Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 294, Junio 1994

1. 335. The complaint in this case is contained in communications from the Unified Trade Union of Workers of the Public Welfare Institute of Metropolitan Lima dated 18 August and 27 December 1993, 3 and 26 January and 25 February 1994. The Government sent its observations in communications dated 15 November 1993, 18 and 26 April and 6 May 1994.
2. 336. Peru has ratified the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87) and the Right to Organize and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant's allegations

1. 337. In its communication of 18 August 1993, the Unified Trade Union of Workers of the Public Welfare Institute of Metropolitan Lima alleges the dismissal of the trade union officials Juan Monteza Petit, Franciles Aliaga, Serapio Meneses, Sixto Carhuajulca, Luzmila Palomino and Lourdes Gómez. The complainant organization states that the dismissed workers were accused of holding a 24-hour work stoppage without being accredited trade union representatives and of carrying out a hunger strike in May 1993. The complainant organization says that the decision was without foundation since the dismissed officials were elected on 18 March 1994.
2. 338. Furthermore, in its communication of 27 December 1993, the complainant organization points out that the call for a 24-hour strike was of a preventive kind and was therefore a transitory measure which did not mean that an indefinite strike had been called. In the same way, the complainant organization states that if the legal requirements for calling a strike had not been met, the administrative authority should have declared the measure null and void, the strike illegal and sanctioned the strikers with deductions from their wages, but should not have dismissed the seven officials. The complainant organization adds that the strike was not carried out, and neither was the hunger strike.
3. 339. Finally, in its communications of 3 January and 25 February 1994, the complainant organization states that administrative and judicial appeals in this regard have been lodged.

B. The Government's reply

1. 340. In its communications of 15 November 1993 and 18 April 1994, the Government states that under Presidential Resolution No. 93-031-P/SBLM, the Public Welfare Institute of Lima took administrative and disciplinary proceedings against the seven officials mentioned by the complainants, charging them with the following acts:
2. (1) the organization of a 24-hour work stoppage without being accredited trade union representatives (the Government includes the resolution mentioned in its reply, in which it is stated that "the proposed 24-hour work stoppage was carried out and was not a transitory measure, but a call which in fact resulted in a hunger strike");
3. (2) the failure to meet the requirements for the declaration of a strike as established by section 73 of the said Decree, subsections (b) (adoption of the decision by more than half of the workers) and (c) (communication of the measure with at least ten days advance notice in the case of essential services, along with the voting report).
4. 341. The Government adds that following an examination of the arguments and documentary evidence presented by the accused, as well as the content of the public instruments provided by the officials of the Institute, it was concluded that the workers in question had committed a serious offence in having abandoned essential services without a just cause, as defined in sections 82 and 83(d) of Legislative Decree No. 25593 and as a result under the provisions of the Basic Act respecting the administrative career and its regulations, the corresponding sanction of dismissal was applied, which disqualifies a worker from employment in the public administration in whatever form or method, for a period of not less than three years.

C. The Committee's conclusions

1. 342. The Committee observes that the allegations refer to the dismissal of seven trade union officials of the Public Welfare Institute of Metropolitan Lima, following the call for a 24-hour strike and a hunger strike which were never carried out. For its part, the Government states that the 24-hour strike called by the Trade Union of Workers of the Public Welfare Institute of Metropolitan Lima resulted in a hunger strike and that the legal requirements for the calling of the strike were not met.
2. 343. In this respect, accepting the Government's version of the events, the Committee notes that the calling of the strike was declared illegal because it failed to meet two legal requirements (at least ten days advance notice in the case of a strike in the essential services and the adoption of the decision by more than half of the workers). In the view of the Committee, although the first of these two requirements is acceptable, it has already had the occasion to criticize the second in examining two cases concerning Peru where the Committee noted that such a requirement could be excessive, particularly in those undertakings with large union membership (see 291st Report, Cases Nos. 1648 and 1650 (Peru), para. 468). In these circumstances, taking into account the contradiction between the allegations and the Government's reply on the actual holding of the strike, the application in this case of a requirement for the declaration of a strike which is contrary to the principles of freedom of association and the Government's statement that the matter concerned an atypical strike, namely a hunger strike, the Committee considers that the dismissal of the seven trade union officials in question even though the strike was not decided by a trade union executive representing more than the majority of workers - a requirement which is not indispensable according to the principles forumulated by this Committee - was contrary to the principles of freedom of association and believes that given the circumstances of this case, the Government should take measures to reinstate the seven trade union officials dismissed.
3. 344. Furthermore, noting that the question of the existence of serious misconduct by the dismissed officials (abandoning of essential services without a just cause) has been submitted to the administrative and judicial authorities, the Committee requests the Government to inform it of the outcome of these proceedings and expresses the hope that the competent authorities will take into account the principles set forth above.
4. 345. Finally, as at its meeting of November 1993 (see 291st Report, Cases Nos. 1648 and 1659 (Peru), para. 4748) the Committee requests the Government to take measures to amend the legal requirement concerning the need for a decision to declare a strike to be adopted by more than half of the workers to which it applies in particular to those enterprises with large union membership (section 73(b) of Legislative Decree No. 25593).