Rapport intérimaire - Rapport No. 304, Juin 1996

1. 417. The complaints in this case are contained in communications from the Trade Union of Workers of the Iron and Steel Plant of Peru (SIDERPERU), dated 22 August 1994, from the National Federation of Workers of the National Ports Enterprise (FENTENAPU), dated 26 August 1994, from the Federation of Electricity and Energy Workers of Peru, dated 21 July, 3 August and 4 September 1995, from the Coordinator of Trade Union Federations of Peru, dated 7 September 1995, from the General Confederation of Workers of Peru (CGTP), dated 13 September 1995, from the Single Confederation of Workers of Peru (CUT), dated 18 September and 14 December 1995, and from the Latin American Central of Workers (CLAT), dated 3 October 1995.
2. 418. The Government sent its observations in communications dated 4 and 20 January, 24 July and 27 November 1995, and 4 and 22 January, 6 February, 19 April and 15 May 1996.
3. 419. Peru has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainants' allegations

1. 420. In its communication dated 22 August 1994, the Trade Union of Workers of the Iron and Steel Plant of Peru (SIDERPERU) alleges that the Government illegally dismissed 1,700 workers of the Iron and Steel Enterprise of Peru - SIDER-PERU - and that it had announced its intention of dismissing 500 more, citing the implementation of a "staff rationalization" programme as part of the "economic and legal restructuring" of the enterprise.
2. 421. The complainant organization adds that in implementing the above-mentioned programme, the Government has destroyed the trade union organization by carrying out the following measures: (1) dismissal of all except three of the trade union officers; (2) dismissal of all the section delegates; (3) dismissal of all the workers who had held trade union office in the last five years; (4) illegal freezing of trade union funds by the enterprise.
3. 422. The complainant organization points out that while section 2 of Presidential Decree No. 47-94-PCM authorizes the SIDER-PERU enterprise to "implement a programme of voluntary termination of the contract of employment", the enterprise has gone beyond what was authorized, since it has carried out staff reductions including persons who did not wish to adhere to the programme. The enterprise ordered the termination of employment of over 50 per cent of all staff, including 90 per cent of the trade union officers and workers who had held trade union office in the last five years and 95 per cent of the section delegates and consisting entirely of unionized workers, which shows the anti-union nature of the decision.
4. 423. Lastly, the complainant organization states that when the trade union officers informed the SIDER-PERU enterprise that they chose to maintain the employment relationship, the latter informed them that they would be declared redundant and would be included with other workers in a staff reduction programme. Notwithstanding communications sent both to the enterprise and to the Labour Authority to the effect that under the terms of sections 30 and 31 of Act No. 25593, "the members of the executive committee of trade unions are protected by trade union immunity", the Labour Authority approved the staff reduction programme in question for the workers who had been declared redundant, including the trade union officers.
5. 424. In a communication dated 26 August 1994, the National Federation of Workers of the National Ports Enterprise (FENTENAPU) alleges that Legislative Decree No. 25604, enacted by the Government on 8 July 1992, under which property, stocks, shares and rights of state enterprises undergoing privatization shall not be subject to provisional measures ordered by judges or arbitration tribunals, hampers its ability to provide an adequate and effective judicial defence of its members whose rights are impaired. In this respect, the FENTENAPU specifies that with its assistance the workers have brought 3,300 lawsuits against the enterprise for failing to pay the vast majority of the wage increases and adjustments granted by Presidential Decree No. 107-90-PCM.
6. 425. The complainant adds that in 53 of these lawsuits judgements have already been handed down in favour of the workers, but in order to enforce the payments concerned the judges would have to be able to apply provisional measures, given the resistance of the National Ports Enterprise of Peru (ENAPU-PERU) against complying with the court decisions, citing the above-mentioned Legislative Decree. Since the workers are not able to require compliance with collective labour agreements, concludes the FENTENAPU, the right to bargain collectively laid down in Convention No. 98 is also infringed.
7. 426. In communications dated 7, 13 and 18 September and 16 December 1995, the Coordinator of Trade Union Federations of Peru, the General Confederation of Workers of Peru (CGTP) and the Single Confederation of Workers of Peru (CUT) allege that pursuant to Act No. 26513 of 28 July 1995, amending Legislative Decree No. 728, the Employment Promotion Act, hiring practices have been adopted. The complainants refer to what is known as youth training agreements, pre-professional practical training, the hiring of labour intermediaries through workers' cooperatives, temporary service enterprises and auxiliary service enterprises, as well as the lack of protection against acts of anti-union discrimination in the context of individual and collective dismissals.
8. 427. As regards the youth training agreements, the complainants point out that under sections 8-16 and 24-31 of Act No. 26513, persons aged between 16 and 25 years may be hired to work for a period of up to three years for an enterprise without being subject to labour law or being considered as workers in an employment relationship. Moreover, according to the complainants, under section 25 of the above-mentioned Act, both the youth training agreements and the pre-professional practical training "give rise exclusively to those rights and obligations assigned by this Act to the parties which conclude them", adding that "they do not give rise to an employment relationship".
