Definitive Report - REPORT_NO332, November 2003

1. 829. The complaint is contained in a joint communication dated 14 October 2002 of the Federation of Petroleum Workers of Peru (FETRAPEP) and the Single Trade Union of Talara Refinery and Petróleos del Peru Workers (SUTRETPPSA). The Government sent its observations in a communication dated 19 March 2003.
2. 830. Peru has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainants’ allegations

1. 831. In their joint communication of 14 October 2002, the Federation of Petroleum Workers of Peru (FETRAPEP) and the Single Trade Union of the Talara Refinery and Petróleos del Peru Workers (SUTRETPPSA) allege that, on 14 May 2002, the oil workers of the Talara refinery, which belongs to the parastatal enterprise Petróleos del Peru, held a work stoppage in the exercise of their right to strike in protest against the privatization process which the Government intends to pursue. As a result of this 24-hour strike, observed by most of the workers who were members of the local trade unions, the management of Petróleos del Peru proceeded to withhold from the workers’ wages, in addition to an amount equivalent to one day’s pay for their absence from work on 14 May, a sum equivalent to one-sixth of the bonus for the national holiday, that is one-sixth of their pay, which, according to the complainants, is abusive since it represents an excessive, arbitrary and disproportionate deduction for a one-day strike, as it penalizes the workers twice for the same act.
2. 832. The complainants add that, according to the collective agreement that has been in force for more than 20 years, the oil workers of this enterprise are entitled to a bonus for the national holiday and another end-of-year bonus, both of which are equivalent to one month’s salary, payable in July and December.
3. 833. According to the complainants, on 28 May 2002, the Government promulgated Act No. 27735, under which it intends to regulate the award of bonuses to workers subject to private sector labour law for the national holiday and Christmas and, on 4 July 2002, promulgated its implementing regulation (Presidential Decree No. 005-2002-TR); it is on the basis of these provisions that Petróleos del Peru justifies the double and illegal withholding of the national holiday bonus, under section 3, item 3.4, of said regulation, which provides that the length of service for purposes of the calculation of bonuses shall be determined on the basis of every complete calendar month actually worked during the corresponding period, a provision which the complainants challenge as constituting a flagrant violation of labour rights.

B. The Government’s reply

1. 834. In its communication of 19 March 2003, the Government states that the granting of the national holiday and Christmas bonuses to workers subject to private sector labour law is regulated by Act No. 27735 and its implementing regulation, approved by Presidential Decree No. 005-2002-TR. Thus, section 3.4 of that Presidental Decree, as amended by Presidential Decree No. 017-2002-TR, provides that the length of service for calculation purposes is determined on the basis of every complete calendar month actually worked during the corresponding period. It also provides that for each day not deemed to be actually worked, one-thirtieth of the corresponding portion will be deducted.
2. 835. Regarding the impact of the declared strike, the Government states that, in accordance with section 77(b) of Act. No. 25593 (the Collective Labour Relations Act), the declared strike suspended the application of individual employment contracts, including the obligation to pay wages, without affecting the continuation of the employment relationship. Therefore, as this case involves a declared strike, that is one that meets the requirements laid down in section 73 of the abovementioned Act, work is completely interrupted, and hence the workers will not be paid during the duration of the strike.
3. 836. Regarding the work stoppage which occurred in the parastatal enterprise Petróleos del Peru on 14 May 2002, this constitutes a total suspension of work by the workers, resulting in a corresponding deduction for the day not worked, as well as a corresponding deduction in the bonuses paid to these workers. Regarding the deduction in the bonus for the national holiday, the work stoppage constituted an unjustified absence from the workplace, and therefore it was justified to apply such a deduction.
4. 837. In this respect, it should be pointed out that, when the 24-hour strike occurred at Petróleos del Peru, that is on 14 May 2002, the regulation under Act No. 27735 had not yet been amended, and therefore it did not take into account that, for each day not deemed to be actually worked, one-thirtieth of the corresponding portion (as is the current practice) should be deducted, but only considered that the length of service for calculation purposes was determined on the basis of every complete calendar month actually worked during the corresponding period.
5. 838. Thus, if a worker’s total wages were 1,500 soles and he was absent from work for one day without a justification, this month was considered to not have been worked in its entirety and therefore he lost his right to one-sixth of the bonus to which he would have been entitled for that month. This is why, in addition to the amount equivalent to one day’s absence from work on 14 May, an amount equivalent to one-sixth of the national holiday bonus, that is one-sixth of their salary, was also deducted.
6. 839. This type of situation no longer occurs today, since the law has been amended and is now more favourable to the workers. Thus, section 3.4 of Presidential Decree No. 005?2002?TR, as amended, provides that the length of service for calculation purposes is determined on the basis of every complete calendar month worked during the corresponding period, and that days not deemed to be days actually worked would be deducted at the rate of one-thirtieth of the corresponding portion.
7. 840. Regarding the days not considered to be days actually worked, mentioned in the previous paragraph, it should be pointed out that section 2 of Presidential Decree No. 005-2002-TR prescribes the circumstances under which, when the employment relationship is suspended during the payment periods (first half of July or December), the law exceptionally considers these periods to have been worked. The only exceptions are vacation leave, paid leave, vacation or leave established by social security regulations and giving rise to the payment of benefits, leave due to an occupational accident for which social security benefits are paid, and those cases which are expressly considered by law as days worked for legal purposes.
8. 841. In this respect, it is important to mention that, although the Act and its implementing regulation do not explicitly say so, it should be understood, by logical interpretation of the law, that these exceptional cases prescribed by the Act and its regulation are applied not only to determine whether the worker will be considered to have been actually working during the first or second half of July or December (bearing in mind that during this period, his employment relationship may have been suspended for one of the reasons mentioned under section 2 of Presidential Decree No. 005-2002-TR), but these exceptional cases are also used to determine the amount of the paid bonus, since they are useful for determining in turn whether the worker had actually worked during the whole semester, bearing in mind that, during that semester, the worker’s employment relationship may have been suspended for the reasons laid down in section 2 of Presidential Decree No. 005-2002-TR.

