Rapport intérimaire - Rapport No. 291, Novembre 1993

435. The Committee examined these cases at its February 1993 meeting and presented an interim report to the Governing Body (see 286th Report of the Committee, paras. 438 to 464, approved by the Governing Body at its 255th Session (March 1993)) containing its interim conclusions.

1. 435. The Committee examined these cases at its February 1993 meeting and presented an interim report to the Governing Body (see 286th Report of the Committee, paras. 438 to 464, approved by the Governing Body at its 255th Session (March 1993)) containing its interim conclusions.
2. 436. In a communication dated 29 June 1993, the International Union of Food and Allied Workers' Associations (IUF) presented new allegations.
3. 437. The Government sent new observations in communications dated 19 and 22 January, 14 April, 5 May, 14 June and 4 August 1993.
4. 438. Peru has ratified the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87) and the Right to Organize and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the cases

1. 439. The allegations which remain pending in the present cases refer to the following matters: to the alleged inconsistency between Legislative Decree No. 25593, known as the Industrial Relations Act of 1992, and Conventions Nos. 87 and 98; to other decrees which are challenged by the complainant organizations; to the murder on 3 August 1992 of trade union leader Juan Andahua Vergara; and to the discriminatory dismissal of ten trade union leaders and of workers from the Pesca-Perú enterprise.
2. 440. As regards Legislative Decree No. 25593, known as the Industrial Relations Act of 1992, the complainant organizations maintain that several of its provisions contravene Conventions Nos. 87 and 98. They specifically complain that:
3. - section 5 imposes on workers in an authoritarian manner a limited range of organizational models (enterprise trade unions, sectoral or occupational unions, guilds, etc.), in contravention of the principle of collective autonomy that is embodied in freedom of association;
4. - section 10 establishes the obligations of trade union organizations, stch as to communicate to the labour authority any reform of their internal rules and to issue any reports which might be requested by the labour authorities; further to this, section 17 requires them to register with the labour authority; at the same time, section 20 provides that the labour authority may cancel such registration only in the event of the dissolution, merger or take-over of a trade union organization, or in the event of loss of any of the conditions required for its establishment, in which latter case it loses its trade union status. The aforementioned sections enable the competent authority to exercise an external control and give it discretionary powers to dissolve trade union organizations;
5. - section 11(a) prevents trade union organizations from involving themselves in matters that concern party politics, or that are of a religious or lucrative nature, thereby restricting the range of activities available to them; likewise, subsections 11(c) and (d) prevent a trade union organization from using social funds or property for purposes which do not correspond to the union's objective or from distributing income or property from the union's assets, all of which constitutes a restriction on the right of trade union organizations to organize their administration and activities;
6. - section 12 stipulates that in order to become a member of a trade union a person must work in the appropriate enterprise, activity, profession or occupation (subsection (a)) and not be affiliated to any other trade union (subsection (d)); in turn, section 24 stipulates that in order to be a member of the executive committee, a person must be an active member of the trade union (subsection (b)) and have worked for at least one year in the enterprise (subsection (c)); both of these sections place restrictions on the freedom of trade union membership and the appointment of workers' representatives;
7. - section 14 stipulates that a minimum of 20 workers shall be required in order to form an enterprise-level trade union, and 100 for other kinds of unions; this amounts to prohibiting all trade union activity for workers employed in Peru's formal or informal sectors, especially bearing in mind that 90 per cent of the country's enterprises are in the form of micro-enterprises with fewer than 20 workers per production unit;
8. - section 31 states that the relevant regulations shall stipulate the minimum and maximum number of leaders covered by trade union immunity, taking into consideration the size and nature of the organization; thus, the Government is influencing the structure and composition of the executive committees of trade union organizations;
9. - section 32 restricts the autonomy of the parties as regards collective agreements by establishing a maximum of 30 days per calendar year on which union officers may be granted leave to carry out their trade union functions, contrary to Article 4 of Convention No. 98;
10. - section 43(c) provides that collective labour agreements shall remain in force for not less than one year, the parties being free to establish longer periods; in a country like Peru, where there is great political, economic and social instability, the conditions which give rise to collective agreements can at any time be altered by circumstances; the pre-determination of minimum periods of validity that do not reflect the evident will of the parties to the agreement is therefore a clear example of inflexibility in contravention of Article 4 of Convention No. 98;
11. - section 46 stipulates that a prerequisite for the signing of a collective agreement on the branch or occupational level is that there must be an absolute majority in terms both of the number of workers and enterprises which the trade union organization(s) involved in the negotiations represent, and of the number of enterprises from the branch of activity or occupation that are called upon to negotiate; this is incompatible with Article 4 of Convention No. 98;
12. - section 55 provides that workers and their representatives must treat any information received from the enterprise during negotiations in utmost confidence, under threat of suspension of their right to information, irrespective of any disciplinary measures and legal actions to which they could be subjected; in that connection, section 5(d) of Act No. 24514 provides for the punishment by dismissal of any worker who makes use of or passes to third parties manufacturing procedures - or any such information - considered to be secret, thereby clearly undermining the right to information and freedom of opinion;
13. - the fourth transitional provision of the Decree states that the first round of collective bargaining giving rise to a valid agreement, award or decision under the Act must include the total revision of all agreements on working conditions and remuneration that are currently in force; likewise, section 66 provides that an arbitral decision is not open to appeal and is binding, while section 65 stipulates that the arbitral decision must reflect the final proposal of one of the parties in its entirety and that it should avoid any solution that differs from the final proposals of the parties or combines the proposals of the two parties; furthermore, section 43(d) states that the collective agreement automatically lapses upon its expiry. The foregoing amounts to a violation of the principle of collective autonomy of the parties inasmuch as it imposes one of the subjects of negotiation on the employers and workers (the revision of all previous agreements), with the result that the workers lose all their previously acquired labour rights that are not incorporated in the new collective agreement; furthermore, collective agreements entered into freely by the parties would no longer be binding, which is bound to aggravate the legal uncertainty that currently surrounds collective bargaining in Peru;