9. 428. The complainants add that while this system applies to those persons aged between 16 and 25 years who have not completed their studies or, if they have, are not attending technical or higher education, it should be borne in mind that this is precisely the case of the vast majority of the population. There is also a provision to the effect that up to 30 per cent of the entire workforce of the enterprise may be hired under this type of arrangement, which means that a third of the workers in all the enterprises in the country may work without any protection and without any fundamental rights.
10. 429. Lastly, the complainants allege that since this relationship is not considered to be an employment relationship, this category of workers is not governed by any standard laying down general conditions of work thus preventing the exercise of collective rights such as the right to organize, to bargain collectively and to strike. As provided for by section 26 of the above-mentioned Act, the only right they have is entitlement to a "subsidy" which does not constitute remuneration. The complainants conclude that these serious omissions turn the youth training agreements into a means of substantially cheapening labour and denying the right to protection of labour legislation to a very large sector of the population.
11. 430. In addition, the complainants allege that under sections 141 and 144 of the above-mentioned Act, enterprises may hire up to 20 per cent of their entire workforce through workers' cooperatives, temporary service enterprises and auxiliary service enterprises, without such workers legally having a direct employment relationship with the user enterprise, but with a third party. The complainants add that, although section 141 of the Act stipulates that remuneration and conditions of work that are not inferior to those of workers employed by the user enterprise and performing similar work shall be recognized for members (of cooperatives) and under the second transitional provision of the Act workers' cooperatives and temporary service enterprises are granted a time-limit of 180 days to conform to the provisions of section 141, in practice the contrary occurs, according to the complainants.
12. 431. The complainants specify that, invoking article 62 of the Constitution, which provides that the parties may enter into a valid contract according to the rules in force at the time of the contract, and that the terms of a contract may not be amended by legislation or other provisions of whatever kind, contracts between user enterprises and cooperatives are being falsified by backdating them to before 28 July last year, the date on which Act No. 26513 entered into force, so as to continue excluding the workers employed by such cooperatives from the scope of labour legislation, and as a result denying them the opportunity of joining the trade union organization or organizations that exist within the user enterprise, in so far as they are not legally employed by that enterprise. Neither can they bargain collectively concerning their conditions of employment, either with the user enterprise or their cooperative, and as a result they cannot exercise the right to strike either.
13. 432. In addition, the complainants point out that under section 109 of the Act, the probation period applies to every contract concluded, thus amending section 118 of the Legislative Decree of 1991, which stipulated that the probation period "shall only be applicable the first time the worker is hired". As a result, an enterprise would only have to hire workers for three months under a continuous series of successive contracts to prevent them from organizing, especially if one takes into account the fact that section 12(c) of the Industrial Relations Act in force prohibits workers from being members of a trade union organization during their probation period which, under section 43 of the Act, may last up to six months in the case of skilled workers or those in positions of trust.
14. 433. The complainants add that even if the impediment to joining a trade union caused by the probation period were to be eliminated, more and more frequent use of fixed-term contracts without any kind of control, as provided by Act No. 26513, will prevent the exercise of individual and collective rights in so far as excessive precariousness of employment would mean that workers would not claim any of their infringed rights or join trade union organizations, since they would run an imminent risk of not having their contract of employment renewed upon expiry.
15. 434. Both the Coordinator of Trade Union Federations of Peru and the General Confederation of Workers of Peru (CGTP), as well as the Federation of Electricity and Energy Workers of Peru, allege that section 82 of Act No. 26513, which refers to the termination of contracts of employment for objective reasons, provides in clause (a) for the possibility of including in the list of collective terminations workers who are protected by trade union immunity, subject to the sole condition that specific justification be provided by the employer. The complainants add that under the Industrial Relations Act in force, trade union officers, workers involved in the collective bargaining process and the members of a trade union in the process of being established are protected by trade union immunity.
16. 435. The complainants point out that since Act No. 26513 does not give reasons for which workers protected by trade union immunity can be included in the list of collective terminations, the requirement for the employer to provide specific justification is excessively vague. The complainants add that according to the above-mentioned provision, it is the Ministry of Labour which should be notified in order to initiate the relevant procedure. This process does not constitute any guarantee whatsoever in favour of workers, if one considers that the present role has been reduced to that of promoting employment. The complainants conclude that the possibility of including trade union officers in collective terminations is contrary to Article 1 of Convention No. 98.
17. 436. In a communication dated 4 September 1995 the Federation of Electricity and Energy Workers of Peru alleges that pursuant to Act No. 26513, on 28 August 1995 the Electrolima SA enterprise arbitrarily dismissed over 120 workers, including its Secretary of Defence for the Lima Region, Mr. Iván Arias Vildoso, without respecting his trade union immunity.
