Rapport intérimaire - Rapport No. 308, Novembre 1997

1. 577. The complaints in this case are set out in communications from the Federation of Peruvian Light and Power Workers (FTLFP) dated 9 April 1996. The complainant sent additional information in its communications of 10 May and 24 September 1996, 24 February, 17 March, 4 April and 13 August 1997. The FTLFP also submitted new allegations in its communication of 11 September 1997. The Government submitted its observations in its communications of 6 March and 23 September 1997.
2. 578. 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. Complainant's allegations

1. 579. In its communications of 9 April, 10 May and 24 September 1996, the Federation of Peruvian Light and Power Workers (FTLFP) stated that as a result of the privatization of the electricity sector, new companies such as Electro Ucayali S.A. were created out of the assets of the Central Regional Public Electricity Supply Company - Electrocentro S.A. The complainant alleges that the new management of Electro Ucayali S.A. has been carrying out various anti-trade union acts and interference with the Ucayali S.A. Branch of the Light and Power Workers' Union calculated to eliminate and cause the disappearance of trade union activity. These actions are described below:
   • (a) it has made the granting of contracts of employment for an open-ended period conditional on workers giving up their membership of that union;
   • (b) it has transferred the majority of workers belonging to the Ucayali S.A. Branch of the Light and Power Workers' Union to places other than those specified in their contracts of employment under the control of ELECTROCENTRO S.A.;
   • (c) on the one hand, the company has refused to hand over union dues deducted from its members in December 1995, and on the other, from January 1996, it has refused to continue deducting dues;
   • (d) it has been hostile to and obstructed trade union activities, by meddling in the internal affairs of the union, intimidating union leaders and has hinted at the creation of another trade union organization to evade its obligations under prior collective agreements.
2. 580. In its communications of 24 February and 17 March 1997, the Federation of Peruvian Light and Power Workers complains that since May 1996, the date when the negotiations began, Electro Ucayali S.A. has refused to conclude a collective agreement, resorting to delaying tactics and devices, despite the good will and concessions made by the union. The complainant further alleges that 19 unionized workers were included in the list for "collective dismissal" including two members of the negotiating committee for the 1996-97 negotiating round who were prevented from entering the workplace, as well as two members of the executive board. The complainant also alleges that the company has been coercing workers to give up their union membership, by threatening to include them in the "collective dismissal" list if they refused. The foregoing, adds the complainant, is all calculated to reduce the number of trade union members to less than 20, and thus bring about the dissolution of the union and prevent the conclusion of collective bargaining.
3. 581. In its communication of 4 April 1997, the Federation of Peruvian Light and Power Workers complains of interference by the Peruvian Institute of Social Security (IPSS) in the internal administration of the Federation. Specifically, the complainant alleges that officials of the IPSS inspected the Federation's accounting and personnel records, having established a supposed debt to the IPSS (equivalent to 13,468 US dollars), in respect of social security contributions and other social levies on Federation staff. The complainant explains that it concerned the National Officers of the Federation, the Legal Adviser, and the cleaning staff who are not employees of the Federation. The complainant further states that the IPSS threatened them with enforcement of the debt and distraint on their assets if the sum demanded was not paid.
4. 582. In its communication of 13 August 1997, the Federation of Peruvian Light and Power Workers alleges that Mr. Jaime Tuesta Linares, defending secretary of the Electro Oriente S.A. Trade Union Branch was unfairly dismissed by the Eastern Regional Public Electricity Supply Company (Empresa de Servicio Público de Electricidad del Oriente), despite being protected by national trade union legislation. The complainant also alleges that the management of Electro Sur Este S.A. has launched a systematic campaign of threats of dismissal and anti-union harassment of trade union leaders and members, which has caused serious problems for the Workers' Union Branch in Electro Sur Este Abancay. As a result of this campaign, the company transferred the trade union branch secretary, Mr. Moisés Zegarra Ancalla, to another establishment rather a long way away (Chacapuente-Chalhunaca substation), thus preventing him from carrying out his functions as a trade union officer. Finally, the complainant adds that Mr. Adriel Villafuerte Collado, general secretary of the Electro Sur Este Trade Union Branch, Puno, was threatened with dismissal by the company, Electro Sur Este S.A. (Puno subregion), for alleged serious misconduct. Despite evidence of innocence provided by the union official, he was suspended for 30 days without pay as a penalty.
5. 583. In its communication of 11 September 1997, the Federation of Peruvian Light and Power Workers alleges that in an appeal judgement of 14 August 1996, the Tacna Appeal Court (Corte Superior de Justicia) found definitively in favour of the Tacna and District Branch of the Light and Power Workers' Union, affiliated to the Federation of Peruvian Light and Power Workers, and against ELECTRO SUR S.A., and ordered it to pay salary increments to 111 workers, due under the arbitration award of 21 July 1993, as a result of the arbitration process which followed the collective bargaining for the period 1992-93. The complainant adds that under the judgement varying the judicial decision of 15 May 1995, the parties agreed, inter alia, to consolidate the arrears in a single exceptional payment of 2,300 new soles, as payment of arrears of wages, and that it would be exempt from social security contributions for IPSS, FONAVI, AFP and income tax, and that, in return, the complainant union branch would drop its action to enforce the court order. The complainant states that despite this agreement, ELECTRO SUR S.A. failed to abide by the above-mentioned agreement, and that in those circumstances, the Tacna and District Branch of the Light and Power Workers' Union was forced to continue proceedings to enforce the court order. The complainant alleges that in response to the union's action, in an act which is contrary to the exercise of trade union freedoms and inalienability of workers' rights, ELECTRO SUR S.A., in its letter number GA-500-97 of 23 August 1997, arbitrarily abused its powers in designating the non-cessation of legal proceedings as "serious misconduct", threatening to discipline the union representatives and hinting that they would dismiss the union officials if they did not comply with their demands.

