Informe provisional - Informe núm. 90, 1966

1. 188. The committee examined this case most recently at its meeting in November 1965 when it submitted to the Governing Body an interim report that appears in paragraphs 417 to 460 of its 85th Report, as approved by the Governing Body at its 163rd Session (November 1965). The present report refers solely to the three series of allegations examination of which had been postponed, the Government having been requested to supply certain additional information in this connection, as mentioned in paragraph 460 of the 85th Report.
2. 189. 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. A. The complainants' allegations

• Allegations relating to Requirements for the Formation of a Trade Union
  190. 190 The complainants stated in their communication dated 3 June 1963 that the provisions of sections 7 and 9 (b) of Presidential Decree No. 009 of 3 May 1961 concerning organisation of trade unions did not conform to the standards laid down in Convention 87. Section 7 of that decree requires a minimum of 20 members for the formation or continuance of a trade union and further states that workers in workplaces that have five or more workers but do not reach the minimum number stated above may appoint one delegate to represent them in dealings with the employer and the authorities. Section 9 (b) states that the members of a trade union must belong to the undertaking or the activity uniting them.
  191. 191 In its observations the Government explained the practical reasons on which the minimum membership requirements were based and further stated that the law did not prevent the representation of workers not affiliated to a trade union for the purposes of making claims and concluding collective agreements.
  192. 192 Before formulating its conclusions on these allegations the Committee considered it necessary to request the Government to state whether workers in workplaces with fewer than 20 members could unite with those of other workplaces to form a trade union and, if so, subject to what conditions (paragraph 460 (d) of the 85th Report).
  193. 193 In its reply to this request for information the Government states, by means of a communication dated 19 January 1966, that under section 7, clause 2, of the above-mentioned decree the workers at workplaces having five or more workers can elect a delegate to represent them in dealings with the employer and the authorities, such election being by secret ballot and by majority decision. The Government further states that the " basic organisms " thus created can affiliate within the same branch of activity, as in the case of the Sole Union of Bus Workers constituted by the " basic organisms " in undertakings within that branch of activity having less than 20 workers.
  194. 194 In its examination of a previous case in which legislation in the country concerned required a minimum membership of 50 with a view to the formation of a trade union and stated that " no worker shall join any trade union other than that formed by the workers of the government unit or the private establishment in which he is engaged ", the Committee referred, inter alia, to the conclusion reached by the Committee of Experts on the Application of Conventions and Recommendations that the establishment of a trade union may be considerably hindered or even rendered impossible when legislation fixes the minimum number of members of a trade union at a figure that is obviously too high (for example 50). In the present case the minimum membership of 20 laid down by Peruvian legislation does not seem excessive and therefore no obstacle exists to the formation of trade unions.
  195. 195 The Committee notes that workers at workplaces with more than five but less than 20 workers can join together with those at other workplaces within the same branch of activity in order to form a trade union. However, the Committee observes that the information supplied by the Government does not state whether workers in establishments having five employees or less enjoy the right to belong to a trade union. Presidential Decree No. 009 does not appear to define the situation of such workers. In this connection the Committee considers it is necessary to refer to the provision in Article 2 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), that workers " without distinction whatsoever " shall have the right to establish and, subject only to the rules of the organisation concerned, to join organisations of their own choosing without previous authorisation.
  196. 196 In these circumstances the Committee recommends the Governing Body to request the Government to inform it whether workers in such establishments can join with workers in other establishments in order to form a trade union or join an existing trade union and, if so, subject to what conditions.
• Allegation relating to the Personal Quality of Trade Union Office
  197. 197 The complainants stated that the provision of section 10 of Presidential Decree No. 009 according to which membership or office in a trade union is strictly personal, and cannot be transferred or delegated for any reason, acts as an obstacle to the operation of trade unions because it impedes the discharge of functions and compels trade union leaders to travel themselves to Lima every time there is business to transact, with all the consequent expenses.
  198. 198 In its communication of 19 January 1966 the Government states that the provision contained in section 10, as quoted, is based on the necessity to protect the rights of trade union members, since nobody is in a better position to represent them than the person designated for that purpose. The Government states that the section concerned was extended by means of Presidential Decree No. 12 of 21 August 1962, which it quotes. Section l of that decree states that in any collective grievances or claims brought before the employers or the administrative authorities for the branch concerned the workers may be represented only by:
       • (a) the appropriate trade union;
       • (b) failing this possibility, the representatives appointed by 50 per cent plus one of the employees at the workplace or workplaces engaged in the same type of activities;
       • (c) the organisation of the next higher degree if the grievance or claim refers to workers employed at different workplaces within the same class of activities ... ; and
       • (d) the third-degree organisation if the grievance concerns the interests of workplaces engaged in different types of activities....
