Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 357, Junio 2010

1. 759. The complaint is contained in a communication from the General Confederation of Workers of Peru (CGTP), the National Federation of Miners, Metalworkers and Steelworkers of Peru (FNTMMSP) and the Trade Union of Miners of Shougang Hierro Peru (SOMSHP) dated 17 April 2008. These organizations sent additional information and new allegations in communications dated 2 and 5 June and 7 November 2008. The FNTMMSP sent new allegations in a communication dated 2 June 2008 and the SOMSHP did so in a communication dated 21 September 2009.
2. 760. The Government sent its observations in communications dated 13 August, 11 September and 22 October 2008, 2 March, 5 May, 29 October, 3, 12 and 24 November and 14 December 2009, and 25 May 2010.
3. 761. 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 complainants’ allegations

1. 762. In its communications dated 17 April, 5 June and 7 November 2008, the CGTP, the FNTMMSP and the SOMSHP explain that Shougang Corporation is a Chinese state enterprise with iron industry operations generating an annual turnover of US$7,460 million. On 30 December 1992, Shougang Corporation acquired the Empresa Minera del Hierro del Peru – Hierro Peru, and Shougang Hierro Peru SAA was formed. The company is in good economic shape and has planned investments up to 2011 in excess of $500 million.
2. 763. The complainant organizations claim that the SOMSHP workers were confident that through unionization and collective bargaining, i.e. through democratic dialogue between workers and employers, it would be possible to improve their conditions of work. Since 2002, the trade union has been submitting annual lists of demands to the company with a view to reaching constructive agreements in order to avoid confrontations which are costly for both parties. However, the company has systematically denied the possibility of dialogue, merely dealing with just two items: a derisory increase in wages and a bonus for concluding the agreement in question. These two items are also the only ones on which the Ministry of Labour and Promotion of Employment (Ministry of Labour) has made a decision, rejecting the other aspects of the various lists of demands (2002–03, 2003–04, 2004–05, 2005–06, 2006–07, 2007–08 and 2008–09).
3. 764. With regard to the list of demands for 2006–07, the complainants point out that on 27 February 2006 the trade union presented its list of demands for the period 1 April 2006 to 31 March 2007. On 9 March, the first collective bargaining memorandum was signed, marking the start of the direct negotiation phase. This continued until 30 March, when negotiations were discontinued owing to the company’s usual unwillingness to negotiate in good faith. On 26 April, the memorandum for launching the conciliation phase was signed. After four meetings (26 April, 3, 10 and 15 May) the conciliation boards came to an end, with the company’s delaying tactics and lack of clear will to negotiate hampering the dialogue as on previous occasions. Nevertheless, the union requested informal meetings between the parties. On 15 June, in the midst of those meetings, the union presented its revised list of demands for the third time without obtaining positive results from the company, which refused to make any substantial changes to its position.
4. 765. Under these circumstances, the decision to strike was approved at the extraordinary general meeting of 1 June by 484 out of a total of 879 workers. On 14 June, before the strike began, the union resubmitted its list of demands for the fourth time in an effort to close the gap between the positions of the parties but did not receive a favourable reply from the company. In fact, the company’s response was to lodge a complaint with the Ministry of Labour against the union alleging violent actions during the strike. This led to intervention by the Ministry of Labour on 19 June in the form of an inspection relating to the strike. The inspection provided no evidence that the actions alleged by the company had actually occurred.
5. 766. As it has done repeatedly in past years, the company refused to discuss any of the demands apart from the pay rise and the bonus for conclusion of the agreement. Once again, the demands relating to better conditions of work (uniforms, water supplies in the workplace, etc.) and the requested incorporation of workers subcontracted from other companies were vetoed. Nonetheless, the union presented its revised set of demands more than once, dropping a number of its initial demands with a view to achieving an agreed solution. The company’s attitude was reinforced by the Ministry of Labour’s decision for resolving the dispute since the decision issued covered only the items which the company had agreed to negotiate.
6. 767. On 21 June, the union requested the intervention of the Ministry of Labour so that the dispute would be resolved definitively. One day later the company subscribed to the request.
