Report in which the committee requests to be kept informed of development - Report No 359, March 2011

Case No 2639 (Peru) - Complaint date: 15-APR-08 - Closed

Allegations: Interference by the budgetary authorities in the collective bargaining process of state enterprises

1. 1053. The Committee examined this case at its November 2009 meeting and presented an interim report to the Governing Body [see 355th Report, paras 977–1015, approved by the Governing Body at its 306th Session (November 2009)].
2. 1054. The Federation of Peruvian Light and Power Workers (FTLFP) sent new allegations in a communication dated 2 December 2009. The Government sent its observations in communications dated 12 November 2009 and 7 February 2011.
3. 1055. 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. 1056. In its previous examination of the case in November 2009, the Committee made the following recommendation with regard to the pending issues [see 355th Report, para. 1015]:
2. The Committee awaits the Government’s specific observations on the allegations contained in the latest communication [of 3 November 2008] from the complainant organization, concerning attempts to make the trade unions relinquish the entitlement enjoyed in several public enterprises to take union leave at any time and particularly anticipates the information expected by the FONAFE and the labour inspection on these issues.
3. 1057. The complainant’s allegations of 3 November 2009 referred to in the Committee’s recommendation [see 355th Report, paras 982–987] are reproduced below.
4. 1058. In its communication of 3 November 2008, the complainant refers to the case of the Electro Sur Medio SAA – the enterprise – in which two of its affiliated first-level trade unions, the Single Trade Union of Workers and Employees of Electro Sur Medio SAA ICA–NASCA and its subsidiaries and Allied Workers and the Single Trade Union of Workers of Electricidad Regional Sur Medio SAA Pisco–Chincha, operate and, at the time of the complaint, were negotiating the lists of demands for 2007–08 and 2008–09. The complainant states that on 22 September 2008 the aforementioned unions contacted the enterprise and the Ica Regional Labour Authority about the decision by members to launch an unlimited nationwide strike, which had received majority approval because of the refusal by the enterprise to settle the list of demands for 2007–08.
5. 1059. The decision to go on strike was taken on 9 and 11 September at assemblies convened and organized by the respective executive committees, in accordance with the trade unions’ own rules and the provisions of the Collective Labour Relations Act.
6. 1060. Nevertheless, in a letter of 23 September 2008, in response to the notice of strike action and in blatant disregard of the right to collective freedom of association, the enterprise stated: “We have taken note of your undated communication giving notice of your decision, as recorded in the minutes of your assemblies of 9 and 11 September, to launch an unlimited general strike from midnight on 7 October 2008. During those assemblies, it would seem that your members made their decision without knowing that, on 18 September, you were called to our head office in order to be informed that we have accepted your latest comprehensive pay proposal, with the sole proviso being agreement to the union leave limits established by law, which is reasonable in the light of this enterprise’s needs in an extremely difficult economic situation”.
7. 1061. The employer thus accuses the two unions of having held the general assemblies of workers and of having agreed on strike action without informing union members of the employer’s proposal to increase pay on condition that union officials involved in collective bargaining relinquished their ability to take union leave at any time, as is provided for in the collective agreements concluded with the enterprise. This is a clear example of blatant interference in union activities – protection against which is provided under Article 2 of ILO Convention No. 98 – and is especially serious considering that, as is explained below, the enterprise is seeking to make the relinquishment of union officials’ right to take union leave at any time a condition for settling the collective bargaining demands for 2007–08, which is also a violation of freedom of association.
8. 1062. The complainant organization notes that, in another paragraph of the letter, the legal representative of the enterprise stated that: “Apparently, taking into account that the agreements were reached at the assemblies of 9 and 11 September 2008, the workers were unaware that your latest demand for a pay rise was accepted by the enterprise on 18 September. We therefore find it particularly remarkable that the workers want to launch an unlimited strike simply for a trade union benefit that will in no way affect free trade union activity, which we have always respected”.
9. 1063. It should be noted in this regard that, pursuant to section 32 of the Collective Labour Relations Act No. 25593, which is now part of the single consolidated text approved by Supreme Decree No. 010-2003-TR, union leave over and above the legal minimum of 30 calendar days, as provided for by the Act, must be respected, unless, in this specific case, the parties agree to amend the collective agreement which gave rise to the trade union leave entitlements at the enterprise. In this regard, the refusal of the abovementioned unions to negotiate and surrender the right to take union leave at any time, which is recognized under the collective agreements reached with the enterprise, cannot be used as a condition for and an obstacle to settling the demands for 2007–08. In particular, the enterprise proposes, as a condition for increasing pay and settling the dispute, that recognized entitlements to take union leave at any time should be limited to the number of leave days set by law (30 days per year), as referred to in section 32 of the Collective Labour Relations Act.
10. B. The complainant’s new allegations
11. 1064. In its communication of 2 December 2009, received at the ILO on 14 December 2009, the FTLFP alleges the following violations of collective bargaining in state electricity enterprises:
12. – At Electro Oriente SA, violation of the collective agreements of 2008 and 2009: the increase in basic wages is not being paid to some of the workers, despite this being stipulated by the collective agreements.
13. – At Electro Sur SA, violation of the collective agreements of 2007, 2008 and 2009: the increase in basic wages is not being paid to some of the workers, despite this being stipulated by the collective agreements.
14. – At Sociedad Eléctrica del Sur Oeste – SEAL, the increase in basic wages has not been paid to some of the workers for several years, despite this being stipulated by the collective agreements.
15. – At Electropuno SA, the increase in basic wages is not being paid to some of the workers, despite this being stipulated by the collective agreement of 2009.
16. C. The Government’s reply
17. 1065. In its communication dated 12 November 2009 the Government declares that, as regards the supposed attempts (alleged by the complainant) to make the trade unions surrender the right that they enjoy in various state enterprises to take union leave at any time, a request has been made, by means of official letter No. 958-2009-MTPE/9.110, to the National Fund for Financing State Enterprise Activity (FONAFE) to express its institutional opinion on these aspects, and the reply will be forwarded to the ILO in due course. In addition, by means of official letter No. 957-2009-MTPE/9.1110, a request has been made to the National Directorate of Labour Inspection to supply information on inspections it has ordered in state enterprises in connection with observance of union leave entitlements.
18. 1066. In its communication dated 7 February 2011, the Government indicates it has requested information from relevant entities about the allegations concerning the application of union leave in the public companies mentioned. The Government indicates that the FONAFE declares that the legal system has established certain rules or mechanisms to ensure compliance with the recognition of collective rights. These mechanisms include union leave on the basis of which article 32 of Decree No. 010.2003.TR, unique text of the Act on Industrial Relations (TUO of the LRCT) establishes that an employer is required to give each union official union leave up to a maximum of 30 days per calendar year. Regarding the attribution of the union leave, FONAFE adds that it is necessary that a relationship exists between the parties. However, in this case, FONAFE is not the employer of any member of the union. Therefore, it is the responsibility of every company which employs unionized workers to define access to union leave. Moreover, FONAFE has never tried to suspend the union leave to the union leaders mentioned, nor does it have the legitimacy to do so. The Government adds that the Ministry of Labour and Employment Promotion has requested FONAFE to supply additional information regarding the application of union leave in companies and entities within its framework. Once this information is received, it will be brought to the attention of the Committee.