14. - section 61 provides that in cases where agreement cannot be reached either through direct negotiation or conciliation, the parties may submit the dispute to arbitration if the workers so request it; section 62 provides that, with reference to the previous section, workers may alternatively call a strike in accordance with section 73, subsection (d) of which states that a prerequisite for calling a strike is that the collective bargaining must not have been submitted to arbitration. In this manner, the State imposes on workers the single option of choosing between recourse to voluntary arbitration or the exercise of their right to strike; furthermore, even though section 63 provides that during the course of the strike the workers may propose that the dispute be submitted to arbitration, whether or not this happens depends entirely on whether the employer accepts the proposal;
15. - section 67, in providing for compulsory arbitration where essential public services are concerned, would appear to be incompatible with principles embodied in Article 4 of Convention No. 98;
16. - section 68 gives the executive the power to end a strike which has gone on for so long as to jeopardize an enterprise or productive sector seriously or which leads to acts of violence, without excluding the possibility of seeking a direct settlement or some other form of peaceful solution; this provision gives the executive discretionary powers to put an end to any lawful work stoppage, contrary to the principles of freedom of association;
17. - section 73(a) provides that a prerequisite for calling a strike is that the purpose of the strike be to defend the occupational rights and interests of the workers taking part in it, thereby ruling out sympathy strikes and stoppages; as regards subsection 73(b), which provides that a further prerequisite for calling a strike is that the decision must be taken by more than half of the workers involved, at a meeting whose minutes must be countersigned by a notary public, the Committee on Freedom of Association has in similar cases considered such restrictions to be in contravention of Convention No. 87;
18. - section 81 provides that the Legislative Decree does not protect irregular forms of work stoppages, such as the sudden halting of operations in the enterprise's nerve-centres, labour slowdowns, go-slow strikes or working to rule, while section 84(c) provides that the strike will be declared unlawful if it takes any of the forms referred to in section 81. These provisions rule out a legitimate means of trade union action by workers and their organizations;
19. - section 82 requires workers who are engaged in a dispute to guarantee the presence of essential staff in order to prevent a total shut-down in the event of a strike affecting essential public services. In that connection, it should be pointed out that the definition of essential public services provided in section 83 is both vague and generic. Services concerned with the provision of "fuel", and with "penitentiary establishments", "transport" or the "administration of justice" would not appear to be essential in the strict sense of the term according to the criterion established by the Committee on Freedom of Association; those services which are vaguely and inaccurately defined as being of "a strategic nature or connected with national defence or security" would seem even less essential, let alone those whose interruption is said to present a serious and imminent risk to persons or property. Finally, the last paragraph of section 82 provides that any disagreement as to the composition of essential staff in the event of strike action being taken in essential public services will be resolved by the labour authority; this is an inequitable procedure which is contrary to what the Committee on Freedom of Association has advocated on many occasions.
20. 441. As the Government did not supply sufficiently detailed observations on the allegations, the Committee formulated the following recommendations when it last examined the case (see 286th Report of the Committee, paragraph 464):
21. The Committee requests the Government to communicate urgently its observations on all the allegations concerning serious infringements of the right to organize, the right of collective bargaining and the right to strike by various decrees and by Legislative Decree No. 25593 concerning industrial relations, and specifically to state whether the said Legislative Decree repealed any of the decrees mentioned by the complainants.
22. The Committee regrets that the Government did not send its comments on the murder of the trade union leader Juan Andahua Vergara and asks the Government to carry out a judicial inquiry so as to shed light on this murder, identify and punish the guilty parties and report to it on this matter.
23. The Committee requests the Government to supply complete information on the allegations of discriminatory dismissals of union leaders and workers in the Pesca-Perú enterprise.
24. B. New allegations
25. 442. In its communication of 29 June 1993, the IUF alleges that section 5 of Legislative Decree No. 26119 of December 1992 provides that any person who prevents or hinders the delivery of goods belonging to Pesca-Perú shall be punished by imprisonment for a period of between one and three years, and that the sentence shall be doubled in cases where the person concerned is a public servant or a leader or member, or a former leader or former member, of a trade union organization.
26. C. The Government's reply
27. 443. In its communication of 22 January 1993, the Government provides its observations on the alleged violations of freedom of association and collective bargaining arising in connection with Legislative Decree No. 25593 on industrial relations.
28. 444. As regards Legislative Decree No. 25593, known as the Industrial Relations Act of 1992, the Government states the following:
29. - section 5 refers to the various models which may be used when establishing trade unions, and is not worded in such a way as to constitute an imposition; where specific organizations are formed on the basis of models which are permitted under international agreements and under the law, these will be registered;
30. - as regards section 10, which lists the obligations of trade union organizations, these obligations in no way restrict freedom of association and are intended solely to illustrate how organizations are incorporated into society as legal entities;
31. - as regards section 17, the obligation of trade unions to register with the labour authority to which it refers is a formality which may not be refused unless the requirements stipulated in the Legislative Decree are not met;
32. - as regards section 11, which refers to the restrictions imposed on trade union organizations, it is for the State to indicate the standards which govern the institutional life of organizations, whatever their nature; given that the minimum restrictions relate to the rights and obligations which govern the existence of natural persons and legal entities in Peru, trade union organizations cannot be exempted;
33. - as regards the conditions for membership of a trade union or its executive committee (sections 12 and 24), the requirements that a member of a trade union must be a worker in the enterprise and that a leader must be an active member of the trade union stem, on the one hand, from the fact that a person from outside the place of employment in question cannot be fully acquainted with the working conditions prevailing there, and, on the other hand, from the fact that the presence of third persons within the executive could eventually lead to a situation in which the trade union organization no longer looks after its own interests;
34. - as regards section 14, which requires that there be at least 20 workers in order to establish an enterprise-level trade union or 100 workers for other kinds of trade union, such requirements are aimed at ensuring that trade union organizations are sufficiently large to be a functional part of Peruvian society;
35. - with regard to the provisions limiting the number of trade union leaders who enjoy trade union immunity (sections 31 and 32 of the Legislative Decree), sections 12 and 13 of the relevant regulations lay down the rules for granting such immunity, which was recently introduced in Peru with the entry into force of the previously mentioned Acts;
36. - as regards the imposition of an expiry date for collective agreements (section 43(c)), the minimum period of one year from the time of collective bargaining which has been in force in Peru since 1972 corresponds to the real situation in the country and to the structural changes that may affect the agreements concluded by the parties, which may however, agree on longer periods of validity in accordance with the provision in question;
