Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 338, Novembre 2005

Cas no 2386 (Pérou) - Date de la plainte: 25-AOÛT -04 - Clos

Allegations: Refusal by the electricity enterprises Edelnor S.A.A. and Cam-Peru S.R.L. and by the labour authority to recognize the representativeness of the Unified Trade Union of Electricity Workers of Lima and Callao (SUTREL) for collective bargaining purposes; failure to deduct trade union dues by both enterprises; payment of a bonus by both enterprises to workers withdrawing from SUTREL; and threats by Edelnor S.A.A. to restrict the activity of the trade union section of SUTREL, with regard to distribution of the trade union newspaper, and to cancel the permanent trade union leave of SUTREL delegates

1229. The complaint was presented by the General Confederation of Workers of Peru (CGTP) in a communication dated 23 September 2004, on behalf of its affiliate, the Unified Trade Union of Electricity Workers of Lima and Callao (SUTREL). In a communication dated 29 March 2005, the Federation of Peruvian Light and Power Workers (FTLFP) also presented a complaint on behalf of SUTREL concerning the issues raised in the complaint from the CGTP.

1. 1230. The Government sent partial information in a communication dated 27 July 2005.
2. 1231. 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 complainants’ allegations

1. 1232. In communications dated 23 September 2004 and 29 March 2005, the General Confederation of Workers of Peru (CGTP) and the Federation of Peruvian Light and Power Workers (FTLFP), respectively, present allegations concerning the electricity enterprises Edelnor S.A.A. and Cam-Peru S.R.L., and state that these enterprises do not recognize SUTREL’s representativeness for collective bargaining purposes.
2. Case of the Edelnor S.A.A. enterprise
3. 1233. The CGTP states that the bargaining committee of the trade union section of SUTREL has been concluding collective agreements with the Edelnor S.A.A. enterprise since 1994. The last agreement covered the period from 1 January 2000 to 31 December 2001. On 29 November 2001, it presented a list of demands, which the enterprise did not accept for the following reasons:
4. – the enterprise has concluded a collective agreement for four years with the absolute majority of the workers in the enterprise, which applies to all workers, including those belonging to trade unions that are not representative;
5. – the trade union branch concerned does not have the right to bargain collectively since it does not represent the majority of workers employed in the enterprise as its members and there cannot be two collective agreements in the same bargaining unit.
6. 1234. Faced with this situation, in December 2001 the complainant appealed to the Ministry of Labour to order the Edelnor S.A.A. enterprise to accept the list of demands, arguing that the enterprise’s conduct infringed the right to organize and bargain collectively, given that the enterprise intended to impose a contract that it had drawn up itself, disregarding the existence of a trade union and representation, even if that trade union was a minority one for the time being. The complainant affirms that there is no “collective agreement” signed by the majority of workers in the Edelnor S.A.A. enterprise, since there are only individual agreements that the enterprise has compelled the workers to sign individually.
7. 1235. According to the trade union, the labour authority condoned the enterprise’s conduct, since it denied that a minority branch trade union could negotiate at enterprise level.
8. 1236. The CGTP adds that the enterprise is encouraging SUTREL members to withdraw from the trade union, by offering them a bonus of 3,500 new soles if they sign a so-called “collective agreement” put forward by the enterprise. Lastly, it alleges that the enterprise does not deduct trade union dues, threatens workers with reprisals or sanctions for distributing the trade union newspaper and threatens to cancel the permanent trade union leave of SUTREL delegates.
9. The case of the Cam-Peru S.R.L. enterprise
10. 1237. On behalf of their affiliate, SUTREL, the two complainants state that the Edelnor S.A.A. enterprise decided to establish a subsidiary as of May 2000 which would be responsible for marketing, storing and distribution of materials and checking and maintenance of electrical supplies, which would be called Compañia Americana de Multiservicios (Cam-Peru S.R.L.), to which it transferred Edelnor S.A.A. employees working in these areas. When the staff were transferred, the enterprises involved undertook to respect the workers’ acquired rights. In this context, the SUTREL members who were transferred decided to establish a trade union section in the Cam-Peru S.R.L. enterprise, after complying with all the legal formalities.
11. 1238. The complainants allege that the Cam-Peru S.R.L. enterprise has not recognized SUTREL’s representativeness and right to bargain collectively on the following grounds:
12. – SUTREL is a branch trade union of the electricity sector, to which Cam-Peru S.R.L. does not belong, as it is a service enterprise;
13. – the enterprise has concluded a collective agreement with a qualified majority of workers employed in the enterprise and therefore is by no means obliged to negotiate with a minority group of workers.