D. The Committee’s conclusions

1. 1067. The Committee recalls that, according to the allegations, Electro Sur Medio SAA has sought to make the relinquishment of union officials’ right to take union leave at any time a condition for settling the collective bargaining demands for 2007–08, stating that such leave should be limited to the number of leave days established by law (30 days per year), as referred to in section 32 of the Collective Labour Relations Act. The complainant also claims, however, that under section 32 of the Act, union leave over and above the legal minimum of 30 calendar days must be respected unless the parties agree to amend the collective agreement.
2. 1068. The Committee observes that the Government, in its reply to the Committee’s recommendation in its last examination of the case, transmits the opinion of FONAFE concerning the alleged attempts to make the electricity sector trade unions relinquish their entitlement to take union leave at any time and that FONAFE indicates that the questions regarding union leave must be addressed to the enterprises concerned. The Government adds that it has requested the National Directorate of Labour Inspection to supply information on trade union leave and that it has also requested the enterprise to forward this information.
3. 1069. The Committee awaits the information announced by the Government concerning the allegations relating to trade union leave, including information from the enterprise concerned and other information on inspections made at the enterprise. The Committee expects that this information will be sent without delay.
4. 1070. As regards the new allegations contained in the complainant’s communication dated 2 December 2009, the Committee observes that they concern the failure to pay the increase in basic wages to some of the workers despite such payment being stipulated by the collective agreements applicable at the enterprises Electro Oriente SA, Electro Sur SA, SEAL and Electropuno SA. In view of the lack of reply from the Government to these allegations, the Committee reiterates the importance of compliance with the terms of collective agreements, which should be binding on the parties [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 939] and requests the Government to conduct an investigation and, if the failure to pay the increase in basic wages at the enterprises concerned is proven, to take steps to ensure that the workers receive the pay increase in question. The Committee requests the Government to keep it informed in this respect.

The Committee's recommendations

1. 1071. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee awaits the information announced by the Government concerning the allegations relating to trade union leave at the Electro Sur Medio SAA enterprise, including information from the enterprise concerned and other information on inspections made at the enterprise. The Committee expects that this information will be sent without delay.
   • (b) Furthermore, with regard to the alleged non-compliance with certain collective agreements, the Committee reiterates the importance of compliance with the terms of collective agreements, which should be binding on the parties, and requests the Government to conduct an investigation and, if the failure to pay the increase in basic wages provided for in the collective agreements at the enterprises Electro Oriente SA, Electro Sur SA, Sociedad Eléctrica del Sur Oeste – SEAL and Electropuno SA is proven, to take steps to ensure that the workers receive the pay increase in question. The Committee requests the Government to keep it informed in this respect.