37. - as regards the provision prescribing predetermined majorities as a condition for the validity of branch-level collective agreements (section 46), given that the Decree has provided for the possibility of negotiating at different levels, in the case of branch-level negotiation the workers included in that negotiation should express their will in the form of a majority in order to avoid having an undesired level of negotiation imposed upon them;
38. - as regards the possibility of the right to information and freedom of opinion being suspended (section 55), this provision, which did not figure in the previous legislation, introduces the right to information in collective bargaining with a view to ensuring the harmonious development of such bargaining;
39. - as regards the provisions declaring void rights acquired by virtue of agreements and revoking the principle of collective autonomy (fourth transitional provision, section 43(d) and sections 62 to 66), section 30 of the regulations under the Act provides that collective agreements may be declared void only if this is agreed to by the parties or determined by an arbitral decision;
40. - as regards the provisions pursuant to which recourse to arbitration acts as a bar to the exercise of the right to strike (sections 61, 62, 63, 67 and 82), sections 46 and 47 of the regulations specify the scope of sections 61, 62 and 63 of the Decree, and point out that any of the parties may submit the dispute to arbitration, and that if it is the employer who does so, this does not bar the workers from being able to exercise the right to strike by way of alternative action;
41. - as regards the provision giving the public authorities discretionary power to order the termination of a strike (section 68), it should be noted that although strike action is a legitimate right of workers, this cannot be taken to mean that the executive power, as guardian of the national interest and the rights of the individual, can permit a situation in which a stoppage seriously jeopardizes a given enterprise or productive sector, leads to acts of violence or takes on alarming proportions;
42. - with regard to the provision that over half of the workers involved must decide in favour of strike action before a strike may be declared (section 73(b)), this corresponds to the principle of freedom of association, which resides in workers being able, of their own free will, to express their decision;
43. - as regards the provisions restricting illegal forms of strike (such as sudden stoppages, labour slowdowns, go-slow strikes or working to rule) (sections 81 and 84(b)), given that the right to strike is regulated, it should be exercised in such a manner as not to jeopardize the right of others or the national interest;
44. - as regards the provisions restricting strikes in essential public services (sections 82 and 83), respect for the life and safety of individuals are hallowed principles in Peru, and the requirement that workers employed in essential services must attend to emergency situations should not therefore be considered restrictive.
45. 445. In its communication of 14 April 1993, the Government states that, under the fifth final complementary provision of Legislative Decree No. 25593 of 1992, all the old provisions dealing with freedom of association, collective bargaining and strike have been repealed.
46. 446. As regards the alleged murder of union leader Juan Andahua Vergara, the Government states in its communication of 14 April 1993 that he died on 5 August 1992 in the "Sergio Bernales" hospital (Colique), Lima, and that, according to the autopsy report, he died of "heart failure following the spontaneous rupturing of the right cerebellar artery", his death having occurred naturally - probably as the result of high blood pressure or other causes - and not by reason of a trauma.
47. 447. As regards the allegation concerning the discriminatory dismissal of ten trade union leaders and of 1,636 workers from the Pesca-Perú enterprise, the Government points out in its communications of 5 May and 14 June 1993 that within the framework of its state enterprise privatization policy, it issued Legislative Decree No. 25715, which declares Pesca-Perú to be in the process of organizational restructuring and administrative reorganization and authorizes its board of directors to implement an incentive programme to encourage voluntary staff redundancies. The said Decree likewise authorizes Pesca-Perú, upon expiry of the time-limit within which workers may avail themselves of the incentive programme, to submit to the labour authority a request for the reduction of surplus staff, together with a list of the names of those workers to which that measure applies. Furthermore, wherever job stability arrangements are considered to have been violated, the complainants are within their rights individually to bring the corresponding legal action before the courts.
48. 448. As regards the allegation concerning the doubling of sentences in the case of trade union leaders or members who hinder the delivery of goods belonging to the Pesca-Perú enterprise, provided for by section 5 of Legislative Decree No. 26119, the Government points out, in a communication dated 4 August 1993, that the most severe punishment that can be imposed on leaders or former leaders of a trade union organization is in correlation with the responsibilities relating to the exercise of trade union functions and is not intended to prevent trade unions or their leaders from carrying out their trade union activities; in this respect, the above-mentioned provision provides for the same sentence in the case of public servants or former public servants.

D. The Committee's conclusions

1. 449. The Committee observes that the present complaints refer to the alleged inconsistency between Legislative Decree No. 25593, known as the Industrial Relations Act of 1992, and Conventions Nos. 87 and 98, and to the validity of other decrees which are challenged by the complainant organizations; to the murder on 3 August 1992 of trade union leader Juan Andahua Vergara; to the discriminatory dismissal of trade union leaders and workers from the Pesca-Perú enterprise; and to the doubling of sentences in the case of trade union leaders or members who hinder the delivery of goods belonging to the Pesca-Perú enterprise (Legislative Decree No. 26119).
2. 450. The Committee takes note of the observations furnished by the Government on the legislative aspects of the case, and proposes to examine one by one those sections of Legislative Decree No. 25593 referred to in the complainants' allegations.
3. 451. As regards section 5 of the Decree, the Committee observes that it offers workers the option between various models of trade union organization (such as enterprise trade unions, sectoral or occupational unions. Given that workers may freely choose the form of organization they feel to be appropriate, the Committee considers that this provision does not constitute a violation of the right to organize. As regards section 14, which stipulates that there must be a minimum of 20 workers in order to establish an enterprise-level trade union, and of 100 workers for trade unions of other kinds, the Committee has always maintained that the minimum number of 20 members to form a union does not seem excessive and, therefore, does not in itself constitute an obstacle to the formation of a trade union (see Digest of decisions and principles of the Freedom of Association Committee, 3rd edition, 1985, para. 257). As regards the minimum requirement of 100 workers in order to form trade unions of other kinds (by branch of activity, occupation or for various occupations), the Committee requests the Government, in consultation with the workers' and employers' organizations, to take initiatives to reduce this number.
4. 452. In the Committee's opinion, the obligations imposed on trade unions pursuant to section 10 of said Decree (such as having to keep a minute book, to record details of assemblies in that book, to advise the labour authority of any reform of their internal rules, etc.) refer to administrative formalities which lie within reasonable bounds and do not constitute a violation of trade union rights - except in so far as the authorities are empowered to request reports (subsection (f)), which should be restricted to reports on members accused of breaking the law or internal rules.
