Informe definitivo - Informe núm. 404, Octubre 2023

1. 536. The complaint is contained in a communication from the General Confederation of Workers of Peru (CGTP) dated 4 November 2019.
2. 537. The Government sent its observations in communications dated 18 September 2020 and 12 September 2023.
3. 538. 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. 539. In its communication dated 4 November 2019, the complainant organization indicates that in 2000, Telefónica del Perú S.A.A. (hereinafter “the enterprise”) dismissed a significant group of workers affiliated with the Single Union of Telefónica del Perú Workers (SUTTP), which gave rise to a fundamental change in the case law of the Constitutional Court, establishing the right to reinstatement in constitutional amparo proceedings against dismissals that violate trade union rights. The complainant organization alleges that despite this serious record of anti-union practice, the enterprise continues to have the highest number of complaints for labour infractions before the National Labour Inspection Authority (SUNAFIL).
2. 540. The complainant alleges that the enterprise has benefits policies with anti-union criteria. The complainant organization refers first to the “benefits policy for employees of the enterprise”, adopted in 2014, stating that it “provides exclusive benefits for workers who are not subject to the scope of application of collective agreements and who, consequently, are not members of a union”. The complainant organization indicates that this policy “applies exclusively to non-executive workers whose remuneration and fringe benefits are not governed by collective bargaining”. The complainant organization indicates that the benefits to which workers who are members of a trade union are entitled are governed by the respective collective agreements that those organizations conclude with the enterprise. In this respect, the complainant organization explains that “the exclusive benefits for workers who are not members of trade union organizations include the refreshment and mobility allowance, the annual leave incentive and the career bonus, in addition to other fringe benefits”.
3. 541. The complainant organization alleges that “this discriminatory criterion” was ratified and disseminated in a document entitled “Making more of ourselves” (Transformándonos para ser más) (2014) which further develops principles applicable to non-executive workers whose relationship with the enterprise is regulated outside the scope of the collective bargaining agreement. The complainant organization indicates that the first principle set out in the document is that of a specific and exclusive wage system for employees not subject to a collective agreement, and that the other principles established for such employees are: a remuneration review every calendar year, adjustment for inflation, wage positioning in accordance with the market and adjustments for merit. The complainant organization adds that neither the benefits of the collective agreement nor the aforementioned policy are applicable to unionized executive workers. The complainant organization further indicates that while the enterprise requires SUTTP members to perform compensatory work for holidays on days when they are entitled to rest, members of other unions are not required to perform compensatory work.
4. 542. The complainant organization also alleges that the enterprise has engaged in systematic acts of hostility against unionized and particularly vulnerable staff and that it has failed to comply with the collective agreement in force. The complainant organization indicates that the enterprise and the SUTTP concluded a collective agreement (2016–19) in which the enterprise agreed that it would not carry out a collective termination procedure for economic, technological or structural reasons, and that ongoing training should be provided that would contribute to the retraining and internal employability of affiliated workers. The complainant organization alleges that despite the terms of the agreement, the enterprise transferred workers to other areas, in particular the area known as the Technical Operations Centre (COT) without taking into account the occupational qualifications, age or health of those involved.
5. 543. The complainant organization indicates that according to a SUNAFIL report dated 15 February 2019, although the enterprise has a trade union membership rate of 56 per cent, 98.6 per cent of workers at the COT are unionized. The complainant organization adds that although 26 per cent of workers at the enterprise are SUTTP members, 65 per cent of the transferred staff are SUTTP members, which, in its view, indicates the anti-union objective behind the transfer of unionized workers to the COT. The complainant organization also alleges that the enterprise denied the leadership of SUTTP access to the meetings held to address the problems arising from the transfer to the COT of affiliated workers and that the enterprise failed to comply with clause 20 of the collective agreement which states that a working group and two discussion groups are to be established between the enterprise and the SUTTP. According to the complainant organization, the groups should be bipartite in nature and the enterprise distorted the agreement by inviting third parties to these groups, which had a serious impact on the implementation of the agreements.
6. 544. The complainant organization indicates that in September 2019, a new performance evaluation system for workers was implemented, applicable primarily to the COT, in other words, to the area with 98.6 per cent of unionized workers. The complainant organization states that while the benefits established under this evaluation system are minimal (such as the right to half a day of leave with pay for persons ranked in first and second place), the penalties are drastic (they include disciplinary action or the institution of dismissal proceedings for insufficient productivity). The complainant organization considers that this work performance evaluation system is rigid and that the associated penalties lead to numerous cases of dismissal that are unreasonable and violate the right to freedom of association, given that this applies to the COT area where the majority of workers are members of the SUTTP.
7. 545. The complainant organization alleges that one major shortcoming of the Peruvian State, and in particular of the Ministry of Labour and Employment Promotion, and of SUNAFIL is that there is no effective procedure for monitoring labour violations linked to the protection of fundamental rights at work and, in particular, with respect to the protection of freedom of association. The complainant organization notes that the procedure for the defence of freedom of association is the ordinary procedure, the investigation stage of which alone takes more than two months on average, a situation that has a serious impact on the protection of these rights and leaves trade union leaders and members defenceless. The complainant organization also states that the remit of the SUNAFIL specialized team on fundamental rights does not include protection of the right to freedom of association.