14. 1239. According to the complainants, the labour authority condoned the enterprise’s conduct. The FTLFP alleges that, despite the fact that SUTREL had obtained judicial recognition of its trade union status and representativeness by decision of the 18th Labour Court of Lima, dated 18 August 2004, the labour authority maintained its restrictive approach by again declaring that the enterprise was justified in objecting on grounds that it did not belong to the same sector.
15. 1240. Lastly, the CGTP alleges that the Cam-Peru S.R.L. enterprise has been encouraging SUTREL members to withdraw from the trade union by offering a bonus of 3,500 new soles. It alleges that the enterprise has not deducted trade union dues since July 2001 despite the fact that, according to the FTLFP, a court order had been issued requiring trade union dues to be deducted in the Cam-Peru S.R.L. enterprise.
16. B. The Government’s reply
17. 1241. In a communication dated 27 July 2005, the Government states that with regard to the allegations relative to the Edelnor S.A.A. enterprise, the latter affirms that various organizations exist within it, grouping together a minority of the workers, given that most of the workers have opted not to join any trade union. It also indicates that it has concluded a collective agreement with the absolute majority of the workers in the enterprise who have opted not to join any trade union and expressed their will to endorse the agreement being the majority in the enterprise, and, therefore, a representative group of the workers in Edelnor. The enterprise adds that while collective bargaining was under way as a result of the list of claims presented by SUTREL, Report No. 85462-01-DRTPSL/DPSC-SDNC, the labour administration authority decided that Edelnor should negotiate with the complainant trade union. However, while the process in question was still pending, an arbitral award was issued in favour of the collective agreement in force; a legal appeal is currently pending. The enterprise indicates that there has been no discrimination since although various trade union organizations exist, they are all minority ones, and this does not prevent the majority group of non-unionized workers from negotiating collectively.
18. 1242. With regard to the allegations relative to the Cam-Peru S.R.L. enterprise, the latter affirms that its refusal to go ahead with the list of claims repeatedly presented by the complainant trade union is based on the fact that a trade union which operates at the sectoral level can only represent workers in one single activity and not workers in two different activities as the trade union tried to do, willing to undertake the representation of trade unions in two different sectors, namely, the electricity sector (enterprises generating, transmitting and distributing electricity) and the services sector to which enterprises like Cam-Peru S.R.L. belong. The enterprise indicates that it has no objection to the establishment of a trade union by its own workers for the defence of their rights and interests, but there was no reason whatsoever or legal ground on the basis of which a union, in a sector of activity in which the enterprise does not belong, might represent workers from another sector. The enterprise indicates, finally, that the main activity of Cam-Peru S.R.L. is the commercialization and sale of materials and it does not carry out any act of production, transmission or distribution of electric energy, reason for which its workers could not be considered or characterized as workers in the sector. For this reason, they could not be represented by the complainant trade union and could not claim to constitute a trade union branch within the enterprise, much less negotiate collectively with regard to workers who cannot be affiliated to this trade union.
19. 1243. The Government indicates that the denunciation made by SUTREL, regarding both the Edelnor S.A.A. enterprise and the Cam-Peru S.R.L. enterprise, involves a controversy which is currently subject to legal proceedings lodged by the parties which consider that their rights have been affected. These proceedings are still pending a final decision.
20. 1244. The Government indicates that, in the case of the Edelnor S.A.A. enterprise, the collective bargaining based on the list of claims presented on 29 November 2001 by the Edelnor trade union branch of the sectoral union named the Unified Trade Union of Electricity Workers of Lima and Callao was resolved through an arbitral award dated 19 June 2003. This situation allows the Government to deduce that there have been no acts of anti-union discrimination aimed at weakening or breaking up the trade union as alleged by the complainants. In the case of the Cam-Peru S.R.L. enterprise, the labour administration authority found that the appeal lodged by the employer was well-founded and consequently declared inadmissible the collective bargaining claimed by the Negotiating Commission of the trade union branch of workers in Cam-Peru S.R.L. This pronouncement has led the affected trade union to initiate legal action for protection of constitutional rights, which has been declared inadmissible by the court of first instance. This decision had been appealed and is currently pending before the court of second instance.
21. 1245. Finally, the Government states that, after the parties had recourse to the judiciary in order to decide upon the lawfulness of the acts in question, it was up to that organ to resolve the matter in a fully independent manner. The Government would keep the Committee informed of the outcome in due time. It is impossible to see from the information obtained in this case, any elements showing the commission of violations by the abovementioned entities.