5. 453. As regards section 17 of the Decree concerning the registration of trade unions, the Committee wishes to recall that "if the conditions for the granting of registration are tantamount to obtaining prior permission from the public authorities for the establishment or functioning of a trade union this would undeniably constitute an infringement of Convention No. 87. This, however, would not seem to be the case when the registration of trade unions consists solely of a formality and where the conditions are not such as to impair the guarantees laid down by the Convention" (Digest, 3rd edition, 1985, para. 275). In the Committee's view, the granting of registration appears to be subject to a simple check on compliance with formal legal requirements that are not subject to discretionary powers on the part of the authorities.
6. 454. The Committee observes that section 20 of said Decree empowers the labour authority to cancel the registration of a trade union, thus causing it to lose its trade union status, if, among other reasons, it has ceased to comply with any of the conditions laid down in respect of its establishment. In that connection, the Committee wishes to recall that "legislation which accords to the Minister the complete discretionary power to order the cancellation of the registration of a trade union, without any right of appeal to the courts, is contrary to the principles of freedom of association" (Digest, 3rd edition, 1985, para. 493). The Committee draws the Government's attention to the fact that the cancellation through administrative channels of the registration of a trade union amounts to the dissolution of that trade union through administrative channels, and constitutes a serious violation of Convention No. 87 (section 4). In these circumstances, the Committee requests that the legislation be modified in such a way that the cancellation of a trade union's registration may be effected only through judicial channels.
7. 455. As regards the allegation that trade union organizations are prohibited from involving themselves in matters that concern party politics, or that are of a religious or lucrative nature (section 11(a) of the Decree), the Committee points out that if this provision is interpreted as prohibiting any political activity, it would be incompatible with the principles of freedom of association. In effect, in the Committee's view, trade union organizations should have the right to express publicly their opinion regarding the Government's economic and social policy. Moreover, such a general prohibition would be unrealistic in practice (see Digest, 3rd edition, 1985, para. 356). The Committee therefore requests the Government to take initiatives so that the prohibition is clearly limited to purely political matters which do not fall within the scope of the principles of freedom of association.
8. 456. As regards the allegations concerning the requirements which must be fulfilled in order to become a member of a trade union (section 12 of the Decree), in the Committee's opinion the requirement that a person must be a worker of the enterprise (subsection (a)) is not contrary to the right to organize. Similarly, the requirement that the workers concerned not be members of the management (subsection (b)), is not contrary to the right to organize provided workers in this category have the right to establish their own organizations. Subsection (c) of the same section, which denies eligibility to persons undergoing a period of work probation, is, in the view of the Committee, contrary to the principles of freedom of association, since it prevents workers in this category from forming or joining trade union organizations of their own choosing. As regards the requirement that they not be members of any other trade union (subsection (d)), the Committee considers that this provision restricts the trade union rights of workers who should be able, if they so wish, to join trade unions on the branch level as well as the enterprise level at the same time. The Committee therefore requests the Government to take initiatives to ensure that the legislation is modified so as to permit probationary workers to form or join trade union organizations of their own choosing if they so wish and to permit workers to join several trade union organizations.
9. 457. As regards section 24(b), which provides that in order to become a member of the executive committee a person must be an active member of the trade union, the Committee's opinion, like that of the Committee of Experts, is that provisions of this type may prevent qualified persons, such as pensioners or full-time union officers, from carrying out union duties, thereby depriving unions of the benefit of the experience of certain officers and trade unionists, particularly when they are unable to recruit enough qualified persons from their own ranks (see General Survey by the Committee of Experts, 1983, paragraph 158). As regards subsection 24(c), which stipulates that a person must have spent at least one year working in the enterprise in order to become a member of the executive committee, the Committee considers that this provision impedes the establishment of trade unions in enterprises which are less than one year old. In these circumstances, the Committee requests the Government to ensure that legislation permits workers to exercise unhindered the right to organize and to elect their own representatives freely.
10. 458. As regards the allegation concerning the number of leaders who can be covered by trade union immunity (section 31 of the Decree), the Committee observes that the law grants trade union immunity to, among others, the members of the executive committees of trade unions, federations and confederations (subsection (b)), and that it refers to sections 12 and 13 of the regulations for determining the minimum and maximum number of leaders to whom immunity is extended, taking into account the size and nature of the organization. On the basis of those sections (see annexed text), the Committee considers that the number of trade union representatives covered by trade union immunity is within reasonable limits, but that the possibility should exist to establish a higher number, through collective bargaining.
11. 459. As regards the allegation concerning the imposition of a limit on the leave granted to trade union leaders (section 32), the Committee observes that the first paragraph of that section provides that the collective agreement shall contain provisions aimed at facilitating trade union activities, and that the final paragraph limits such leave periods to 30 days per calendar year. In the Committee's opinion, the limit of 30 days' leave per calendar year envisaged in section 32 should not limit the right of workers' and employers' organizations to establish a longer period through collective agreements, should they so wish. It would therefore be appropriate for the legislation to provide for such a possibility. 460. As regards the allegations which refer, on the one hand, to section 43(c), which provides that collective labour agreements shall remain in force for at least one year, and, on the other hand, to section 46, which stipulates that a prerequisite for the conclusion of a collective agreement on the branch or occupational level shall be a majority in terms both of the number of workers and of enterprises, the Committee recalls that the legislation should permit the employers' and workers' organizations to engage in collective bargaining without hindrance, in accordance with Article 4 of Convention No. 98, and that these limitations are liable to make it very difficult to engage in collective bargaining at this level. The Committee accordingly requests the Government, in consultation with the social partners, to ensure that the legislation is modified in the light of the foregoing considerations.
12. 461. As regards the allegations concerning the right to information and freedom of opinion in relation to collective bargaining and the punishments that apply in the event of disclosure (section 55 of the Legislative Decree and section 5 of Act No. 24514), the Committee considers that the punishment by dismissal that is envisaged (section 5 of Act No. 24514), in the event that trade union representatives communicate to third parties information they have acquired in the course of the collective bargaining process where that disclosure is liable to damage the enterprise, is not contrary to the principles of freedom of association.