8. 546. The complainant organization indicates that, in the case of the workers transferred to the COT almost all of whom were members of the SUTTP, SUNAFIL set aside the proceedings indicating that “according to the information provided, it is confirmed that there are workers between 24 and 69 years of age, as well as members of different trade union organizations, in addition to non-unionized staff”. The complainant organization notes that the SUNAFIL report does not consider that the non-unionized workers represent 1.4 per cent of the total staff of the COT; that it does not analyse whether it has complied with its obligation to retrain and protect the internal employability of workers, as per the collective agreement in force, and that it suffices to state that “the inspected enterprise indicated that the workers assigned to the COT were trained in the new duties to be performed.” The complainant organization indicates that the decision of SUNAFIL was based solely on an assertion by the enterprise, without any analysis of the occupational profiles, health conditions and age of workers or the reasonableness of the retraining procedures. The complainant organization considers that many of the transfers to the COT constitute multiple rights violations, due to the fact that they affect not only working conditions, freedom of association and collective bargaining but also health and safety at work. The complainant organization considers that the practice by developed by the labour inspectorate in the wake of complaints of multiple anti-union violations has given rise to serious situations of defencelessness, in a national context in which trade union membership and collective bargaining rates are very limited.
9. 547. The complainant organization adds that the Government introduced regulatory provisions that substantially weaken social dialogue and, in this respect indicates that while the National Council for Labour and Employment Promotion (CNTPE), to which the most representative trade union and employers’ organizations in the country belong, on an equal footing, as well as government officials at the highest level, was recognized as the privileged forum for social dialogue, at the end of 2018 Supreme Decree No. 345 approving the National Competitiveness and Productivity Policy (PNCP) was promulgated, although it had been agreed that it would be discussed and agreed by consensus in the CNTPE. The complainant organization further alleges that: (i) the composition of the National Council for Competitiveness and Formalization (CNCF), responsible for defining strategies and approving proposals and updates to the National Competitiveness and Productivity Plan, was amended by Supreme Decree No. 038 of 2019 such that the Council is composed as follows: 13 Government representatives, 6 representatives of employers’ organizations, 1 academic representative and 1 trade union representative, who must be elected by the 4 confederations that are part of the CNTP; (ii) the Decree establishes public–private technical committees for the development of the various aspects of the National Competitiveness and Productivity Plan without making provision for the presence of trade union representatives in their composition, despite the fact that one technical committee is concerned with the labour market; and (iii) to the extent that the CNCF addresses themes on which there should be consultation, such as labour, employment promotion, vocational training and social protection, all of the above has a serious impact on social dialogue that should be conducted on equal terms within the CNTPE.

B. The Government’s reply

1. 548. In its communication of 18 September 2020, the Government sends its observations as well as those of SUNAFIL and the detailed observations of the enterprise. The enterprise categorically denies having engaged in acts against freedom of association and notes that 96.48 per cent of workers in the category of employee are members of one of the six trade union organizations operating in the enterprise, indicating that one of them is a trade union federation, which, in its view, demonstrates that it is inextricably linked to the effective and unrestricted exercise of freedom of association that is the linchpin of labour relations. According to the data submitted by the enterprise, out of a total of 4,365 workers, 1,934 (44 per cent) are members of one of the six trade union organizations.
2. 549. The enterprise states that the “benefits policy for employees”, implemented in 2014 and updated over the years, was developed on the basis of objective principles and criteria and with an internal logic that substantiate its legitimacy, and was not intended to discourage union membership. The enterprise indicates that not only does the policy lack an anti-union purpose, but that, in fact, the policy has not indirectly encouraged withdrawal from union membership and its implementation has been evaluated by the Labour Inspection Authority without any anti-union purpose being found.
3. 550. The enterprise indicates that in 2014, also, in the context of the transformation that the telecommunications sector in the country was beginning to undergo, it adopted a “salary review policy” with objective criteria for salary increases for employees whose remuneration was not fixed by collective bargaining. The enterprises refers to the “wage review policy” in conjunction with the aforementioned “benefits policy for employees”, calling them both a “salary and benefits review policy”. The enterprise states that the aforementioned salary and benefits policy follows best human resource management practices in the market and adjusts salaries and benefits taking into account market salaries, the performance of the enterprise, the consumer price index (CPI) and individual performance. The enterprise states that it agrees with the trade union organizations on benefits beyond wages received simply for membership without being subject to the performance of the enterprise or the individual; trade union organizations have systematically been opposed to their members being individually evaluated in terms of objectives.
