Rapport définitif - Rapport No. 318, Novembre 1999

1. 385. The complaint is contained in a communication dated 10 December 1998 from the General Confederation of Workers of Peru (CGTP). This organization sent additional information in a communication dated 24 February 1999. The Government replied in a communication dated 27 May 1999.
2. 386. 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 complainant's allegations

1. 387. In its communications of 10 December 1998 and 24 February 1999, the General Confederation of Workers of Peru (CGTP) alleges that the Ministry of Labour, in accordance with its own Decision No. 003-98 of 21 August 1998 and Decision No. 323-98 of 17 September 1998 (copies of which are supplied by the complainant), refused to register the new National Executive Board of the National Federation of Mining, Metal, Iron and Steel Workers of Peru (FNTMMSP) for the period 1998-2000. According to the abovementioned administrative decisions, workers' organizations must, under Convention No. 87, respect the law of the land; an analysis of this file reveals that the list of National Executive Board members was made up of some workers who did not respect the requirements of the law, such as the requirement of being a company employee, since having been dismissed the employment relationship no longer existed and thus they were no longer active members of a trade union. The CGTP considers that this refusal violates the right of organizations to freely elect their representatives, as embodied in Convention No. 87.

B. The Government's reply

1. 388. In its communication of 27 May 1999, the Government states that the inadmissibility of registering the National Executive Board of the National Federation of Mining, Metal, Iron and Steel Workers of Peru was due to objective circumstances and had nothing whatsoever to do with any wish on the part of the Ministry to interfere with the union or to carry out anti-union acts. In this respect, section 4 of the Collective Labour Relations Act states that: "The State, the employers and representatives of either shall refrain from any actions tending in any way to constrain, restrict or diminish the right of workers to form unions, and to refrain from interfering in any way in the establishment, administration or maintenance of trade union organizations established by workers." The Government adds that Decision No. 003-98 cited specific circumstances which made it impossible to register the National Executive Board; once those circumstances had been rectified, the Ministry of Labour proceeded with registration on 8 April 1999 (the Government has supplied supporting documents).

C. The Committee's conclusions

1. 389. The Committee notes that in the present complaint, the complainant has alleged that the Ministry of Labour in August 1998 refused to register the National Executive Board of the National Federation of Mining, Metal, Iron and Steel Workers of Peru (FNTMMSP). The Committee takes note of the Government's statements to the effect that the National Executive Board was registered on 8 April 1999, once certain problems which had prevented registration had been resolved. As regards these circumstances, the Committee notes that the Ministry of Labour decisions refusing registration (sent in the annex accompanying the complaint) indicate that the motive for the refusal, contrary to the Collective Labour Relations Act, was the fact that some members of the Board were not company employees "by virtue of the fact that the employment relationship was dissolved at the moment of dismissal, which means that they are no longer active members of the union".
2. 390. In this regard, the Committee wishes to draw attention to the principle according to which "The registration of the executive boards of trade union organizations should take place automatically when reported by the trade union, and should be contested only at the request of the members of the trade union in question" (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 365) and that requirements of membership of an occupation or establishment as a condition of eligibility for union office are not consistent with the right of workers to freely elect their representatives (see Digest, op. cit., paras. 369-374), especially in the case of trade union federations. The Committee of Experts on the Application of Conventions and Recommendations has requested the Government to amend its legislation in this respect (see Report III (Part 1A), 1999, pages 270 ff.).
3. 391. Under these circumstances, the Committee regrets the delay in the registration of the National Executive Board of the FNTMMSP and the fact that this organization was obliged to comply with requirements that its Board members be employed in a company in order to register its National Executive Board, and requests the Government to take steps to amend its legislation so as to ensure that employment within a company is not a condition of election to union office of a federation.