C. The Committee’s conclusions

1. 842. The Committee observes that, in this case, the complainants object to the state enterprise Petróleos del Peru having withheld, in addition to the portion of the workers’ wages corresponding to the one-day strike of 14 May 2002 (a point which they do not dispute), an amount equivalent to one-sixth of the biannual bonus for the national holiday. The complainants argue that the enterprise implemented new legislation instead of applying the collective agreement (clause 28), which is more favourable to the workers.
2. 843. The Government, on the other hand, states that the withholding of one-sixth of the (biannual) bonus in question was done according to the implementing regulation under Act No. 27735, which was still in force at the time and which provided that the length of service for purposes of calculating each biannual bonus was determined on the basis of each complete calendar month actually worked during the corresponding period. Therefore, a worker who was absent from the workplace for one day would lose the amount of the bonus for that month (that is one-sixth of the biannual bonus). The Government explains nevertheless that, subsequent to the strike in question, according to section 3.4 of the new Presidential Decree No. 005-2002-TR - which elaborates on Act No. 27735 of 9 May 2002 - the national holiday bonus can only be reduced by one-thirtieth for each day not worked.
3. 844. The Committee observes that, as stated by the complainants, clause 28 of the collective agreement (forwarded by the complainants) regulates the national holiday bonus with no mention of any exceptions. The text of the clause is as follows:
   • Bonus for national holidays and end-of-year bonus
   • The enterprise shall grant its workers a bonus for the national holiday consisting of 100 per cent of the base monthly salary or 30 days’ wages, in addition to the monthly sum corresponding to the five-year increment.
4. 845. The Committee observes moreover that section 8 of Act No. 27735 of 9 May 2002, respecting national holiday bonuses, provides that “payment of such bonuses cannot be combined with other similar economic benefit ... under ... collective agreements ... in which case the bonus which is more favourable shall be granted.”
5. 846. In these circumstances, the Committee considers that, the collective agreement being more favourable than the legislation, that is Presidential Decree No. 005-2002-TR, which amends Presidential Decree No. 017-2002-TR, the amount of the bonus for the national holiday should not have been deducted from the workers’ wages after the 14 May 2002 strike. The Committee asks the Government to take measures to ensure compliance with clause 28 of the collective agreement.