18. 437. In a communication dated 7 September 1995 the Coordinator of Trade Union Federations of Peru states that in May 1995 the Government published a Bill to amend the Industrial Relations Act in force (Legislative Decree No. 25593). The complainants allege that the Bill did not take account of the most important and far-reaching recommendations formulated by the Committee on Freedom of Association in its 291st Report (November 1993). Moreover, it introduces new elements which are contrary to freedom of association and which are not laid down in the Industrial Relations Act in force, and which in some cases are much more serious than the provisions that are referred to in current observations.
19. 438. In a communication dated 3 October 1995, the Latin American Central of Workers (CLAT) alleges that the approval of Act No. 26513 has opened the way for arbitrary mass dismissals in all sectors of activity. The CLAT adds that trade union officers are the first targets of staff reduction measures, and since the Act in question does not contain any provisions protecting workers against acts of anti-union discrimination, enterprises carry out such dismissals, replacing trade union officers by staff hired through what are known as workers' cooperatives. The CLAT specifies that since the Act in question was promulgated, the enterprises in which unjustified mass dismissals have been carried out include the National Railway Enterprise of Peru - ENAFER - from which 15 trade union officers and 55 unionized workers were dismissed, as well as the Agraria el Escorial, Manufacturas del Sur - MASDSA - and the San Antonio Vitarte Clinic.

C. The Government's reply

1. 439. As regards SIDERPERU's allegations of mass dismissals as part of "staff rationalization", including most of the present and former trade union officers, the Government, in communications dated 4 January and 24 July 1995 and 15 May 1996, states that the complainant organization lodged an appeal for protection of constitutional rights against the enterprise for violation of trade union rights, which was declared unfounded. In addition, some of the dismissed trade union officers have appealed to the Second Specialized Labour Tribunal to annul the dismissals, requesting that they be reinstated. The Tribunal dismissed the appeals. In these circumstances, the trade union officers have appealed to the Constitutional and Social Chamber of the Supreme Court; these cases are still pending.
2. 440. As regards the allegations concerning the freezing of the SIDERPERU union's funds, in a communication of 15 May 1996 the Government indicates that the enterprise has pointed out that the amounts retained within the framework of trade union dues have been consigned to the courts before which several proceedings between the enterprise and the trade union are taking place. Moreover, the trade union leaders themselves have withdrawn sums of money on different occasions. According to the Government, this can be proved by the fact that the enterprise has deposited these dues with the courts and by the receipts in favour of the SIDERPERU enterprise, delivered by the competent judicial authority, which the Government attaches to its complaints.
3. 441. In a communication dated 20 January 1995, the Government refers to the allegations of the FENTENAPU to the effect that Legislative Decree No. 25604, which prohibits property, stocks, shares and rights of state enterprises undergoing privatization from being the object of preventive measures ordered by judges or arbitration tribunals, hampers its ability to carry out the legal defence of its members. In this respect, the Government states that while it is true that the ENAPU-PERU enterprise is covered by the scope of the above-mentioned decree, it is also true that this enterprise has paid the wage increases provided for by Presidential Decree No. 107-90-PCM, as well as the corresponding legal interests, thus complying with the decisions handed down by the judiciary.
4. 442. As regards the allegations of the Federation of Electricity and Energy Workers of Peru, the Government points out in a communication dated 27 November 1995 that the Electrolima SA enterprise informed it in writing that the dismissal of trade union officer Iván Arias Vildoso had as its legal basis section 67 of the Employment Promotion Act, No. 26513, emphasizing that the dismissal was not due to his status as a trade union officer. The Government adds that the person concerned is free to exercise his right to appeal before the courts against his dismissal, since section 30 of the Industrial Relations Act in force establishes trade union immunity, guaranteeing the right of certain workers not to be dismissed without just cause, which must be duly demonstrated, or without their consent. Moreover, according to the Government, under section 31 of that Act, the members of the executive committee, among others, are protected by trade union immunity.
5. 443. As regards the CLAT's allegations to the effect that the Act in question contains no provision protecting workers against acts of anti-union discrimination, that enterprises are arbitrarily dismissing trade union officers, replacing them by staff hired under what are known as workers' cooperatives, in a communication dated 22 January 1996 the Government points out that this assertion is unfounded, since sections 144 and 167 of the Act provide that the number of members who can provide services in a user enterprise under these arrangements shall not exceed 20 per cent of the total workforce of that enterprise. These provisions are intended to provide a mechanism which would prevent employers from replacing their workers by staff hired under these arrangements. Moreover, according to the Government, section 63 of the Act provides that "a dismissal motivated by membership in a trade union or participation in trade union activities shall be null". Therefore, concludes the Government, Peruvian legislation protects trade union immunity, and trade union officers are free to exercise their right to claim it before the courts.
6. 444. As regards the allegations of the Coordinator of Trade Union Federations of Peru and various federations concerning violations of the right to organize, to bargain collectively and to strike, under Act No. 26513, in a communication dated 6 February 1996 the Government states that, given the difficult economic situation besetting the country several years ago, its efforts were focused on the fight against unemployment and underemployment. In order to achieve this objective, the Government endeavoured to adopt a legal framework which would encourage investment in the country, providing security to investors and enabling employment relationships to be rapidly adapted to the new economic context in which competitiveness and efficiency were the key to enterprises' survival.
