Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 335, Novembre 2004

Cas no 2285 (Pérou) - Date de la plainte: 06-JUIN -03 - Clos

Allegations: The complainant organization alleges that against a background of anti-union discrimination and in violation of the provisions of national legislation, the authorities are attempting to collect back taxes from the FTLFP; moreover, the complainant organization objects to the Municipality of Lima’s decision to ban rallies and protests in the historic centre of the city of Lima

1. 1173. The complaint is contained in a communication dated 6 June 2003 presented by the Federation of Peruvian Light and Power Workers (FTLFP).
2. 1174. As a consequence of the lack of a response on the part of the Government, at its June 2004 meeting [see 334th Report, para. 9], the Committee launched an urgent appeal and drew the attention of the Government to the fact that, in accordance with the procedural rules set out in paragraph 17 of its 127th Report, approved by the Governing Body, it may present a report on the substance of this case even if the observations or information from the Government in question have not been received in due time (GB.248/8, para. 8). To date, the Government has not sent its observations.
3. 1175. 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. 1176. In a communication dated 6 June 2003, the Federation of Peruvian Light and Power Workers (FTLFP) states that the Municipality of Metropolitan Lima is attempting to confiscate its trade union assets invoking supposed back taxes despite the fact that, under national legislation, trade union organizations are exempt from tax. For the last 27 years the headquarters of the FTLFP have been located at Jirón Chacay, No. 747 and Cercado de Lima, No. 753 during which period no attempt whatsoever has been made under any pretext to collect supposed back taxes. However, the complainant organization alleges that, under the Government of Mr. Fujimori, the municipal administration attempted, and continues to attempt, to collect supposed back taxes. The complainant organization adds that the facts of the case have also been sent to INFOCOR, a governmental organization providing information on debtors whose inclusion in a list of creditors renders insolvent any natural or legal person attempting to obtain credit within the financial system in which they operate.
2. 1177. The complainant organization adds that the FTLFP is a national trade union institution, representing trade unions and workers from the electrical industry throughout Peru.
3. 1178. The complainant organization states that, in order to levy supposed and illegal back taxes and collect them in full, the public servants of the Municipality of Lima have divided the single building that is the institutional headquarters of the FTLFP into several different buildings. Likewise, the trade union states that, in accordance with its statutes and according to the law, the FTLFP is a not-for-profit organization, whose activities revolve around representing the workers of the national electricity industry in their individual and collective labour disputes, and the provision of advice to and social and economic promotion of its members.
4. 1179. The complainant organization explains that the FTLFP was unduly and illegally called on to pay property taxes for 1997, 1998, 1999, 2000, 2001, 2002 and 2003 for the property located at No. 753 calle Chancay, even though subsection (I) of article 17 of Legislative Decree No. 776, amended through Law No. 27616 states that trade unions are exempt from payment of tax on property assets in which they carry out trade union activities. According to the complainant organization, in Peru the tax system is based on the principle of legality as set out in article 74 of the Political Charter which provides that, in order for any tax to be levied, it must necessarily be established by law, the same being true for tax relief. The Municipal Tax Law Legislative Decree No. 776, article 17, subsection (L) states that property assets belonging to trade union organizations are exempt from tax, but despite the existence of this specific law, the municipal tax authorities are attempting to tax the property assets belonging to the FTLFP through a tax containing powers of confiscation related to trade union assets, hence these same tax authorities proceeded in a biased fashion and with the sole aim of obtaining tax revenue by dividing up the FTLFP’s building, tacitly altering the organization and administration of the federation’s assets.
5. 1180. Finally, the complainant organization alleges that in addition to the action of an anti-union and discriminatory nature carried out against the FTLFP by the Municipality of Metropolitan Lima, the municipal authority issued, last January, a municipal decree banning unionized workers and other sections of the working class from joining rallies or protests in the historic centre of Lima. The complainant organization states that this undemocratic and discriminatory ban has no historical precedent in the context of Peru, as the workers have always held rallies in and around the centre of Lima because that is where the offices of the President of the Republic, the Ministry of Economics and Finance, the Ministry of Foreign Affairs, the Ministry of Women, the Public Ombudsman, the Constitutional Court, a part of the office of the Congress of the Republic and other institutions are located.

B. The Committee’s conclusions

1. 1181. The Committee regrets that, despite the time which has passed since the presentation of the complaint, to date the Government has not responded to the allegations made by the complainant organization, although the Committee has urged it to send its observations or information on the case on several occasions, including through an urgent appeal launched at the Committee’s June 2004 meeting. Under these circumstances, in accordance with the procedure established in paragraph 17 of its 127th Report as approved by the Governing Body, the Committee stated that it would present a report on the substance of this case at its next session, even if the observations or information requested had not been received in due time.
2. 1182. The Committee reminds the Government, firstly, that the aim of all the procedures established by the International Labour Organization in relation to the examination of allegations related to violations of freedom of association is to ensure that the rights of workers’ and employers’ organizations are respected, in fact and in law; the Committee thus believes that though this procedure protects governments from unfounded accusations, those same governments should in turn recognize the importance of providing detailed and precise responses concerning the substance of the alleged facts for objective examination [see Report No. 1, para. 31].
3. 1183. The Committee notes that the complainant organization alleges that although trade unions are exempt from tax, the Municipality of Metropolitan Lima is attempting to collect supposed back taxes from the Federation of Peruvian Light and Power Workers (FTLFP), levied on the site of its headquarters (according to the complainant organization it has only been during the time of the last two governments that any attempt has been made to collect these back taxes). Recalling that the authorities should not discriminate against a trade union organization as concerns imposition of taxes, the Committee requests the Government to confirm whether or not trade union organizations generally benefit from tax exemption and, if so, to take measures to ensure that the complainant organization is not discriminated against and so that the back taxes being demanded by the Municipality of Metropolitan Lima from the FTLFP are not levied. The Committee requests the Government to keep it informed in this respect.
4. 1184. As to the allegation related to the ban declared by the municipal authorities of Lima on rallies or protests in the historic centre of Lima, the Committee stresses that restrictions to the right to demonstration have to be reasonable and that the authorities should examine the requests to authorize these demonstrations on a case-by-case basis. The Committee recalls that the requirement of administrative permission to hold public meetings and demonstrations is not objectionable per se from the standpoint of the principles of freedom of association and that trade union organizations must conform to the general provisions applicable to all public meetings and must respect the reasonable limits which may be fixed by the authorities to avoid disturbances in public places [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, paras. 138 and 141]. Under these circumstances, the Committee requests the Government to respect those principles.

The Committee's recommendations

1. 1185. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) Recalling that the authorities should not discriminate against a trade union organization as concerns the imposition of taxes, the Committee requests the Government to confirm whether or not trade union organizations generally benefit from tax exemption and, if so, to take measures to ensure that the complainant organization is not discriminated against and so that the back taxes being demanded by the Municipality of Metropolitan Lima from the Federation of Peruvian Light and Power Workers (FTLFP) are not levied. The Committee requests the Government to keep it informed in this respect.
   • (b) The Committee requests the Government to respect the abovementioned principles concerning the exercise of trade union rights to organize demonstrations.