4. 551. The enterprise states that it is committed to firm respect for collective agreements and awards applicable to staff under collective bargaining and explains that its salary and benefits review policy establishes its own deadlines, independent of those established by collective bargaining or an arbitration award; under no circumstances is the policy used as a mechanism for pressure nor does it undermine collective bargaining, which follows its own channels without prejudice to the fact that collective agreements already agreed continue to be implemented until new collective agreements are reached; and that from a position of respect towards freedom of association, the policy allows the remuneration of the 3.52 per cent of employees who exercise the negative dimension of freedom of association – the right not to join a trade union – to be reviewed, subject to conditions, without compromising or discouraging the trade union membership of other employees. The enterprise indicates that the policy conditions are based on objective criteria for the rationalization of increases for non-unionized staff, whereas workers covered by collective bargaining receive benefits greater than wage-based benefits: workers covered by collective bargaining receive profit advances agreed with their respective trade union organizations, whereas staff subject to the policy do not enjoy this benefit; workers covered by collective bargaining have a higher guaranteed and assured minimum increase than workers not so covered by collective bargaining, since the increase is not subject to the CPI or any conditions other than membership alone; and workers covered by collective bargaining receive closure bonuses, a benefit not received by non-unionized workers. The enterprise adds that the average remuneration of workers affiliated with the SUTTP in January 2020 was greater than that of workers in the enterprise.
5. 552. The enterprise states that in practice, the salary and benefits review policy has not had a negative impact or effect on trade union membership, has not undermined or discouraged membership in existing trade union organizations in the enterprise and has not given rise to actual or potential violations of freedom of association. The enterprise indicates that the volume of staff in the enterprise who are members of a union has remained constant over time, or even steadily increased, in parallel with the introduction and implementation of the salary and benefits review policy, which, in its view, demonstrates clearly that the policy has not had any negative impact or effect on trade union membership. Furthermore, over the years the SUTTP has experienced steady growth in the percentage of its members in contrast with the percentage of workers not affiliated with any trade union organization (the percentage of workers not affiliated with any trade union organization has shrunk significantly through the years). The enterprise states that this demonstrates that two independent salary and benefits “structures”, each with its own rules, coexist in perfect harmony without the policy in question being described as anti-union.
6. 553. The enterprise indicates that in 2018, the SUTTP filed a complaint with SUNAFIL for the application of the wage policy to non-unionized workers and that the Inspection Report concluded that there were no violations of collective labour relations nor any anti-union discrimination as a result of the said policy, and it was established that the average remuneration of unionized workers was 5,702.32 Peruvian soles and that of non-unionized workers was 5,295.67 soles.
7. 554. With regard to the allegation that neither the benefits of the collective agreement nor the salary and benefits review policy are applicable to the category of unionized executive workers, the enterprise indicates that: (i) executive workers are outside the scope of application of the aforementioned policy; (ii) section 42 of the single consolidated text of the Industrial Relations Act (TUO-LRCT), adopted by Supreme Decree No. 010-2003-TR, expressly states that: “A collective labour agreement shall be binding upon the parties thereto. It shall be binding upon the latter, the persons in whose name the agreement was concluded and to whom it is applicable, as well as the workers who subsequently join the enterprises covered by the agreement, with the exception of those who occupy management posts or hold positions of trust”; and (iii) in any case it should be taken into account that this particular case is currently under way before the courts.
8. 555. With regard to the allegation that SUTTP members are required to perform compensatory work for holidays on days when they are entitled to rest whereas members of other unions are not required to perform compensatory work, the enterprise indicates that the trade union was informed that measures relating to this issue apply to all workers in the enterprise equally, within the criteria set by the regulations governing the enjoyment of regional holidays, with no distinction other than such holidays, so that workers can spend this time in the company of their loved ones.
9. 556. The enterprise indicates that the transfer of workers to the area known as the COT does not constitute non-compliance with collective agreements, much less an act of hostility against unionized workers, as the Labour Inspectorate has consistently confirmed on more than one occasion. The enterprise rejects the assertions that staff transfers to the COT had anti-union objectives and indicates that no individual workers are mentioned in the complaint, which precludes further details on specific cases. The enterprise states that any staff transfer to the COT is always based on objective grounds, with full respect for the worker’s occupational category and labour rights. It indicates that retraining and internal employability are the linchpins of the agreement derived from the collective agreement and that the establishment of the COT and assignment of staff to that area is precisely aligned with those objectives, since prior to transferring staff to the new area, the change was assessed at the organizational level and the match between the worker’s profile and the activity that they would assume confirmed. The enterprise highlights that since a clear majority of staff in the enterprise is unionized, it is logical that the majority of staff working at the COT should also be unionized.
10. 557. The enterprise emphasizes that it has never considered trade union membership as a criterion for determining whether or not a transfer to the COT is appropriate. The enterprise further indicates that the Labour Inspectorate has on several occasions had the opportunity to rule on transfers to the COT and has consistently found in this regard that these staff movements did not constitute acts of harassment and did not violate labour standards, much less freedom of association. The enterprise points out that to date 11 cases are under way before the courts in relation to this issue.
