Report in which the committee requests to be kept informed of development - Report No 325, June 2001

Case No 2049 (Peru) - Complaint date: 03-AUG-99 - Closed

Allegations: Refusal by the authorities to engage in collective bargaining in the public sector; decrees restricting the right to collective bargaining; detentions and bodily harm in the course

of a strike

1. 510. The Committee last examined this case at its November 2000 meeting and presented an interim report [see 323rd Report, paras. 431-456, approved by the Governing Body at its 279th Session (November 2000)]. The Government sent its observations in a communication dated 18 January 2001.
2. 511. 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. Previous examination of the case

1. 512. During the previous examination of the case in November 2000 [see 323rd Report, paras. 431-456], the following allegations remained pending:
   • The members of the National Unified Federation of Health Workers (FENUTSSA) received a clear refusal from the Ministry of Health to negotiate upon the list of claims they presented this year, with the argument that, this year, the education sector required extra finances for the purpose of increasing the pay of administrative staff in various regions of the country. Similarly, the list of claims presented to the Ministry of Education by the United Education Trade Union of Peru (SUTEP), the Unified Trade Union of Education Centre Workers (SUTACE) and the National Federation of Education Administrative Workers (FENTASE) was disregarded upon grounds similar to those invoked in the health sector. All of this occurred despite the fact that salaries of public servants in health and education have been frozen for several years.
   • In its communication dated 31 August 1999, the CGTP alleges that on 19 July 1999 the Government handed over the railways of the state enterprise ENAFER S.A. to a consortium of private companies with domestic and foreign capital. This meant the dismissal of all workers already having undergone three staff rationalization operations involving more than 4,000 lay-offs since 1991. The dismissals constitute a case of abuse by the Government, given that a technical study by the World Bank indicates that the staff necessary for the enterprise to function is 1,859 workers. The new operator is only required to recruit former ENAFER S.A. workers to meet its own needs; the recruitment is for one year and may be carried out directly or through third parties. In this way, the majority of the 1,772 workers will lose their jobs when they are above 40 years of age and, also, the majority of those that manage to be recruited will be so by third parties. The CGTP points out that the offers made to the trade unions by ENAFER S.A. to bring about their acceptance of the terminations was to pay compensation to the tune of 186 nuevo sols (less than US$60) in respect of each year of service – which is equivalent to the present basic wage of an ENAFER S.A. worker with 25 to 30 years of service. This remuneration is lower than the minimum remuneration for the purpose of calculating compensation, which is currently set at 370 nuevo sols per year of service and an indemnity of $1,000. The enterprise’s proposals were turned down.
   • The railway union representatives made a counter-proposal: recruitment guarantees for a minimum of five years; an increase in basic remuneration comprising 186 nuevo sols of basic wage, an “economic package” of 500 nuevo sols per month that had already been paid; a compensatory bonus of $5,000, etc. This counter-proposal was rejected and ENAFER S.A. sent out notarial letters to each of the 1,772 workers. These letters invited them to accept its proposal, setting a deadline of 19 August 1999 for the return of the signed letters, failing which they were threatened with termination as part of a collective dismissal already accepted by the Ministry of Labour, with the loss of the $1,000 indemnity and with not being included in the list of workers to be supplied to the new operator for recruitment purposes. The CGTP adds that, in these circumstances, it was agreed to call a strike on 20 August 1999. On 25 August, the Government initiated indiscriminate, unjustified and brutal repression of railway workers, their spouses and children camping out around the railway stations of Chosica (Lima), Cuzco and Arequipa. This violent repression left many people injured with contusions and instances of asphyxia, above all amongst the children and women on account of the large quantity of tear gas used by the police. In Cuzco, 75 workers were detained. On 26 August, there was industrial action in Lima, organized jointly by the telephone- and dockworkers’ unions, as well as in Arequipa and Chosica to protest at the police repression. Meetings were held with the chairpersons of the National Congress Labour and Transport Committees as well as with the Deputy Minister of Transport although, to date, the Government’s position has remained unchanged and it has declared the strike illegal.
   • In this respect, the Committee had urged the Government to send, without delay, its observations regarding (i) the refusal by the authorities to negotiate with the public sector trade unions FENUTSSA, SUTEP, SUTACE and FENTASE, whose workers’ wages had been frozen for several years; and (iii) the declaration that a strike in ENAFER S.A. was unlawful; and physical attacks upon and detention of strikers.
2. 513. In addition, the Committee recalls that the complainants had criticized Emergency Decree No. 011-99, Ministerial Resolution No. 075-99-EF/15 and Emergency Decree No. 004-2000 (for making pay increases in the framework of collective bargaining subject to each worker’s productivity), and that in this respect the Committee had requested the Government to indicate whether those affiliates covered by the collective agreement and who had received a negative evaluation were entitled to the special bonus negotiated by the parties.