13. 462. As regards the allegation concerning the obligation to renegotiate collective agreements currently in force and the violation of the principle of collective autonomy (fourth transitional provision, sections 43(d), 57, 65 and 66 of the Legislative Decree, and section 30 of the regulations corresponding to that Decree), the Committee observes that the fourth transitional provision provides that the first round of collective bargaining giving rise to an agreement, award or decision that becomes valid with the coming into force of this Legislative Decree shall include the complete revision of all agreements on working conditions and remuneration that are currently in force. In the absence of an agreement, the matter will proceed in accordance with the rules established by the present Legislative Decree". In addition, section 43(d) provides that a collective agreement "automatically lapses upon its expiry, except where a permanent agreement has been reached or where the parties expressly agree upon its entire or partial renewal or extension". Likewise, section 30 of the regulations made under the Legislative Decree provides that "the lapsing referred to in section 43(d) of the Legislative Decree shall apply to collective agreements signed prior to the entry into force of the Legislative Decree if, as a result of the revision carried out pursuant to the fourth and final transitional provision of the Legislative Decree, that lapsing is agreed to by the parties or provided for by the arbitral decision without prejudice to the provisions laid down in the second paragraph of section 57 of the Legislative Decree". That provision establishes that the employer may propose clauses which are new or which replace those contained in previous agreements. As regards the aforementioned provisions, the Committee is of the view that legislation which obliges the parties to renegotiate acquired trade union rights is contrary to the principles of collective bargaining. In this respect, the Committee requests that the necessary steps be taken to allow workers' organizations to negotiate conditions of employment freely with the employer.
14. 463. As regards the allegation to the effect that recourse to arbitration excludes the exercise of the right to strike (sections 61, 62 and 63), the Committee observes that, so far as can be ascertained from an analysis of the relevant sections (see annexed text), workers may opt either for arbitration or for strike action; in these circumstances, the Committee considers that such provisions do not violate the principles of freedom of association.
15. 464. As regards the allegation concerning compulsory arbitration in essential public services (sections 67 and 83), the Committee observes that, under section 67, any dispute in essential public services which cannot be settled either by direct negotiation or conciliation shall be submitted to compulsory arbitration by a tripartite tribunal. The Committee also observes that the list of essential public services in section 83 is too long and includes services which are not essential in the strict sense of the term (i.e. those services whose interruption would endanger the life, personal safety or health of the whole or part of the population) (see Digest, 3rd edition, 1985, para. 387). Specifically, the Committee considers that subsection 83(j), which refers to essential public services as being those whose interruption would create a serious and imminent risk for individuals or property, could, given its vagueness, be interpreted in such a way as to limit seriously the right to strike, and should therefore be deleted from section 83 of the Legislative Decree.
16. 465. As regards the allegation concerning section 68, which empowers the public authorities to intervene and to order an immediate return to work in the event that a strike goes on for so long as to jeopardize an enterprise or productive sector seriously, or takes on alarming proportions, the Committee has on previous occasions stated that "it would appear legitimate that a minimum service be maintained in the event of a strike the extent and duration of which might be such as to result in an acute national crisis endangering the normal living conditions of the population. Such a minimum service should be confined to operations that are strictly necessary to avoid endangering the life, personal safety or health of the whole or part of the population; in addition, workers' organizations should be able to participate in defining such a service in the same way as employers and the public authorities" (see Digest, 3rd edition, 1985, para. 415). In this regard, the Committee is of the view that the legislation should not hinder the full exercise of the right to strike and that, in such circumstances, it would be possible to establish a minimum service, taking the above considerations into account.
17. 466. As regards the allegations concerning sections 81 and 84, which state that the Legislative Decree does not protect irregular forms of action, such as the sudden halting of operations, go-slow strikes, working to rule, etc., the Committee considers that these restrictions may be justified only if the strike ceases to be peaceful (see Digest, 3rd edition, 1985, para. 367).
18. 467. As regards the allegation concerning section 82, which requires that a minimum service be maintained in the event of a strike in essential public services (as defined in section 83), and that any disagreement as to the number and duties of the workers concerned shall be settled by the labour authority, the Committee is of the opinion that the legislation should provide for any such disagreement to be settled by an independent body.
19. 468. As regards the allegation concerning the conditions to be fulfilled before a strike may be declared (section 73(a) and (b)), the Committee observes that, under subsection (a), in order for a strike to be declared it must have as its objective the defence of the occupational rights and interests of the workers. In this connection, the Committee wishes to recall that "the occupational and economic interests which workers defend through the exercise of the right to strike do not only concern better working conditions or collective claims of an occupational nature, but also the seeking of solutions to economic and social policy questions and problems facing the undertaking which are of direct concern to the workers" (see Digest, 3rd edition, 1985, para. 368). As regards section 73(b), which requires a decision by over half of all the workers involved in order to declare a strike, the Committee is of the opinion that such a requirement is excessive and could excessively hinder the possibility of carrying out a strike, particularly in large undertakings. The Committee calls on the Government to take the necessary steps to modify accordingly section 73(a) and (b) prescribing the conditions to be fulfilled before a strike may be declared.
20. 469. As regards the allegations concerning the validity of certain statutory provisions which have entered into force since 1990 and are inconsistent with Conventions Nos. 87 and 98, the Committee observes that, as stated by the Government, in accordance with the fifth final supplementary provision of Legislative Decree No. 25593 of 1992, all of the provisions governing freedom of association, collective bargaining and strike action have been repealed. In these circumstances, the Committee takes note that the following provisions have been repealed: Supreme Decrees Nos. 070-90-TR; 076-90-TR; 016-91-TR (on freedom of association); and Supreme Decrees Nos. 057-90-PR; 061-90-TR; 067-90-TR; 071-90-TR; 107-90-PCM; 121-90-PCM; 001-91-TR; 018-91-TR; 023-91-TR (on collective bargaining).
21. 470. As regards the allegation concerning the murder on 3 August 1992 of trade union leader Juan Andahua Vergara, the Committee observes that the Government confirms the death of Mr. Andahua Vergara as having occurred on 5 August 1992 in the "Sergio Bernales" Hospital (Colique), Lima, and that, according to the autopsy report, he died of "heart failure following the spontaneous rupturing of the right cerebellar artery", his death having occurred naturally - probably as the result of high blood pressure or other causes - and not by reason of a trauma. The Committee takes note of this information and considers that it is not in a position to examine this aspect of the case any further.
