Informe provisional - Informe núm. 325, Junio 2001

1. 524. The complaint is set out in a communication from the General Confederation of Workers of Peru dated 14 August 2000. The organization sent supplementary information in a communication dated 4 October 2000 and new allegations in communications dated 23 and 27 April 2001. The Government sent its observations in communications dated 12 September 2000 and 23 January 2001.
2. 525. 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. 526. In its communications dated 14 August and 4 October 2000, the General Confederation of Workers of Peru (CGTP) alleges that on 12 May 1999 the Continental Cinematographic Enterprise arbitrarily dismissed Mr. Amílcar Zelada, General-Secretary of the Trade Union of Ticket Sellers and Ushers in Cinematographic Enterprises, by forcing him to take unpaid leave although he had already been on holiday. The complainant states that this dismissal disregards the trade union protection stipulated in Industrial Relations Act No. 25593 and its Regulations and Presidential Decree D11-92-TR which recognizes immunity against the dismissal of trade union officials. According to the complainant this dismissal is an open and obvious reprisal for Mr. Amílcar Zelada’s trade union activities as the enterprise had initiated proceedings for the cancellation of trade union registration before the Ministry of Labour in order to avoid the responsibility of collective bargaining. The CGTP also attaches a copy of a request for the cancellation of the trade union’s registration in 1996 submitted by the enterprise on the grounds that the union did not have the minimum number of members required by law (100) to establish a trade union that encompasses workers from a number of enterprises. For this reason, in 1996 the enterprise filed its opposition before the Ministry of Labour to the initiation of the direct exchange stage and to bargaining collectively with the trade union and returned its statement of claims. On 12 September 2000 the enterprise did not attend the conciliation hearing.
2. 527. With regard to the dismissal of the trade union official Mr. Amílcar Zelada, according to the information provided by the complainant, the judicial authorities of first and second instance rejected the claims for the reinstatement of the official (the case is presently before the Supreme Court) and, with regard to the allegations of disregard of trade union immunity, the judicial authorities state that “the complainant worker did not comply with the repeated orders given by the employer to take physical rest in the form of a holiday”. The documentation from the enterprise, as provided by the complainant, also contains the following statement:
3. What the complainant sought to achieve with his apparent defiance was to set me up with his refusal to effectively use the rest period in order later to allege that he was made to work against his will or without wanting to and to demand that I pay him triple holiday compensation which is the penalty provided by law when a worker is not granted paid leave in the year following his entitlement to the right … As can be seen from the facts described, the serious offence he committed has nothing to do with his status of trade union representative but specifically with an incident of misconduct at work.
4. 528. In its communications of 23 and 27 April 2001, the CGTP states that three companies have requested that the unions’ registrations be cancelled, and that violations of collective bargaining are occurring in another enterprise.
5. B. The Government’s reply
6. 529. In its communications of 12 September 2000 and 23 January 2001, the Government states that the Peruvian legal system protects trade union rights and establishes mechanisms to safeguard them and ensure they are observed. Article 28(1) of the Constitution establishes that the State recognizes and guarantees freedom of association, encourages collective bargaining and promotes peaceful methods of settling labour disputes. Furthermore, sections 2, 3 and 4 of Legislative Decree No. 25593, the Industrial Relations Act, which contains special provisions relating to freedom of association, stipulate as follows:
7. Article 2. The State recognizes the right of workers to unionization, without prior authorization, for the study, development, protection and defence of their rights and interests and for the social, economic and moral advancement of their members.
8. Article 3. Membership is free and voluntary. The employment of a worker cannot be made conditional on membership or non-membership; an employee cannot be obliged to join a union nor can he be prevented from doing so.
9. Article 4. The State, employers and the representatives of both shall abstain from all acts likely to constrain, restrain or diminish, in any way, the right of unionization of workers and to intervene in any way in the establishment, administration or support of the trade union organizations that they constitute.
10. 530. More specifically, and in accordance with the principles of the ILO in respect of freedom of association, section 30 of Legislative Decree No. 25593 establishes the following for the case of trade union officials:
11. Article 30. Trade union immunity guarantees to certain workers that they will not be dismissed or transferred to other establishments belonging to the same enterprise without duly proven just cause or without their acceptance.
12. The requirement of the worker’s acceptance is not required when his transfer will not prevent him from performing his duties as trade union official.
13. 531. Nevertheless, the Government recalls that the ILO has specified that “the principle that a worker or trade union official should not suffer prejudice by reason of his or her trade union activities does not necessarily imply that the fact that a person holds a trade union office confers immunity against dismissal irrespective of the circumstances”.
14. 532. Section 29 of the consolidated text established by Legislative Decree No. 738, the Act governing productivity and labour competitiveness, approved by Presidential Decree No. 003-97-TR, provides as follows:
15. Section 29. A dismissal on the following grounds is void:
16. (a) affiliation to a trade union or participation in trade union activities;
17. (b) being a candidate to become a workers’ representative or acting or having acted in this capacity;
18. […]
19. In accordance with the quoted provision, section 34 of the Act establishes that in cases of invalid dismissal, if the worker’s claim is declared founded, he or she will be reinstated in the job unless the worker opts for the compensation established in section 38 of the Act. This compensation is equivalent to one and a half ordinary monthly wages for each full year of service up to a maximum of 12 years.
20. 533. Referring more specifically to the complaint, the Government indicates that the trade union official lodged an application for annulment of dismissal before the judiciary, with the case currently pending before the division of social and constitutional legislation of the Supreme Court of Justice of the Republic where an application for judicial review has been lodged. The Government indicates that the complainant states in its complaint that “the expressly arbitrary decision of the enterprise contravenes a number of provisions of national legislation which in fact protect workers against any act of anti-union discrimination rendering the dismissal void and its purpose without any legal effect, these provisions having been clearly cited by the worker in his judicial application to annul the dismissal”.
21. 534. Without attempting to evaluate the alleged arbitrariness of the dismissal – as this matter comes under legal jurisdiction – the Government emphasizes that the claimant bases himself on the assumption that internal legislation, in other words the legal framework in force in respect of freedom of association in Peru, protects the worker, in particular from acts of anti-union discrimination.
22. 535. In this specific case, the trade union official affected had access to and made use of mechanisms to ensure respect for his trade union rights, and consequently a procedure to annul the dismissal is currently under way and is pending review before the division of constitutional and social legislation of the Supreme Court of Justice.
23. 536. It must be remembered in this case that, when a worker makes an application to the judiciary, a limit is set for the jurisdiction of the public administration and the Government which cannot interfere in matters submitted to the courts, in accordance with the principle of the separation of powers. This principle is laid down in the Constitution. It means in effect that the judiciary is autonomous and enjoys total independence in issuing its decisions.
24. 537. As regards the alleged attempt to avoid responsibility for collective bargaining by the enterprise Continental Cinematography SRL, the Ministry of Labour and Social Welfare has conducted the corresponding investigations. Once they were concluded, it was found that the case relating to the cancellation of trade union registration was initiated in conjunction with the application made to the enterprise by the Trade Union of Ticket Sellers, Ticket Collectors and Ushers of Cinemas for the approval of their statement of claims for 1995-96, with the indication that the trade union had a total of 57 members. As it is an occupational trade union, made up of workers from different enterprises who perform the same job, occupation or speciality, in accordance with section 5(c) of Legislative Decree No. 25593, the Industrial Relations Act, it must have a minimum of 100 members. In effect, section 14 of the Act provides as follows:
25. Section 14. To be established and remain operational, enterprise trade unions must have at least 20 members while trade unions of other types must have at least 100 members.
26. 538. The action filed with the general registration and proficiency department is currently being dealt with and the cancellation of the registration by the labour authority is subject to whether or not the trade union in question has the minimum number of members required under the prevailing regulations. The labour inspection unit is undertaking an inquiry in order to determine the number of members of the union in question. Consequently, until a decision has been made concerning the cancellation of the trade union registration, the Government considers that it is not possible to evaluate the matter of the enterprise’s alleged avoidance of the responsibility to bargain collectively.