11. 558. The enterprise indicates that in early 2019, it created a forum with the SUTTP to reply to questions that the trade union organization might have on this issue and that, with the exception of one meeting that could not be held in July 2019 because the trade union leaders convoked refused to show their identification, the meetings continued to take place periodically until the first quarter of 2020.
12. 559. With regard to the allegation that there is a clause relating to working groups in the 2016–19 collective agreement that the enterprise is violating, the enterprise indicates that the parties undertook to set up and manage three forums and that, by Inspection Order No. 19661–2019, it was confirmed to SUNAFIL that these working groups had been set up in accordance with the terms agreed in the collective agreement. Nonetheless, the enterprise clarifies that the alleged working group to which the SUTTP refers is the Bipartite Clothing Commission, the nature and working methods of which differ from those of the working groups agreed under the 2016–19 collective agreement; these groups date back to 2008 and it was agreed between the parties that their work would be managed jointly with two other trade union organizations (the Federation of Telefónica del Perú Workers (FETRATEL) and the Trade Union of Workers of Telefónica del Perú Companies (SITENTEL)), hence there is no failure of the enterprise to comply in this regard. The enterprise indicates that since 2018, the SUTTP has disregarded this agreement and refused to meet with the enterprise as long as the other trade union organizations are convoked to the meetings of the Bipartite Commission. The enterprise points out that the SUTTP has brought this issue before the courts under Judicial File No. 00794-2019-0-1801-JR-LA-09, which remains before the courts.
13. 560. The enterprise also explains that in 2019, it designed a productivity and performance evaluation system for the COT and, specifically, for management analysts, functional analysts, operations analysts, specialized technicians, operations technicians and support technicians with a view to improving the customer satisfaction rate. The enterprise indicates that it was necessary to implement a measurement system in areas where there is direct customer contact, as is the case with the COT, which is increasingly a higher priority area. The enterprise indicates that the system evaluates and recognizes performance and is based on objective, rational criteria; the fact that the system might not be to the liking of the SUTTP does not make the current policy an anti-union act. The enterprise also indicates that the possible disciplinary measures are not disproportionate; they are aimed at poor performance in relation to the worker’s ability and average performance in similar work under similar conditions, and at deliberate and repeated reduction in the performance of tasks or the quantity or quality of production, without in any way being illegal or violating freedom of association.
14. 561. The enterprise also asserts that disciplinary measures, which play a secondary role and are applicable only in extreme cases, establish an entirely reasonable, gradual and progressive approach to the actions that the enterprise can take and that to date, it has not implemented any drastic disciplinary measure (suspensions) or any dismissal procedure for failure to meet targets. The enterprise indicates that an amparo (protection of constitutional rights) appeal is under way in this respect (Judicial File No. 06642-2019-0-1801-JR-DC-06).
15. 562. The Government indicates that SUNAFIL, created in 2014, is the central authority of the system of labour inspection and, as such, it is the specialized technical body responsible for promoting and monitoring compliance with the legislation on social, labour and occupational safety and health matters and for providing technical advice, performing controls and proposing the adoption of standards in these areas. The Government reports that during the period 2016–21, regional labour departments and/or directorates dealt with 30 inspection orders for the enterprise in relation to various areas, which resulted in 27 inspection activity reports and seven violation reports; and (ii) during the period 2016–23, SUNAFIL undertook 405 inspections at the enterprise (57 relating to collective labour relations and 9 on discrimination based on union affiliation of which 4 resulted in a violation report). The Government also indicates that on 28 February 2023, SUNAFIL introduced a register of trade union organizations in the virtual complaints system which allows the representatives of these organizations to follow up on complaints lodged. The Government also reports that the inspection orders referred to in the complaint have been closed and that the three investigations conducted between 2017 and 2018 concluded that it had not been possible to establish acts of harassment in the area known as the COT and there was also no evidence of acts of discrimination or violation of social and labour standards on freedom of association (trade union leave and dues). The Government attached the three inspection reports resulting from the inspection orders for the enterprise and indicates that these reports are issued not only when no labour violation is found, but also when violations detected at the inspected enterprise are corrected.
16. 563. The Government indicates that the labour inspection system consists of two stages; a period of time is given to inspection, and another is given to evaluation and determination of the penalty, if appropriate. The Government indicates that the inspection stage, during which investigations or checks are carried out, is for the labour inspector to verify compliance with the social and labour regulations, and for this reason it must be a reasonable period that allows the inspector to analyse the particular elements of each case and to gather the necessary evidence to conclude whether or not the employer’s conduct is within the legal framework. In view of the foregoing, the General Labour Inspection Act establishes that inspection activities must be carried out within the time frame indicated in inspection orders, which may not exceed 30 days. The above time frame may be extended on an exceptional basis for a further 30 days in the event of objective circumstances that demonstrate that this is warranted, in which case the labour inspector must submit a request and the competent Labour Inspection Authority approve it.
