Report in which the committee requests to be kept informed of development - REPORT_NO306, March 1997

1. 496. The Committee examined this case at its June 1996 meeting and presented an interim report to the Governing Body (see 304th Report of the Committee, paras. 417-473, approved by the Governing Body at its 266th Session (November 1996)).
2. 497. The Government sent further observations in a communication dated 16 December 1996.
3. 498. 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. Previous examination of the case

1. 499. At its meeting in June 1996, the Committee formulated the following recommendations concerning the allegations still pending (see 304th Report, para. 473):
   • - as regards the allegations of mass dismissals of mostly trade union officers in the Iron and Steel Enterprise of Peru (SIDERPERU), the Committee had requested the Government to proceed with an inquiry to determine to what extent anti-union considerations played a role in these dismissals and, if this were indeed the case, to initiate appropriate procedures so that the prejudice suffered is compensated. It also requested the Government to inform it of the outcome of the appeals lodged by certain dismissed trade union leaders with the Supreme Court;
   • - as regards the allegation concerning the freezing of trade union funds of SIDERPERU, the Committee had requested the Government to keep it informed of the outcome of the situation in this regard and especially the legal proceedings under way;
   • - as regards the denial of the right to belong to organizations of their own choosing to workers during their probationary period, the Committee had requested the Government to take the necessary steps to lift this prohibition;
   • - as regards the allegations concerning the publication of a Bill considered by the complainants to be contrary to freedom of association, the Committee had requested the Government to keep it informed of any development concerning the preparation of the Bill respecting industrial relations;
   • - as regards the allegations concerning the arbitrary dismissal of over 120 workers, including a trade union officer, the Committee had requested the Government to provide more detailed information regarding the real cause of dismissal of Mr. Iván Arias Vildoso, as well as that of the other 120 workers of the Electrolima SA Enterprise mentioned by the complainants;
   • - as regards the CLAT's allegations that further to the promulgation of Act No. 26513 there were arbitrary mass dismissals at certain enterprises (Manufacturas del Sur SA and Agraria El Escorial), the Committee had requested the Government to proceed with an investigation in this regard and to take measures to compensate the prejudice suffered if it was proved that the dismissals were of an anti-union nature;
   • - the Committee had regretted to note that the Government had not replied to the CLAT's allegations that 15 trade union officers and 55 unionized workers had been dismissed by the National Railway Enterprise of Peru (ENAFER) and by the San Antonio de Vitarte Clinic pursuant to the Act in question, and had requested it to send its observations in this regard without delay.

B. The Government's reply

1. 500. In a communication dated 16 December 1996, the Government makes the following observations concerning the Committee's requests formulated in the above recommendations:
   • - as regards the allegations concerning the mass dismissals in the Iron and Steel Enterprise of Peru, the Government states that, on the one hand, the programme of voluntary termination with economic incentives applied by the enterprise covered all its employees, without any distinction. On the other hand, the appeals lodged by dismissed unionized former workers and trade union officers were still pending before the Supreme Court. In this respect, some of the appellants had withdrawn their appeals and received in full the dues that had been deposited with the courts. In addition, in view of the fact that this matter lies within the competence of the judiciary branch, no authority outside the hierarchical structure of the judiciary may take over cases pending before the jurisdictional body or interfere in the exercise of its functions, as stipulated in the Constitution. For the above reason, the executive power cannot carry out any inquiry as requested by the Committee, since the judiciary branch has proceeded with the inquiries in this case through the judicial procedures already referred to;
   • - as regards the allegation concerning the freezing of trade union funds of SIDERPERU, the Government states that the trade union officers themselves had requested the endorsement of the sums deposited with the court by the enterprise and withdrawn the amounts relating to trade union dues. Moreover, the non-contentious proceedings between the enterprise and the trade union now before the courts do not refer to the question of trade union funds;
   • - as regards the denial of the right to belong to organizations of their own choosing to workers during their probationary period, the Government states that the Committee's request to lift this prohibition will be brought before the Congress of the Republic so that it may be taken into account during discussions of the draft amendments of the Industrial Relations Act;
   • - as regards the allegations concerning the publication of a Bill considered by the complainants to be contrary to freedom of association, the Government insists that since this Bill has not been approved by Congress, there is no point in analysing the observations that have been made;
   • - as regards the allegations concerning the arbitrary dismissal of over 120 workers, including a trade union officer, the Government states that the inquiries made have shown that the Electrolima SA Enterprise had, for budgetary reasons, dismissed only 95 workers, under section 71 of Act No. 26513, after granting them their social benefits and the compensation for which provision is made in the above-mentioned Act. The Government points out that the enterprise opted for this measure because if it had applied for the collective dismissal for which provision is made in Act No. 26513, the dismissed workers would not have been able to receive the social benefits and compensation mentioned above. Of the 95 dismissed workers, 94 collected their compensation and social benefits without lodging any appeals to annul the dismissal. The only exception was Mr. Iván Arias Vildoso, a former trade union officer, who lodged an appeal to annul the dismissal with a labour tribunal in Lima because he considered that in his case his trade union immunity had not been taken into account. In this respect, the judge had declared the appeal well-founded and ordered his reinstatement, the payment of wages and the settlement of other work-related benefits. The enterprise appealed the decision before a higher court, and a definitive decision has not yet been handed down;
   • - as regards mass arbitrary dismissals in certain enterprises alleged by the CLAT, the Government points out that according to the information it has obtained, the Manufacturera del Sur SA Enterprise proceeded with the collective termination of 122 workers for economic and restructuring reasons, under the terms of Act No. 26513. Although the decision handed down by the Industry and Crafts Directorate of Arequipa ruled that 79 workers should be considered redundant and subject to termination, through the conciliatory efforts of the Ministry of Labour and Social Welfare the parties agreed by means of a collective agreement to reduce the number of staff declared redundant, and only accepted the voluntary termination of 16 workers, who were paid their social benefits as well as an incentive. As regards the Agraria El Escorial enterprise, the Government maintains that it only terminated the employment relationship of two workers, who were not trade union officers, and who were paid their social benefits;
   • - as regards the dismissals of 15 trade union officers and 55 unionized workers in the National Railway Enterprise of Peru (ENAFER) as a result of a special inspection, the Government points out that these were not dismissals but a staff reduction process under the terms of Act No. 26120 respecting the privatization process, since ENAFER comes within the scope of the Act. If the complainants' assertions are correct, they have the right to appeal to the courts, since there is legal machinery for the defence of workers' labour rights;
   • - as regards the dismissals at the San Antonio de Vitarte Clinic, the Government states that the collective termination procedure carried out by the enterprise did not include a single trade union officer. The only trade union officer dismissed, Ms. Victoria Castro Muños, as was stated in Case No. 1784, was reinstated in her job by court order.