B. The Government's reply

1. 584. Concerning the allegation of the refusal by the company Electro Ucayali S.A. to continue to deduct trade union dues from January 1996, the Government states in its communication of 6 March 1997 that under section 28 of the current Law on Collective Labour Relations, the employer, at the request of the trade union and with the written authority of the trade union member, is required to deduct trade union dues from wages. However, the Government adds that the possibility of payroll deduction is a formula which requires joint implementation by the trade union and the company in controlling trade union members' dues, but it is not the only method of collection of dues, since the trade union may collect them directly, or may resort to the courts for a ruling on the matter. The Government concludes that the trade union did none of these things. As for the various anti-trade union acts and interference by the company Electro Ucayali S.A. against the Federation alleged by the complainant, the Government states that these are merely unfounded allegations which do not warrant further investigation, unless the necessary evidence to support such allegations is provided.
2. 585. Concerning the allegation of the refusal of the company Electro Ucayali S.A. to conclude a collective agreement since May 1996, in its communication of 23 September 1997, the Government states firstly that it is not true that the company has resorted to delaying tactics and devices as the complainant alleges, but that the delay was due to other matters and legal circumstances which arose during the negotiating process, which were settled by the Labour Administrative Authority, in accordance with its powers. The Government emphasizes that the collective bargaining process was concluded to the satisfaction of the parties, the agreements being adopted by direct negotiation, and the list of demands submitted by the trade union organization was settled.
3. 586. Concerning the allegation of the inclusion in the list for "collective dismissal" of 19 trade union members, including two members of the negotiating committee for the 1996-97 bargaining round (who were prevented from entering the workplace), together with two members of the executive board, the Government states that originally, based on "objective grounds" of an economic, structural and technological nature as set out in the Law on Productivity and Competitiveness of Labour, and sections 80 and 82 of Legislative Decrees Nos. 855 and 871, the company Electro Ucayali S.A. sought the termination of the contracts of 19 workers, including four trade union officials. Once the company had demonstrated the above-mentioned objective grounds to the administrative authority, and after the conciliation meetings convened by that authority, approval was given to the termination of the contracts of only 14 workers, five being excluded from the process at the request of the company, including the four trade union officials to which the complaint refers and who are working normally in the company.
4. 587. Concerning the allegation of the coercion by the company of workers to give up their trade union membership by threatening to include them on the list for "collective dismissal" if they did not do so, the Government states that this complaint is not justified, since current national legislation in this area protects workers against acts of anti-trade union discrimination and interference, and lays down appropriate penalties to discourage breach of such legislation. The Government explains that in the specific case of the Ucayali S.A. Branch of the Light and Power Workers' Union, several members decided to resign their membership, which led to cancellation of its registration, since it ceased to have the minimum number of 20 members required by current labour legislation. The Government adds that the trade union may request new registration after six months, once it has remedied the causes of cancellation. It also states that trade union members who feel that their trade union rights have been affected may take legal proceedings to enforce their rights.

