Informe provisional - Informe núm. 286, Marzo 1993

438. The complaints are set out in communications dated 7 June 1991 and 30 April, 15 May, 6 July, 19 August 1992 and 1 February 1993 from the General Confederation of Workers of Peru (CGTP), the National Coalition of State Enterprise Trade Unions (CONSIDEP), the National Federation of Petroleum and Allied Workers (FENPETROL), the National Bank Workers' Trade Union (SINATBAN), the National Federation of Mining, Metal, Iron and Steel Workers (FNTMMSP), the SEDAPAL Trade Union, the National Federation of Water and Sewage Workers (FENTAP), the National Federation of the National Port Enterprise Workers (FENTENAPU), the Trade Union of Crews of Sea-going Petroleum Tankers, the Talara Trade Union, the Pampilla-Lima Trade Union, the Piura Oil Pipeline Trade Union, the Conchán OP Trade Union, the Telecommunication Company Workers' Trade Union, the Federation of Workers in the Lighting and Power Industry of Peru, the Trade Union of Employees of Petro Perú SA, the Federation of Fishermen of Peru, and the International Food and Allied Workers' Union (UIFA). Subsequently, these organizations (communication dated 6 July 1992), the Federation of Fishermen of Peru (communication dated 25 June 1992) and the Federation of Workers in the Lighting and Power Industry of Peru (communications dated 14 May, 30 June, 14 July and 4 September 1992) presented additional information and new allegations. By communications dated 16 July and 24 September 1992 the Latin-American Central of Workers (CLAT) and the World Confederation of Labour (WCL), respectively, associated themselves with the complaints.

1. 438. The complaints are set out in communications dated 7 June 1991 and 30 April, 15 May, 6 July, 19 August 1992 and 1 February 1993 from the General Confederation of Workers of Peru (CGTP), the National Coalition of State Enterprise Trade Unions (CONSIDEP), the National Federation of Petroleum and Allied Workers (FENPETROL), the National Bank Workers' Trade Union (SINATBAN), the National Federation of Mining, Metal, Iron and Steel Workers (FNTMMSP), the SEDAPAL Trade Union, the National Federation of Water and Sewage Workers (FENTAP), the National Federation of the National Port Enterprise Workers (FENTENAPU), the Trade Union of Crews of Sea-going Petroleum Tankers, the Talara Trade Union, the Pampilla-Lima Trade Union, the Piura Oil Pipeline Trade Union, the Conchán OP Trade Union, the Telecommunication Company Workers' Trade Union, the Federation of Workers in the Lighting and Power Industry of Peru, the Trade Union of Employees of Petro Perú SA, the Federation of Fishermen of Peru, and the International Food and Allied Workers' Union (UIFA). Subsequently, these organizations (communication dated 6 July 1992), the Federation of Fishermen of Peru (communication dated 25 June 1992) and the Federation of Workers in the Lighting and Power Industry of Peru (communications dated 14 May, 30 June, 14 July and 4 September 1992) presented additional information and new allegations. By communications dated 16 July and 24 September 1992 the Latin-American Central of Workers (CLAT) and the World Confederation of Labour (WCL), respectively, associated themselves with the complaints.
2. 439. The Government sent partial observations by communications dated 13 November and 23 December 1992.
3. 440. Peru has ratified the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87) and the Right to Organize and Collective Bargaining Convention, 1949 (No. 98).

A. The complainants' allegations

1. 441. In its communication of 7 June 1991 the CGTP alleges that during the second half of 1990 and in 1991 a number of provisions were promulgated which it considers infringe the right to organize, the right to collective bargaining and the right to strike. As regards the right to organize, the complainants state that Supreme Decree No. 076-90-TR, promulgated on 19 December 1990, amends Supreme Decree No. 009 of 3 May 1961, and contains provisions that conflict with the international Conventions of the ILO. Specifically, the complainants criticize the following:
   • - the provision according to which a first-level trade union may not be formed with less than 20 members (section 5);
   • - the provision specifying the number of members of committees that represent the workers at enterprise and sectoral level (section 11, subsections (a) and (b);
   • - the provision making it mandatory for trade union organizations to register with the administrative authority dealing with labour questions;
   • - the provision empowering the said administrative authority to verify the number of members of every trade union for the purpose of determining the union's representative character (section 11, subsection (c));
   • - the lack of any legal framework for the protection of workers who exercise the right of freedom of association against anti-union conduct by the employer or by the State.
