Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 308, Novembre 1997

1. 610. The complaints in this case are contained in communications from the Unified Trade Union of Electricity Workers of Lima and Callao (SUTREL) and the General Confederation of Workers of Peru (CGTP), dated 10 and 15 April 1997. The Government sent its observations in a communication dated 30 July 1997.
2. 611. 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. 612. In a communication dated 10 April 1997, the Unified Trade Union of Electricity Workers of Lima and Callao (SUTREL) points out that as a result of the privatization of the former Electrolima S.A. enterprise, its members were dispersed in separate workplaces responsible for the generation, distribution and sale of electricity in the Department of Lima, including the Luz del Sur S.A enterprise. According to its by-laws, SUTREL's members are workers from enterprises in the electricity sector, as well as enterprises from allied and subsidiary branches which are directly related to the electricity sector, as is the case of the Luz del Sur Servicios S.A. enterprise. SUTREL adds that since it was founded in 1994, it has continually been subjected to acts of anti-union discrimination by the enterprises in this sector in complicity with the labour authorities, aimed at non-recognition of the representative character of its trade union sections within each enterprise.
2. 613. This, alleges the complainant, is the case in the Luz del Sur Servicios S.A. enterprise which has refused to engage in collective bargaining on grounds of non-recognition of the representative character of the SUTREL trade union section in the enterprise. This refusal is based, according to the enterprise, on the fact that it is not linked to the electricity branch, but comes under the service sector, and given that SUTREL is a branch union, it is not authorized to represent any of the workers of the Luz del Sur Servicios S.A. enterprise.
3. 614. The complainant points out that, prior to this refusal, the Ministry of Labour and Social Welfare summoned the enterprise which submitted a collective agreement signed by representatives of the majority of workers, supposedly chosen voluntarily, declaring non-recognition of the legal existence of the SUTREL trade union section. This collective agreement was ultimately registered by the labour authority.
4. 615. In this connection, the complainant alleges that neither the Luz del Sur Servicios S.A. enterprise nor the labour authority acknowledges that its members within the enterprise continue to perform the same jobs which they held a few years ago under the registered name Luz del Sur S.A., and it is therefore absurd that previously they were considered as workers connected with the electricity sector, and now they are not, although they carry out the same tasks in the Luz del Sur Servicios S.A. enterprise. The complainant adds that although the range of activities of the enterprise has expanded, its workers continue to provide services for the same client enterprises and the same users, hence they should not be denied the union rights which they had acquired.
5. 616. The complainant also adds that the Luz del Sur Servicios S.A. enterprise pressured its workers who were not members of the SUTREL enterprise trade union section to sign a collective agreement, with the intention of lending force to their non-recognition of the union and thus contributing to weakening branch-level collective bargaining. Moreover, adds the complainant, a document presented to the labour authority by the enterprise expressly states that the minimum benefits granted by Luz del Sur Servicios S.A. to its workers will be the same as those provided to the workers of Luz del Sur S.A., corresponding to the same bargaining period. This again shows quite clearly that both Luz del Sur S.A. and Luz del Sur Servicios S.A. belong to the same branch of activity, and therefore the existence of the SUTREL trade union section in the enterprise is justified.
6. 617. In its communication dated 15 April 1997, the General Confederation of Workers of Peru (CGTP) alleges the dismissal of a number of union officers, protected by union immunity, by their inclusion in the process of collective termination of employment for objective reasons, under Legislative Decree No. 855 of October 1996, amending the Employment Promotion Act. The dismissals apply to all the officers of the Union of Backus and Johnston Brewery Workers and the Brewery Federation of Peru, and to the northern region undersecretary of the CGTP (with the exception of the economic secretary of the CGTP, who is being threatened with administrative proceedings), the officers of the Single Union of Lighting and Power Workers of Electro Ucayali, and one officer of the Single Union of Workers of Electroperú of the Interconnected System.
7. 618. The complainant further alleges that two officers of the Single Union of Electricity Workers of the South-East and of the Federation of Lighting and Power Workers of Peru have been threatened with dismissal, supposedly on the grounds of offences committed by them a year ago, having been suspended without pay for 30 days for having participated in union activities.

