Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 311, Novembre 1998

1. 525. The complaints in this case were included in communications from the National Federation of Judiciary Workers (FNTPT) and the Federation of Peruvian Electricity and Energy Workers dated 30 October 1997 and 1 and 31 July 1998 respectively. The Government sent its observations in communications dated 25 September and 6 October 1998.
2. 526. Peru has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98) and the Labour Relations (Public Service) Convention, 1978 (No. 151). It has not ratified the Workers' Representatives Convention, 1971 (No. 135).

A. The complainants' allegations

1. 527. In its communication dated 30 October 1997, the National Federation of Judiciary Workers (FNTPT) alleges that the Peruvian judicial authorities tried to obstruct the FNTPT's trade union activities, weakening its leadership. More specifically, the FNTPT states that Mr. Mickey Juán Alvarez Aguirre, a legal expert at Lambayeque Supreme Court of Justice, was elected executive secretary of the national executive committee of the FNTPT at the Ordinary National Congress held by the Federation on 23, 24 and 25 February 1996, an election the results of which were duly communicated to the respective judicial authorities.
2. 528. The complainant adds that evidence of the anti-union stance of the judicial authorities can be seen from the fact that on 25 February 1996, the last day of the VIIth Ordinary National Congress of the FNTPT, the judicial authorities published the first "invitation for the voluntary mass resignation of staff" with the intention of intimidating the persons assuming the national trade union leadership. Also, the President of the Lambayeque Supreme Court of Justice, on the basis of decisions issued by an authority lower than the Presidency of the Supreme Court of Justice of the Republic, sought to stop Mr. Alvarez Aguirre from exercising his right to trade union leave of absence, 0stating that he would consult the executive committee of the Judiciary concerning the entitlement to that right. This consultation did not take place.
3. 529. The complainant explains that Mr. Alvarez Aguirre, in his position as trade union leader of the FNTPT, as from 9 April 1996 exercised his right to trade union leave of absence in accordance with Administrative Decision No. 023-A-87-DIGA/PJ, signed by the President of the Supreme Court of Justice of the Republic. This decision grants union authorization to the elected members of the FNTPT with the sole condition of informing the respective Presidents and the personnel office of the Judiciary in a timely manner of the names of its trade union representatives, a requirement that was scrupulously observed.
4. 530. Lastly, the complainant alleges that with the objective of weakening the national leadership of judicial workers, ten months after Mr. Alvarez Aguirre exercised his right to trade union leave of absence, the judicial authorities on 6 February 1997, on the grounds of alleged unjustified absences from the workplace for a period of more than three days, initiated irregular administrative disciplinary proceedings in which he was not allowed to submit a statement, and on 15 March 1997 dismissed him as a reprisal for his election as national trade union leader and for having exercised the trade union leave of absence to which he was entitled.
5. 531. In a communication dated 1 July 1998, the Federation of Peruvian Electricity and Energy Workers alleges that the authorities of the municipality of metropolitan Lima are restricting the exercise of their legitimate activities and discriminating against them. More specifically, the complainant specifies that in October 1995 it decided to establish the Private Higher Technology Institute of Energy and Development (ISTED) domiciled in Lima with the objective of advancing the vocational training of workers in the electricity industry. Given that this decision relates to a lawful activity conducted for the defence and promotion of the professional interests of its members in the sphere of education, in accordance with the country's Constitution and Civil Code, the ISTED obtained its legal personality and was registered as a civil association in the Public Registers of Lima.
6. 532. The complainant adds that in December 1997 the ISTED applied to the municipality of metropolitan Lima for a zoning certificate which constitutes a preliminary authorization to operate and is a prerequisite for the subsequent formalities to be carried out at the Ministry of Education in order to obtain the final authorization to operate. The complainant alleges that the zoning division of the municipality of Lima twice refused to issue the certificate citing inadmissibility. The first time the reason was its physical location (in the old town of Lima), causing the ISTED to move to another part of the city, and the second time was on alleged technical grounds, in spite of the favourable opinion given in both cases by the municipal committee of Lima (PROLIMA), a higher authority than the zoning division.
7. 533. In a communication dated 31 July 1998, the Federation of Peruvian Electricity and Energy Workers alleges that the enterprises Electro Sur Este Ltd. and EGEM Ltd. refused to observe the arbitration award of 29 June 1993 that concluded the collective bargaining process conducted in 1992 and 1993, which awarded a wage increase equivalent to 67 per cent of the basic remuneration in force in June 1992, irrespective of any other increases the Government might grant. Given the position taken by these enterprises, on 27 July 1995 the Federation of Peruvian Electricity and Energy Workers lodged a complaint for the non-observance of the arbitration award in which it sought payment of the amounts stipulated in the award. This claim was found to be substantiated, and the enterprises were ordered to pay the increases stipulated in the award. Subsequently, following an appeal lodged by the enterprises, on 28 October 1996, the Second Civil Court of Cusco declared the decision of the lower court to be null and ordered a new judgement. On 22 June 1998 the Second Court of Cusco handed down a new decision in which it found the claim lodged by the Federation of Peruvian Electricity and Energy Workers to be unsubstantiated. The complainant states that it has lodged a further appeal which is still pending.