2. 442. As regards the right to collective bargaining, the complainants state that this is one of the rights most seriously infringed in recent months, principally in the private sector. So far as state enterprises are concerned, the complainants state that Supreme Decrees Nos. 057-90-TR (of 17 August 1990) and 107-90-PCM (of 24 August 1990) effectively suspended the wage provisions and the provisions concerning conditions of employment (stricto sensu) of the collective agreements, in so far as the Decrees provided for fixed increments far below those agreed upon, and disallowed any agreement providing for the payment of amounts exceeding the "ceilings" to be established by the Government. The subsequent Supreme Decree No. 121-90-PCM, of 28 September 1990, provided that the "ceilings" would be fixed by the National Development Corporation (CONADE) and the National Finance Corporation (CONAFI), both of which are government agencies. The complainant organization points out that these rules were laid down unilaterally, without prior dialogue with the trade union organizations. Furthermore, Supreme Decree No. 023-91-TR of 22 April 1991 declared void all collective agreements inconsistent with the provisions of the aforesaid Decrees.
3. 443. So far as private enterprises are concerned, the promulgation of the following decrees causes serious prejudice to the private sector:
   • - Supreme Decree No. 061-90-TR of 3 September 1990 provides that in the new collective agreements the workers and employers may agree on the grant of temporary allowances, provided that during the period of validity of the agreements they are not taken into account in the compensation for length of service. This Decree has impaired the freedom of the parties in that the great majority of collective agreements must now spread out pay increments; where that does not happen, and where there is no agreement between the parties, the Ministry of Labour will make an order directing that the increments be spread out;
   • - Supreme Decree No. 067-90-TR of 8 November 1990 provides that, in the absence of agreement between the parties, the decisions to be issued by the administrative authority will provide for general increases, safeguard clauses operative on the expiry of the sixth month and conditions of employment linked to productivity;
   • - Supreme Decrees Nos. 071-90-TR (of 12 December 1990) and 001-91-TR (of 4 January 1991), which settle collective negotiations where an agreement between the parties has not yet materialized, bring the agreement into force in the months indicated;
   • - Supreme Decree No. 018-91-TR of 11 March 1991, whereby the Department of Labour is empowered to settle negotiations in all cases where the parties have not reached agreement, but taking into account a number of variables (sector, number of workers, etc.).
4. 444. With respect to the right to strike, the complainants allege that this right has been impaired by two legislative measures: first, Supreme Decree No. 070-90-TR of 16 November 1990 contains provisions infringing trade union freedom and the right to strike in section 1, the definition of "essential service" and section 2, an excessively broad enumeration of essential services and limitation of strikes in essential services by a provision requiring a minimum service; secondly, the complainant organization states that by Supreme Decree No. 016-91-TR of 11 March 1991 another regulation was issued under the Stability of Employment Act, which provides for a number of measures that overtly infringe the right to strike. Under section 7, subsection (c), the sudden stoppage of or interference with operations inside or outside the workplace is deemed to be an unjustified non-compliance with obligations and hence punishable by dismissal; and under section 15 the law enforcement officer on duty or his assistants or the police are responsible for verifying the occupation of premises and for identifying the workers who occupy the premises, for the purpose of their dismissal.
5. 445. In their communications dated 30 April 1992 and 14 May 1992, the Federation of Workers in the Lighting and Power Industry of Peru and the Federation of Fishermen of Peru stated that on 2 April the Government, without consulting the parties concerned, promulgated Supreme Decree No. 040-92-TR, which provides that, as from 13 December 1991 - the date of entry into force of Legislative Decree No. 757 - collective contracts or agreements may not contain systems of automatic adjustment linked to price indexes.
6. 446. The complainants add that under the said decree it is mandatory to replace the systems of automatic wage adjustment by other systems that take into account the improvement of productivity and increase in output of every workplace, for which purpose a strict deadline of six months is prescribed as from the entry into force of the said Legislative Decree No. 757. Supreme Decree No. 040-92-TR not only requires workers to come to terms with their employers on the replacement of the system of calculating wages that had been achieved by means of a collective agreement, but also renders inoperative collective agreements as from 13 December 1991, the date on which Legislative Decree No. 757 entered into force, which constitutes a breach of specific ILO Conventions.