B. The Government's reply

1. 619. In relation to the allegations of SUTREL, in its communication of 30 July 1997 the Government declares that the SUTREL trade union section does not have representative character nor legitimacy for the purposes of collective bargaining since its members only number 14 out of a total of 73 workers employed in the enterprise. For this reason, as provided by section 47 of the Industrial Relations Act, since there is no enterprise union in Luz del Sur Servicios S.A., the absolute majority of workers in the enterprise, through their representatives elected in general assembly, signed a collective agreement on 10 January 1997, and for which this reason the Ministry of Labour declared the presentation of a list of demands by the SUTREL trade union section to be unlawful.
2. 620. With regard to the allegations of the CGTP concerning the dismissal of officers of several unions who were protected by union immunity by their inclusion in the process of collective lay-offs, for objective reasons, the Government firstly points out that section 16 of Presidential Decree No. 003-97-TR which approved the consolidated text of Legislative Decree No. 728 - the Act respecting productivity and labour competitivity - lists among the grounds for the termination of contract of employment, dismissal and the objective reasons therefor in cases and forms permitted by the said enactment. In respect of objective reasons, section 46 of the above-mentioned Presidential Decree classifies them as follows: acts of God and force majeure; economic, technological, structural or similar grounds; dissolution and liquidation of a enterprise and bankruptcy; and national restructuring of assets.
3. 621. The Government adds that bearing this legal framework in mind, it can be seen that the above-mentioned grounds for termination of employment are by nature different: while dismissal is the result of a unilateral decision by the employer which affects the worker as an individual, the effects produced by objective reasons extend to a group of workers or to all the workers in an enterprise, whose employment relationship is terminated on the same grounds. Consequently, the national legislation differentiates between the above-mentioned grounds for termination of employment: in the case of dismissal, it provides for the possibility of taking legal action in cases of nullity, arbitrary dismissal and hostility. On the other hand, in the case of objective reasons (acts of God and force majeure and economic, technological, structural or similar grounds), the workers affected have the right of priority of rehiring if the employer decides to hire new staff either directly or through a third party.
4. 622. The Government concludes that although section 30 of the Industrial Relations Act guarantees that certain workers shall not be dismissed without just cause that has been duly demonstrated, in the light of the above explanation concerning legal distinction between dismissal and objective causes, in the case of the latter union immunity does not apply.
5. 623. Concerning the second allegation of the CGTP relating to threats of dismissal received by union officers for supposed offenses and suspension from work without pay for 30 days for having participated in union activities, the Government reports that under sections 30 and 36 of the Act respecting productivity and labour competitivity and section 57 of Presidential Decree No. 017-93-JUS, respectively, the workers concerned can bring their grievances before the judiciary.