17. 564. The Government indicates that the labour inspection regulations have been adjusted when areas for improvement have been identified and that various improvements have been introduced to the inspection procedure, not only to penalize employers for practices that do not comply with the regulations but, also, to prevent situations of non-compliance. The Government cites as an example Ministerial Resolution No. 291-2019-TR, pursuant to which a software tool for analysis, detection and the issuance of alerts was created that provides timely and effective information to prevent, provide guidance and monitor potential risks of non-compliance with social and labour regulations, as part of the inspection intelligence activities carried out by SUNAFIL.
18. 565. With regard to the PNCP, the Government indicates that in July 2018, the Ministry of Economy and Finance (MEF) published a document for discussion on the main drivers to boost the country’s competitiveness and productivity and it was not until November of that year that the members of the CNTPE agreed to submit the labour aspects of the document to tripartite dialogue. The Government indicates that the first meeting to discuss the issue could not be held because the representatives of the trade union confederations did not attend and that although a meeting was scheduled for January 2019, the PNCP was approved by the executive by Supreme Decree in December 2018. The Government indicates that although the trade union confederations disagreed with the manner in which the PNCP was approved, given that there had been no prior dialogue process within the CNTPE, the approval of the PNCP was not the end but the beginning of a process for the adoption of specific measures through dialogue with the social actors. The Government indicates that the CNTPE and the CNCF are two distinct forums for dialogue and deal with different matters. While the CNTP is a body set up in 2001 under the Ministry of Labour in which employers’ associations and trade union confederations are represented in equal numbers, the CNCF, established in 2002, reports to the MEF and deals with matters related to national productivity and competitiveness such as investment, infrastructure and innovation, hence the business sector is more broadly represented in the CNCF, given that it discusses economic and financial matters. The Government indicates that Supreme Decree No. 038-2019-EF, amending Supreme Decree No. 024-2002-PCM to enhance the functions of the CNCF, provides that the CNTPE is the body responsible for communicating the name of the representative selected by all of the accredited trade union confederations to the Technical Secretariat of the CNCF. The Government points out that between 2002 and 2009, there was only one worker representative on the Executive Board of the CNCF and that in 2009, pursuant to Supreme Decree No. 223-2009-EF, worker representation on the Board was eliminated, hence until the issuance of Supreme Decree No. 038-2019, trade union organizations were not represented on the Executive Board of the CNCF.
19. 566. The Government indicates that although in early 2019 some trade union confederations expressed dissatisfaction with the PNCP and suspended their participation in the CNTPE, the confederations met with the President of the Republic, the secretariat of the CNTPE renewed the invitation to engage in dialogue, sessions were held at which worker representatives presented proposals for the PNCP plan, input was gathered from judicial officers and academics and various workshops and activities were held with trade union representatives; as a result of this dialogue process, to which significant inputs were made by various stakeholders in the sphere of social and labour affairs, the National Competitiveness and Productivity Plan was approved by Supreme Decree No. 237-2019. The Government states in particular that for the development of priority objective 5 of the Plan: “To create the conditions for a dynamic and competitive labour market to generate decent employment”, although it was only possible to hold one information session in the CNTPE because of the decision of various trade union confederations to withdraw from it, discussions held in the regional labour and employment councils were used for input. The Government emphasizes that social dialogue is a cross-cutting driver of its action and that it promotes forums for tripartite social dialogue, the CNTPE being the most relevant social dialogue forum in the country. The Government notes that during 2019 and 2020, the CNTP maintained a constant call for social dialogue. The Government adds that, after almost one year since the activities of the CNTPE plenary and committees were suspended, on 13 July 2023 the first meeting of the CNTPE plenary was held, at which it as agreed to resume dialogue within the CNTPE and to reactivate its committees.

C. The Committee’s conclusions

1. 567. The Committee notes that in the present case the complainant organization alleges that an enterprise in the telephony sector has an economic benefits policy with anti-union criteria and that it has carried out anti-union acts of various kinds against workers affiliated with the SUTTP, a trade union operating in the enterprise. The complainant organization further alleges that, although those acts were reported to SUNAFIL, the country does not have a system that provides effective protection of collective labour rights. The Committee notes that the enterprise denies carrying out acts against freedom of association, and the Government’s explanation that labour inspection regulations have been amended over time and that improvements continue to be made in this respect.
2. 568. The Committee notes the complainant organization’s allegation that: (i) since 2014, the enterprise has an exclusive benefits policy and salary system for persons not affiliated to any trade union and to whom no collective agreement applies; (ii) neither the collective agreement nor the aforementioned policy apply to unionized executive workers; (iii) while the enterprise requires SUTTP members to perform compensatory work for holidays on days when they are entitled to rest, members of other unions are not required to perform such work; and (iv) although under the existing collective agreement concluded with the SUTTP the enterprise agreed to protect internal employability in a climate of respect and calm, the enterprise transferred workers to the area known as the COT without taking into account the occupational qualifications, age or health of those involved. The Committee notes that the complainant organization highlights in this respect that: (i) although the enterprise has a trade union membership rate of 56 per cent, 98.6 per cent of workers at the COT are unionized, which indicates the anti-union nature of the transfers; (ii) in 2019, the enterprise introduced a new performance evaluation system applicable primarily to the COT with minimal benefits and drastic penalties that range up to dismissal; and (iii) the enterprise denied the leadership of SUTTP access to the meetings held to address the problems arising from the transfers to the COT and failed to comply with the collective agreement in that instead of holding bipartite discussion groups with the SUTTP it invited third parties.