7. 445. As regards the allegations concerning youth training agreements, for which provision is made in the Act in question, the Government points out that the unemployment problem besetting the country affects mainly young persons. This led the Government to concentrate on setting up the necessary machinery to enable young persons to acquire the occupational skills they need to enter the labour market.
8. 446. Among the characteristic features of the youth training agreements for which provision is made in Act No. 26513, the Government highlights the fact that they are aimed at providing young persons aged between 16 and 25 years - who have not completed their education or, if they have, are not attending technical or higher education - with theoretical and practical knowledge at work so that they may take up an economic activity in a specific occupation; they shall not last longer than 36 months; and in order to conclude these types of hiring arrangements the Act lays down the following obligations for the enterprise: to provide the technical guidance and measures necessary for a systematic and complete vocational training in the occupation for which the agreement is concluded; to pay the agreed monthly subsidy punctually; not to charge any amount whatsoever for training; to take out insurance covering sickness and injury; and to grant the corresponding Vocational Training Certificate.
9. 447. The Government adds that the Act did not include youth training agreements specifically within the employment contract framework precisely because this type of legal relationship is intended for vocational training purposes, so that young persons can enter employment and be hired by the same enterprise which is training them (preferred option) under a contract of employment. Lastly, the Government points out that in order to prevent this machinery from being used fraudulently to deny labour rights, the Act provides that the number of young persons cannot exceed 30 per cent of the total workforce of the enterprise.
10. 448. As regards the allegations to the effect that contracts between user enterprises and cooperatives are being falsified by backdating them to before 28 July last year (the date on which Act No. 26513 was promulgated) in order to continue excluding such workers from the scope of labour legislation, the Government points out that this assertion is not supported by evidence. The Government adds that in the hypothetical case that the complaints' assertion were correct, they are free to exercise their right to institute the necessary judicial proceedings.
11. 449. As regards the allegations to the effect that workers employed by cooperatives are prevented from joining the trade union organizations which exist within the user enterprise, from bargaining collectively either with the user enterprise or with their cooperative, and from exercising the right to strike, the Government points out that it is true that since there is no employment relationship between the user enterprise and the members of the workers' cooperative, the latter obviously cannot join the trade unions of the former. The Government adds that the existing relationship between the cooperative itself and its worker members is governed by the Act in question, which provides that cooperatives must recognize for their members remuneration and conditions of work which are not inferior to those of the workers employed by the user enterprise and performing similar work. Moreover, according to the Act, they must recognize for such workers all of the social benefits laid down in the labour rules governing private sector activity. Specifically, the restriction of the number of workers that can be hired under such arrangements to 20 per cent of the total workforce of the user enterprise (section 144 of the Act) was intended to avoid destabilizing the trade unions.
12. 450. As regards the allegations concerning the lack of protection during the probationary period, the Government states that the Labour Administration Authority is empowered to monitor strict compliance with the legal provisions. The Government adds that once the probation period has been completed, the workers employed in the enterprise, even for a fixed term, may join a trade union.
13. 451. As regards the allegations to the effect that section 82 of the above-mentioned Act, concerning the termination of contracts of employment for objective reasons, provides in clause (a) that the list of collective terminations can include workers protected by trade union immunity, on the sole condition that specific justification be given by the employer, the Government states that the Act in question protects workers' trade union rights, since it requires a well-founded reason to include a trade union officer in collective dismissal. Moreover, under clause (a) of section 62, a dismissal motivated by membership in a trade union or participation in trade union activities shall be null.
14. 452. As regards the allegations concerning the publication in May 1995 of a Bill to amend the Industrial Relations Act in force (Legislative Decree No. 25593), without having taken account of the most important and far-reaching recommendations formulated by the Committee on Freedom of Association in its 291st Report (November 1993), and introducing new elements contrary to freedom of association, the Government first of all states that the complainant trade union organizations were invited to send their observations to the Chairman of the Congressional Commission on Labour and Social Security in order to establish a dialogue with the social partners. The Government moreover considers it unnecessary to reply to such allegations, since it is a Bill which has not been approved by Congress.
15. 453. As regards the allegations of unjustified dismissals in many enterprises pursuant to Act No. 26513, in a communication of 19 April 1996, the Government states that the Manufacturas del Sur enterprise (MASDSA) had terminated the employment contract of Mrs. Celia Valdivia Esquinche in accordance with the legislation in force. In this regard, this former employee introduced legal proceedings to obtain severance payments. Further to a conciliation procedure, the person concerned accepted the enterprise's proposal. Similarly, the Government states that the enterprise Agraria el Escorial SA informed it of the termination of the employment relation of Messrs. José Charún Sevilla and Eduardo Huamán Casablanca who had not held any trade union office; the persons concerned received the severance payments due to them.

