Definitive Report - Report No 79, 1965

Case No 405 (Peru) - Complaint date: 16-JUN-64 - Closed

1. 72. The complaint by the Peruvian Workers' Confederation is contained in a letter dated 16 June 1964. This was transmitted to the Government, which sent its observations by letter dated 6 October 1964.
2. 73. 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. A. The complainants' allegations

1. 74. The complainants refer in their communication to three decrees issued by the Government in connection with a long-drawn-out labour dispute in the banks. They allege that the decrees constitute a breach of the Forced Labour Convention, 1930 (No. 29), that they infringe the protection due to trade union officers, and that they restrict the right to strike.
2. 75. The complainants transmit the text of the above decrees with a commentary. Presidential Decree No. 007 of 5 May 1964 lays down the number of hours to be worked by bank employees and states that in case of non-compliance the employee's contract can be terminated. According to the complainants, the decree is an infringement of the principle of employment stability and of the provisions on this subject in force in Peru; it is also alleged to infringe the rule of immunity of union officers by its very wide definition of the ground for dismissal, which enables the banks to decide who shall represent the union. Decree No. 008 of 22 May 1964 also lays down a timetable for bank employees and again states that non-compliance by employees will be a ground for dismissal. According to the complainants this decree is an infringement of Convention No. 29.
3. 76. Lastly, Decree No. 009 of 23 May 1964 declares the strike called by the Bank Employees' Federation of Peru to be unlawful and authorises the banks to terminate the contracts of employees who do not return to work within a specified period. In its preamble the decree refers to the strike called by the Federation for 25 May 1964; it says that this was the last of a series of actions taken by the Federation and attributed by it to problems of terms of employment; but that a statutory procedure for the solution of such problems is in existence and must be complied with. According to the complainants this decree also, by declaring a strike to be illegal, violates Convention No. 29.
4. 77. In its reply of 6 October 1964 the Government reviews the dispute between the Bank Employees' Federation and the banks regarding hours of work. The Federation, it says, decided unilaterally on a change in hours, which the banks did not accept. After several attempts at conciliation had failed to bring about an agreement, the Government issued Resolution No. 065 of 7 April 1964 prescribing a certain timetable, but this was not accepted by the Federation. The bank employees then deserted their work before the prescribed hours had been completed, whereupon the banks closed their doors.
5. 78. At this juncture, the Government continues, Presidential Decree No. 007 of 1964 was issued: it supplemented the previous measure and permitted sanctions (the dismissal of the employee) to be imposed in case of non-compliance. The employees' response was to take such steps as " going slow " and " working to rule ", which precluded any kind of overtime. The Government consequently intervened again by issuing Presidential Decree No. 008, which endorsed the hours of work previously laid down but provided for a break of 45 minutes; it also settled the question of overtime. However, the employees did not give way, but called a strike for an indefinite period-this time to obtain the reinstatement of the dismissed personnel; that was defiance of a public authority which had defined the position of the parties in law and stated their respective rights and obligations. The consequence was the issue of Presidential Decree No. 009, which declared the strike unlawful. The Government adds that the aims of the Federation now evidently exceeded any strictly trade union objective.
6. 79. The Government also says that the declaration rendering the strike unlawful was of a transitory character, involving no present problem. Indeed, according to the documentation sent by the Government, the Bank Employees' Federation called off the strike on 1 July 1964 and began to negotiate with the banks on the reinstatement of all the dismissed personnel.

B. B. The Committee's conclusions

1. 80. The Committee observes that, although the complainants allege a breach of Convention No. 29, the complaint is in fact directed against two decrees which permit the dismissal of such bank employees as do not comply with certain prescribed hours, and a third which declares a strike to be unlawful and permits the dismissal of those employees who do not return to work. The complainants further allege infringement of trade union rights (particularly regarding protection for union officers) and of the right to strike. The Committee has therefore considered the complaint to be within its terms of reference, namely to examine allegations that freedom of association or trade union rights have been infringed.
2. 81. As regards the first two decrees the Committee finds that they prescribe certain times for performance of banking operations and that such times are part of the terms of employment of the banks' employees. The dismissals authorised in these decrees are for failure to comply with the said terms of employment. The fact that the dismissal may be applied, inter alia, to the officers of the union if they do not keep to the established hours of work certainly does not mean that principles and provisions relating to freedom of association have been infringed.
3. 82. As regards the third decree the Committee observes that this declares unlawful the strike called by the Bank Employees' Federation in order to obtain the reinstatement in their jobs of certain employees who had been dismissed. The preamble to the decree describes the strike as the last of a series of actions taken by the Federation and attributed by it to problems of terms of employment, but adds that a statutory procedure for dealing with such problems is in existence and must be complied with.
4. 83. The Committee has always been guided by the principle that allegations relating to the right to strike are within its competence so far as they affect the exercise of trade union rights. The Committee has also considered that the right to strike as a legitimate means of defence of their occupational interests is generally recognised, provided that the right is exercised with due regard to temporary restrictions placed thereon (e.g. suspension of strikes during conciliation and arbitration procedures and, in the case of essential services, due notice of the intention to strike which is normally required in such services)."
5. 84. The Committee now observes that the Presidential Decree of 23 March 1936 and others supplementing it apply to labour disputes in Peru and lay down a procedure for their settlement: this starts with direct discussion between workers and employers, continues with a conciliation stage in which the authorities are to take part, and culminates with arbitration. It does not appear from the documents at the Committee's disposal that the above procedure was followed in the present case; indeed, the Government's reply and the preamble to Decree No. 009 appear to indicate the contrary. Moreover, it would seem that the strike was directed against the dismissals decided on by the employers, in virtue of the authority given in Decrees Nos. 007 and 008, because of non-compliance with certain terms of employment applying in the banks.

85. The Committee also observes that the decree declaring the strike unlawful was a transitory measure and that the Bank Employees' Federation has meanwhile decided to call off the strike and is negotiating the reinstatement of the dismissed employees. In these circumstances the Committee considers that no purpose would be served by continuing to examine the case, and recommends the Governing Body to decide that it does not call for further examination.