3. 569. The Committee notes the indication of the enterprise in this respect that: (i) 96.48 per cent of workers in the category of employee, which represents 44 per cent of the total number of workers in the enterprise, are members of one of the six trade union organizations operating in the enterprise; (ii) the 2014 wage review and benefits policy, updated over the years, has applied to 3 per cent of the enterprise’s non-unionized “employees” (neither executives nor managers); (iii) the policy does not seek to avoid or discourage trade union membership; the benefits that it grants are not greater than those agreed under the collective agreements and it has objective criteria for salary increases for employees who decide not to join a trade union and whose remuneration is not fixed by collective bargaining, but under no circumstances is it used as a mechanism for pressure nor does it undermine collective bargaining; (iv) the average remuneration of unionized workers is greater than that of non-unionized workers and in practice, the salary review policy has not had a negative impact on trade union membership, has not undermined or discouraged membership, since the volume of staff who are members of a union has remained constant over time and the SUTTP has experienced steady growth in its membership; and (v) the policy in question was evaluated by the Labour Inspection Authority, which found it to have no anti-union purpose.
4. 570. The Committee notes the further indication of the enterprise that: (i) unionized executive workers are outside the scope of application of the salary and benefits review policy and the national legislation (section 42 of the TUO-LRCT) provides that collective agreements are not applicable those who occupy management posts or hold positions of trust; and (ii) compensatory work for holidays is applicable to all workers in the enterprise. In respect of the transfer of workers to the COT, the enterprise indicates that: (i) this does not constitute failure to comply with the collective agreement or an act of hostility against unionized workers; (ii) the transfers were justified on objective grounds, union membership was not a criterion taken into account to determine whether or not the transfer was appropriate and worker’ profiles were assessed taking into account occupational categories and labour rights; (iii) no individual workers are mentioned in the complaint, which precludes further details on specific cases; and (iv) a clear majority of staff in the enterprise is unionized, hence it is logical that the majority of staff working at the COT should also be unionized.
5. 571. The enterprise also states that: (i) in early 2019, it created a forum with the SUTTP to reply to questions that the trade union organization might have on this issue and, with the exception of one occasion on which the leadership refused to show their identification, the meetings took place periodically until the first quarter of 2020; (ii) it set up three forums as agreed under the collective agreement, and these are different from the working group to which the complainant organization refers, namely, the Bipartite Clothing Commission, in which other trade union organizations took part; and (iii) the productivity and performance evaluation system applied to the COT seeks to improve the customer satisfaction rate on the basis of objective criteria, and although it provides for disciplinary measures they are not disproportionate and no drastic disciplinary measure has been implemented. The Committee also notes that, according to the Government and the enterprise, various court proceedings are under way relating to almost all of the above-mentioned topics.
6. 572. The Committee takes due note of the above-mentioned information. The Committee notes that whereas the complainant organization states that the enterprise has a trade union membership rate of 56 per cent, the enterprise indicates that 96.48 per cent of workers in the employee category, which it explains represent 44 per cent of the total number of workers, are members of one of the six trade union organizations.
7. 573. The Committee notes that in the complaint it is firstly alleged that the enterprise has anti-union remuneration policies. The complainant organization refers on the one hand to the “benefits policy for employees” and on the other hand to the “exclusive salary system for persons not affiliated to a trade union and to whom no collective agreement applies”. The Committee notes that, in its reply, the enterprise refers to the “salary and benefits review policy” as a whole. The Committee duly notes the enterprise’s indications that, from 2014 to 2020, this policy did not offer greater advantages than the collective agreements, that it applied solely to non-unionized employees in the enterprise (not to executives or directors), who constituted 3 per cent of the total number of employees, and that the practice did not have a negative impact on the trade union membership rate and its emphasis on the fact that the average remuneration of unionized workers is greater than that of non-unionized workers. The enterprise also states that following a complaint lodged with SUNAFIL, the latter confirmed that the salary and benefits review does not constitute a practice that violates freedom of association. Noting the enterprise’s indication that the average remuneration of unionized workers is greater than that of non-unionized workers, the Committee observes that it does not have sufficient information and elements at its disposal to be able to effectively compare the two existing salary and benefits “structures” in the enterprise and evaluate the impact that they might have on one another. In any event, the Committee observes that in a situation in which collective agreements are not applicable to all workers in an enterprise and there is a wage structure applicable to workers whose remuneration is not fixed by collective bargaining, it is important to ensure that such a structure neither has a detrimental effect on collective bargaining processes nor discourages trade union membership in the enterprise.
