Definitive Report - REPORT_NO281, March 1992

1. 55. The National Peruvian Maritime and Port Workers' Federation (FEMAPOR) presented a complaint alleging the violation of freedom of association in a communication of 18 April 1991. Subsequently, it sent new allegations and information in communications of 24 May and 27 July 1991. The Government sent its observations in communications of 15 October 1991 and 20 January 1992.
2. 56. Peru has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), as well as the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant's allegations

1. 57. The complainant explains that the maritime employment scheme in all of the country's ports used to have the following characteristics: the regulation of conditions of work by collective agreement (wage scales, hiring restricted to staff belonging to trade unions affiliated to the FEMAPOR, working hours, etc.); the reservation of maritime and river work (loading, unloading, freight handling, etc.) to workers belonging to trade unions affiliated to the FEMAPOR; and the existence of a tripartite port authority known as the Maritime Work Control Commission.
2. 58. The complainant states that as a result of presidential decrees 025-90-TC, 026-90-TC, 027-90-TC, 032-90-TC, 045-91-PCM, 054-91-PCM and Legislative Decree No. 645, this maritime employment scheme was illegally changed in a process which failed to include negotiations with representative trade union organisations; the new scheme disregards the conditions of work and wage rates specified in collective agreements, is based on the creation of enterprises and cooperatives, and no longer requires the trade union registration of stevedores.
3. 59. The complainant organisation adds that the new scheme is based on an abusive interpretation of Act No. 25327, which delegated certain legislative faculties to the Executive Branch, and has led to the disappearance of trade unions and the dismissal of many workers. Lastly, the complainant organisation states that it has filed several judicial proceedings for relief ("amparo") against the above-mentioned decrees.

B. The Government's reply

1. 60. In communications of 15 October 1991 and 20 January 1992, the Government states that under Act No. 25327, the Congress of the Republic delegated certain powers to the Executive Branch to enable it to legislate on the promotion of employment and private foreign investment, among others. Subsequently, the Executive Branch issued legislation concerning maritime and port work in Peru with a view to creating new sources of work, and to guarantee economic pluralism through the democratic coexistence of various cooperatives, while at the same time promoting and protecting the free development of cooperativism and the autonomy of cooperative enterprises.
2. 61. In this context the Government states that Legislative Decree No. 645 legislates specifically in the area of maritime, river or lake work as regards loading, unloading, transshipment and freight handling, and specifies that cooperative enterprises and other enterprises can engage in the above-mentioned activities. The Government adds that this decision effectively breaks the monopoly which had previously been held by the National Peruvian Maritime and Port Workers' Federation, a trade union organisation which previously controlled the right to work in this field, limiting it to workers belonging to its member unions.
3. 62. The Government states that Legislative Decree No. 645 has not led to the massive dismissals alleged by the complainant; instead, this legal instrument has opened new sources of work by promoting the establishment of cooperative and other enterprises in the field of maritime and river work, within the framework of healthy competition which, at the same time, boosts labour productivity without depriving those who had been working in this sector of their source of work.
4. 63. Lastly, the Government states that Legislative Decree No. 660 has declared the dissolution of the Maritime Work Control Commission to be of national interest. The Government states that the judicial proceedings referred to by the complainant organisation are currently in progress in court.

C. The Committee's conclusions

1. 64. This complaint refers to an allegedly illegal change in the employment scheme in maritime, river, lake and port services as a result of a number of decrees. Specifically, it involves a transition from an employment scheme characterised by a requirement that port workers belong to trade unions affiliated to FEMAPOR, under a collective agreement which regulated conditions of work, and under the supervision of the Maritime Work Control Commission, to a scheme which no longer requires workers to belong to a trade union organisation affiliated to FEMAPOR in order to qualify for jobs in port work, in which the earlier collective agreement is not applied, and in which the Maritime Work Control Commission has been dissolved. The Committee wishes to point out that it is not competent to decide whether the decrees referred to by the complainant, and which have set up a new scheme for port employment, exceeded the powers delegated by the Congress of the Republic to the Executive Branch; this matter will be resolved by the national judicial authority which is considering the appeals for relief filed by the complainant organisation. In any event, the Committee points out that, since the change in the port employment scheme has indirect consequences for trade unions, and specifically on the applicability of the collective agreement in force and the provisions concerning the requirement that workers belong to one of the trade unions affiliated to FEMAPOR, the following considerations must be emphasised:
2. (1) the Committee recalls that the Committee on International Relations of the International Labour Conference, when adopting the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), taking into consideration the debate which it had held on the issue of union security clauses "... finally agreed to express in the report their view that the Convention could in no way be interpreted as authorising or prohibiting union security arrangements, such matters being matters for regulation in accordance with national practice." (See ILO, Record of Proceedings, ILC, 32nd Session, 1949, p. 468.);
3. (2) the Committee observes that workers in the present case are not currently deprived of the right to set up and join trade union organisations;
4. (3) the Committee observes that, according to the Government, the change in the employment scheme is a measure which, according to the Government, aims at reducing port costs and opening new sources of work, while improving productivity without depriving persons who have been working in this sector of their source of work.
5. 65. In these circumstances, and since the admissibility of union security clauses under collective agreements was left to the discretion of ratifying States, as evidenced by the preparatory work for Convention No. 98, the Committee considers that the change in the port employment scheme in Peru is not contrary to the principles of freedom of association, to the extent that workers may still join the trade union organisations of their choice. Nevertheless, the Committee regrets that, inasmuch as this change entailed the abolition of the clauses of a current collective agreement, the Government did not wait for the expiration of this agreement or seek to bring about the change with the participation of the trade union organisations concerned. The Committee emphasises the importance which it attaches to the respect for collective agreements in force.
6. 66. As regards the alleged dismissal of many port workers and the disappearance of trade unions in this sector, the Committee notes that the complainant organisation has not given any details on the workers and organisations concerned, and that everything seems to suggest that these are consequences of the change which has taken place in the port employment scheme, described in the previous paragraph.