7. 447. In addition, in its communication of 25 June 1992 the Federation of Fishermen refers to the promulgation of Legislative Decree No. 25541 which, inter alia, declares inoperative all collective agreements that contain: clauses providing for the automatic adjustment of wages in the light of the fluctuation of prices; clauses providing for the adjustment of wages in the light of the value of foreign currency; and clauses providing for the adjustment of wages by a method analogous to that of the earlier systems.
8. 448. In their communication of 15 May 1992 various trade union organizations allege that draft legislation has been prepared, the provisions of which they consider to be in breach of the freedom of association. Specifically, the complainants criticize the following:
   • - the provision fixing at an excessively high figure the minimum number of workers and organizations required for the purpose of establishing trade unions, federations and confederations;
   • - the provision specifying and regulating the content of the statutes;
   • - the provision requiring that a person must have performed trade union functions before qualifying for executive office;
   • - the provision restricting the scope of collective bargaining to enterprise or sectoral level;
   • - the provision debarring certain workers from exercising the right to collective bargaining;
   • - the provision under which grievances may be submitted at the sectoral or branch level only;
   • - the provision which impairs the employers' duty to negotiate and restrict possible recourse to compulsory arbitration at the request of one of the parties;
   • - the provision which defines the right to strike;
   • - the provision which prescribes the form in which a strike may be carried out;
   • - the provision specifying which personnel are indispensable for the resumption of work.
9. 449. Subsequently, by their communication of 6 July 1992, the complainants reported that the draft legislation referred to in their preceding communication had been definitively approved on 3 July 1992 by Legislative Decree No. 25593 concerning industrial relations. The complainants state that some of the provisions of the Legislative Decree contravene Conventions Nos. 87 and 98. They criticize in particular the following:
   • - the authoritarian imposition of models to be followed for the organization of trade unions (section 5);
   • - the provisions concerning public registration, outside supervision and the State's discretionary power to dissolve trade union organizations (sections 10 and 17);
   • - the provision imposing institutional restrictions on trade union organizations (section 11);
   • - the provisions restricting the freedom to join a trade union and the appointment of workers' representatives (section 12, subsection (a), section 24, subsection (c), and section 12, subsection (d)):
     • section 12 of the Legislative Decree, issued by the de facto regime imposed on Peru on 5 April last, stipulates in subsection (a) that in order to become a member of a trade union a person must be "a worker of the enterprise, activity, occupation or office that is appropriate according to the type of union";
   • - the provision prescribing minimum conditions to be fulfilled in order that the trade union organizations may continue to exist (section 14):
     • section 14 of Legislative Decree No. 25593 provides that "in order that a trade union may be established and continue in existence it must have at least 20 members if it is an enterprise union, or 100 members if it is a union of a different kind";
   • - the provisions limiting the number of members of trade union executives (sections 31 and 32);
   • - the provision prescribing predetermined time-limits for the period of validity of collective agreements (section 43, subsection (c));
   • - the provision prescribing predetermined majorities as a condition of the validity of sectoral collective agreements (section 46);
   • - the provision abolishing the right to information and freedom of opinion (section 55);
   • - the provisions declaring void rights acquired by virtue of agreements and violating the principle of collective autonomy (fourth transitional provision, sections 66, 43(d), 62 to 65);
   • - the provisions pursuant to which recourse to arbitration acts as a bar to the exercise of the right to strike (sections 61, 62, 63, 67 and 82);
   • - the provision giving the authorities discretionary power to order a strike to be terminated (section 68);
   • - the provision prescribing the conditions to be fulfilled before a strike may be declared (section 73, subsection (b));
   • - the provisions restricting the lawful forms of strike (sections 81 and 85(b)):
     • section 81 of Legislative Decree No. 25593 provides that "this Legislative Decree does not protect irregular forms of action, such as sudden stoppages, halting operations in vital areas or sections of the enterprise, dissuasive action in the form of go-slow working or working to rule, deliberate reduction of output or any stoppage in the course of which the workers remain in the workplace, and obstruction of entry into the workplace". Section 85 provides, in its subsection (c), that "the strike will be declared unlawful ... if it takes any of the forms referred to in section 81";
   • - the provisions restricting strikes in what are described as essential public services (sections 83 and 82).