C. The Committee conclusions

1. 624. The Committee observes that in this case the complainants have alleged: (1) the non-recognition of the representative character of the SUTREL trade union section by the Luz del Sur Servicios S.A. enterprise and, as a consequence, its refusal to bargain collectively; (2) the dismissal of several union officers and acts of anti-union discrimination.
2. 625. Concerning the allegation by the Unified Trade Union of Electricity Workers of Lima and Callao (SUTREL) of non-recognition of the representative character of the SUTREL trade union section by the Luz del Sur Servicios S.A. enterprise and its consequent refusal to bargain collectively, the Committee observes, firstly, that the complainant asserts that the enterprise's justification for such non-recognition is founded on the enterprise's not being linked to the electricity branch but to the service sector and that given that SUTREL is a branch union, it is not authorized to represent any of the enterprise's workers.
3. 626. In this connection, the Committee notes that the complainant argues that the Luz del Sur Servicios S.A. enterprise is indeed linked to the electricity branch and therefore the existence of the SUTREL trade union section in such an enterprise is indeed justified since its members in that enterprise continue to perform the same jobs that they held a few years ago under the registered name Luz del Sur S.A., under which they were indeed considered as workers connected with the electrical branch, and now they are not, although they continue to carry out the same tasks in the Luz del Sur Servicios S.A. enterprise. Another argument of the complainant on this subject refers to the fact that the document submitted by the enterprise to the labour authority expressly states that the minimum benefits granted by Luz del Sur Servicios S.A. to its workers would be the same as those provided to the workers of Luz del Sur S.A., corresponding to the same bargaining period.
4. 627. On the one hand, the Committee observes that in its reply the Government does not reject the above-mentioned arguments of the complainants, but referring to the SUTREL trade union section, it treats it as an enterprise union when it states that it does not have representative character for purposes of collective bargaining since its members number only 14 out of a total of 73 workers employed in the enterprise, and, pursuant to section 47 of the Industrial Relations Act, since there is not an enterprise union in Luz del Sur Servicios S.A., the absolute majority of workers of the enterprise signed a collective agreement. The Committee also observes that the Government does not deny the allegation that the workers of the enterprise who are not members of the SUTREL trade union section were pressurized into signing a collective agreement. On the other hand, the Committee recalls that in another case of Peru (Case No. 1845), it examined allegations by SUTREL to the effect that the administrative authority had required the union to establish a trade union section at enterprise level in order to bargain collectively at that level although it was a branch union, and the Government had not responded to these allegations (see 302nd Report, para. 516).
5. 628. In the opinion of the Committee, the principal difficulty in this allegation is centred on the enterprise's refusal to recognize the legal status of the trade union section of SUTREL, as a branch union to represent its members. In this respect, the Committee firstly reminds the Government that under Article 2 of Convention No. 87, workers have the right to establish and join organizations of their own choosing. As regards collective bargaining with non-union representatives, the Committee reminds the Government that the Collective Agreements Recommendation, 1951 (No. 91) stresses the role of workers' organizations as one of the parties in collective bargaining; it refers to representatives of unorganized workers only in the absence of such organization. In these circumstances, direct negotiation between the enterprise and its workers, bypassing representative organizations where these exist, might be detrimental to the principle that negotiation should be encouraged and promoted between organizations of employers and workers (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 785). In this connection, the Committee requests the Government to take the necessary measures to recognize the right of the SUTREL trade union section to represent its members and bargain collectively on conditions of work, at least on behalf of its own members.
6. 629. The Committee also observes that prior to the present complaint it already had occasion to examine several cases concerning obstacles in legislation and practice to collective bargaining at branch level in which objections were raised about the legal provisions of the Industrial Relations Act, governing the level of collective bargaining. The Committee would, therefore, refer to the conclusions which it had reached on those occasions, in which it considered that "according to the principle of free and voluntary collective bargaining embodied in Article 4 of the Convention, the determination of the bargaining level is essentially a matter to be left to the discretion of the parties and that, consequently, the level of negotiation should not be imposed by law. The Committee considers that the requirement of a majority, not only of the number of workers, but also of enterprises, in order to conclude a collective agreement for a branch of activity or occupation set out in section 46 of the Industrial Relations Act of 1992 could give rise to problems in the application of Convention No. 98". As it did on those occasions, "the Committee requests the Government, in consultation with the social partners, to take measures to amend legislation so that workers' organizations and employers and their organizations may exercise freely and without obstacles the right to collective bargaining at all levels" (see 306th Report, Case No. 1906, para. 553).
7. 630. With regard to the allegations of the General Confederation of Workers of Peru (CGTP) on the dismissal of officers of several trade union organizations who were protected by union immunity, by their inclusion in the process of collective termination of employment for objective reasons, the Committee notes that according to the statement of the Government, section 16 of Presidential Decree No. 003-97-TR - the Act respecting productivity and labour competitivity - lists among the grounds for termination of a contract of employment objective reasons, which according to section 46 of the said Presidential Decree are classified, inter alia, as economic, technological, structural or similar grounds. The effects produced by objective reasons extend to a group of workers or all the workers in an enterprise whose relationship is terminated on the same grounds, and in its application trade union immunity is not taken into account.
8. 631. Notwithstanding, the Committee, as it has done in other similar cases of Peru, regrets that the Government has not provided any information to clarify the allegedly anti-union nature of the application of the process of collective termination of employment for objective reasons, above all, taking into account, on the one hand, as is pointed out by the Government, the fact that the effects produced by objective reasons can extend to a group of workers in the enterprise, and, on the other hand, as is mentioned in the allegations, the fact that almost all the officers of the two organizations were dismissed.
9. 632. The Committee, as it urged in other similar cases concerning Peru, requests the Government to carry out an investigation into the alleged anti-union nature of such dismissals and to keep the Committee informed on this matter. Likewise, the Committee requests the Government to ensure that when the process of collective termination of employment for objective reasons is implemented, negotiations are held between the enterprises concerned and the trade union organizations, and to take the necessary measures to ensure that in future the application of such processes is not used to carry out acts of anti-union discrimination (see Cases Nos. 1796 and 1878, Peru, 306th and 307th Reports, paras. 506 and 453, respectively).
10. 633. With regard to the allegations of the CGTP concerning threats of dismissal received by union officers for supposed offences, and their suspension from work without pay for 30 days for having participated in trade union activities, the Committee regrets to observe that the Government confines itself to pointing out that under the national legislation, the workers concerned can bring their grievances before the judiciary, and has not investigated the alleged acts of anti-union discrimination or punished the guilty parties, if indeed they carried out such acts. In this connection, the Committee reminds the Government that the Committee of Experts on the Application of Conventions and Recommendations has formulated observations concerning Peru's application of Convention No. 98 in view of the "absence of effective and sufficiently dissuasive sanctions to guarantee the protection of workers against acts of anti-union discrimination and to protect workers' organizations against acts of interference by employers (Articles 1 and 2 of the Convention)". In this connection, the Committee, like the Committee of Experts, urges the Government to take appropriate measures to guarantee the full application of the Convention as soon as possible (see Report of the Committee of Experts 1996, p. 214) and request the Government to keep it informed of developments in this respect.