Rapport intérimaire - Rapport No. 313, Mars 1999

1. 151. The Committee examined this case at its November 1997 and June 1998 meetings and presented interim reports on both occasions to the Governing Body (see 308th and 310th Reports, paras. 577-596 and 517-544, approved by the Governing Body at its 270th (November 1997) and 272nd (June 1998) Sessions, respectively).
2. 152. The Government sent new observations in a communication dated 13 October 1998.
3. 153. Peru has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the case

1. 154. At the November 1997 meeting of the Committee, certain allegations remained pending concerning various acts of discrimination and interference by the Electro Ucayali S.A., Eastern Regional Public Electricity Supply Company, Electro Sur Este S.A. and Electro Sur S.A. enterprise, as well as the obstruction of collective bargaining by the Electro Ucayali S.A. enterprise.
2. 155. At its last examination of the case, the Committee formulated the following recommendations (see 310th Report, para. 544):
   • (a) Concerning the allegations of anti-union discrimination and interference in the Electro Ucayali S.A., Eastern Regional Public Electricity Supply Company and the Electro Sur Este S.A. enterprise, the Committee regrets the fact that the Government has not sent precise observations, neither has it carried out an investigation, and is merely relying on the existence of legislation against acts of anti-union discrimination and the possibility that the victims have of lodging judicial appeals, and once again urges the Government to carry out an investigation without delay into the allegations and to take the necessary measures to remedy these serious acts of anti-union discrimination. The Committee requests the Government to keep it informed in this respect.
   • (b) The Committee hopes to receive from the Government, without delay, the texts of all the collective agreements concluded in the Electro Ucayali S.A. enterprise and requests it to transmit them as a matter of urgency.
   • (c) Concerning the dismissal of trade union officer Mr. Walter Linares Sanz (Electro Sur S.A. enterprise), the Committee urges the Government to carry out an in-depth investigation and to keep it informed thereof.
   • (d) Concerning the suspension of the trade union allowance paid to trade union leader Mr. Guillermo Barrueta Gómez since 30 June 1992 by the Electro Sur Este S.A. enterprise, the Committee requests the Government to keep it informed regarding the outcome of the appeal in this matter lodged by the Electro Sur Este S.A.
   • (e) The Committee requests the Government to ensure that all cases of anti-union discrimination -- including those presented to the Committee -- may be examined through expeditious and effective procedures.

B. The Government's reply

1. 156. In its communication dated 13 October 1998, the Government states that it agrees with the Committee's observations to the effect that in ratifying Convention No. 98, the State of Peru undertook to guarantee the application of Articles 1 and 2 of the Convention, which provide that workers shall enjoy adequate protection against acts of anti-union discrimination calculated to diminish trade union freedom in respect of their employment and that their organizations shall have protection against any acts of interference. It likewise agrees with the Committee that this protection must be guaranteed not only in law but also in practice. The Government therefore reiterates its previous observations, pointing out that there is legislation in Peru against acts of anti-union discrimination, for example the Political Constitution of the State, the Penal Code, the Collective Labour Relations Act (Legislative Decree No. 25593) and the Regulations made under it approved by Presidential Decree No. 011-92-TR. The latter two legislative texts are currently being revised with a view to adjusting them more closely and more effectively to the international conventions and treaties to which Peru is a party.
2. 157. Notwithstanding the above, the Government states it should be pointed out that section 4 of the Collective Labour Relations Act, Legislative Decree No. 35593, lays down protection of freedom of association as follows: "The State, employers and the representatives of both shall refrain from committing any acts limiting, restricting or impairing in any way the workers' right to organize, and from interfering in any way in the establishment, administration or maintenance of the trade union organizations set up by the latter." Moreover, under various legislative texts, the Government guarantees that legal persons who consider that their rights have been infringed can take legal action to assert their labour rights.
3. 158. As regards the investigation into acts of anti-union discrimination and interference as requested by the Committee, the Government points out that only the judiciary is competent to comment on the proceedings under way, and therefore any interference by the Government would infringe the judges' independence and autonomy in carrying out their jurisdictional function. Nonetheless, it will inform the Committee of the outcome of these proceedings in due course.
4. 159. The Government states that collective agreements have been concluded between the Electro Ucayali S.A. enterprise and the Ucayali S.A. branch of the Light and Power Workers' Union for 1996-97 and 1997-98; a collective agreement has also been concluded between Electrocentro S.A. and the Federation of Peruvian Light and Power Workers for 1995-96, which is applicable to the workers employed by Electro Ucayali S.A.
5. 160. Concerning the dismissal of trade union officer Mr. Walter Linares Sanz, the Government states that, according to the procedure followed by the Electro Sur S.A. enterprise, this dismissal had been due to serious misconduct on the part of the worker concerned. Under section 32 of the Collective Labour Relations Act, Legislative Decree No. 25593, trade union immunity guarantees that certain workers may not be dismissed or transferred to other establishments at the same enterprise without just cause being duly demonstrated or without the workers' consent. In this case there was just cause for the dismissal, i.e. grave misconduct consisting of failure of the worker to discharge his duties at work, giving false information to the employer and serious breach of discipline. The dismissal was therefore in order, even if the worker was a trade union officer and enjoyed trade union immunity. Verifying whether the accusations on which the Electro S.A. enterprise based its dismissal were true or false, however, is solely and exclusively a matter for the judiciary. In this case judicial proceedings have been instituted and have not yet been concluded. Therefore, as the internal procedures have not been exhausted, the complainant can hardly expect to take the Committee and the Peruvian Government by surprise with its allegations of violations of trade union rights without any support for them.
6. 161. Concerning the case of the suspension of the allowance of trade union officer Mr. Guillermo Barrueta Gómez, the judiciary has not yet handed down a final decision on the appeal for annulment that has been lodged. The Government will accordingly transmit the results to the Committee once the Supreme Court of Justice of the Republic has taken a decision.
7. 162. The Government points out that it is clear from the above that it observes Convention No. 98 of the International Labour Organization and that at no time has it attempted to obstruct the exercise of the right to organize and collective bargaining.