B. The Government's reply

1. 534. As regards the allegations presented by the National Federation of Judiciary Workers (FNTPT), the Government states in a communication dated 25 September 1998 that Mr. Mickey Juán Alvarez Aguirre was absent from his workplace on 23, 24 and 25 February 1996, as well as from 8 April 1996 onwards citing the exercise of trade union leave of absence. On 7 April 1996 he was notified of a decision by the President of the Supreme Court of Lambayeque in which he was refused the right to exercise trade union leave of absence and ordered immediately to return to his post, an order which Mr. Alvarez Aguirre declined to obey. Irrespective of the reasons for the denial of trade union leave of absence, the Government states that the Supreme Court's decision is a compulsory order and this being the case, Mr. Alvarez Aguirre should have returned to his post immediately following the notification. Instead of doing so, he confined himself to submitting an internal complaint concerning the denial of leave, and this in turn gave rise to a new notification by the executive committee of the Supreme Court for him to return to work on 11 April 1996, with which he did not comply. For these reasons, on 6 February 1997 administrative disciplinary proceedings were brought against Mr. Alvarez Aguirre resulting in his dismissal on the grounds of unjustified absence for more than three consecutive days, corresponding to 23, 24 and 25 February 1996 and to the interval between April and December of the same year.
2. 535. The Government indicates that while Mr. Alvarez Aguirre contended in defence of his absences that he was a leader of the Workers' Trade Union of the District of Lambayeque, citing Administrative Decision No. 023-A-87-DIGA/PJ, a decision which regulates trade union leave of absence for trade union leaders, section 2 of the decision also stipulates the requirements as regards application and entitlement. According to this provision "The respective organizations shall name the representatives who will exercise their right to this leave, informing the respective Presidents and the personnel office to enable them to take the appropriate administrative measures." In this case, these"administrative measures", adds the Government, consisted of the refusal to grant the leave given that the judiciary was undergoing a process of restructuring which had resulted in resignations and staff reductions. Lastly, the Government concludes by saying that the refusal to grant trade union leave of absence to Mr. Alvarez Aguirre was due to service requirements and not to anti-union policies.
3. 536. With respect to the allegation of the Federation of Peruvian Electricity and Energy Workers, condemning the municipality of metropolitan Lima's refusal to grant a zoning certificate in order for the Private Higher Technology Institute of Energy and Development (ISTED) to operate and inhibiting the exercise of its legitimate activities, the Government indicates in its communication of 6 October 1998 that the refusal was based solely on the fact that ISTED did not have the legal requirements necessary to function as a higher professional training centre, and not on anti-union grounds. The Government adds that on 25 June 1998, ISTED lodged an appeal for review of the decision, and that the decision has not yet been handed down by the zoning division of the municipality of Lima; clearly if ISTED fulfils the legal requirements, the certificate will be issued.
4. 537. Furthermore, with respect to the allegation of the Federation of Peruvian Electricity and Energy Workers regarding the refusal of the enterprises Electro Sur Este Ltd and EGEM Ltd. to observe the arbitration award that concluded the collective bargaining process, the Government states in its communication of 6 October 1998 that this matter has been the subject of an inquiry by the judicial authorities, however, no final decision has yet been pronounced. The Government notes that, as the complainants has indicated, the Federation of Peruvian Electricity and Energy Workers, as well as both enterprises, had appealed the decisions of the judicial authorities; however, the final appeal lodged by the complainants against the decision declaring the application irreceivable is still pending before the Second Civil Chamber of Cusco.