D. D. The Committee's conclusions

• The Committee's conclusions
  454. 454 The Committee observes that the complaints in this case refer to dismissals of trade union officers, freezing of trade union funds, as well as legislation and draft legislation contrary to freedom of association.
  455. 455 As regards the allegations concerning mass dismissals in the Iron and Steel Enterprise of Peru as part of "staff rationalization", including most of the current and former trade union officers, the Committee notes that according to the Government, the complainant organization lodged an appeal for protection of constitutional rights against the enterprise for violation of the right to employment stability and that it was declared unfounded. It also notes that, according to the Government, some of the dismissed trade union officers brought petitions to annul the dismissals before a higher labour tribunal, requesting their reinstatement, and that since these appeals have been dismissed, these officers have appealed to the Supreme Court where the cases are still pending.
  456. 456 The Committee regrets to note that the Government did not reply specifically to the allegations of the anti-union nature of the dismissals in the Iron and Steel Enterprise of Peru. In this regard, the Committee cannot but observe that the "programme of voluntary termination of the contract of employment" includes a large majority of unionized workers, as well as nearly all its officers, as pointed out by the complainant, which is clear evidence of its discriminatory nature and likely to result in the termination of trade union activities in the enterprise and even the disappearance of workers' organizations. The Committee considers this situation as all the more damaging when, given the difficult circumstances which the enterprise is going through, the workers need more than ever to be represented by a strong and experienced trade union organization. The Committee also regrets to observe that in the staff rationalization and reduction process there were apparently no negotiations, or even consultations, held between the enterprise and the trade union organizations.
  457. 457 The Committee therefore 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 therefore requests the Government to proceed with an inquiry to determine whether anti-union considerations were taken into account in these dismissals and, if so, to institute appropriate procedures so that the prejudice suffered is compensated.
  458. 458 As it did in a similar case, the Committee again requests that, in the cases where it would be necessary to have recourse to new staff reduction programmes, negotiations or consultations be held between the enterprises concerned and the trade union organizations (see Cases Nos. 1648/1650, Peru, 291st Report, para. 472). Moreover, the Committee requests the Government 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, and that it keep it informed of the outcome of the appeals lodged by some dismissed trade union officers to the Supreme Court.
  459. 459 As regards the allegations concerning the freezing of trade union funds of SIDERPERU, the Committee notes the Government's statement that the enterprise has consigned the trade union assets to the courts before which several proceedings between the enterprise and the trade union are taking place. Moreover, the trade union leaders themselves have withdrawn sums of money on different occasions. According to the Government, this can be proved by the fact that the enterprise has deposited these dues with the courts and by the receipts in favour of the SIDERPERU enterprise, delivered by the competent judicial authority, which the Government attaches to its complaints. The Committee requests the Government to keep it informed of the outcome of the situation in this regard, and especially of the procedures under way.
  460. 460 As regards the allegations to the effect that Legislative Decree No. 25604 hampers its ability to carry out the legal defence of its members, the Committee observes that the complainant refers specifically to the refusal of the ENAPU-PERU, based on the above-mentioned Legislative Decree, to comply with decisions handed down by the judiciary, in connection with the 53 lawsuits brought against the enterprise for non-implementation of the wage increases and adjustments granted by Presidential Decree No. 107-90-PCM, in which decisions favourable to the workers were reached. In this respect, the Committee notes that, according to the Government's statement, the enterprise has paid the wage increases provided for by Presidential Decree No. 107-90-PCM, as well as the corresponding legal interests, thus complying with the decisions handed down by the judiciary.
  461. 461 While taking note of this statement, the Committee must nevertheless express its concern at the fact that since Legislative Decree No. 25604 prohibits property, stocks, shares and rights of state enterprises undergoing privatization from being the object of provisional measures ordered by judges or arbitration tribunals, the enterprises covered by this provision may evade compliance with judicial decisions relating to proceedings in which trade union organizations allege non-compliance with collective agreements or other violations of trade union rights. In this respect, the Committee requests the Government to take the necessary measures to ensure that the above-mentioned Legislative Decree cannot be invoked in order to avoid complying with collective agreements.
  462. 462 With regard to the allegations of the Coordinator of Trade Union Federations of Peru and various federations concerning violations of the right to organize, to bargain collectively and to strike by virtue of several of the hiring arrangements provided for in the Employment Promotion Act No. 26513, such as youth training agreements, the hiring of labour intermediaries through workers' cooperatives and temporary service enterprises, the Committee notes the economic reasons given by the Government and its efforts to reduce unemployment and to enable young persons to acquire vocational training to enable them to enter the labour market.
  463. 463 Nevertheless, as regards the youth training agreements, the Committee notes with regret that under section 25 of the above-mentioned Act, these agreements do not give rise to an employment relationship for up to 30 per cent of the total workforce of the enterprise (section 15) and that they are aimed at young persons aged between 16 and 25 years (section 8) who are receiving technical and practical knowledge for a period not exceeding 36 months (section 11). In this respect, the Committee observes that the legal status of this mixed work-cum-training arrangement existing in Peru allows enterprises to hire or maintain a large percentage of workers who do not enjoy trade union rights.