22. 471. As regards the allegations concerning the discriminatory dismissal of trade union leaders and workers from the Pesca-Perú enterprise, the Committee observes that as a result of the organizational and administrative restructuring of the enterprise, which was accompanied by an incentive programme to encourage voluntary staff redundancies (Legislative Decree No. 25715), a total of 1,636 workers - including ten trade union leaders - were dismissed. In the Committee's opinion, such dismissals are the product of general measures the effect of which is not limited solely to trade union leaders and which stem from the implementation of rationalization and staff reduction programmes within the framework of a state enterprise privatization policy in Peru. The Committee regrets that the rationalization and staff reduction process did not involve any negotiations between the enterprise and the trade union organizations, and that the Government preferred to proceed unilaterally in this matter by decree.
23. 472. The Committee requests that, in the cases where it would be necessary to have recourse to new staff reduction programmes, negotiations take place between the enterprise concerned and the trade union organizations.
24. 473. As regards the allegation concerning the doubling of sentences in the case of trade union leaders or members who hinder the delivery of goods belonging to the Pesca-Perú enterprise, provided for by section 5 of Legislative Decree No. 26119, the Committee observes that this provision provides for the same sentence in the case of public servants and former public servants. It notes the Government's statement that the sentence in question corresponds to the responsibilities relating to the exercise of trade union functions and is not intended to prevent trade unions or their leaders from carrying out their trade union activities. In the Committee's view, the doubling of sentences in the case of trade union members and leaders cannot be justified since it could constitute an act of anti-union discrimination.

ANNEX

1. Sections of the new collective Labour Relations Act No. 25593, mentioned by
2. the complainant organizations
3. Section 5. Unions may be established:
4. (a) On the enterprise level, which are made up of workers from various
5. professions, occupations or specialities, and who provide services for the
6. same employer.
7. (b) On the branch level, which are made up of workers from various
8. professions, specialities or occupations and belonging to two (2) or more
9. enterprises in the same branch of activity.
10. (c) On the occupational level, which are made up of workers from various
11. firms who carry out the same occupation, profession or speciality.
12. (d) For various occupations, which are made up of workers from various
13. professions, occupations or specialities who work in various enterprises or in
14. enterprises with various activities, when in a given place, province or
15. region the number of workers does not reach the necessary legal minimum to
16. establish any other type of union.
17. Section 10. Trade union organizations have the following obligations:
18. (a) To observe strictly their internal rules subject to the laws and
19. standards that regulate them.
20. (b) To update records of minutes, membership registration and account
21. books duly certified by the competent labour authority.
22. (c) To note down in the minute book the minutes of assemblies and sessions
23. of the executive committee as well as any pertinent agreements or any other
24. decisions of general interest.
25. (d) To communicate to the labour authority any reforms of its internal
26. rules, and supply it with certified copies of the new texts, and also to
27. communicate to the authority and the employer the list of members of the
28. executive committee and any changes made to it within the five (5) working
29. days following such changes.
30. (e) To issue its leaders with credentials reflecting their position.
31. (f) To supply any reports that the labour authority or other governmental
32. authorities may request.
33. (g) To comply with any other obligations as provided for in the laws
34. and standards regulating trade union organizations.
35. Section 11. Trade union organizations may not:
36. (a) Dedicate themselves on an institutional level to issues that concern
37. party politics, religion or that are of a lucrative nature.
38. (b) Directly or indirectly coerce workers to join or to leave the trade
39. union organization, except in the case of expulsion for reasons provided for
40. in the statutes, and which have been duly proven.
41. (c) Use social funds or property in ways other than those that come within
42. the objective of the trade union organization or that have not been duly
43. authorized in the manner provided for by legislation or the internal
44. rules.
45. (d) Directly or indirectly distribute income or property belonging to
46. the trade union.
47. (e) Carry out or encourage activities that are contrary to the law or
48. to public order.
49. Section 12. To be a member of a trade union it is necessary:
50. (a) To be a worker in the appropriate enterprise, or to exercise the
51. activity, profession or occupation corresponding to the trade union in
52. question.
53. (b) Not to be part of the management staff or to hold a post of
54. responsibility, except where expressly provided for by the internal rules.
55. (c) To have finished the trial period.
56. (d) Not to belong to any other trade union.
57. Section 14. In order to establish a trade union, the minimum number of
58. workers required is at least twenty (20) workers where enterprise-level trade
59. unions are concerned, or one hundred (100) for other types of trade union.
60. Section 17. The trade union must be registered in the appropriate
61. register held by the labour authority. The registration is a formality rather
62. than a constitutive act and it cannot be refused except when the conditions
63. set out in this Legislative Decree are not fulfilled.
64. Section 20. The cancellation of registration by the labour authority
65. may only occur as a result of dissolution, merger or take-over, or when one of
66. the conditions required for the establishment and existence of the trade union
67. is no longer fulfilled. In the latter case, the trade union loses its legal
68. personality as representative of a group of workers, but it retains its
69. personality as far as other aspects are concerned until it is finally
70. dissolved.
71. It is up to the labour authority to determine, according to the
72. appropriate procedure, whether the trade union has stopped fulfilling any of
73. the requirements necessary for its establishment and existence, in which case
74. the trade union is struck off the trade union register.
75. Section 24. A member of the executive committee must:
76. (a) Be of age.
77. (b) Be an active member of the trade union.
78. (c) Have been working for the enterprise for no less than one year.
79. Section 31. Trade union immunity applies to:
80. (a) The members of trade unions in the process of being formed from the time
81. of the presentation of the registration request up until three (3) months
82. later.
83. (b) Members of the executive committees of trade unions, federations
84. and confederations, as well as delegates of "trade union sections".
85. The duties covered by this immunity shall be specified by the internal
86. rules.
87. (c) The delegates to whom section 15 applies and the representatives
88. to whom section 47 of this Legislative Decree applies.
89. The Regulations shall determine the minimum and maximum number of
90. protected trade union leaders, bearing in mind the size and nature of the
91. organization, as well as the applicability of trade union immunity to the
92. cases provided for in clauses (b) and (c) of this section.
