Suites données aux recommandations du comité et du Conseil d’administration - Rapport No. 313, Mars 1999

Effect given to the recommendations of the Committee and the Governing Body

1. 50. At its meeting of November 1998, the Committee made the following recommendations on the pending allegations (see 311th Report, para. 547):
   • Recalling 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, and that 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, 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. It requests the Government to keep the Committee informed about the issues raised;
     • -- to take the appropriate measures to ensure that in future restructuring and staff reduction procedures cannot be used to carry out acts of anti-union discrimination;
     • -- concerning 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 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 for the ISTED to be able to function as a higher professional training centre;
     • -- with respect to the allegation 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 requests the Government to keep it informed of the results of the appeal lodged by the Federation of Peruvian Electricity and Energy Workers.
   • 51. In its communications of 9 December 1998 and 4 February 1999, regarding the dismissal of trade union leader Mickey Juán Alvarez Aguirre, the Government states that following the adoption of Acts 26546 and 26623, the judiciary was undergoing a process of restructuring which involved considerable staff reductions. Facing a real threat of weakening the administration of justice, it was decided not to give any follow-up to the communication of Mr. Alvarez Aguirre in which he was requesting his trade union leave of absence as Secretary of the Workers' Trade Union of the District of Lambayeque. The Government insists that this refusal was never used to carry out anti-union discrimination as the Committee had concluded. The decision of the President of the High Court of Lambayeque to refuse the trade union leave of absence and requesting the immediate reinstatement of Mr. Alvarez Aguirre was compulsory. This decision was not followed by Mr. Alvarez Aguirre, who limited himself to sending communications to the President of the High Court concerning the denial of granting him the said leave of absence. These communications were submitted to the Executive Commission which then notified once again Mr. Alvarez requesting him to reintegrate his post, but without any success. In any case, Mr. Alvarez Aguirre should have reintegrated his work post regardless of his right to lodge a complaint with regard to the denial to grant him his trade union leave of absence. Nevertheless, Mr. Alvarez Aguirre did not follow the orders of his superiors and abandoned without reasons his work post on 23, 24 and 25 February 1996, as well as from 8 April. Thus, the disciplinary procedure which followed was based on a serious breach of conduct (abandoning his work post) and did not amount to anti-union discrimination from the Government as it was alleged by the National Federation of Judiciary Workers. According to the Government, it did not constitute anti-union discrimination nor was it linked to his status as trade union leader. In the labour legislation, trade unionists are duly protected in the case of restructuring which involves staff reductions. In this regard, article 30 of Decree No. 25593 on labour relations provides that trade union protection guarantees that certain workers cannot be dismissed nor transferred to another work post of the same enterprise without a valid justification or without the consent of the worker involved. The consent of the worker is not required if the transfer does not prevent the trade union leader to exercise his trade union activities.
2. 52. In this respect, the Committee recalls that the complainant had alleged (without the Government's denial) that Mr. Alvarez Aguirre had used his trade union leave of absence in conformity with an administrative decision of the Supreme Court (No. 023-A-87 D/GA/PS) which grants trade union leave of absence on the sole condition to inform the presidents of the committees concerned and the personnel office. In these circumstances, the Committee considers that the necessity to operate massive restructuring cannot be used by the Government as an excuse to refuse to grant a trade union leave of absence, and this is particularly true when the restructuring involves staff reduction and even more so in the case of a dismissal of a trade union leader who was using his trade union leave of absence. Therefore, the Committee once again requests the Government to take the necessary measures to ensure that Mr. Alvarez Aguirre is reinstated in his job without loss of acquired benefits.
3. 53. Concerning the refusal to grant a zoning certificate in order for the Private Higher Technology Institute of Energy and Development (ISTED) to operate, the Government states that the municipality of metropolitan Lima has not yet rendered its decision concerning the appeal lodged by the Federation of Peruvian Electricity and Energy Workers. The Government declares that it will transmit to the Committee the decision as soon as it is handed down. The Committee is thus waiting for the decision to be rendered.
4. 54. Finally, with respect to the allegation 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 Government states that the final appeal lodged by the Federation of Peruvian Electricity is still pending. The Government declares that it will transmit the decision in question as soon as it is rendered. The Committee is thus awaiting the final decision to be handed down.