  199. 199 Section 3 of Presidential Decree No. 12 states that the advisory function devolving upon the higher-degree trade union organisation vis-à-vis the administrative labour authorities is to be discharged without prejudice to direct representation of workers, as provided for in the same decree.
  200. 200 The preamble to the amending decree states that, in order to facilitate solution of workers problems, direct intervention by those concerned must be guaranteed in connection with all grievances or claims and that such intervention shall ensure the greater efficiency of supply of information and experience as necessary. The Government further mentions that section 11 of Presidential Decree No. 009, as amended by Presidential Decree No. 021 of 21 December 1962, provides for the possibility of representation through delegates when it states that for the purposes of registration the provisional executive board or a specially authorised delegate shall submit the relevant request to the labour authorities.
  201. 201 It would appear that the provisions quoted by the Government refer to disputes and claims in which direct participation by elected officers is normally required in accordance with trade union rules. The provision quoted by the complainants in support of their complaint merely states that the quality of trade union officer is personal and may not be delegated. It seems clear to the Committee that if all these provisions, or any of them, were applied in such a manner as to impede the trade union organisations in using the services of experts who were not necessarily elected officers, such as industrial advisers, lawyers or attorneys able to represent them in judicial or administrative dealings, there would be serious doubt as to the compatibility of such provisions with Article 3 of Convention No. 87, according to which workers' organisations shall have the right, inter alia, to organise their administration and activities. However, the Committee observes that the complainants have not submitted any precise details or evidence to show that this is so.
  202. 202 In these circumstances the Committee recommends the Governing Body, while reaffirming the importance which it attaches to the principle enunciated in Article 3 of Convention No. 87, cited in paragraph 201 above, to decide that this aspect of the case does not call for further examination.
• Allegations relating to the Dismissal of Trade Union Officers
  203. 203 The complainants alleged also that, following the proclamation of Presidential Decree No. 009, officers of trade union organisations already existing but not meeting the requirements of that Decree had been deprived of trade union status and were being dismissed.
  204. 204 In its above-mentioned communication the Government states that under the Constitution of Peru legislation has no retroactive effect and that the provisions of an enactment cannot in any way affect previously acquired rights. In this connection the Government refers to the existence of trade union bodies whose status has not been adversely affected by the adoption of Presidential Decree No. 009. The Government denies any cases of dismissal such as alleged by the complainants, and states that Presidential Decision No. 23 D.T of 18 February 1957 remains in force, section 1 of which provides that, during the period of submission of claims and of proceedings in relation thereto and immediately following settlement by decision or agreement, workers' representatives may not be dismissed other than on grounds laid down in section 294 of the Commercial Code and supplementary provisions. These grounds are as follows: fraud or breach of trust; engaging in commercial dealings for one's own account without express knowledge and authorisation by the employer; and serious failure to show the respect and consideration due to the employer, his family members or his representatives. Presidential Decision No. 27 of 20 April 1957 also remains in force, prohibiting the dismissal of the officers of a trade union in the course of formation.
  205. 205 Had it been shown that the alleged dismissals were due to the trade union activities of the trade union officers concerned and as a result of the entry into force of a new enactment depriving such officers of protection against dismissal on the grounds indicated, there might have been serious reason to question the compatibility of the new legislation with the provisions of Article 1, paragraph 2 (b), of Convention No. 98, stating that protection of workers against acts of anti-union discrimination in respect of their employment shall apply particularly in respect of acts calculated to cause the dismissal of a worker by reason of union membership or because of participation in union activities. However, the Committee observes that the complainants have failed to submit details in support of their complaint, such as the names of officers dismissed on the grounds alleged or the circumstances of such dismissals.
  206. 206 In these circumstances, for the reasons stated in paragraphs 203 to 205 above, the Committee recommends the Governing Body, while reaffirming the importance that should be attached to the above-mentioned provision of Article 1, paragraph 2 (b), of Convention No. 98, to decide that there would be no point in continuing examination of this aspect of the case.