C. The Committee’s conclusions

1. 1246. The Committee observes that the allegations in this case mainly refer to: (1) refusal by the electricity enterprises Edelnor S.A.A. and Cam-Peru S.R.L., and by the labour administration authority, to recognize SUTREL’s representativeness for collective bargaining purposes; (2) failure to deduct trade union dues by both enterprises; (3) payment of a bonus by both enterprises to workers who withdraw from membership of SUTREL; (4) threats by Edelnor S.A.A. to restrict the activity of SUTREL trade union section as regards the distribution of the trade union newspaper; and (5) threats by Edelnor S.A.A. to cancel the permanent trade union leave of SUTREL delegates.
2. 1247. With regard to the alleged refusal of the Edelnor S.A.A. enterprise to engage in collective bargaining with the SUTREL trade union (according to the complainants the enterprise considers that it does not have an obligation to negotiate with a minority trade union and has moreover concluded a collective agreement with the majority of the workers), the Committee notes that the Government states that the enterprise informed it that: (1) various trade union organizations exist in the enterprise grouping together a minority of the workers, given that most of the workers have opted not to join any trade union; (2) a collective agreement was concluded with the absolute majority of the workers who expressed their will to endorse the agreement as the majority in the enterprise; (3) in the course of collective bargaining based on the list of claims presented by SUTREL, the administrative authority decided that the enterprise should negotiate with SUTREL, but later on an arbitral award was issued in favour of the collective agreement negotiated with the workers; (4) the arbitral award in question had been challenged before the courts.
3. 1248. The Committee recalls that protection of the right to collective bargaining implies that, when no trade union represents the absolute majority of the workers, minority organizations may jointly negotiate a collective agreement applicable to the enterprise or the bargaining unit, or at least conclude a collective agreement on behalf of their members [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 831].
4. 1249. In addition, the Committee stresses the role of workers’ organizations as one of the parties in collective bargaining and considers that direct negotiation between the undertaking and its employees, bypassing representative organizations where these exist, might in certain cases be detrimental to the principle that negotiation between employers and organizations of workers should be encouraged and promoted [see Digest, op. cit., para. 786].
5. 1250. The Committee requests the Government to guarantee the application of these principles and to promote collective bargaining with SUTREL in Edelnor S.A.A. In addition, the Committee requests the Government to keep it informed of the result 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.
6. 1251. With regard to the alleged refusal of the Cam-Peru S.R.L. enterprise to engage in collective bargaining with the SUTREL trade union (according to the complainant, the Edelnor S.A.A. enterprise decided in 2002 to set up a subsidiary – Cam-Peru S.R.L. – in charge of the marketing, storage, distribution of materials and control and maintenance of the electrical supplies; at the time of this transfer, the enterprises agreed to respect the rights that the workers had acquired), the Committee notes that the Government indicates that the enterprise informed it that: (1) its refusal to go ahead with the list of claims, repeatedly presented by the complainant trade union, is based on the fact that a trade union which operates at the sectoral level can only represent workers in one single activity and not workers in two different activities as SUTREL tried to do, willing to undertake the representation of trade unions in two different sectors, namely, the electricity sector and the services sector to which enterprises like Cam-Peru S.R.L. belong; (2) it has no objection to the establishment of a trade union by its own workers for the defence of their rights and interests, but there was no reason whatsoever or legal ground on the basis of which a union in a sector of activity in which the enterprise does not belong, might represent workers from another sector. The Committee also notes that according to the Government the labour administration authority found that the employer’s refusal was well-founded and consequently declared the collective bargaining inadmissible; the trade union initiated legal action for protection of constitutional rights, which is currently pending before the court of second instance.