8. 574. With regard to the allegation that neither the collective agreement nor the wages and benefits policy applies to unionized executive workers in the enterprise, the Committee notes the enterprise’s indication that the national legislation (section 42 of the TUO-LRCT) provides that collective agreements do not apply to those who occupy management posts or hold positions of trust. In this respect, the Committee notes that the 2016–19 collective agreement signed between the SUTTP and the enterprise stipulates that the benefits agreed therein are granted exclusively to members of the union. The Committee also notes that in 2018, the MTPE issued a technical opinion on the application of a collective agreement to workers in positions of trust in the enterprise in question who are members of another trade union operating therein. The Committee notes that the technical opinion, published on the Ministry’s website, states that: (i) an isolated reading of section 42 of the TUO-LRCT, which excludes from the scope of a collective agreement workers in positions of trust who are members of the trade union organization that concluded the collective agreement, is contrary to the freedom of association enshrined in the Political Constitution for the benefit of workers, including those in positions of trust; and (ii) with further reference to Conventions Nos 87 and 98, it finds that the collective agreement is applicable to workers in positions of trust in the enterprise who are members of the trade union organization that concluded the agreement. The Committee notes these different elements which point to the existence of an ongoing debate on the applicability of collective agreements to staff in management posts or positions of trust. With regard to the rights to collective bargaining, the Committee recalls that this right should be guaranteed to trade unions representing all kinds of workers. Noting that, according to the enterprise, the applicability of the agreement signed with the SUTTP is under way before the courts, the Committee expects that the courts have ruled taking into due account both the will expressed by the parties to the agreement in question and the criteria set out above with regard to the personal scope of collective bargaining.
9. 575. The Committee notes that another of the elements in respect of which the complainant organization expresses concern relates to the transfer of workers to the area known as the COT, since, it claims, the enterprise had not only undertaken in the collective agreement to protect employability in a climate of respect and calm, but that almost all the transferred workers were unionized. The Committee notes the enterprise’s assertion that the transfers were justified on objective grounds and that, given that a clear majority of staff in the enterprise is unionized, it is logical that in the COT the majority of staff should also be unionized.
10. 576. The Committee observes that both the complainant organization and the Government indicate that SUNAFIL conducted several inspections of the enterprise in relation to the transfers to the COT. The Committee notes the content of the inspection reports appended by the Government and observes that, while in one of them SUNAFIL stated that in the COT there were both unionized and non-unionized staff, that report contains a list of COT staff which shows that only 3 of the 286 workers were not affiliated to a trade union. The Committee also observes that in the reports SUNAFIL: noted that the transferred workers retained the same category and remuneration as previously; observed that the transfer corresponded to a restructuring plan for the enterprise which was not intended to harm the workers in any way; found that trade union leave and deductions of union dues had been granted; and concluded that freedom of association had not been violated. The Committee also observes that, while the complainant organization alleges that a performance evaluation system was introduced that was applicable primarily to the COT, with penalties ranging up to dismissal, the complaint does not indicate whether there have been any disciplinary sanctions or dismissals of unionized or non-unionized workers. Further noting that SUNAFIL has carried out checks with respect to this area, the Committee expects that the competent authorities will continue to ensure that the practice at the COT does not affect the exercise of freedom of association.
11. 577. The Committee notes that the complainant organization also alleges that, while complaints are lodged with SUNAFIL, the country does not have an effective procedure for monitoring violations linked to the protection of freedom of association.
12. 578. The Committee takes due note of the concerns expressed by the complainant organization regarding the time involved in investigations (over two months spent on the investigation stage), and the lack of specialized knowledge in the area of freedom of association, and notes the Government’s statements whereby: (i) inspection activities are carried out within a maximum time frame of 30 days, which only in exceptional cases may be extended for a further 30 days; (ii) the labour inspection regulations have been adjusted over time; (iii) during the period 2016–23, 405 inspections were carried out at the enterprise (57 relating to collective labour relations and 9 on discrimination based on union affiliation of which 4 resulted in a violation report); and (iv) in February 2023, SUNAFIL introduced a register of trade union organizations in the virtual complaints system which allows the representatives of these organizations to follow up on complaints lodged. Bearing in mind that the Committee of Experts on the Application of Conventions and Recommendations (CEACR) is monitoring the role of SUNAFIL in respect of anti-union discrimination in the context of the application of Convention No. 98, the Committee invites the Government to continue to provide information in this context on the measures adopted to improve the effectiveness of inspection activities in the area of trade union rights.
