 1367, the Committee observes that the complainant organisation essentially objects to certain provisions concerning collective bargaining contained in Supreme Decrees Nos. 009-86-TR and 010-86-TR dated 7 February 1986 and which are reproduced below: Supreme Decree No. 009-86-TR Section 13. If the parties are unable to conclude either by direct negotiation or in proceedings before a Conciliation Board a collective agreement as a result of which they no longer press any claim, a decision shall be taken on the claim by the labour administration authorities. Section 25. If either or both of the parties fail to attend the Conciliation Board hearing after having been duly notified, the attempt at conciliation shall be deemed unsuccessful and the matter shall be submitted to the technical body of the Ministry of Labour and Social Promotion for the carrying out of the respective studies. Section 26. If either or both of the parties fail to attend the Conciliation Board hearing at the second date fixed, the attempted conciliation shall be deemed unsuccessful and the conciliation officer shall submit a report on the matter to the higher authority accompanied by the evidence and statements deposited by the party which entered an appearance. Section 29. An official of the Ministry of Labour and Social Promotion designated by the governor's office for the zone or administrative area concerned shall be the chairman of the Conciliation Board. There shall be a maximum time-limit of eight days for the sitting of the Board. Supreme Decree No. 010-86-TR Section 1. In the collective agreements which come into force as from 1 January 1986, workers subject to the labour regulations applicable to the private sector may reach an agreement with their employers concerning the granting of an 'additional increment in remuneration'. If the parties cannot agree concerning the amount of 'additional increment', this will be established by the labour administration authority. The "additional increment" shall be calculated in accordance with the cumulative variation in the consumer price index for metropolitan Lima during the first six months of the period of the collective agreement. This increase will be paid at the end of the sixth month during which the collective agreement, administrative resolution, or arbitration award, as the case may be, is in force.
5. 169. The Committee considers that sections 25, 26 and 29 of Supreme Decree No. 009-86-TR, which reduce the conciliation period within the collective negotiation procedure to eight days and which stipulate that following the failure of either party to appear at the conciliation stage, the attempt at conciliation shall be deemed to be unsuccessful, are not contrary to Article 4 of Convention No. 98, since they are provisions of a technical nature designed, as can be seen from the statements of the Government, to facilitate and accelerate the negotiation procedure. The Committee observes, however, that Supreme Decree No. 009-86-TR and, in particular, section 13 establishes unilaterally a system of compulsory arbitration by the administrative authority following the failure of the negotiation and conciliation stages and which, according to the documentation provided by the complainant, in practice prevents the declaration or continuation of a strike. In this respect, the Committee would point out that provisions which establish that failing agreement between the parties the points at issue must be settled by arbitration by the labour authorities do not conform to the principle of voluntary negotiation contained in Article 4 of Convention No. 98 (See, for example, 116th Report, Case No. 541 (Argentina), para. 72). The Committee also points out that in as far as compulsory arbitration prevents the exercise of a strike, it is contrary to the right of trade union organisations to organise freely their activities and could only be justified in the public service or in essential services in the strict sense of the term (See, for example, 236th Report, Case No. 1140 (Colombia), para. 144).
6. 170. As regards section 1 of Supreme Decree No. 010-86-TR which provides for an "additional increment" in collective agreements (whereas previous legislation had made provision for two increments during the year) the Committee considers that without prejudice to the observations made in the previous paragraph, this section is not contrary to Article 4 of Convention No. 98.
7. 171. Finally, as regards the reduction of permanent leave of absence for trade union purposes of one or two trade union leaders to a leave of absence of 90 days for all trade union leaders, the Committee observes that the Government has not sent observations in this respect. In these circumstances, and noting that the above-mentioned reduction was issued by a resolution of the administrative authority when acting as arbitrator as pursuant to the legislation in the event that the parties do not reach an agreement in collective bargaining, and since this reduction implicitly contradicts the provisions established in the conciliation document dated 22 November 1985 concluded between the complainant organisation and the employer, the Committee deplores this interference by the authorities in collective bargaining especially if account is taken of the detriment of a reduction in leave of absence for trade union purposes which may result in such a special sector as that of ships' crews.

The Committee's recommendations

1. 172. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • a) Concerning Case No. 1363, the Committee takes notes of the fact that the Court of First Instance has handed down a decision declaring the inapplicability of the Supreme Decree which extended working hours.
   • b) As regards Case No. 1367, the Committee considers that the system of compulsory arbitration established unilaterally by Supreme Decree No. 009-86-TR is contrary to the principle of voluntary collective bargaining contained in Article 4 of Convention No. 98 and impedes the exercise of the right to strike.
   • c) It requests the Government to take steps to amend this Decree and draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to the legislative aspect of the case.