Informe provisional - Informe núm. 305, Noviembre 1996

1. 413. The complaints which are the subject of this case appear in communications from the Federation of Banking Employees of Peru (FEB), dated 29 September 1995, the Unitary Union of Education Workers of Peru (SUTEP), of 5 October 1995 and the Unified National Federation of Health Sector Workers (FENUTSSA), dated 15 November 1995.
2. 414. The Government sent its observations in communications dated 24 January and 30 April 1996.
3. 415. 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). However, it has not ratified the Workers' Representatives Convention, 1971 (No. 135).

A. The complainants' allegations

1. 416. In its communication of 29 September 1995, the Federation of Banking Employees of Peru (FEB) alleges that in the resolution of 20 September 1995 the Ministry of Labour and Social Promotion has denied it the right to bargain collectively by impeding all mechanisms for bargaining or understanding with the employers concerned. Such a denial is based on the fact that the Ministry of Labour and the various banking institutions do not believe that the FEB has complete proof of the absolute majority required by section 46 of Legislative Decree No. 25593 necessary for the conclusion of a collective agreement in a particular branch of activity.
2. 417. In this connection, the FEB points out that the criterion of absolute majority, i.e. the 50 per cent plus one in question, is not applicable to its case, since it is the only trade union organization which represents banking employees at national level and is duly recognized by the Labour Authority; for this reason, the various banking institutions have not as yet objected to it being represented, since it has signed two collective agreements and Legislative Decree No. 25593 is already in force.
3. 418. The FEB adds that as a consequence of the policy of labour deregulation policy which the current Government continues to apply, in accordance with Law No. 26513 on employment promotion, in particular workers who are trade union members are subject to violations of their rights and threats of dismissal. More specifically, in the Banco de Crédito of Peru, in which the FEB had several hundred members, the numbers have been reduced to a few trade union leaders over whom hang threats of dismissal. The complainant points out that the above details are explained by the fact that a large number of workers have ceased to become FEB members through fear of being dismissed. A similar policy is applied in the Interbanc, where in a single week 60 workers have given up their FEB membership en masse.
4. 419. Finally, the FEB alleges that whereas employers demand an absolute majority from the Labour Authority in order to be able to bargain collectively, on the one hand they inform workers who are trade union members that if they do not give up their membership they will not enjoy the economic benefits to be obtained by non-union members, and also threaten to declare them surplus to requirements and consequently to dismiss them. Secondly, they offer lucrative incentives to senior managers so that they hinder the FEB in its work.
5. 420. In a communication dated 5 October 1995, the Unitary Union of Education Workers of Peru (SUTEP) alleges that in the context of its labour flexibility and deregulation policy, since 1991 the Government has not followed up the petitions presented by SUTEP to the Ministry for Education, in accordance with section 17 of Supreme Decree No. 026-82 on the Right to Organize and Collective Bargaining of Public Servants.
6. 421. Similarly, SUTEP alleges that the Government, through the Ministry for Education and its decentralized bodies, has denied the right to payment of salary for its trade union leaders, in violation of subsection 16(e) on the Law of the Teaching Profession of Peru, as well as ILO Convention No. 135.
7. 422. In its communication of 15 November 1995, the Unified National Federation of Health Sector Workers (FENUTSSA) alleges that pursuant to Legislative Decree No. 26093 the National Health Institute (INS) has launched a process to evaluate the performance of its staff, which has resulted in the dismissal of 66 workers including all the members of the Governing Body of the Unified Union of National Health Institute Workers, 47 of its members and a national leader of FENUTSSA.