C. The Committee's conclusions

1. 501. As regards the allegations concerning mass dismissals in the Iron and Steel Enterprise of Peru, the Committee notes the Government's observations but requests it once again to take the necessary measures to ensure that in future the application of such "voluntary termination" programmes is not used to carry out anti-union dismissals. The Committee again requests the Government to keep it informed of the outcome of the appeals lodged by some dismissed trade union officers with the Supreme Court.
2. 502. As regards the freezing of trade union funds of SIDERPERU, the Committee notes that according to the Government the trade union officers themselves had requested the endorsement of the sums deposited with the courts by the enterprise and had withdrawn the amounts equivalent to trade union dues. The Committee also notes that the non-contentious proceedings between the enterprise and the trade union before the courts do not refer to the issue of trade union funds.
3. 503. As regards the denial of the right to belong to organizations of their own choosing to workers during their probationary period, the Committee notes with interest that the Government will inform the Congress of the Republic of the Committee's request to lift this prohibition so that it may be taken into account during discussions of the draft amendment of the Industrial Relations Act. As regards the developments in the preparation of the Bill respecting industrial relations which is considered by the complainants to be contrary to freedom of association, the Committee notes the Government's statement to the effect that it has not been approved by Congress. The Committee requests the Government to keep it informed of any development concerning the draft amendment of the Industrial Relations Act to which the Government referred, and draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to the matter.
4. 504. As regards the allegations concerning the arbitrary dismissal of over 120 workers, including a trade union officer, the Committee notes that according to inquiries carried out by the Government, in accordance with section 71 of Act No. 26513, the Electrolima SA Enterprise had, for budgetary reasons, dismissed only 95 workers, 94 of whom had received their compensation and social benefits without appealing for the annulment of the dismissal. As regards Mr. Iván Arias Vildoso, a former trade union officer, the Committee notes that the judge declared his appeal well-founded and ordered his reinstatement, as well as the payment of wages due and the settlement of other work-related benefits, and that the enterprise had appealed the decision before a higher court. The Committee requests the Government to keep it informed of the definitive decision handed down by the higher court.
5. 505. As regards the arbitrary mass dismissals at the Manufacturera del Sur SA Enterprise alleged by the CLAT, the Committee takes due note of the fact that, out of the 122 workers whom the enterprise had included in the collective termination of employment for economic and restructuring reasons, thanks to the conciliation services of the Ministry of Labour and Social Welfare, the parties had agreed by collective agreement to reduce the number of staff subject to voluntary dismissal to 16 workers, who were paid their social benefits as well as an incentive. As regards the dismissals in the enterprise Agraria El Escorial, the Committee notes that according to the Government, this enterprise had only terminated the employment relationship of two workers who were not trade union officers, and who were paid their social benefits.
6. 506. As regards the dismissals of 15 trade union officers and 55 unionized workers of the National Railway Enterprise of Peru (ENAFER), the Committee notes that according to the Government's observations, since the enterprise is covered by the scope of Act No. 26120 respecting privatization, it is carrying out a staff reduction process. In this respect the Committee once again draws the Government's attention to the fact that "one of the fundamental principles of freedom of association is that workers should enjoy adequate protection against all acts of anti-union discrimination in respect of their employment, such as dismissal, demotion, transfer or other prejudicial measures. This protection is particularly desirable in the case of trade union officials because, in order to be able to perform their trade union duties in full independence, they should have a guarantee that they will not be prejudiced on account of the mandate which they hold from their trade unions" (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 724). The Committee requests the Government to establish an independent inquiry regarding the dismissals of the trade union officials and members, and to keep it informed in this regard. As it has done in previous cases, the Committee once again requests the Government to ensure that, in the cases where it would be necessary to have recourse to new staff reduction programmes, negotiations are held between the enterprise concerned and the trade union organizations (see 291st Report, Cases Nos. 1648/1650, Peru, para. 472). The Committee also requests the Government once again to take the necessary measures to ensure that in future the application of such staff reduction programmes is not used to carry out acts of anti-union discrimination.
7. 507. As regards the dismissals at the San Antonio de Vitarte Clinic, the Committee notes the Government's observations to the effect that this collective termination carried out by the enterprise did not include a single trade union officer, and that the only trade union officer dismissed, Ms. Victoria Castro Muños, as had been stated in Case No. 1784, had been reinstated in her job by court order.