Definitive Report - Report No 306, March 1997

Case No 1845 (Peru) - Complaint date: 28-APR-95 - Closed

Allegations: Violations of the right to bargain collectively

1. 509. The Committee examined this case at its March 1996 meeting and submitted an interim report to the Governing Body (see 302nd Report, paras. 495-518, approved by the Governing Body at its 265th Session (March 1996)). The Government sent new observations in a communication dated 28 January 1997.
2. 510. Peru has ratified the Freedom of Association and the Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the case

1. 511. In the previous examination of the case, the allegation remained pending concerning the "individual agreement" in the Luz del Sur SA enterprise (appended by the complainants), under which Luz del Sur SA enterprise granted, before the initiation of collective bargaining, an increase in remuneration and other benefits to non-unionized workers. The Committee requested the Government to communicate its observations in this respect as a matter of urgency (see 302nd Report, para. 518(d)).
2. 512. According to the complainants and specifically the Unified Trade Union of Electricity Workers (SUTREL) (see 302nd Report, para. 501), before collective bargaining began, the Luz del Sur SA enterprise offered the workers an "individual agreement" that granted staff an increase in wages and other benefits so long as they were not union members, in the hope that workers would relinquish their membership of SUTREL. The following is an extract from this "individual agreement":
3. This document constitutes an individual agreement on an increase in remuneration and the granting of other benefits between, on the one hand, Mr. César Berghüsen G., Manager of Human Resources, representing Luz del Sur, and, on the other, the non-unionized employee who signs this agreement (subsequently referred to as "the worker"), the terms and conditions of which are as follows:
4. FIRST - This agreement is entered into as part of the proposal on increased remuneration and other benefits offered by Luz del Sur to its non-unionized staff, in as much as the absolute majority of the enterprise's employees (excluding senior management and staff with special responsibilities) do not belong to any trade union organization and are therefore not covered by the collective negotiations for the period 1994-95 conducted by trade unions which by law do not represent them; this proposal is accepted by the worker in place of the benefits payable to the unionized members of the staff as a result of the collective bargaining conducted from October 1994 to September 1995.
5. SECOND - In the light of the first clause, Luz del Sur agrees to grant the worker the following benefits:
6. (a) An extra bonus. (...)
7. (b) An increase in remuneration. (...)
8. (c) An increase in other benefits. (...)
9. (d) An economic certificate. (...)
10. Both parties declare that they are in agreement with the foregoing clauses in virtue of which they have signed this agreement in Lima on .. April 1995.
11. Luz del Sur The worker
12. B. The Government's reply
13. 513. In its communication of 28 January 1997, the Government states that under section 9, paragraph 1 of the Industrial Relations Act (Legislative Decree No. 25593), in matters of collective bargaining, the trade union with the absolute majority of members amongst workers in its area assumes the representation of all these workers, even if they are not members of the trade union. Section 42 states that the collective labour convention is binding on the parties to it, on those persons on whose behalf it has been signed and to whom it is applicable, as well as on workers joining later the enterprises covered by the agreement - with the exception of those in positions of management or responsibility. Similarly, section 43(a) states that the collective labour agreement amends the relevant aspects of the labour relationship and also points out that individual contracts are automatically brought in line with the agreement and cannot contain provisions prejudicial to the worker. From the above, it may be inferred that the collective agreements signed in accordance with Legislative Decree No. 25593 take precedence over those of an individual nature inasmuch as they comply with the following requirements: (a) the trade union has an absolute majority of members in the area it covers; and (b) the benefits granted are better than those contained in the individual agreements. In this respect, the judicial order is attempting to safeguard the interests of workers within a framework of equity and justice, in order to guarantee industrial peace which is the cornerstone of national development.

C. The Committee's conclusions

1. 514. The Committee notes that in this case the complainant organizations object to the individual agreements offered by the Luz del Sur SA enterprise to non-unionized workers granting them an increase in wages and other benefits "in place of the benefits payable to the unionized members of the staff as a result of the collective bargaining conducted from October 1994 to September 1995".
2. 515. The Committee notes the Government's statements and particularly that collective agreements under Legislative Decree No. 25593 (Industrial Relations Act) should prevail over those of an individual nature if they fulfil the following requirements: (a) that the trade union represents the majority of the workers included in its area of activity; and (b) that the benefits granted are higher than those previously agreed upon.
3. 516. The Committee notes that the Government has not sent specific observations on the legality and scope of the individual agreements in the Luz del Sur SA enterprise to which the complainants object and restricts its comments to the provisions relating to this matter under Legislative Decree No. 25593 (Industrial Relations Act). The Committee deduces from the legal provisions mentioned by the Government that the complainant organization (SUTREL) did not represent the absolute majority of the workers, which would allow it to conclude individual agreements under the conditions mentioned in the previous paragraph.
4. 517. The Committee considers that, when in the course of collective bargaining with the trade union, the enterprise offers better working conditions to non-unionized workers under individual agreements, there is a serious risk that this might undermine the negotiating capacity of the trade union and give rise to discriminatory situations in favour of the non-unionized staff; furthermore, it might encourage unionized workers to withdraw from the union.
5. 518. In these circumstances, the Committee urges the Government to ensure that the individual agreements offered by the Luz del Sur SA enterprise to non-unionized workers do not give rise to any discrimination vis-à-vis the workers belonging to SUTREL or undermine the negotiating capacity of this trade union.

The Committee's recommendations

1. 519. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
   • The Committee urges the Government to ensure that the individual agreements offered by the Luz del Sur SA enterprise to non-union workers do not give rise to any discrimination vis-à-vis the workers belonging to SUTREL or undermine the bargaining capacity of this trade union.