Report in which the committee requests to be kept informed of development - Report No 307, June 1997

Case No 1878 (Peru) - Complaint date: 09-APR-96 - Closed

Allegations: Acts of discrimination through the reclassification of workers into positions of trust

1. 446. The Committee examined this case at its meeting of March 1997 and presented an interim report to the Governing Body (see 306th Report of the Committee, paras. 520 to 540, adopted by the Governing Body at its 268th Session (March 1997)).
2. 447. The Government sent new observations in a communication dated 28 February 1997.
3. 448. Peru has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No.87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98) and the Labour Relations (Public Service) Convention, 1978 (No. 151).

A. Previous examination of the case

1. 449. In the recommendations that it formulated at its meeting in March 1997, the Committee proposed to examine the allegation by the Single Trade Union of Workers of the Peruvian Broadcasting Company (SUTRACPR) concerning the carrying out of acts of anti-union discrimination by the enterprise in the light of the Government's reply received on 28 February 1997 (see 306th Report, para. 540).
2. 450. In it allegations, the SUTRACPR states that the Peruvian Broadcasting Company imposed a programme for the mass reclassification of 230 workers, all trade union members including all the union's leaders, into positions of trust. Since under national legislation workers in positions of trust can neither be union members nor bargain collectively, it can be concluded that this measure is an attempt by the enterprise to eliminate the trade union organization.

B. The Government's reply

1. 451. In its communication of 28 February 1997, the Government states that the Peruvian Broadcasting Company, pursuant to Legislative Decree No. 728, an Act to promote employment and its Regulations, validly reclassified 218 workers as employees in positions of trust or managerial staff. The Government adds, however, that under section 35 of the above-mentioned Regulations, workers may appeal to the judicial authority in the event that they disagree with the employer's classification. None of the 218 workers classified as employees in positions of trust or managerial staff took any legal action against the enterprise in this respect. Finally, the Government states that under section 12(b) of the Act respecting collective labour relations, workers who are members of the managerial staff or hold positions in the trust of the employer may not belong to a trade union, except where the statutes make express provision for such a situation.

C. The Committee's conclusions

1. 452. The Committee, in noting the information, regrets that the Government has not provided any information to clarify the allegedly anti-union nature of the programme for the mass reclassification of 218 workers into positions of trust or as managerial staff, especially bearing in mind that as pointed out by the complainant, all the workers classified as employees in positions of trust or managerial staff are trade unionists, and include all the union's leaders, a fact which was not denied by the Government.
2. 453. In this respect, the Committee once again draws the Government's attention to the fact that It is not necessarily incompatible with the requirements of Article 2 of Convention No. 87 to deny managerial or supervisory employees the right to belong to the same trade unions as other workers, on condition that two requirements are met: first, that such workers have the right to form their own associations to defend their interests and, second, that the categories of such staff are not defined so broadly as to weaken the organizations of other workers in the enterprise or branch of activity by depriving them of a substantial proportion of their present or potential membership.
   • The Committee recalls that - "An excessively broad interpretation of the concept of "worker of confidence", which denies such workers their right of association, may seriously limit trade union rights and even, in small enterprises, prevent the establishment of trade unions, which is contrary to the principle of freedom of association."
   • In this context, "Legal provisions which permit employers to undermine workers' organizations through artificial promotions of workers constitute a violation of the principles of freedom of association." (See Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, paras. 231, 233 and 234 respectively.)
   • The Committee requests the Government to ensure that in future the application of such classification programmes is not used to carry out acts of anti-union discrimination, and to examine the relevant legislation to ensure that it takes into account fully the principles already cited.

The Committee's recommendations

1. 454. In the light of the foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) As regards the allegation by the Single Trade Union of Workers of the Peruvian Broadcasting Company (SUTRACPR), the Committee requests the Government to carry out an investigation into the allegedly anti-union nature of the programme for the mass reclassification of 218 workers into positions of trust and as managerial staff and to keep it informed in this respect.
   • (b) The Committee requests the Government to ensure that in future staff reclassification programmes are not used to carry out acts of anti-union discrimination, and to examine the relevant legislation to ensure that it takes into account fully the principles cited in the conclusions concerning the right of workers in positions of trust to organize and the abuse of artificial promotions.