  464. 464 In this respect, the Committee draws the Government's attention to the fact that "under the terms of Article 2 of Convention No. 87 ratified by Peru, all workers - with the sole exception of members of the armed forces and police - should have the right to establish and to join organizations of their own choosing. The criterion for determining the persons covered by that right, therefore, is not based on the existence of an employment relationship, which is often non-existent, for example in the case of agricultural workers, self-employed workers in general or those who practise liberal professions, who should nevertheless enjoy the right to organize" (see Digest of decisions and principles of the Freedom of Association Committee, 1996, para. 235). In the view of the Committee, persons hired under training agreements should also have the right to organize. The Committee therefore requests the Government to take the necessary steps so as to guarantee this right to the workers concerned both in law and in practice. Furthermore, the Committee requests the Government to ensure that the employment conditions of these workers are covered by the collective agreements in force in the enterprises where they are employed.
  465. 465 The Committee observes that the complainant alleges that by concluding contracts between user enterprises and cooperatives dated before 21 July 1995, the date on which Act No. 26513 entered into force, the workers employed by cooperatives are excluded from the scope of labour legislation and are therefore prevented from joining the trade union organizations which exist within the user enterprise, and that they are also unable to bargain collectively either with the user enterprise or with their cooperative, or to exercise the right to strike. As regards the practice of backdating contracts, the Committee notes that according to the Government, this assertion lacks evidence to support it. As regards the second aspect of the allegation, the Committee notes the Government's statement that since there is no employment relationship between the user enterprise and the workers who are members of the cooperative, the latter cannot join the trade unions of the former. It also notes that under section 141 of the Act, the cooperative must recognize for their worker members all of the social benefits laid down in the labour rules governing private sector activity.
  466. 466 The Committee emphasizes that this type of labour subcontracting, which under sections 141 and 144 of the Act in question allow enterprises to hire up to 20 per cent of their staff from the workforce without an employment relationship with the user enterprise, should not be used to prevent or hinder the exercise of freedom of association. In this respect, the Committee requests the Government to take the necessary steps so that this category of workers can exercise fundamental trade union rights and especially the right to affiliate with a trade union organization of their choice which has the aim of protecting and promoting their interests.
  467. 467 As concerns the denial of trade union rights to workers during the probationary period, the Committee notes that this question is the subject of observations by the Committee of Experts. In these circumstances the Committee, like the Committee of Experts, requests the Government, to take the necessary steps to lift the prohibition of joining organizations of their own choosing for workers during their probation period.
  468. 468 As regards the allegations to the effect that under section 82 of the above-mentioned Act the list of collective terminations can include workers protected by trade union immunity, the Committee observes that according to clause (a) of that section "the enterprise shall provide the trade union or, in its absence, the workers or their representatives with relevant information indicating precisely the grounds invoked and the list of the workers affected. Inclusion in the list of workers protected by trade union immunity requires specific justification. Notification of this shall be given to the Ministry of Labour and Social Advancement so that it may initiate the relevant procedure". Moreover, under clause (a) of section 62 of the same Act, a dismissal motivated by membership in a trade union or participation in trade union activities shall be null. Furthermore, sections 30 and 31 of the Industrial Relations Act in force establish trade union immunity. For the above reasons, the Committee considers that the legislation seems to provide some protection against acts of anti-union discrimination. Nevertheless the Committee is of the opinion that, in order for this protection to be more effective, it should be accompanied by appropriate legal guarantees to enable the courts to pronounce themselves without delay, and prior to any dismissals, on whether the measure in question is of an anti-union nature. Therefore, the Committee requests the Government to take the necessary steps to guarantee the application in practice of provisions provided for in national legislation on protection against acts of anti-union discrimination.
  469. 469 As regards the allegations concerning the publication in May 1995 of a Bill to amend the Industrial Relations Act in force (Legislative Decree No. 25593), without taking into account the recommendations made by the Committee on Freedom of Association in its 291st Report (November 1993) and introducing new elements contrary to freedom of association, the Committee notes that according to the Government, the Bill in question has not been approved by Congress, and therefore it did not consider it necessary to reply to the allegations in this respect. In this regard, the Committee requests the Government, to ensure that all draft legislation take fully into account the recommendations previously made by the Committee, as well as the observations of the Committee of Experts. The Committee requests the Government to keep it informed of any development concerning the preparation of the Bill respecting industrial relations.
  470. 470 As regards the allegations of the Federation of Electricity and Energy Workers of Peru concerning the arbitrary dismissal of over 120 workers of the Electrolima SA enterprise, including trade union officer Iván Arias Vildoso, the Committee notes that, according to the Government, the enterprise applied section 67 of Act No. 26513, according to which "dismissal for reasons related to the worker's conduct or capacity does not give rise to compensation". In this respect, the Committee regrets to observe that the Government confined itself to repeating the general information given to it by the enterprise, without providing additional details on the cause of his dismissal, despite the fact that Mr. Arias Vildoso was protected by trade union immunity, being a member of the executive committee of the Federation of Electricity and Energy Workers of Peru, and in accordance with sections 30 and 31 of the above-mentioned Industrial Relations Act. In this respect, the Committee requests the Government to provide more detailed information regarding the real cause of this dismissal, as well as that of the other 120 workers of the Electrolima SA enterprise mentioned by the complainant.