B. The Government’s reply

1. 514. In its communication dated 18 January 2001, as regards the alleged refusal by the competent authorities to negotiate with the public sector trade unions FENUTSSA, SUTEP, SUTACE and FENTASE – the former being a health sector union and the rest being unions in the education sector – the Government states that: (1) in compliance with the Committee’s recommendations, in the case of the National Unified Federation of Health Workers (FENUTSSA), the Ministry of Health has been asked to state why it has not negotiated with this trade union, in order to be able to provide more complete information; and (2) likewise, in the cases of the SUTEP, SUTACE and FENTASE trade unions, the Ministry of Education has been requested for information concerning the refusal to negotiate with these trade unions.
2. 515. The Government adds that the collective rights of public servants are protected by the Constitution, as stated in article 42 of the Political Constitution of Peru, and that the right of public sector employees to collective bargaining is protected by sections 24 and 25 of Presidential Decree No. 03-82 PCM. The Government states further that any person who considers that the abovementioned provisions have not been complied with may assert his or her rights through the various mechanisms provided for by the legal system. The Government denies that the pay of public administration employees has been frozen, since some increases have been granted through provisions enacted by the Government itself and, moreover, it should be borne in mind that unilateral increases in these workers’ wages depends on the necessary budgetary resources being available.
3. 516. As regards the alleged declaration that the strike held in ENAFER S.A. beginning on 20 August 1999 was unlawful, the Government states that the ENAFER S.A. enterprise had informed the Inspections Subdirectorate of the Ministry of Labour and Social Welfare on 20 August 1999 that it had read in a leaflet of the National Federation of Railway Workers of Peru that an open-ended general strike beginning on 20 August 1999 had been declared. According to the Government, the alleged reason for the strike was a mass lay-off allegedly under the pretext of handing over ENAFER S.A. to Ferrocarriles del Perú, adding that the industrial action would affect the Callao, Lima, Chosica, La Oroya, Huancayo and Cerro de Pasco sections. The Government states further that faced with this, the enterprise requested that this industrial action be declared illegal for not meeting the requirements laid down in Legislative Decree No. 25593, the Collective Labour Relations Act, and the regulations made under it, Presidential Decree No. 011-92-TR, requesting that an on-site inspection be carried out at the Desamparados station, located at No. 201, Ancash Street, Lima, and at the Chosica station.
4. 517. The Government states that when the labour administration authority carried out the inspections at the Desamparados and Chosica stations, it noted that there was a stoppage of work in both places, and therefore the open-ended general strike begun on 20 August 1999 by the 306 employees at the Lima station and 101 unionized employees at the Chosica station, belonging to the ENAFER enterprise was declared illegal by Subdirectorate Order No. 302,744-99-DRTSPL-DPC-SDIHSO-T2, issued in accordance with section 81 of Legislative Degree No. 25593, on the grounds that the requirement laid down in clause (c) of section 73 of the Collective Labour Relations Act and clause (a) of section 65 of the regulations made under it had not been met. According to the Government, it is clear from the above that this strike was declared illegal in accordance with the law, owing to failure to meet the requirements for carrying it out, such as notification of the employer and the labour administrative authority. As regards the alleged physical attacks on and detention of strikers, the Government points out that it is unable to comment on this, since the alleged victims have not been identified, neither have the acts been proven; the Government states that in any case, if these acts did occur, the victims have the right to institute legal proceedings with the judiciary.
5. 518. As regards the question whether the workers covered by the collective agreement who have received a negative evaluation are entitled to the special bonus negotiated by the parties, the Government states that the award of the single productivity bonus requires, under other conditions, that the amount be set in accordance with the worker’s level of responsibility, contribution and commitment, as reflected in an evaluation process. The evaluation criteria must be determined by the owner, directorate, or board of directors of the responsible enterprise. Given that this is a productivity bonus, it is important to evaluate the worker’s output in order for it to be awarded, as it is based precisely on the worker’s output and production.