7. 1252. In this respect, the Committee considers that if the workers of the Cam-Peru enterprise are affiliated to the SUTREL trade union (sectoral trade union), this trade union should be able to negotiate on their behalf (even more so if one takes into account that the Cam-Peru enterprise is a subsidiary of the Edelnor S.A. enterprise from which the workers originally came, and in which SUTREL has members). Under these conditions, the Committee request the Government, if it is found that the workers of the Cam-Peru enterprise are affiliated to SUTREL and this is the most representative trade union, to take measures in order to promote collective bargaining between this trade union and the Cam-Peru enterprise. Moreover, the Committee requests the Government to keep it informed of the outcome of the proceedings for protection of constitutional rights initiated by SUTREL against the decision of the administrative authority which found that the enterprise’s refusal to engage in collective bargaining was well-founded.
8. 1253. Concerning the failure to deduct trade union dues by Edelnor S.A.A. and Cam-Peru S.R.L. enterprises, the Committee notes with regret that the Government has not communicated its observations and observes that the FTLFP points out that a court decision handed down by the 18th Labour Court of Lima on 18 August 2004 ordered the deduction of trade union dues of SUTREL members by Cam-Peru S.R.L. As it has pointed out on previous occasions, the Committee recalls 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 [see Digest, op. cit., para. 435]. Under these conditions, the Committee requests the Government to ensure that the Cam-Peru S.R.L. enterprise deducts trade union dues as ordered by the judicial authority, and guarantees the application of the abovementioned principle. As regards failure to deduct trade union dues by the Edelnor S.A.A. enterprise, the Committee requests the Government to take measures to ensure that the abovementioned principle is respected and to forward a copy of any court decision handed down in this regard. The Committee requests the Government to keep it informed of developments in both enterprises.
9. 1254. As regards the allegation that both Edelnor S.A.A. and Cam-Peru S.R.L. enterprises have offered a bonus of 3,500 new soles to encourage SUTREL members to withdraw from the trade union, the Committee regrets that the Government has not sent its observations and recalls that paragraph 1 and paragraph 2(a) of Article 1 of Convention No. 98, ratified by Peru, clearly provide that workers shall enjoy adequate protection against acts of anti-union discrimination in respect of their employment. The Committee urges the Government to carry out an inquiry in this regard 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.
10. 1255. As regards the alleged threats by Edelnor S.A.A. to restrict the activity of the SUTREL trade union branch in regard to the distribution of its newspaper, the Committee notes with regret that the Government has not sent its observations and reminds it of the resolution concerning trade union rights and their relation to civil liberties adopted by the International Labour Conference in 1970, which defined freedom of opinion and expression, among others, as essential for the normal exercise of trade union rights. Under these conditions, the Committee requests the Government to investigate the matter and, if necessary, to ensure that these rights are guaranteed.
11. 1256. As regards the alleged threats by Edelnor S.A.A. to cancel the permanent trade union leave of SUTREL delegates, the Committee notes with regret that the Government has not sent its observations and reminds it that permission to take such leave should not be unreasonably withheld (see Paragraph 10 of the Workers’ Representatives Recommendation, 1971 (No. 143)) and that this matter is regulated by Peruvian legislation. The Committee requests the Government to ensure compliance with legislation on this subject and keep it informed in this regard.

The Committee's recommendations

1. 1257. 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 promote collective bargaining with SUTREL in the Edelnor S.A.A. enterprise and to keep it informed of the result 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 this is the most representative trade union, to take measures in order to promote collective bargaining between this trade union and the Cam-Peru S.R.L. enterprise. Moreover, the Committee requests the Government to keep it informed of the outcome of the proceedings for protection of constitutional rights initiated by SUTREL against the decision of the administrative authority which found that the enterprise’s refusal to engage in collective bargaining was well founded.
   • (c) The Committee requests the Government to ensure that the Cam-Peru S.R.L. enterprise deducts trade union dues as ordered by the judicial authority. As regards the failure to deduct trade union dues by the Edelnor S.A.A. enterprise, the Committee requests the Government to send it a copy of any judicial decision 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 membership of 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 in 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 defined 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 ensure that these rights are guaranteed.
   • (f) Lastly, recalling that trade union leave should not be unreasonably withheld 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.