93. Section 32. The collective agreement shall contain provisions to
94. facilitate trade union activity as regards meetings, communication,
95. authorizations and leave. In no case whatsoever may authorizations or leave
96. be granted by way of an administrative act or arbitral decision.
97. Where no agreement has been concluded, the employer is only obliged to
98. grant permission to union leaders to participate in meetings where their
99. attendance is required by the Regulations.
100. The time covered by the leave permits granted to the trade union leaders
101. to carry out their duties during normal working hours shall for all legal and
102. contractual purposes be up to a limit of thirty (30) days per calendar year
103. per trade union leader; any additional time shall be considered as unpaid
104. leave and none of the usual benefits shall apply.
105. Section 43. The collective labour agreement has the following features:
106. (a) It renders legally binding the aspects of the employment relationship
107. that it covers. Individual contracts are automatically adapted to the
108. agreement and may not in any case contain provisions contrary to it that
109. are detrimental to the worker.
110. (b) It applies from the day following the expiry of the previous agreement
111. or, where there was no previous agreement, from the presentation date of the
112. document, apart from those provisions for which a specific time-limit
113. has been set or which consist of obligations to do or to give in kind, which
114. apply from the date on which the agreement is concluded.
115. (c) Its duration shall be no less than one (1) year, but the parties
116. may establish longer periods of validity for the whole of the agreement or for
117. any part of it.
118. (d) It shall automatically lapse upon its expiry, except when it has
119. been agreed upon to make the agreement a permanent one or when the
120. parties expressly agree upon its entire or partial renewal or extension.
121. (e) It shall remain valid until the expiry date even in the case of merger,
122. take-over, sale, change of course of the business and other similar
123. situations.
124. (f) Three (3) written copies must be drawn up, one for each party and
125. the third to be presented to the labour authority to be registered and
126. filed.
127. Section 46. To conclude a collective agreement on the branch or
128. occupational level it is necessary for the trade union organization or
129. organizations to represent the majority of the enterprises and workers in the
130. branch of activity or occupation at the local, regional or national level and
131. that all concerned enterprises be convened directly or indirectly.
132. Section 55. At the request of the workers' representatives, employers
133. shall provide any necessary information concerning the economic, financial and
134. social situation in their enterprises, and any other relevant information, as
135. long as the provision of such information is not detrimental to the
136. enterprise.
137. The information to be provided by the enterprise shall be determined by
138. mutual agreement between the parties. Where this has not been agreed upon,
139. the labour authority will specify the information to be provided by the
140. enterprise to ensure that negotiations are successful.
141. The workers, their representatives and advisers shall treat the
142. information received in strictest confidence, under risk of the suspension of
143. their right to such information, without prejudice to the disciplinary
144. measures and legal actions to which any lack of confidentiality could give
145. rise.
146. Section 57. Collective bargaining shall take place during the periods
147. and agreed upon by the parties, inside or outside working hours and shall
148. begin within the ten (10) calendar days following the presentation of the
149. request.
150. The employer or employers may propose clauses that are new or that
151. replace clauses in previous agreements.
152. It is only obligatory to keep minutes to record the agreements adopted
153. at each meeting, as the parties may decide whether to place on record any
154. requests or offers they may have made.
155. Section 61. If an agreement has not been reached by way of direct
156. negotiation or conciliation, and if the workers so request it, the parties may
157. submit the dispute to arbitration.
158. Section 62. In the case provided for by the previous section, the
159. workers may alternatively go on strike in accordance with the rules in section
160. 73. During the strike, the parties or the labour authority may name a
161. mediator. The mediator's closing remarks shall be transmitted to the parties.
162. If the mediation proposals are not accepted by the parties, they will
163. not compromise any subsequent decisions reached by means of arbitration.
164. Section 63. During the strike, the workers may also propose submitting
165. the dispute to arbitration, in which case the employer's consent is required.
166. Section 64. Arbitration may be conducted by a single arbitrator, an ad
167. hoc court, a representative institution, the labour authority itself, or any
168. other modality that the parties specifically decide upon, and which will be
169. noted in the arbitration record. If agreement is not reached on the
170. arbitration body, a tripartite tribunal will be automatically set up made up
171. of an arbitrator named by each party and a chairman named by both arbitrators
172. or, if agreement cannot be reached, by the labour authority.
173. In no case whatsoever may any of the following be arbitrators: the
174. parties' lawyers, advisers, representatives, agents or, in general, anyone
175. with any connection to the parties or any direct or indirect interest in the
176. outcome of the arbitration.
177. The procedural rules shall be the same for all types of arbitration and
178. shall be regulated by the principles of oral debate, simplicity, speed,
179. immediacy and loyalty.
180. If the employer is an enterprise that is included in the sphere of the
181. business activity of the State, or if it is a state body whose workers are
182. subject to private sector employment conditions, the Regulations of this
183. Legislative Decree shall stipulate the manner in which, in the absence of
184. agreement between the parties, the chairman of the arbitration tribunal shall
185. be designated. This appointment shall in no case whatsoever fall to the labour
186. authority.
187. Section 65. The arbitration shall not result in a decision that differs
188. from the final proposals of the parties nor combine suggestions from them
189. both.
190. The arbitral decision shall reflect the final proposal of one of the
191. parties in its entirety. However, due to the equitable nature of the
192. decision, extreme positions may be attenuated.
193. The decision shall take into account the conclusions of the report
194. referred to in section 56.
195. Section 66. Whatever form the arbitration body may take, its decision
196. cannot be appealed against and is binding for both parties.
197. The decision may be contested before the Labour Division of the Supreme
198. Court in the following cases:
199. (a) Nullity.
200. (b) Because it provides for less rights for workers than those stipulated by
201. law.
202. The lodging of the litigious-administrative action does not impede nor
203. postpone the execution of the arbitration decision unless the competent legal
204. authority decides otherwise.
205. Section 67. In the case of essential public services, if no agreement
206. has been reached through direct negotiation or conciliation, the dispute shall
207. be submitted to compulsory arbitration by a tripartite tribunal, made up of an
208. arbitrator named by each party and a chairman named by the labour authority.