B. The Government's reply

1. 423. As regards the allegations made by the Federation of Banking Employees of Peru (FEB), in its communication of 24 January 1996 the Government states that in May 1995 FEB sent to the Ministry of Labour and Social Promotion a draft collective agreement through which banking enterprises could be informed of the start of collective bargaining in a particular branch of activity. After receiving notification, most banking entities opposed the move towards such bargaining, arguing that FEB lacked the legitimacy to bargain within a particular branch of activity, since such an organization did not represent an absolute majority of workers in that sector, as required by section 46 of Legislative Decree No. 25593.
2. 424. The Government adds that given the circumstances the Ministry of Labour first of all requested FEB to specify the total number of workers included in its sphere, as well as the number of members in each place of work; however, in response FEB said that it did not have the required information available. The Ministry of Labour later requested the information in question from the banking institutions which, in response, sent the approved information on the number of workers affected by the discount on trade union dues in their capacity as FEB members. Given the circumstance, the matter was resolved by the Administrative Labour Authority which stated that the opposition of the banking entities to collective bargaining, taking into account the fact that FEB did not represent the absolute majority of workers in the sector as required by law, was justified.
3. 425. As regards the allegations made by FENUTSSA concerning anti-union dismissals, in its communication of 30 April 1996 the Government states that on the basis of Legislative Decree No. 26093 relating to the half-yearly appraisal of public sector staff, the National Health Institute approved the Regulation concerning the half-yearly programme of assessment of the work performance of employees of the Institute in question. Section 10 of the above Regulation provides that workers who do not attend the appraisal on the dates scheduled, or the appraisal for those who failed to attend the first time, will be made redundant. The Government specifies that the aim of the Decree in question is to assess the capacity for work of employees without distinction, irrespective of whether or not they are members of a trade union organization. On 1 September 1995, the National Health Institute laid off 66 of its workers who had failed to attend the appraisal. Finally, the Government points out that FENUTSSA lodged an appeal on the grounds of unconstitutionality to Specialized Civil Court No. 24 which is still being considered.

C. The Committee's conclusions

1. 426. The Committee observes that the complaints in this case refer to restrictions on the right to bargain collectively, acts of discrimination and interference in union activities, anti-union dismissals and the refusal of authorization for trade union leaders.
2. 427. As regards the allegations made by the Federation of Banking Employees of Peru (FEB) concerning restrictions on collective bargaining, the Committee notes that in accordance with the Government's statement, the Administrative Labour Authority declared that the opposition of the banking entities to collective bargaining, given that FEB did not represent an absolute majority of workers in the sector as required by section 46 of Legislative Decree No. 25593, was justified. In this connection, the Committee observes that a decision had already been taken on the section in question (see 291st Report, Cases Nos. 1648 and 1650, Peru, para. 460) and that comments on it had already been made by the Committee of Experts on the Application of Conventions and Recommendations.
3. 428. In fact, as regards section 46 which stipulates that a prerequisite for the conclusion of a collective agreement on the branch or occupational level shall be a majority both in terms of the number of workers and of enterprises, the Committee informed the Government that the legislation should promote voluntary collective bargaining between employers' and workers' organizations at all levels in accordance with Article 4 of Convention No. 98. Both the Committee and the Committee of Experts have requested the Government, in consultation with the social partners, to take measures to modify the legislation in the light of the foregoing considerations. The Committee reiterates this view and urges the Government once again to take the necessary measures in this respect.
4. 429. As regards the allegations made by the FEB concerning the threats of dismissal and pressure placed on employees of the Banco de Crédito of Peru and Interbanc who were not trade union members (a situation which has led a large number of workers to give up their FEB membership), the Committee regrets to observe that the Government has not responded to such allegations, for which reason it requests that the Government forward its observations on the matter without delay.
5. 430. As regards the allegations made by FENUTSSA concerning anti-union dismissals, the Committee notes that in accordance with the information provided by the Government, the National Health Institute declared that 66 of its workers had been laid off since they had not attended the appraisal provided for in Legislative Decree No. 26093, and in accordance with the relevant Regulations; it also notes that FENUTSSA lodged an appeal on the grounds of unconstitutionality to a Specialized Court which is still being considered. In this connection, the Committee regrets to note that the Government has not investigated the possible anti-union nature of such measures, especially if account is taken of the fact that, as indicated by the complainant (an allegation not denied by the Government), the 66 workers dismissed include all the members of the Governing Body of the Unified Union of National Health Institute Workers, 47 of its members and one of its national leaders. Moreover, the Committee regrets to observe that the union privileges to which trade union leaders are entitled in accordance with sections 30 and 31 of Legislative Decree No. 25593 have not been respected.
6. 431. The Committee requests the Government to keep it informed of the outcome of the appeal lodged on the grounds of unconstitutionality by FENUTSSA and to take measures so that those dismissed for trade union reasons be reinstated in their posts and ensure that any economic prejudice suffered is redressed. As it did in a similar case, the Committee also requests the Government to take the necessary measures to ensure that in future the application of such staff reduction programmes is not used to carry out acts of anti-union discrimination (see Case No. 1796, Peru, 304th Report, para. 458).
7. 432. The Committee also regrets to note that the Government has not replied to the allegations made by the Unitary Union of Education Workers of Peru (SUTEP), relating to the Ministry of Education's refusal to respond to its petitions, as well as to the refusal of union authorization for its trade union leaders. The Committee requests the Government to forward its observations on the matter without delay.