C. The Committee’s conclusions

1. 539. The Committee observes that in this case the complainant has alleged the arbitrary, illegal and anti-union dismissal of the trade union official Mr. Amílcar Zelada, for having refused to take unpaid leave as ordered by the enterprise when he had already taken leave. According to the complainant, this dismissal occurred in the context of the enterprise requesting the cancellation of the registration of the trade union since 1996 and refusing to bargain with it, maintaining that it does not have the legal minimum number of 100 members.
2. 540. With regard to the dismissal of the trade union official Mr. Amílcar Zelada, the Committee notes that, according to the information provided by the complainant, the judicial authorities of first and second instance rejected the claims for the reinstatement of the official and observes that, with regard to the allegations of disregard of trade union immunity, the judicial authorities state that “the complainant worker did not comply with the repeated orders given by the employer to take physical rest in the form of a holiday”. A document from the enterprise, as provided by the complainant, states that the complainant worker sought through his apparent defiance effectively to use the rest period in order later to allege that he was made to work against his will or without wanting to and to demand that he be paid triple holiday compensation which is the penalty provided by law. Moreover, according to the document, the facts described illustrate that the serious offence he committed had nothing to do with his status of trade union representative but specifically with an incident of misconduct at work.
3. 541. In these circumstances, in order to reach a decision in full knowledge of the facts, the Committee asks the Government to keep it informed of the ruling handed down by the Supreme Court concerning the dismissal of the trade union official Mr. Amílcar Zelada.
4. 542. With respect to the proceedings initiated by the enterprise before the Ministry of Labour to cancel the registration of the trade union on the grounds that it does not have the minimum legal number of 100 worker members established for non-enterprise trade unions (but only 57) and with regard to the enterprise’s refusal to bargain, the Committee notes the Government’s statement that the cancellation proceedings are pending and will depend on the trade union proving it has the appropriate number of members, determined by the labour inspection; it is only on the basis of the decision adopted in this respect that it will be possible to evaluate the enterprise’s alleged avoidance of responsibility to bargain.
5. 543. In this connection, the Committee wishes to bring to the Government’s attention that the Committee of Experts on the Application of Conventions and Recommendations has for a number of years been criticizing “the requirement of a high number of workers (100) to form trade unions by branch of activity, occupation and for various occupations (section 14 [of the Industrial Relations Act])” (see Report III, Part 1A, ILC, 1999, page 270). The Committee has itself stated that “a minimum requirement of 100 workers to establish unions by branch of activity, occupation or for various occupations must be reduced in consultation with the workers’ and employers’ organizations” [Digest of decisions and principles of the Freedom of Association Committee, 1996, para. 254]. In these circumstances, the Committee requests the Government to take steps to amend the legislation with a view to reducing the minimum number of workers established by law to constitute non-enterprise trade unions, and urges the Government not to cancel the registration of the Trade Union of Ticket Sellers and Ushers in Cinematographic Enterprises and clearly to recognize the right to collective bargaining of this trade union with cinematographic enterprises, at least on behalf of its members. The Committee requests the Government to keep it informed in this regard.
6. 544. The Committee requests the Government to provide its observations concerning the recent communications of the CGTP, dated 23 and 27 April 2001.
7. 545. The Committee draws the legislative aspects of this case to the attention of the Committee of Experts on the Application of Conventions and Recommendations.