C. The Committee’s conclusions

1. 519. As regards the alleged refusal of the authorities to negotiate with the following public sector trade unions: the National Unified Federation of Health Workers (FENUTSSA), the United Education Trade Union of Peru (SUTEP), the Unified Trade Union of Education Centre Workers (SUTACE) and the National Federation of Education Administrative Workers (FENTASE), whose salaries, according to the complainants, have been frozen for several years, the Committee notes that, according to the Government: (1) the Ministry of Health (in the case of FENUTSSA) and the Ministry of Education (in the case of SUTEP, SUTACE and FENTASE) have been requested to state why they did not negotiate with the abovementioned trade unions; (2) the public sector workers’ right to collective bargaining is protected by Presidential Decree No. 03-82-PCM and any person who considers that its provisions have not been complied with may assert his or her rights through the machinery provided for by the legal system; and (3) the salaries of public administration workers have not been frozen; some increases have been granted. In this respect, the Committee recalls that Article 4 of Convention No. 98 provides that measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and utilization of machinery for voluntary negotiation between employers or employers’ organizations and workers’ organizations, with a view to regulation of terms and conditions of employment by means of collective agreements. In these circumstances, the Committee requests the Government to take the necessary measures to encourage and promote collective bargaining with the trade unions concerned, in particular regarding the matters within the competence of the Ministries of Health and Education.
2. 520. As regards the alleged declaration by the administrative authorities that a strike held in August 1999 in the ENAFER S.A. enterprise (railways sector) was illegal, the Committee notes that, according to the Government, the strike was declared illegal because it did not meet the requirements laid down in section 73(c) of the Collective Labour Relations Act and in section 65(a) of the regulations made under it (notification of the strike to the employer and the administrative authorities). The Committee has in the past accepted that certain prerequisites can be required in order to render a strike lawful, provided they are reasonable, in particular the obligation to give prior notice [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, paras. 498 and 502]. In this respect, the Committee recalls that transport in general, including railways, does not constitute essential services in the strict sense of the term (that is, services the interruption of which would endanger the life, personal safety or health of the whole or part of the population), and therefore the workers in this sector should enjoy the right to strike, and emphasizes the importance which it attaches to the principle that “responsibility for declaring a strike illegal should not lie with the Government, but with an independent body which has the confidence of the parties involved” [see Digest, op. cit., 4th edition, 1996, para. 522] and requests the Government to take measures so that in future the determination of the legality of strikes be carried out by an independent body which has the confidence of the parties involved and not by the administrative authority.
3. 521. As regards the alleged physical attacks upon and detention of strikers during the strike carried out by the ENAFER S.A. workers, mentioned in the previous paragraph, the Committee notes that the Government states that it is unable to comment on these allegations, since the victims have not been identified and that in any case, if these acts did occur, the victims have the right to institute legal proceedings. In this respect, observing that the complainants alleged that violent police repression had been carried out around the Chosica, Cuzco and Arequipa railway stations against the workers and their families and that other trade unions had protested against these acts, the Committee deplores the fact that the Government has not instituted an inquiry concerning these allegations. In these circumstances, the Committee urges the Government to take steps to ensure that an independent inquiry be instituted into the alleged acts of violence, with a view to clarifying the facts, determining responsibility and punishing those responsible. The Committee requests the Government to keep it informed in this respect.
4. 522. As regards Emergency Decree No. 011-99, Ministerial Resolution No. 075-99-EF/15 and Emergency Decree No. 004-2000 criticized by the complainants (for making pay increases in the framework of collective bargaining subject to each worker’s productivity) and the Committee’s request to indicate whether those workers covered by the collective agreement and who have received a negative evaluation are entitled to the special bonus negotiated by the parties, i.e. whether they would be able to receive pay increases, the Committee notes that, according to the Government, given this is a productivity bonus (pay increase), it is important to evaluate the worker’s output in order for it to be awarded, since it is based precisely on the worker’s output and production. In this respect, the Committee emphasizes that provisions which, through a decree by the executive branch or through legislation, impose productivity criteria on the parties to bargaining for the award of pay increases to the workers and exclude general pay increases limit the principle of free and voluntary collective bargaining enshrined in Convention No. 98. In these circumstances, the Committee requests the Government to repeal the decrees and resolution criticized by the complainants, so as to guarantee that the parties themselves decide whether they wish to include productivity criteria in determining wages in collective bargaining.

The Committee's recommendations

1. 523. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government to take the necessary measures to encourage and promote collective bargaining with the trade unions concerned in particular regarding the matters within the competence of the Ministries of Health and Education.
   • (b) The Committee requests the Government to take measures so that in future the determination of the legality of strikes is carried out by an independent body which has the confidence of the parties concerned and not by the administrative authority.
   • (c) The Committee urges the Government to take steps to ensure that an independent inquiry is instituted into the alleged acts of violence committed during the strike held in August 1999 against the workers of ENAFER S.A. (violent police repression around the Chosica, Cuzco and Arequipa stations against workers and their families) with a view to clarifying the facts, determining responsibility and punishing those responsible. The Committee requests the Government to keep it informed in this respect.
   • (d) The Committee requests the Government to repeal Emergency Decree No. 011-99, Ministerial Resolution No. 075-99-EF/15 and Emergency Decree No. 004-2000 so as to guarantee that the parties themselves decide whether they wish to include productivity criteria in determining wages in collective bargaining.