  471. 471 As regards the allegations that further to the promulgation of the Employment Promotion Act, there were arbitrary mass dismissals in several enterprises, targeted mainly at trade union officers, the Committee, while noting the Government's observations, regrets to observe that the Government merely transmits the information provided by the Manufacturas del Sur (MASDSA) enterprise as well as the Agraria el Escorial enterprise without having proceeded to an in-depth investigation as to whether these dismissals were of an anti-union nature or not. The Committee requests the Government to proceed with an investigation in this regard and to take measures to compensate the prejudice suffered if it is proved that these dismissals were of an anti-union nature. Moreover, the Committee requests the Government to take the necessary measures in future to ensure that no anti-union dismissal takes place under this Act and to take measures to enable leaders and members of trade union organizations who are dismissed due to their legitimate trade union activities to be reinstated in their posts if they so wish.
  472. 472 The Committee regrets to note that the Government has not replied to the CLAT's allegations that 15 trade union officers and 55 unionized workers were dismissed by the National Railway Enterprise of Peru (ENAFER) and in the San Antonio Vitarte Clinic pursuant to the Act in question. The Committee requests the Government to send its observations in this regard without delay.

Annex

1. Provisions of Act No. 26513 mentioned by the complainants
2. Title I. Vocational training
3. Chapter I. Youth work training
4. ...
5. Section 8. The purpose of youth work training is to provide young persons aged
6. between 16 and 25 years who have not completed their studies or who having
7. done so are not pursuing technical or higher studies, with the theoretical and
8. practical knowledge in work to enable them to engage in economic activity in a
9. specific occupation.
10. Section 9. Enterprises or establishments whose workers are subject to the
11. labour regulations governing private activity may provide youth work training
12. through the conclusion of agreements with the young persons referred to in the
13. previous section.
14. Section 10. A youth work training agreement shall be concluded in writing and
15. shall contain the following information:
16. (a) name of the natural or the legal person sponsoring the labour training;
17. (b) name, age and personal details of the young person receiving the training
18. and his or her legal representative in the case of minors;
19. (c) occupation covered by the specific training;
20. (d) the monthly economic allowance which shall not be less than the minimum
21. living wage if the usual hours of work established in the enterprise are
22. observed. If the hours are less, payment shall be proportionate;
23. (e) grounds for the modification, suspension and termination of the agreement.
24. Section 11. The youth labour training agreement shall have a duration of no
25. more than 36 months and shall be notified to the corresponding departments of
26. the Ministry of Labour and Social Promotion.
27. Intermittent or extended periods of youth work training taken together may not
28. exceed 36 months in the same enterprise.
29. Section 12. The names of young persons undergoing work training shall be
30. entered into a Special Register, maintained by the enterprise, and authorized
31. by the competent department of the Ministry of Labour and Social Promotion on
32. presentation.
33. Section 13. The obligations of the enterprise shall be as follows:
34. (a) to provide technical guidance and the necessary means for the systematic
35. and integrated work training in the occupation covered by the agreement;
36. (b) to pay the agreed monthly allowance on time;
37. (c) to make no charge whatsoever for the training;
38. (d) to conclude a health and accident insurance policy or to assume direct
39. responsibility for the cost of such contingencies;
40. (e) to issue the respective labour training certificate.
41. Section 14. The holder of the labour training certificate to which paragraph
42. (e) of section 13 refers shall obtain the corresponding technical
43. qualification after compliance with the requirements fixed by the Ministry of
44. Education.
45. Section 15. The Labour Administrative Authority may at any time carry out
46. inspections with a view to monitoring compliance with the provisions of
47. section 13.
48. The number of young persons in work formation may not exceed 30 per cent of
49. the total staff of an enterprise, including permanent staff and staff
50. recruited under any form.
51. Section 16. The obligations of a young person receiving training shall be as
52. follows:
53. (a) to comply diligently with the obligations entered into;
54. (b) to observe the standards and regulations established in the enterprise.
55. ...
56. Chapter III. Common provisions
57. ...
58. Section 24. Enterprises or establishments whose workers are subject to the
59. labour regulations governing private activity are entitled to conclude youth
60. work training and preoccupational work practice agreements.
61. Section 25. The youth work training and preoccupational work practice
62. agreements shall give rise to only those rights and obligations which this Act
63. attributes to the concluding parties. No employment relationship shall ensue.
64. Section 26. The economic allowance which shall be granted to the participants
65. of the youth work training and preoccupational work practice programmes shall
66. not be considered remuneration or be subject to any deductions to be paid by
67. the beneficiary or the enterprise in respect of contributions or payments to
68. the Peruvian Social Security Institute, FONAVI, SENATI, or to any other
69. similar body.