10. 450. In its communication of 30 June 1992 the Federation of Workers in the Lighting and Power Industry of Peru states that, upon the dissolution of Parliament and "intervention" in the Judiciary, the Executive promulgated Legislative Decree No. 25541 in connection with the termination, by force of law, of the validity of collective agreements as from 13 December 1991. According to the said Decree:
    • Agreements or clauses providing for automatic wage adjustments ceased to be operative on 13 December 1991, the system of wage indexation in force since 1946 in the electricity subsector being abolished; the pending collective negotiations are to be shelved; the parties or, failing agreement, the administrative authority responsible for labour questions will fix the general increment at the beginning of the negotiation; the Ministry of Labour is given regulatory power.
11. 451. The complainants further allege that in promulgating Legislative Decree No. 25567 of 20 June 1992 the Government violates the right to stability of employment, for that Decree declares a state of emergency for the public electricity service enterprises and prescribes time-limits for the termination of contracts of employment.
12. 452. In its communication of 14 July 1992, the Federation in the Lighting and Power Industry of Peru, like the CGTP and the other complainant organizations, alleges that Legislative Decree No. 25593, promulgated on 2 July 1992, violates trade union rights.
13. 453. In its communication of 4 September 1992 the Federation of Workers in the Lighting and Power Industry of Peru alleges that since the formation of the new Emergency and National Reconstruction Government many trade union leaders have been induced to give up their posts under the threat of dismissal without compensation. The Federation explains that persons who decline to accept redundancy schemes are placed on the list of surplus personnel whose contracts of employment are terminated by enforceable administrative procedures. Specifically, the complainant organization mentions a large number of trade union leaders who, it says, were dismissed or forced to leave and who are members of that Federation, of the Trade Union of Workers of the Lighting and Power Industry at Trujillo, the Trade Union of ELECTROPERU and allied enterprises, the Trade Union of ELECTROPERU at Chachapoyas and allied enterprises, the Trade Union of Workers in Public Register Offices, the Trade Union of Workers of the Ministry of Labour, the Trade Union of Workers of the Ministry of Economic Affairs, the Trade Union of Workers of the Public Welfare Agency, the Trade Union of Postal Workers, the Trade Union of Agricultural Workers, the Trade Union of Workers of the Ministry of Energy and Mining, the Trade Union of Workers of the Department of Taxation, and of the Intersectoral Confederation of State Workers. In its communication of 1 February 1993 the UITA alleges that under Decree No. 25.715 on the restructuring and reorganization of the Pesca Perú enterprise, article 5 of which provides for the implementation of an incentive programme of voluntary retirement, 1,636 workers and ten union leaders have been dismissed from the company, which then hired new employees. Finally, the Federation of Workers in the Lighting and Power Industry of Peru states that there have been attempts on the life of trade union leaders and specifically it reports the murder, on 3 August 1992, of Mr. Juan Andahua Vergara (National Organizing Secretary of the General Confederation of Workers of Peru, Secretary General of the National Federation of Workers in the Beverages and Soft Drinks Industry, and Organizing Secretary of the Trade Union of Workers of the Coca-Cola Company).

B. The Government's reply

1. 454. In its communication of 13 November 1992 the Government, referring to the allegations presented by the CGTP, states that, as regards the right to organize, Supreme Decree No. 009 of 3 May 1961 was amended in December 1990 by Supreme Decree No. 076-90-TR which simplified the registration of trade unions, the object being that workers' organizations should obtain as promptly as possible their legal personality, a measure which is not inconsistent with ILO Conventions Nos. 87 and 98. The Government points out that, in changing the minimum number of workers required for the formation of a trade union and in prescribing rules concerning the number of members of the committees that are to act as the workers' representatives in collective bargaining at enterprise and sectoral level, Supreme Decree No. 076-90-TR brought the 1961 legislation up to date and into line with the reality of Peru's labour situation. The Government adds that Legislative Decree No. 25593, which deals with collective labour relations, was recently promulgated, enacting rules concerning the rights of unionization and collective bargaining and the right to strike.