7. 768. On 26 June, the Ministry of Labour, by means of Directorate Decision No. 011-2006-DPSC-ICA, ordered the resumption of work and a general increase of 3.30 nuevos soles (PEN) in the basic daily wage from 1 April 2006 and also a special bonus of PEN1,000 for all workers. The Ministry declared the other points in the draft collective agreement null and void. All points in the above decision were confirmed on 3 July by means of Directorate Decision No. 040-2006-GORE-ICA-DRTPE.
8. 769. With regard to the list of demands for 2007–08, the complainants allege that on 27 February 2007 the union presented the demands to the employer. On 8 March collective bargaining and the direct negotiation phase began. After four meetings at which the company showed little inclination to promote fruitful dialogue and negotiations in good faith, the union was obliged to inform the Ministry of Labour on 28 March that the direct negotiation phase had been broken off.
9. 770. On 19 April, the conciliation boards were launched with the intervention of the Ministry of Labour. This phase ended without the company accepting any of the proposals which had been constantly reformulated by the union in order to reach an agreement. The fourth and final conciliation meeting was held on 27 June, followed by three informal meetings at which the union again showed its readiness to exhaust all the necessary mechanisms before making use of its right to strike, without being able to obtain any reply from the company that showed a real willingness to negotiate.
10. 771. On 29 August 2007, at an extraordinary general meeting, the union voted for an indefinite general strike (424 votes in favour, of a total of 447 persons attending the meeting), and it was announced that the statutory notice period for the strike would be from 10 to 17 September 2007. However, the company restricted the right to strike. Indeed, the company replaced the striking workers with other workers specially contracted for the occasion, including staff from other categories (employees, workers occupying positions of trust). Moreover, the company proceeded to remove goods and raw materials without the authorization of the Ministry of Labour, loading iron ore while the strike was in full progress.
11. 772. After the strike had taken place, the Ministry of Labour resolved the dispute, as in previous years, through decisions issued in September and October which covered only a general pay rise and an agreement conclusion bonus.
12. 773. In the complainants’ view, the company has violated the principle of bargaining in good faith, given that, from 2002 to 2008, it has systematically sought to unduly obstruct negotiations and adopted an extremely uncompromising attitude, refusing to discuss any of the workers’ demands apart from a requested pay rise, where it has offered amounts which bear no relation to the economic growth which it has experienced.
13. 774. Furthermore, since no solution was reached between the parties owing to the company’s intransigence, the workers were obliged to exhaust the phases of direct negotiation and conciliation. Nevertheless, in exercising its right to strike, the union has been boycotted by the company and, with its actions proving ineffective, it has been obliged to request the intervention of the labour administrative authority to find a solution to the dispute, a situation which has been planned and caused to recur since 2002. The company’s interference in the exercise of the right to strike renders this measure ineffective, leaving the union with no alternative but to request the intervention of the Ministry of Labour (arbitration with respect to the items agreed by the employer), culminating in a vicious circle in which the union’s rights are affected. The right to collective bargaining thus becomes meaningless, with the State imposing a settlement on the list of demands which excludes almost all the bargaining items put forward by the union, apart from a general pay rise determined by the Ministry of Labour, preventing the union from achieving improvements through collective bargaining on other economic issues, conditions of work, health and safety, etc. The complainants consider that the Ministry of Labour should issue a more comprehensive ruling on the presented list of demands.
14. 775. With regard to the list of demands for 2008–09, the phase of direct negotiations was launched on 7 March 2008, the conciliation stage starting with the presence of the Regional Labour Directorate of Ica on 9 May 2008 and ending on 28 May 2008, followed by various informal meetings held in Lima at the Ministry of Labour’s National Directorate for Collective Labour Relations. Throughout the discussions of the demands, the company categorically refused to deal fully with all the items on the new list of demands, with the exception of two, namely the pay rise and the agreement conclusion bonus, showing that it had no intention of finding a solution to the demands but, on the contrary, intended to impose its conditions as it had done in previous negotiations. This attitude on the part of the company was not observed at any time by the Ministry of Labour, which issued no reprimand to the company with a view to finding a solution to the list of demands. On the contrary, the Ministry of Labour, via the Ica Regional Labour Directorate, unilaterally settled the demands by issuing Regional Directorate decision No. 053-2008-GORE-ICA-DRTPE of 10 August 2008, ruling that the company shall grant a general pay rise of PEN3.70 in the minimum category, to serve as a basis for the other categories, and also a special agreement conclusion bonus of PEN1,200, following the practice systematically by the company since 2002 and endorsed by the Ministry of Labour.