70. Section 27. It shall not be permitted to include in or transfer to any of the
71. youth work training or preoccupational work practice schemes included in this
72. Act persons who have an employment relationship with the enterprises with
73. which agreements have been concluded.
74. Section 28. The Directorate-General or Employment and Vocational Training of
75. the Ministry of Labour and Social Promotion is the competent body responsible
76. for the monitoring and supervision and other responsibilities established in
77. the standards respecting youth work training and preoccupational work practice
78. periods.
79. Section 29. The youth work training and preoccupational work practice
80. agreements shall be entered into the corresponding register authorized for
81. this purpose by the Directorate-General of Employment and Vocational Training.
82. Section 30. Persons engaged under youth work training or preoccupational work
83. practice agreements shall be given preference for admission into enterprises
84. in which they have carried out their training, after assessment by the
85. enterprise.
86. Section 31. Youth work training should preferably be provided in a work centre
87. or in workshop schools established in enterprises for young persons who are
88. following their school studies, with the cooperation and technical support of
89. the Ministry of Labour and Social Promotion and the educational centres, as
90. determined by the latter.
91. The youth work training programmes shall be subject to the general guidelines
92. established in the National Work Training Plans which shall be fixed by the
93. Ministry of Labour and Social Promotion in coordination with the
94. representative labour and management organizations within each branch of
95. economic activity, in cases where because of the characteristics and size of
96. the enterprises no productivity agreements of the kind to which reference is
97. made in section 3 of this Act have been concluded.
98. ...
99. Title II. Employment contracts
100. ...
101. Chapter II: Probationary period
102. Section 43. The probationary period shall be three months, after which a
103. worker shall be entitled to protection against arbitrary dismissal.
104. ...
105. Chapter IV. Extinction
106. ...
107. Section 62. Dismissal on the following grounds shall be null and void:
108. (a) membership in a trade union or participation in trade union activities;
109. (b) participation as a candidate to represent the workers or acting or having
110. acted in this capacity.
111. ...
112. Chapter V. Workers' rights
113. Section 67. The dismissal of a worker on grounds related to his conduct or
114. capacity shall not give rise to compensation.
115. ...
116. Chapter VII. Collective termination for objective reasons
117. ...
118. Section 82. The termination of employment contracts on the grounds provided
119. for in paragraph (b) of section 80 shall be subject to the following
120. procedures:
121. (a) the enterprise shall provide the trade union, or in the absence of the
122. latter the workers, or their authorized representatives in the absence of a
123. trade union, with relevant information indicating exactly the reasons invoked
124. and the names of the worker concerned. The inclusion on the list of workers
125. enjoying trade union protection (fuero sindical) requires specific
126. justification. This process shall be notified to the Ministry of Labour and
127. Social Promotion for the initiation of the respective proceedings.
128. ...
129. Title III. Employment contracts subject to special conditions
130. ...
131. Chapter VI. Common provisions
132. Section 108. Within the maximum time periods established in the different
133. contractual methods indicated in the preceding sections, contracts may be
134. concluded for shorter periods but which taken together do not exceed such
135. limits.
136. In appropriate cases, several types of contracts may by concluded successively
137. with the same worker in the work centre, in accordance with the needs of the
138. enterprise and provided that together such periods do not exceed a maximum
139. duration of five years.
140. Section 109. In such contracts the probation period established by law or
141. collective agreement for which provision is made in this Act shall apply.
142. ...
143. Title V. Employment promotion
144. ...
145. Chapter III. Self-employment promotion
146. ...
147. Section 140. The workers to whom this Title applies may choose between the
148. following entrepreneurial methods of promoting autonomous employment:
149. (a) establishment of small and micro-enterprises in accordance with the
150. provisions of the respective Act;
151. (b) shareholding programmes regulated by the respective Privatization Act;
152. (c) workers' cooperatives: labour and employment cooperatives and temporary
153. work cooperatives;
154. (d) any other entrepreneurial schemes established in the general law
155. concerning corporations and the commercial legislation.
156. Section 141. The cooperatives to which reference is made in paragraph (c) of
157. section 140 of Legislative Decree No. 728, duly established and entered into
158. the Public Registers, may provide their services to other so-called user
159. enterprises.
160. These cooperatives shall provide their worker members with remuneration and
161. conditions of work which are not inferior to those of workers in the user
162. enterprise carrying out similar work. If such a comparison cannot be made, the
163. remuneration per worker member shall not be below the monthly minimum living
164. wage. All the social benefits established in the labour regulations governing
165. private activity must also be granted.
166. The provision of services through Temporary Service Enterprises and
167. Complementary Services Enterprises shall be subject to the same regulations
168. for which provision is made in the preceding paragraph and in section 144.
169. ...
170. Section 144. The number of worker members who can provide services to
171. so-called user-enterprises which is alluded to in section 140(c) of
172. Legislative Decree No. 728 will not exceed 20 per cent of the total number of
173. workers of the user enterprise.