C. The Committee's conclusions

1. 163. The Committee observes that the questions which remained pending in this case concern various acts of anti-union discrimination and interference by the Electro Ucayali S.A., Eastern Regional Public Electricity Supply Company, Electro Sur Este S.A. and Electro Sur S.A. enterprises, as well as the obstruction of collective bargaining by the Electro Ucayali S.A. enterprise.
2. 164. Concerning the alleged acts of anti-union discrimination and interference, the Committee notes that the Government's reply does not add anything to that sent for the first examination of the case, apart from stating that, given the fact that only the judiciary is competent to comment on proceedings that are under way, any interference on the part of the Government (referring to the possibility of an administrative investigation) would infringe the independence and autonomy of the jurisdictional function. The Committee reminds the Government that the allegations in question date back to 1997 and notes that it has not given specific information concerning any judicial proceedings which might have been instituted. In these circumstances, the Committee can only reiterate its previous conclusions, reproduced below (see 310th Report, paras. 537-539):
3. The Committee observes that the following allegations relating to acts of anti-union discrimination remained pending at its previous meeting:
4. -- various acts of anti-union discrimination and interference against the Ucayali S.A. branch of the Light and Power Workers' Union, calculated to eliminate and cause the disappearance of trade union activity, including obstruction of collective bargaining, anti-union dismissals, coercion and threats against workers belonging to the Electro Ucayali S.A. trade union branch;
5. -- the Electro Ucayali S.A. enterprise making the granting of open-ended contracts of employment conditional on workers belonging to the Ucayali S.A. branch of the Light and Power Workers' Union giving up their membership;
6. -- the transfer of the majority of workers belonging to the above trade union to places other than those specified in their contracts of employment, under the control of the Electrocentro S.A. enterprise;
7. -- hostility towards and obstruction of trade union activity, interference in the internal affairs of the above-mentioned union, intimidation of union officials and hinting at the creation of another trade union organization to evade their obligations under prior collective agreements;
8. -- the collective dismissal of 19 unionized workers and coercion by the Ucayali S.A. enterprise of workers to give up their union membership, threatening to include them in the collective dismissal if they refuse (as a result, recognition of the trade union was cancelled as the number of members was reduced to fewer than 20, the legal minimum);
9. -- unfair dismissal of trade union officer Mr. Jaime Tuesta Linares by the Eastern Regional Public Electricity Supply Company;
10. -- a systematic campaign of threatened dismissal and harassment against trade union officers and unionized workers in the Electro Sur Este S.A. enterprise, which has caused serious problems for the workers' union branch in Electro Sur Este Abancay; specifically: (1) trade union officer Mr. Moisés Zegarra Ancalla was transferred; (2) the Electro Sur Este S.A. enterprise (Puno subregion) threatened trade union officer Mr. Adriel Villafuerte Collado with dismissal and suspended him for 30 days without pay;
11. - threats of sanctions and dismissals against trade union officers at the Tacna and district branch of the Light and Power Workers' Union by the Electro Sur S.A. company, which considered that the trade union officers were guilty of serious misconduct for not having dropped their action to enforce a court order in favour of the workers concerning salary increments due to 111 workers.
12. (...) The Committee deeply regrets that the authorities have not carried out an investigation into the allegations and that the Government is again merely relying on the existence of provisions concerning protection of freedom of association and judicial remedies or states that the complainant organizations have not provided sufficient evidence. In this respect, the Committee emphasizes that "the Government is responsible for preventing all acts of anti-union discrimination" (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 738). In addition, the Committee draws the Government's attention to the fact that, where cases of alleged anti-union discrimination are involved, the competent authorities should begin an inquiry immediately and take suitable measures to remedy any effects of anti-union discrimination brought to their attention (see Digest, op. cit., para. 754). Moreover, "respect for the principles of freedom of association clearly requires that workers who consider that they have been prejudiced because of their trade union activities should have access to means of redress which are expeditious, inexpensive and fully impartial" (see Digest, op. cit., para. 741). In these circumstances, the Committee once again urges the Government to carry out an investigation without delay into the allegations of anti-union discrimination in the Electro Ucayali S.A., Eastern Regional Public Electricity Supply Company and the Electro Sur Este S.A. enterprise and to take all necessary measures to remedy these serious acts of anti-union discrimination. The Committee requests the Government to keep it informed in this respect.
13. 165. Concerning the information requested on the collective agreements concluded in the Electro Ucayali S.A. enterprise, the Committee notes that three collective agreements have been signed, including one for 1998.
14. 166. As regards the dismissal of trade union officer Mr. Walter Linares Sanz (Electro Sur S.A. enterprise), the Committee notes that according to the Government, the enterprise cited as reasons for the dismissal serious misconduct consisting of failure to carry out his duties at work, providing false information to the employer and serious breach of discipline, and that the judicial proceedings under way have not been concluded. The Committee requests the Government to send it the decision as soon as it is handed down.
15. 167. Concerning the suspension of the travel allowance for trade union activities of Mr. Guillermo Barrueta Gómez, the Committee notes that the Government will transmit the decision handed down by the Supreme Court of Justice and awaits this decision.