15. 776. In its communication of 21 September 2009, the complainant trade union alleged that the Shougang Hierro Peru SAA company refused to comply with the Ministry of Labour’s decisions regarding the lists of demands of 2009–10 and, as on previous occasions, uses dilatory means and practices the consequence of which is the declaration of new strikes by the trade union.
16. 777. Moreover, in their communication of 2 June 2008, the CGTP and the FNTMMSP allege the arbitrary dismissal of 25 municipal workers of the municipality of Surquillo on 31 December 2007 for forming the Union of Municipal Workers of the Municipality of Surquillo and demanding the payment of their wages for December 2007. According to the complainants, the municipality did not observe the terms of section 48 of Supreme Decree No. 003-97-TR concerning the termination of employment contracts on objective grounds. Specifically, the municipality disregarded and failed to implement various procedures, as follows: (i) the municipality of Surquillo was supposed to send the union detailed information indicating the reasons for termination of the contracts and the payroll to which the workers belonged, notifying the labour authority with a view to the opening of the respective file; (ii) the municipality was supposed to launch negotiations with the union to agree on conditions for the termination of employment contracts or possible measures for avoiding or limiting staff losses; and (iii) at the same time, the employer was supposed to present a sworn declaration to the labour authority to the effect that there were objective grounds for termination of the employment relationship, together with an expert report accrediting the legitimacy thereof to be undertaken by an auditing company, authorized by the Office of the Controller-General.
17. B. The Government’s reply
18. 778. In its communications of 13 August, 11 September and 22 October 2008, and 2 March 2009, the Government declares that constitutionally the State recognizes the right to collective bargaining and is thus obliged to promote it. Accordingly, on the basis of the principle of free bargaining, the legislation accepts that the parties have full freedom to decide on the matters for negotiation and, consequently, on the content of the collective agreement in question. The Peruvian legal system thus establishes the right of parties to freely regulate their labour relations, defining the issues and subjects to be covered during the bargaining process. The regulatory power of collective entities thus lies in the constitutional recognition of collective bargaining as a mechanism or process whereby the parties to the labour relationship can establish legal standards for governing their labour relations. With regard to this matter, the Committee on Freedom of Association has established as follows:
19. The right to bargain freely with employers with respect to conditions of work constitutes an essential element in freedom of association, and trade unions should have the right, through collective bargaining or other lawful means, to seek to improve the living and working conditions of those whom the trade unions represent. The public authorities should refrain from any interference which would restrict this right or impede the lawful exercise thereof. Any such interference would appear to infringe the principle that workers’ and employers’ organizations should have the right to organize their activities and to formulate their programmes (Digest of decisions and principles, para. 881).
20. Both employers and trade unions should bargain in good faith and make every effort to come to an agreement, and satisfactory labour relations depend primarily on the attitudes of the parties towards each other and on their mutual confidence (Digest, op. cit., para. 936).
21. 779. Collective bargaining, previously governed by the 1979 Constitution, is now regulated by the Constitution of 1993. The two texts differ with regard to three elements: the role of the State in relation to the right to collective bargaining, the means used to resolve labour disputes, and the results of collective bargaining.
22. 780. With regard to the resolution of labour disputes (defined as comprising various types, including collective bargaining), the function of the State has also been redefined. According to the 1979 text, its function was to regulate bargaining procedures by law and find definitive solutions to disagreements between the parties; under the 1993 version, its sole responsibility is to promote peaceful settlements while accepting the solutions decided upon by the parties themselves.
23. 781. The collective bargaining procedure unfolds in stages, including that of direct negotiation, at the end of which the parties may use various means of reaching a solution, such as conciliation, mediation or (voluntary) arbitration. This means that an outcome will be reached by means of collective agreement or arbitration award and the dispute will be closed. However, in exceptional cases the outcome may take the form of an administrative settlement: where a strike continues for an excessive length of time, the Ministry of Labour and Promotion of Employment may provide a definitive settlement to the dispute, and this ruling will essentially be based on the report deriving from the technical appraisal of the workers’ demands involving an examination of the economic and financial situation of the company and its capacity for meeting such demands.