C. The Committee's conclusions

1. 538. The Committee observes that in this case the complainant organization alleged violations of freedom of association relating to: (1) the refusal to recognize trade union leave of absence for a trade union leader and his subsequent unjustified dismissal for alleged absence from his workplace; (2) restrictions on the exercise of the legitimate activities of a trade union organization; (3) the non-observance by two enterprises of an arbitration award which had been the culmination of a collective bargaining process.
2. 539. As regards the allegations made by the National Federation of Judiciary Workers (FNTPT), the Committee notes that Mr. Mickey Juán Alvarez Aguirre was elected executive secretary of the national executive committee of the FNTPT at the Ordinary National Congress held on 23, 24 and 25 February 1996, an election, the results of which were duly communicated to the respective judicial authorities, an allegation that the Government did not deny. The Committee also notes that, according to the complainant, from 9 April 1996 onwards Mr. Alvarez Aguirre exercised his right to trade union leave of absence in accordance with Administrative Decision No. 023-A-87-DIGA/PJ, which grants union authorization to the elected representatives of the FNTPT, with the sole condition of informing the respective judicial authorities in a timely manner of the names of their trade union representatives, a requirement that was met.
3. 540. Furthermore, the Committee notes the Government's statement that the judicial authority refused to grant the trade union leave of absence to Mr. Alvarez Aguirre given the fact that the judiciary was undergoing a process of restructuring involving staff reductions, and that the administrative proceedings brought against Mr. Alvarez Aguirre on 6 February 1997, which resulted in his dismissal, were due to his unjustified absence on 23, 24 and 25 February 1996 and to the interval between April and December of the same year.
4. 541. In this connection, the Committee observes that 23, 24 and 25 February 1996, the period described by the Government as an unjustified absence by Mr. Alvarez Aguirre, are the dates on which the Congress was held which elected him national leader of the FNTPT. The Committee also observes that the administrative proceedings brought in February 1997 against Mr. Alvarez Aguirre, which resulted in his dismissal, occurred almost ten months after he exercised his right to trade union leave of absence.
5. 542. In these circumstances, the Committee wishes to remind the Government that in accordance with Article 6, paragraph 1, of Convention No. 151, ratified by Peru, "Such facilities shall be afforded to the representatives of recognized public employees' organizations as may be appropriate in order to enable them to carry out their functions promptly and efficiently, both during and outside their hours of work". Furthermore, "when examining an allegation concerning the denial of time off to participate in trade union meetings, the Committee recalled that ... subparagraph 2 of Paragraph 10 (of the Workers' Representatives Recommendation, 1971 (No. 143)) ... specifies that while workers' representatives may be required to obtain permission from the management before taking time off, such permission should not be unreasonably withheld" (see Digest of Decisions and Principles of the Freedom of Association Committee, 4th edition, 1996, para. 952).
6. 543. The Committee also recalls 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 (...) and in order to ensure that effect is given to the fundamental principle that workers' organizations shall have the right to elect their representatives in full freedom" (see Digest, op. cit., para. 724).
7. 544. In the light of these principles, the Committee requests the Government to take the necessary measures to ensure that Mr. Mickey Juán Alvarez Aguirre, who was elected executive secretary of the national executive committee of the FNTPT at the Ordinary National Congress in February 1996, is reinstated in his job without loss of acquired benefits and that he is once again able to exercise his trade union responsibilities rapidly and without impediment. The Committee requests the Government to keep it informed about the issues raised and to take the appropriate measures to ensure that in future the restructuring and staff reduction procedures cannot be used to carry out acts of anti-union discrimination.
8. 545. Concerning the allegation of the Federation of Peruvian Electricity and Energy Workers with respect to the refusal of the municipality of metropolitan Lima to grant a zoning certificate in order for the Private Higher Technology Institute of Energy and Development (ISTED) to operate, the Committee notes the Government's submission that the refusal was based solely on the fact that ISTED did not have the legal requirements necessary to function as a higher professional training centre, and not on anti-union grounds, pending the decision on the appeal lodged by ISTED. The Committee trusts that the decision rendered in respect of the appeal made by the Federation of Peruvian Electricity and Energy Workers will reflect the principles of freedom of association and requests the Government to keep it informed of the outcome of the appeal, as well as any element which would clarify the situation in respect of the legal requirements mentioned above.
9. 546. Furthermore, with respect to the allegation of the Federation of Peruvian Electricity and Energy Workers concerning the refusal of the enterprises Electro Sur Este Ltd. and EGEM Ltd. to observe the arbitration award that concluded the collective bargaining process, the Committee, noting that both parties have appealed the decision and that the final appeal lodged by the complainant is still pending, recalls "the importance which it attaches to the obligation to negotiate in good faith for the maintenance of the harmonious development of labour relations", and that "(a)greements should be binding on the parties". (See Digest, op. cit., paras.81 and 818.) The Committee requests the Government to keep it informed of the results of the appeal lodged by the Federation of Peruvian Electricity and Energy Workers.