2. 455. With reference to the allegation that the right of collective bargaining is infringed by the promulgation of Supreme Decrees Nos. 057-90-TR, 107-90-PCM, 121-90-PCM, 178-90-PCM and 023-91-TR, the Government states that these Decrees are in keeping with the economic stabilization programme established by the Government for dealing with the severe inflation and recession seriously affecting the various sectors of the formal economy. The Government points out that these are exceptional measures which were enacted by virtue of paragraph 20 of article 211 of the Constitution of Peru, empowering the President of the Republic to order exceptional measures relating to economic and financial matters in cases where the national interest so requires. It explains that intervention by the State is conditional on the absence of agreement between the parties, and that on some occasions its intervention is exceptional by reason of the country's present economic situation, in which case it prescribes measures relating to economic, financial and labour matters which are designed to increase the workers' purchasing power. The recent legislation concerning industrial relations (Legislative Decree No. 25593) and the related regulations approved by Supreme Decree No. 011-92-TR strengthen the collective autonomy of the parties to the employment relationship, particularly of the workers, in such a way that the lack of the State's protection is compensated for, so far as possible, by collective bargaining.
3. 456. With regard to the right to strike, the Government states that Supreme Decree No. 070-90-TR enacts rules relating to the exercise of this right in essential services and provisions making possible the immediate resumption of work after the end of the strike. While the right to strike is recognized, the Decree provides that the actual carrying out of a strike must not affect the functioning of essential services, defined to mean services the interruption of which may endanger the life, liberty, safety or health of persons, and which demand the performance of a minimum service to avoid these risks. The provision in question did not infringe any right of workers laid down in ILO Conventions Nos. 87 and 98; on the contrary, by this enactment the Executive intended to forestall labour disputes that might have arisen upon the exhaustion of the direct negotiation. The Government states, lastly, that the legislation concerning collective labour relations and the relevant regulations prescribe rules governing the right to strike, define the terms, specify the conditions to be fulfilled for declaring a strike and the form of the strike, and ensure the continuity of the essential public services to be provided during the strike, thus introducing into Peruvian legislation a comprehensive set of rules on the subject.
4. 457. In its communication of 23 December 1992, the Government states finally that Legislative Decree No. 757, a law aiming at improving investment in the private sector, was promulgated by virtue of authority delegated by the Congress of the Republic, in conformity with article 188 of the Constitution, in order to create the conditions necessary for increasing private investment in various sectors of production and to eliminate impediments to economic development and to private enterprise. To this end, the Decree provides that collective bargaining or collective agreements may not include negotiated or automatic adjustments linked to prices or to foreign exchange rates. In addition, Legal Decree No. 25.542 provides that the application of mechanisms of salary readjustment established by legal agreement, collective bargaining, custom, or judicial or administrative court rulings shall terminate on 13 December 1991, the date on which Legislative Decree No. 757 comes into force. The Government explains that these legal steps were necessary in the context of a programme of structural reform of the economy undertaken by the Government.

C. The Committee's conclusions

1. 458. The Committee notes that the present complaints relate to the alleged inconsistency of certain statutory provisions that have entered into force since 1990, in particular Legislative Decree No. 25593 concerning industrial relations, with Conventions Nos. 87 and 98; the complaints also refer to the cases of a large number of trade union leaders who have been forced to leave their posts or have been dismissed, and to the murder, on 3 August 1992, of the trade union leader Juan Andahua Vergara.