24. 782. The report issued by a specialized department of the Ministry of Labour during the bargaining procedures at the request of one of the parties or as an automatic result of the appraisal of the workers’ demands, necessarily involves an examination of the company’s economic and financial situation and its capacity for meeting such demands. This takes account of levels that exist in similar companies and in the same economic activity or region, as well as generally analyses the facts and circumstances involved in the bargaining.
25. 783. The parties are notified of the specialist report so that they can make any comments. The report is purely informative in nature so that the parties involved in the collective bargaining process can use it as a point of reference for making improvements in pay and other rights and benefits.
26. 784. Should the collective bargaining process entail a strike declaration and the strike continue for an excessive length of time, seriously jeopardizing a company or sector of production or leading to acts of violence or in any way becoming more serious because of its scope or consequences, the administrative authority will seek to secure a direct settlement or some other peaceful solution to the dispute. If this fails, the dispute will be settled definitively by the Ministry of Labour.
27. 785. As described above, the Government, through the Ministry of Labour and Promotion of Employment, may only intervene in the formulation of the economic report for the appraisal of the workers’ demands and in the examination of the economic and financial situation and the capacity of the company involved in the collective bargaining process to meet the demands, and when a strike becomes serious enough to harm the rights of third parties. It therefore has no competence to interfere in the autonomy of the parties, who are strictly entitled to reach a settlement by consensus with regard to the various items in the draft collective agreement.
28. 786. It may be concluded that the State may not undermine collective autonomy because the latter continues to be recognized and upheld by the Constitution of 1993. Accordingly, the object of collective bargaining is constituted by the sum total of issues which may be raised by the negotiating parties without interference from the State.
29. 787. The delaying tactics and intransigent attitudes, at odds with the principle of democratic dialogue, which, according to the complainants, have restricted for years any possibility of signing collective agreements on other conditions of work, health and safety raised in the various lists of demands submitted, are not things that can be attributed to the Peruvian Government, inasmuch as its participation in the abovementioned processes is limited strictly to the report on the technical appraisal of the workers’ demands involving an examination of the company’s economic and financial situation and its capacity to meet such demands. The Government therefore has no competence to make decisions with regard to the set of demands as a whole.
30. 788. With regard to the allegations relating to the arbitrary dismissal of 25 workers of the municipality of Surquillo, the Government points out that it has been verified through various inspections that 23 out of the 25 complainant workers have been dismissed arbitrarily. Apart from this, a number of complainant workers have invoked jurisdictional protection and the related judicial proceedings are pending. The Government further states that, according to the provisions of the consolidated text of the Organic Act on the Judiciary, where proceedings are pending resolution by the judiciary, the labour administrative authority must refrain from issuing any ruling on the matter in question, otherwise criminal liability would be incurred on the part of any officials contravening the Act. This provision is in conformity with article 139(2) of the Political Constitution of Peru.
31. 789. In its communications of 5 May, 29 October, 3, 12 and 24 November and 14 December 2009, the Government indicates that the judicial authorities have held in favour of the reintegration of Mrs Atilia Cecilia Alcaraz along with the payment of remunerations and indemnities. The other judicial proceedings are still pending. A coordinator from the Supreme Court has been appointed to the Ministry of Labour concerning the application of the ILO Conventions in order to process up to date information concerning court cases. In a communication dated 25 May 2010, the Government reiterated its previous observations.

C. The Committee’s conclusions

1. 790. The Committee observes that the complainants in the present case allege: (1) a lack of good faith on the part of the Shougang Hierro Peru SAA company in the successive rounds of collective bargaining since 2002, with the company delaying negotiations and refusing to agree on conditions of work apart from derisory increases in pay and bonuses for the conclusion of agreements; (2) violation of the right to strike by the company during the 2007–08 bargaining process; and (3) inactivity by the Government, which has confined itself to resolving the items relating to wage increases and agreement conclusion bonuses from the various lists of demands. In addition, the complainant trade union alleges dilatory practices, recourse by the company to the lists of demands of 2009–10, as well as the lack of compliance with the decisions of the Ministry of Labour. Furthermore, the complainants allege the dismissal of 25 workers from the municipality of Surquillo for forming a union and demanding the payment of their wages for December 2007.