13. 579. The Committee observes that both the complainant organization and the Government indicate that, at the time they submitted their communications, various court proceedings were under way relating to several of the topics raised in the complaint, including alleged non-compliance with various provisions of the 2016–19 collective agreement and the transfer of workers to the COT. The Committee does not have any information concerning the results of these court proceedings. While it recalls that agreements should be binding on the parties [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 1334], the Committee observes that, according to publicly available information, on 8 June 2023 the enterprise signed an agreement which settled various claims with a number of trade union organizations, including the claims submitted by the SUTTP corresponding to the periods 2019–20, 2020–21 and 2021–22. The Committee hopes that these agreements have clarified a number of the issues raised in the complaint and, trusting that the above-mentioned judicial proceedings have been concluded, urges the parties to strengthen the existing forums for dialogue within the enterprise so that any outstanding issues can be submitted for open dialogue conducted in good faith.
14. 580. Lastly, the Committee notes that the complainant organization also alleges that the Government has introduced regulatory provisions that substantially weaken social dialogue, mentioning as examples decrees issued in 2018 and 2019 by means of which: (i) the PNCP was allegedly approved without it having been the subject of consultations in the CNTPE; (ii) the representativeness of workers on the Executive Board of the CNCF was allegedly amended, with just one of the 21 representatives who constitute the CNCF representing workers; and (iii) the same decree allegedly established public–private technical committees for the development of the various aspects of the PNCP without making provision for the presence of trade union representatives in their composition, despite the fact that one technical committee is concerned with the labour market.
15. 581. The Committee notes that, in this respect, the Government indicates that: (i) it promotes forums for tripartite social dialogue, with the CNTPE being the most relevant social dialogue forum in the country; (ii) the PNCP proposal was made public in July 2018 with a view to obtaining all relevant comments; (iii) it was only in November 2018 that the CNTPE decided to schedule a meeting to examine the PNCP; (iv) the PNCP was adopted on 31 December 2018 after the CNTPE session in question scheduled for the beginning of December 2018 was postponed until January 2019 owing to the absence of several trade union confederations; and (v) the approval of the PNCP was just the beginning of a process, through dialogue with the social partners, that led to the adoption of the National Competitiveness and Productivity Plan (Supreme Decree No. 237-2019-EF) for the development of priority objective 5 of the Plan (“To create the conditions for a dynamic and competitive labour market to generate decent employment”), although it was only possible to hold one information session in the CNTPE because of the decision of various trade union confederations to withdraw from it, discussions held in the regional labour and employment councils were used for input. The Government also indicates that the representation of workers on the Executive Board of the CNCF has not been balanced in the past, stressing that it reports to the MEF and deals with matters related to competitiveness, such as investment, infrastructure and innovation, hence the business sector is more broadly represented.
16. 582. The Committee notes that the complainant’s allegations relate, on the one hand, to the composition of the CNCF and its technical committees and, on the other, to consultations on the PNCP adopted on 31 December 2018. The Committee notes that similar allegations were submitted by another trade union confederation, the Autonomous Workers’ Confederation of Peru (CATP), in the framework of Case No. 3359. The Committee observes that the parties agree that: (i) since the postponement to January 2019 of the meeting scheduled by the CNTPE for December 2018 and owing to the absence of various trade union confederations from it, the PNCP was adopted on 31 December 2018 without the CNTPE conducting a tripartite review of it; (ii) consequently, two trade union confederations suspended their participation in the CNTPE; (iii) owing to the suspended participation of the two confederations, the National Competitiveness and Productivity Plan adopted in 2019 in application of the policy in question was not preceded by national tripartite dialogue in the CNTPE but did give rise to regional dialogue in the regional labour and employment promotion councils (CRTPE); (iv) the Plan in question contains priority objective 5 entitled “To create the conditions for a dynamic and competitive labour market to generate decent employment”; (v) Supreme Decree No. 038 of 2019, which amends the composition of the CNCF, reintroduces a trade union presence into it, albeit limited to a single representative as compared to 13 Government representatives and 6 representatives of employers’ organizations; and (vi) the decree mentioned does not refer to the participation of trade unions in the public–private technical committees established in the CNCF. The Committee observes that it is apparent from the above that: (i) in a context of difficult relations between the Government and various trade union confederations, the PNCP could not be preceded by national tripartite dialogue in the CNTPE; (ii) the trade union representation reintroduced by decree in the CNCF is still restricted and does not extend to the technical committees; and (iii) while the activities of the CNCF extend beyond labour and employment issues, its sphere of competence includes them, as indicated by the existence of the public–private technical committee on the labour market and of priority objective 5 of the National Competitiveness and Productivity Plan.
17. 583. The Committee recalls that it has emphasized the vital importance that it attaches to social dialogue and tripartite consultation, not only concerning questions of labour law but also in the formulation of public policy on labour, social and economic matters. [see Compilation, para. 1525]. On the basis of the foregoing, the Committee urges the Government, in consultation with the most representative social partners, to take the necessary measures to ensure that the most representative trade union organizations are duly consulted and can make their voice heard in economic policy-making processes that could affect the interests of workers. The Committee welcomes the fact that in mid-2023 the CNTPE was reactivated and calls on the Government to pay particular attention to the participation of the most representative trade union organizations in CNCF bodies concerned with labour market issues and ensure smooth collaboration between the CNCF and the CNTPE in their respective spheres of competence.