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- 105. At its March 2012 meeting, the Committee made the following
recommendations on the pending issues [see 363rd Report, para. 1045]:
- – The Committee firmly expects that, in the future, there will be
timely consultations with the trade unions concerned in respect of any contemplated
restructuring or privatization processes prior to their being taken. The Committee
calls on the Government to initiate without delay such consultation as regards the
effects of the privatization.
- – In view of the
circumstances of this case, the Committee believes that penal sanctions should not
be imposed on the trade unionists who participated in the strikes or on trade union
organizations. The Committee requests the Government to inform it of the decision of
the Public Prosecution Service concerning the complaint lodged against several
strikers by the Office of the Attorney-General of the Ministry of Transport and
Communications and expects that this decision will take into account the conclusions
and the relevant abovementioned principle.
- 106. In communications dated 15 October and 10 December 2012 and 28
February 2013, the National Federation of Workers of the National Ports Enterprise
(FENTENAPU) sent further information on new concessions of port terminals without the
complainant federation being heard or allowed to participate. According to the
allegations, the concessions are marred by issues of corruption and violations of due
process, and the aim is to reduce the unionized workforce. Moreover, workers who have
not accepted the enterprise’s financial proposals (retirement incentive programmes)
would be exposed to sanctions if they reject the proposals. According to the
complainant, most of the workers affected by the staff reductions are involved in
collective bargaining, and the mass dismissals affect over 200 workers.
- 107. In its communication of 25 September 2012, the Government indicates
that by a decision dated 21 March 2012 the Criminal Prosecutor of the Fifth Provincial
District of Callao found that there were no grounds for bringing criminal charges
against the strikers and, as a third party with civil liability neither against the
Puerto de Callao Dockers Union, for alleged crimes against public security, attacks on
collective transport services and the media, and for hindering the proper functioning of
public services. The charges were therefore definitively set aside. The Committee notes
this information with interest.
- 108. In its communication of 17 September 2013, the Government indicates
that, according to the report of the Department for Investment Promotion, the processes
for the promotion of private investment in relation to national port infrastructure have
the objective of entrusting the successful bidder with the obligation to design,
finance, construct, operate or subsequently transfer the new infrastructure to the State
of Peru, for which reason it cannot be maintained that they are processes for the
restructuring or privatization of the National Ports Enterprise (ENAPU), which would
require prior consultation with the unions concerned, since the procedures are
restricted to port property in the public domain owned by the State, and not the assets
of ENAPU. Moreover, these promotional procedures do not envisage the dismissal of
workers engaged in providing services for ENAPU, as the sole aim is to achieve greater
efficiency in the administration of the port infrastructure owned by the State of Peru.
Accordingly, the State is not violating any fundamental rights in that respect.
- 109. The Government reports the indications by the Ministry of Transport
and Communications that: (a) the process of the concession of the Multipurpose Northern
Terminal of the Port of Callao is one of the transport infrastructure and services
projects that were entrusted to the private sector under concession; (b) Annex 21 of the
concession contract refers to the revenue-sharing partnership agreement concluded
between the concessionaire APM Terminals Callao SA and ENAPU SA, under the terms of
which the latter provides the real estate and, in exchange for participating in the
operation, receives a total of 17 per cent of the revenue shown on the accounts as at 31
December each year, prior to the determination of the taxation on profits; (c) one of
the obligations of APM Terminals Callao SA is to offer employment, during a period of
ten years, to a number of the workers of ENAPU SA equivalent to 60 per cent of the total
operating workforce listed in Annex 23 of the concession contract; and (d) up to the
present, APM Terminals Callao SA has taken on a total of 500 workers engaged by ENAPU
SA, of whom 366 are on the list of workers contained in Annex 23, which corresponds to
73 per cent of the workers listed in Annex 23.
- 110. With regard to the transfer of the Chimbote Port Terminal, the
Government indicates that the General Directorate of Water Transport of the Ministry of
Transport and Communications explains that it was carried out as part of the process of
the decentralization of the country, in accordance with article 188 of the Political
Constitution of Peru, which provides that decentralization is a form of democratic
organization which is a permanent and compulsory State policy, with the fundamental
objective of integrated national development. In that respect, port transfers in the
context of the decentralization process are not part of a privatization process.
- 111. The Government adds that the committee appointed for the transfer of
Chimbote Port Terminal included representatives of the different sectors of ENAPU SA,
and that as a consequence the workers participated actively in the process. With
reference to the retirement incentive programme, Supreme Decree No. 044-2010-MTC
established the Special Voluntary Retirement Benefit for Dock Work (BECVP) for all
dockworkers in the Callao Port Terminal. The benefit consisted of the voluntary
retirement of workers if they considered it appropriate in exchange for financial
compensation. That does not correspond to a policy of mass dismissal, particularly as
coverage by the BECVP was free and voluntary. In relation to the retirement incentive
programme, Act No. 27866, the Port Labour Act, in section 13 establishes the labour
system for dock work, specifying that it is included in the labour regime for the
private sector, with the corresponding rights and benefits. Section 86 of Legislative
Decree No. 728 sets out objective reasons for the termination of contracts of
employment, including economic, technological, structural and similar reasons, and the
liquidation, dissolution or bankruptcy of the enterprise. The retirement incentive
programme is consequently considered to be totally lawful, and cannot therefore under
any circumstances be regarded as an instrument of mass dismissal.
- 112. The complainant has also referred the present case to the
Inter-American Human Rights System. With a view to avoiding duplication by international
bodies, the Government therefore requests the Committee not to continue its examination
of the present complaint, as a case is currently under review at the Inter-American
level, on which the Inter American Court of Human Rights will issue a ruling in due
course.
- 113. The Committee notes the Government’s reply, from which it can be
deduced that there were no in-depth consultations with the complainant during the
process of the concession of port terminals, except in the case of the Chimbote
terminal. The Committee once again emphasizes the importance of holding in-depth
consultations with the complainant on the impact of the decentralization that is being
carried out in the enterprise.
- 114. With regard to the alleged anti-union nature of this process which,
according to the complainant, affects most of the unionized workers involved in
collective bargaining, the Committee notes the Government’s indication that the
processes do not envisage the dismissal of workers and that their objective was the
transfer of certain services to the private sector, and that there is a commitment to
re-engage a significant percentage of the workers (those who gave up their employment
and freely accepted the financial compensation), with 500 workers already being
recruited. The Committee finds that the complainant has not provided firm proof of the
anti-union motivation behind the decentralization process. The Committee recalls that
its mandate is confined to violations of trade union rights, and does not cover
restructuring, privatization and decentralization processes, nor determining whether or
not the authorities have acted in breach of domestic law when carrying out these
economic processes. Finally, noting that the complainant has referred the matter to a
procedure which will give rise to a ruling by the Inter-American Court of Human Rights,
the Committee recalls that it has examined the present case within the terms of its
mandate, which consists in determining whether any given legislation or practice
complies with the principles of freedom of association and collective bargaining laid
down in the relevant ILO Conventions [see Digest of decisions and principles of the
Freedom of Association Committee, fifth (revised) edition, 2006, para. 6]. The Committee
emphasizes that, within the context of this mandate, which differs from that of other
international bodies, it issued its recommendations in 2012.