2. 791. With regard to the allegations concerning a lack of good faith in the successive rounds of collective bargaining since 2002 between mining enterprises and the trade union, and also with regard to the attitude of the Ministry of Labour towards this situation, the Committee notes the complainants’ allegations to the effect that: (1) since 2002 the union has been presenting its demands to the company with the aim of reaching constructive agreements, thereby avoiding confrontations which are costly for both parties, but the company has systematically blocked the possibility of dialogue, restricting its proposal to just two items: a pay rise and an agreement conclusion bonus. These are the only two items on which the Ministry of Labour has also issued a decision, rejecting the other demands on the list; (2) the company has used delaying tactics and failed to show any real willingness to negotiate, repeatedly hampering the dialogue through a refusal to make any fundamental changes to its proposals and thus limiting the material content of the collective bargaining, an attitude which has been reinforced in recent years with the ruling on the dispute from the Ministry of Labour, which, far from dealing with the substance of the draft collective agreement, has only issued a decision regarding the items on which the company has agreed to negotiate; (3) with no solution reached between the parties owing to the company’s intransigence, the workers have been obliged to exhaust the stages of direct negotiation and conciliation; furthermore, having exercised their right to strike, that right has also been boycotted by the company against a background of accusations of violence, hiring of other workers during the strike and fraudulent continuation of work; consequently, with its actions proving ineffective, the union has been obliged to request the intervention of the Ministry of Labour, resulting in a vicious circle in which the union’s rights have been affected; and (4) intervention by the State should not be limited to resolving just the two items not vetoed by the company in all the negotiations but entail a more comprehensive ruling on the list of demands presented.
3. 792. The Committee notes the Government’s statements to the effect that: (1) the legislation entitles the parties to freely regulate their labour relations by defining the issues and subjects to be dealt with in collective bargaining, in accordance with the principles of freedom of association, promoting peaceful settlements of disputes but respecting the means of solution decided upon by the parties; (2) in the collective bargaining process, the State may not violate the autonomy of the parties; however, the parties may use different means of reaching a solution provided for in the legislation, such as conciliation, mediation or (voluntary) arbitration; (3) the issues to be dealt with during the bargaining process are to be agreed upon by the parties themselves without any interference from the Government, and the company’s alleged delaying tactics or intransigence, at odds with the principle of dialogue, regarding the negotiation of certain issues are not things that can be attributed to the Government, nor does the latter have competence to make decisions with regard to the union’s set of demands as a whole; and (4) the Government only has competence, through the Ministry of Labour and Promotion of Employment, to intervene in the formulation of the economic report (of an informative nature) for the appraisal of the workers’ demands and the examination of the economic and financial situation and the capacity of the company involved in the collective bargaining process to meet the demands (the Government transmits the economic report issued with respect to the collective negotiations referred to in the present case); should the collective bargaining process entail a strike declaration and the strike continue for an excessive length of time, seriously jeopardizing a company or sector of production or leading to acts of violence or in any way becoming more serious because of its scope or consequences, the administrative authority will seek to secure a direct settlement or some other peaceful solution to the dispute; if this fails, the dispute will be settled definitively by the Ministry of Labour on the basis of the abovementioned economic report.
4. 793. The Committee understands the Government’s arguments and emphasizes the importance of respecting the autonomy of the parties in the collective bargaining process so that the free and voluntary character thereof, established in Article 4 of Convention No. 98, is ensured. The Committee also agrees that it is for the parties concerned to decide on the subjects for negotiation.