209. Section 68. When a strike goes on for an excessively long time,
210. seriously jeopardizing an enterprise or sector of production, or if it leads
211. to acts of violence, or in any way assumes dangerous proportions due to its
212. size or consequences, the Government may intervene and order by way of a
213. well-founded decision the immediate resumption of work, without prejudice to
214. attempts to reach a direct settlement or other forms of peaceful solution. If
215. these should fail, the Ministry of Labour shall be responsible for the final
216. resolution of the dispute.
217. Section 73. For a strike to be called it is necessary:
218. (a) That its aim be to defend the occupational rights and interests of the
219. workers participating in it.
220. (b) That the decision be adopted by more than half the workers participating
221. in the strike, all assembled and by way of universal, individual, direct and
222. secret voting. The record of the assembly shall be certified by a
223. public notary or, if this is not possible, by the justice of the peace in the
224. locality.
225. In the case of trade unions at the branch or occupational level whose
226. assemblies are attended by delegates, the decision shall be adopted at an
227. assembly that has been specifically convened and shall be ratified by
228. the ordinary members.
229. (c) That the employer and the labour authority be informed at least five (5)
230. working days in advance, or ten (10) in the case of essential public services,
231. and be sent copies of the voting records.
232. (d) That the collective bargaining was not submitted to arbitration.
233. Section 81. This Legislative Decree does not apply to irregular forms
234. of work stoppages such as the sudden halting of operations in the
235. nerve-centres of the enterprise, labour slowdowns, go-slow strikes or working
236. to rule, a deliberate reduction in performance or any type of paralysis in
237. which workers remain in the workplace and entrance to the workplace is
238. obstructed.
239. Section 82. When the strike affects essential public services or in the
240. case of the provisions of section 78, the workers involved in the conflict
241. shall guarantee the presence staff who are essential so as to prevent the
242. total shut-down of services and shall guarantee the continuity of essential
243. services.
244. Each year the enterprises that provide these essential services shall
245. inform their workers or the trade union organization that represents them, and
246. the labour authority, of the number and occupation of the workers necessary to
247. maintain these services, of the schedules and shifts they should work, and of
248. the frequency with which they should be replaced.
249. The aim of this information is to ensure that the workers or trade union
250. organization representing them provide a list of the staff who are
251. indispensable in the case of a strike.
252. Workers who without any justified cause do not fulfil this service shall
253. be charged with committing a serious misdemeanour.
254. Differences relating to the number and occupation of the workers that
255. should appear on the list of essential staff mentioned in this section shall
256. be dealt with by the labour authority.
257. Section 83. The following are essential public services:
258. (a) Health services.
259. (b) Sanitation services.
260. (c) Electricity, water, gas and fuel services.
261. (d) Burial and autopsy services.
262. (e) Penitentiary services.
263. (f) Communication and telecommunication services.
264. (g) Public transport services.
265. (h) Services which are of a strategic nature or are linked to national
266. defence and security.
267. (i) Services in the realm of the administration of justice defined as
268. such by the Supreme Court of the Republic.
269. (j) Any services whose interruption would create a serious and imminent risk
270. for persons or property.
271. Section 84. The strike will be declared illegal:
272. (a) If it takes place in spite of having been declared badly founded.
273. (b) If it results in acts of violence against property or persons.
274. (c) If it takes any of the forms referred to in section 81.
275. (d) If the workers did not respect the provisions of sections 78 or 82.
276. (e) If it is not ended after notification of the arbitral decision or
277. definitive decision that puts an end to the dispute.
278. The resolution will be issued, either automatically or upon the request
279. of one of the parties, within the two days following the events and may be
280. appealed against. The ensuing second resolution shall be issued within a
281. maximum period of two days.
282. Fourth transitional and final provision. The first round of bargaining
283. giving rise to an agreement, award or decision that becomes valid with the
284. coming into force of this Legislative Decree, shall include the complete
285. revision of all pacts and collective agreements that are currently in force on
286. working conditions and remuneration. In the absence of agreement the matter
287. will proceed in accordance with the rules established by this Legislative
288. Decree.
289. Fifth transitional and final provision. In accordance with section I of
290. the preliminary article of the Civil Code, given that all issues concerning
291. freedom of association, collective bargaining and strikes are regulated by
292. this Legislative Decree, all other applicable provisions on this subject are
293. repealed.
294. Regulations applying the collective Labour Relations Act
295. Section 12. The trade union immunity mentioned in section 31 of the Act
296. covers:
297. (a) all members of the trade union participating in training, from the time
298. the request is presented up until three months following the training;
299. (b) in a first-level trade union, up to three (3) trade union leaders
300. if the number of workers represented is no higher than fifty (50), adding one
301. leader for every fifty (50) workers exceeding that number, to a maximum
302. limit of twelve (12);
303. (c) in a federation, two (2) trade union leaders for each affiliated
304. trade union, up to a maximum of fifteen (15);
305. (d) in a confederation, two (2) trade union leaders for each affiliated
306. federation, and up to a maximum of twenty (20);
307. (e) trade union leaders who represent workers in collective negotiations, up
308. to three (3) months following the end of the negotiations.
309. Section 13. There can be no more than one (1) trade union leader per
310. enterprise protected by trade union immunity in the case of trade unions for
311. certain branches of activity, occupations, various occupations, federations
312. and confederations.
313. Section 30. The expiry date mentioned in clause (d) of section 43 of
314. the Act applies to collective agreements made before the coming into force of
315. the Act if, as a result of the revision made by way of the fourth transitory
316. and final provision of the Act, this expiry date is agreed upon by the parties
317. or is fixed by way of arbitration, without any prejudice to the provisions in
318. the second paragraph of section 57 of the Act.
319. Section 46. At the end of either direct negotiations, or conciliation,
320. in accordance with section 61 of the Act, either of the parties may submit the
321. decision on the dispute to arbitration, unless the workers decide to exercise
322. the right to strike in conformity with section 62 of the Act.
323. Section 47. In the case considered in section 63 of the Act, the
324. workers or their representatives may propose in writing to the employer that
325. the dispute be submitted to arbitration, this submission requiring the written
326. acceptance of the employer.
327. If the employer does not give a written answer to the workers' proposal
328. by the end of the third working day following its reception, the proposal will
329. be deemed accepted, in which case the rules relative to arbitration procedures
330. will apply. Arbitration will proceed if the strike action ceases.