2. 459. As regards the relevant legislation, the Committee notes that the complainants allege that:
   • (a) Supreme Decree No. 76-90-TR of 19 December 1990 infringes the right to organize;
   • (b) Supreme Decrees Nos. 057-90-TR of 17 August 1990, 107-90-PCM of 24 August 1990, 121-90-PCM of 28 September 1990, 23-91-TR of 22 April 1991, 61-90-TR of 3 September 1990, 67-90-TR of 8 November 1990, 071-90-TR of 12 December 1990, 001-91-TR of 4 January 1991 and 018-91-TR of 11 March 1991 infringe the right of collective bargaining both in state enterprises and in private enterprises;
   • (c) Supreme Decrees Nos. 070-90-TR of 16 November 1990 and 016-91-TR of 11 March 1991 infringe the right to strike;
   • (d) Legislative Decree No. 25593 of 3 July 1992, concerning industrial relations, violates numerous principles of freedom of association;
   • (e) Legislative Decree No. 25557 of 20 June 1992 infringes the right to employment stability;
   • (f) Legislative Decree No. 25541 declares void, as from 13 December 1991, agreements or clauses providing for the automatic adjustment of wages and empowers the administrative authority dealing with labour questions to fix - in the absence of agreement between the parties - the general increase; and Supreme Decree No. 040-92-TR and Legislative Decree No. 757 provide that collective contracts or agreements may not contain systems of automatic adjustment corresponding to indices of the fluctuation of prices;
   • (g) since the formation of the new Emergency and National Reconstruction Government a large number of trade union leaders have been forced to leave their posts (under redundancy programmes in the public sector) or have been dismissed.
3. 460. With reference to the allegations concerning the infringement of the right to organize, the right of collective bargaining and the right to strike by the promulgation of various decrees, and specifically Legislative Decree No. 25593 concerning industrial relations, the Committee takes note of the Government's comments, according to which: (1) the decrees in question were promulgated for the purpose of implementing the economic stabilization programme; (2) these measures are of an exceptional nature and were promulgated by virtue of the authority vested in the Executive by article 211 of the Peruvian Constitution; and (3) Legislative Decree No. 25593 concerning industrial relations strengthens the collective autonomy of the parties to the employment relationship and prescribes rules governing the right to strike. The Committee regrets that the Government has confined itself to supplying very general information about the detailed questions raised by the complainants in their allegations, and requests the Government to communicate as soon as possible its observations on all these allegations, and specifically to state, in addition, whether Legislative Decree No. 25593 repealed any of the decrees mentioned by the complainants.
4. 461. As regards the allegations concerning the Government's decision to declare void, as from 13 December 1991, the contracts or clauses providing for the automatic adjustment of wages, and concerning the power of the administrative authority dealing with labour questions to fix - in the absence of agreement between the parties - the general increment (Legislative Decree No. 25541), as well as the rule that future collective contracts or agreements may not contain any systems of automatic adjustment corresponding to indices of price fluctuations (Supreme Decree No. 040-92-TR and Legislative Decree No. 757), the Committee notes that it considered these allegations in connection with earlier cases. In the circumstances the Committee reiterates its conclusions of May 1992 (see 283rd Report, Case No. 1614 (Peru), para. 63) when it expressed the view that
   • the legislative provisions prohibiting the negotiation of wage increases beyond the level of the increase in the cost of living are contrary to the principle of voluntary collective bargaining embodied in Convention No. 98; such a limitation would be admissible only if it remained within the context of an economic stabilization policy, and even then only as an exceptional measure restricted to what is absolutely necessary and limited to a reasonable period of time.
   • The Committee stresses, furthermore, that recourse to mandatory arbitration in cases where the parties do not reach agreement through collective bargaining is permissible only in the context of essential services in the strict sense of the term (i.e. services the interruption of which might endanger the life, safety or health of persons in the whole or in part of the population).
5. 462. With regard to the allegation concerning measures taken to induce trade union leaders in the public sector to give up their posts in the context of redundancy programmes in return for financial compensation the Committee notes that these are measures of a general nature which do not affect only trade union leaders, and that in the course of its present session it has considered similar allegations in the context of rationalization and staff reduction programmes in Peru; accordingly it reiterates its conclusions concerning that case (see Case No. 1609 (Peru)) in which in particular it regretted that in the course of the rationalization and staff reduction process there was no consultation and no attempt to come to an agreement with the trade union organizations, and that recourse to legislation by decree was preferred. The Committee requests the Government to supply complete information on the allegations of discriminatory dismissals of union leaders and workers in the Pesca Peru enterprise.
6. 463. The Committee regrets that the Government did not send its comments on the murder, on 3 August 1992, of the trade union leader Juan Andahua Vergara. The Committee asks the Government to carry out a judicial inquiry for the purpose of shedding light on the murder and punishing the guilty parties. The Committee requests the Government to report to it on this matter.