C. The Committee's conclusions

1. 588. The Committee notes that in the present case the complainant has alleged: (1) various anti-union acts and interference against the Ucayali S.A. Branch of the Light and Power Workers' Union, calculated to eliminate and cause the disappearance of trade union activity; (2) obstruction of collective bargaining, anti-trade union dismissals, coercion and threats against workers belonging to the Electro Ucayali S.A. trade union branch; (3) interference by the Peruvian Institute for Social Security in the internal administration of the Federation; and (4) anti-trade union dismissals and threats in the Eastern Regional Public Electricity Supply Company and Electro Sur Este S.A.
2. 589. Concerning the allegation of the refusal by the company Electro Ucayali S.A. to continue to deduct trade union dues for members of the Ucayali S.A. Branch of the Light and Power Workers' Union, the Committee takes note of the Government's indication that under section 28 of the current Law on Collective Labour Relations, the employer, at the request of the trade union and with the written authority of the trade union member, is required to deduct trade union dues from wages. It also takes note that, according to the Government, the possibility of payroll deduction is a formula which requires joint action by the trade union and the company to control trade union dues, and that the trade union may resort to the judicial authority for a ruling on the matter. The Committee requests the Government to adopt the necessary measures to ensure that the company complies with any request made by the trade union in accordance with the legislation on the deduction of trade union dues.
3. 590. Concerning the other allegations of the various anti-trade union acts and interference by the company Electro Ucayali S.A. against the Ucayali S.A. Branch of the Light and Power Workers' Union, calculated to eliminate and cause the disappearance of trade union activity, the Committee notes with regret that the Government confines itself to replying that they are merely unfounded allegations which do not warrant further investigation. In this respect, the Committee reminds the Government that in ratifying Convention No. 98, it undertook to guarantee the application of Articles 1 and 2 of the Convention, which provide that workers shall enjoy adequate protection against acts of anti-union discrimination calculated to diminish trade union freedom in respect of their employment, and that their organizations shall have protection against any acts of interference. The Committee requests the Government to carry out an investigation without delay into the allegations listed below, and to keep it informed thereof:
   • (a) making the granting of an open-ended contract of employment conditional on workers resigning their membership of the trade union;
   • (b) the transfer to places other than those specified in their contracts of employment of the majority of workers belonging to the Ucayali S.A. Branch of the Light and Power Workers' Union, under the control of the company Electrocentro S.A.;
   • (c) the hostility towards and obstruction of trade union activity, interference in the internal affairs of the union, intimidation of union officials and hinting at the creation of another trade union organization to evade their obligations under prior collective agreements.
4. 591. Concerning the allegation of the refusal by the company Electro Ucayali S.A. to conclude a collective agreement since May 1996, the Committee takes due note that according to the Government, the process of collective bargaining has been concluded to the satisfaction of the parties, agreements having been adopted by direct negotiation, and the list of demands submitted by the trade union having been settled. In this respect, the Committee requests the Government to forward a copy of the collective agreements subsequently concluded and requests it to do everything possible to work with the parties so that difficulties that arise in the collective bargaining process are overcome much more quickly.
5. 592. Concerning the allegation of the inclusion in the list for "collective dismissal" of 19 trade union members, including two members of the negotiating committee for the 1996-97 bargaining round, as well as two members of the executive board, the Committee takes due note that according to the Government, the approved list for termination of contracts affects only 14 workers, five of them having been excluded from the measure at the request of the company, and who are now working normally in the company. The Committee recalls that one of the fundamental principles of freedom of association is that workers should enjoy adequate protection against all acts of anti-union discrimination in respect of their employment, such as dismissal, demotion, transfer or other prejudicial measures. This protection is particularly desirable in the case of trade union officials because, in order to be able to perform their trade union duties in full independence, they should have a guarantee that they will not be prejudiced on account of the mandate which they hold from their trade unions. The Committee has considered that the guarantee of such protection in the case of trade union officials is also necessary in order to ensure that effect is given to the fundamental principle that workers' organizations shall have the right to elect their representatives in full freedom (see Digest, op. cit., para. 724).
6. 593. Concerning the allegation of coercion by the company of workers belonging to the trade union to resign their membership by threatening to include them on the list for "collective dismissal" if they do not do so, the Committee notes with regret that the Government has confined itself simply to stating that this allegation is not justified. Indeed, the Committee notes that the Government reports that current national legislation in this area protects workers against acts of anti-union discrimination and interference, but nevertheless, it does not state whether it has carried out an investigation into the facts of the matter. Furthermore, the Committee expresses its deep concern that following the events that formed the basis of the complaint, the union has had its registration cancelled because the number of members of the union concerned fell below the limit of 20 required by legislation due to the resignations from trade union membership.
7. 594. In this respect, the Committee insists on what it stated in the initial paragraphs of its conclusions, and reminds the Government once more that in ratifying Convention No. 98, it undertook to guarantee the application of Articles 1 and 2 of the Convention, protecting workers not only in law but also in practice against any acts of anti-union discrimination, and their organizations against any acts of interference. The Committee requests the Government to carry out an investigation to determine to what extent the resignation of several members of the trade union was the result of pressure or otherwise by the company, especially taking into account that in this case there are several complaints against the company in question concerning anti-union acts and interference calculated to eliminate and cause the disappearance of trade union activities which have still not been investigated. The Committee requests the Government to keep it informed of the results of such investigations. As for the statement by the Government that the trade union may not immediately obtain new recognition once it has remedied the causes of its cancellation, but only six months later, the Committee reminds the Government that such a provision has recently been the subject of comments by the Committee of Experts as being in contravention of Convention No. 87, for which reason it requests the Government to adopt the necessary measures to amend that provision (see Report of the Committee of Experts, 1997, p. 191 of the English version).
8. 595. As concerns the allegations of anti-union dismissals and threats in the Eastern Regional Public Electricity Supply Company and Electro Sur Este S.A., the Committee notes that it has not received the reply of the Government and therefore it requests the Government to submit its observations on this matter without delay. The Committee also requests the Government to communicate its observations on the allegations concerning the failure by the company ELECTRO SUR S.A. to comply with an agreement to vary a judicial order, and the threats of disciplinary action and dismissals of union officials in the company in question.