5. 794. In the present case, the Committee observes that the legislation permits to both parties jointly the use of conciliation, mediation and (voluntary) arbitration in cases where negotiations are blocked and also of the right to strike (which was exercised on various occasions by the union at the company, albeit allegedly with restrictions, which are examined below). The Committee observes, however, that despite the exercise of the right to strike by the union, the company has obtained that, in the successive rounds of bargaining since 2002, negotiations have only covered a pay rise and an agreement conclusion bonus, and even these two items have been decided upon by the administrative authority further to a request for arbitration from the parties, according to the documentation sent by the complainants and the appraisal of the workers demands by a specialized department of the Ministry of Labour and an analysis of the company’s economic and financial situation. The Committee observes that the complainant organizations have not questioned the economic appraisal.
6. 795. The Committee observes that the complainants reproach the Government for failing to adopt decisions settling all the matters contained in the union’s list of demands. However, the Committee is bound to recall that, according to the principles of free and voluntary collective bargaining and the autonomy of the parties, the imposition of compulsory arbitration when it has not been requested by both parties is, in general, contrary to and incompatible with Article 4 of Convention No. 98. The Committee has repeatedly indicated that the imposition of arbitration would only be permissible, in the public service, in the context of essential services in the strict sense of the term (that is, services the interruption of which would endanger the life, safety or health of the population) or in cases involving an acute national crisis. However, the company concerned does not provide essential services in the strict sense of the term and so the union’s claim that the administrative authority should make use of arbitration without the agreement of both parties must be dismissed. The Committee cannot therefore conclude that there has been a formal violation of the terms of Convention No. 98, particularly in view of the fact that the union has been able, in principle, to exercise its right to strike when it has wished to do so (although, in one case, other workers were used to replace the strikers, a point which is examined below).
7. 796. However, the Committee emphasizes that the fact that the successive rounds of bargaining since 2002 have, at the company’s wish, systematically excluded conditions of work, apart from settling the previously mentioned wage increases and agreement conclusion bonuses, would seem to show that the objective of Convention No. 98 – namely, to promote regulation of the conditions of work by the parties themselves without interference from the authorities – is apparently not being achieved in full. The Committee therefore requests the Government to promote collective bargaining and to examine with the parties how to extend collective bargaining in practice to all subjects relating to conditions of work and employment and to other matters in which cooperation and dialogue between the parties can be beneficial. In this regard, the Committee wishes to recall the principle that it is important that both employers and trade unions bargain in good faith and make every effort to reach an agreement; moreover, genuine and constructive negotiations are a necessary component to establish and maintain a relationship of confidence between the parties [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 935]. The Committee invites the Government and the social partners to examine the possibility of having the authorities undertake measures of conciliation or mediation with the parties concerned in case of an impasse in collective negotiations, including when a strike has not yet been declared.
8. 797. Furthermore, observing that the Government has not replied specifically to the allegation that the company replaced strikers with other workers during negotiations relating to the union’s list of demands for 2007–08, the Committee underlines the principle according to which “the hiring of workers to break a strike in a sector which cannot be regarded as an essential sector in the strict sense of the term, and hence one in which strikes might be forbidden, constitutes a serious violation of freedom of association”. The Committee also recalls that, “if a strike is legal, recourse to the use of labour drawn from outside the undertaking to replace the strikers for an indeterminate period entails a risk of derogation from the right to strike, which may affect the free exercise of trade union rights” [see Digest, op. cit., paras 632–633].
9. 798. The Committee requests the Government to ensure that these principles are respected, if the union has recourse to strike action in the context of future negotiations between the company and the union.
10. 799. Finally, with regard to the allegation concerning the dismissal of 25 workers of the municipality of Surquillo for forming a union and demanding the payment of their wages for December 2007, the Committee notes with regret the Government’s statement to the effect that the labour inspectorate established that 23 of the 25 workers in question had been dismissed arbitrarily. The Committee notes that various judicial proceedings brought by a number of workers are pending and that only the case of Mrs Atilia Cecilia Alcaraz has been concluded, which held that the worker should be reinstated and paid wages and benefits.
11. 800. The Committee requests the Government to keep it informed of the outcome of these proceedings and, if the dismissals are proven to have been of an anti-union nature, to take steps to ensure that the dismissed workers are reinstated in their posts, without loss of pay or benefits. In the event that the reinstatement of the dismissed workers concerned is not possible for objective and compelling reasons, the Committee requests the Government to ensure that they are paid adequate compensation which would constitute a sufficiently dissuasive sanction against anti-union dismissals.