Interim Report - Report No 362, November 2011

Case No 2826 (Peru) - Complaint date: 17-NOV-10 - Closed

Allegations: Refusal to negotiate a draft branch collective agreement in the textiles sector; refusal to grant union leave to union officials; dismissals of union members; etc.

1. 1261. The complaint is contained in communications from the Federation of Textiles Workers of Peru (FTTP) dated 17 November 2010 and 11 January 2011.
2. 1262. The Government sent its observations in a communication dated 2 March 2011.
3. 1263. 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. The complainant’s allegations

1. 1264. In its communications dated 17 November 2010 and 11 January 2011, the FTTP alleges that the executive branch needs to take steps to ensure the resumption of dialogue with the National Labour Council and all its constituent committees, and the agenda should include the minimum living wage and decent work, since Peru still has the lowest minimum wage in the whole of South America, and the private sector commercial employers affiliated to the National Society of Industries are the ones seeking a resumption of dialogue. In this context the executive branch needs to set in motion the repeal of Legislative Decree No. 22342 concerning promotion of non-traditional exports, which authorizes employers to hire the number of workers they need through contracts of between one and ten years or more.
2. 1265. The complainant organization also requests the Committee on Freedom of Association to recommend that the textile employers affiliated to the Textiles and Clothing Committee of the National Society of Industries and Association of Exporters (ADEX) cease their campaigns to dismiss workers for joining unions under the protection of Legislative Decree 22342. This legislation removes any limit on the renewal of temporary contracts, which leads to abuses of workers’ rights including employment instability and, in practice, the impossibility of unionizing. The complainant organization indicates that these problems have been going on for the last 32 years in the textiles sector, and enumerates cases of anti-union dismissals of union members or non-renewals of employment contracts following the establishment of unions in ten companies since 2005. The administrative or judicial authorities have sometimes adopted measures but these are often not implemented in full or only after a time.
3. 1266. The complainant organization requests that the Textiles Committee accede to the request made by the Ministry of Labour and Employment Promotion (MTPE) to agree to negotiations on a list of claims for the textiles and clothing sector presented in 2010, as had been done until 1987, given that since 1990, as a result of neoliberal legislation under the Fujimori regime, conditions have been imposed unilaterally at the enterprise level, weakening the trade union movement and leaving thousands of textile workers in a vulnerable situation, without benefits or access to unions.
4. 1267. The complainant organization also alleges that on 31 May 2002, under the Government of Dr Alejandro Toledo, through Resolution No. 092-2002/SBN-GOJAR, the Superintendency of National Assets ordered that the premises of 900.14 square metres used by the complainant federation at Avenue 28 July 1920 in La Victoria District be returned to the State. An administrative resolution issued by the subsequent Administration No. 0952007/SBN-GO-JAD of 22 August 2007, ordered the eviction without any prior notice of said premises (resulting in the loss of property and documentation), and some 410.85 square metres are allocated to the “Micaela Bastidas” Mothers’ Club affiliated to the Aprista Peruano Party for eventual use as a public canteen. The rest of the premises are to be handed over for use as a clinical records repository for the Casimiro Ulloa Hospital. The premises have been used by the Federation for decades for its trade union activities and was made available by the State on the sole condition that a technical textiles school be built there, a condition that could not be met because of unfavourable labour conditions and lack of financial resources and members. This is, however, a pretext for measures to ensure that such a large textiles union is prevented from re-organizing. The complainant federation draws attention to the role played in this by the economic power of the employers acting with the political authorities, in a process that is fraudulent and does not respect due process.
5. 1268. The complainant organization is demanding that textile companies employing officials of the Federation grant them union leave when they request it. It cites the example of the Federation’s General Secretary, who was refused union leave in the company CREDISA – TRUTEX SAA “CREDITEX”.
6. 1269. The complainant organization is demanding a debate in the Congress on the following legislation: the General Labour Act (which has been before Congress for eight years); this would clear up existing confusion arising from the many different existing legal texts in this area; the new Participation in Profits Act; the Act on Branch Lists of Claims; Reform of Social Security (after a delay of 50 years); the restoration of the 1979 Constitution, with a demand that all members of Congress do their duty and live up to their election promises by restoring workers’ acquired rights as set out in Title I, Chapter V (right to work) of the 1979 Constitution, which contains 16 articles on the guarantee of decent work in Peru; repeal of Legislative Decree No. 22342 on the promotion of non-traditional Exports (referred to above); and the Retirement Act, with a view to lowering the retirement age from 65 to 60 years. Lastly, legislation should give greater powers to the MTPE in the matter of sanctions and their implementation. Procedural reforms are also required to enhance the efficiency, rapidity and independence of the labour courts. Finally, stronger sanctions are needed for violations of labour standards.
7. 1270. Finally, the complainant federation refers to other laws and regulations which, it claims, are not consonant with fundamental labour rights: the Act on productivity and competitiveness (No. 728) of 1997, which legalizes dismissals without any reasons being given and promotes flexibility; Legislative Decree No. 728 as amended; the Statute on labour productivity and competitiveness D.S. 003-97-TR, especially the third title. The legislative decree enumerates different categories of employment contract under which workers can be hired in response to different circumstances. These include: temporary contracts; contracts relating to accidents; and contracts for a particular project or contingency. Executive Decree No. 006-20078-TR implements the regulations set out in Legislative Decree No. 1038 and Statute No. 29245, concerning private third-party subcontracting arrangements. Executive Decree No. 006-2008-TR technically allows the establishment of trade unions, but, like Legislative Decree No. 1038 and Statute No. 29245, allows the automatic dismissal of those who do so. Executive Decree
8. No. 075-2008-PCM, implementing Legislative Decree No. 1057 concerning the special system for administrative hiring in the public services sector, allows contracts for one financial year which can be renewed as often as the contracting entity considers necessary.

B. The Government’s reply

1. 1271. In its communication of 2 March 2011, the Government states, in relation to the complainant organization’s request to convene the National Council of Labour and Employment Promotion and for its agenda to include the minimum living wage and decent work, that in Extraordinary Meeting No. 32 of 21 May 2010 the social partners confirmed their willingness to resume tripartite dialogue in the National Council for Labour and Employment Promotion (CNTPE), and to call an ordinary meeting, the priority agenda items including the minimum wage and decent work. As regards the minimum wage, the CNTPE in its Ordinary Meeting No. 93 (23 September 2010) declared itself to be in permanent session to review the minimum wage. In Extraordinary Meeting No. 33 (2 December 2010) the report on the increase in the minimum wage was presented and approved by Supreme Decree No. 011-2010-TR (11 November 2010), which provided for an increase in the minimum wage of PEN50. The calculation took account of the methodology of periodic adjustment for the minimum wage approved by the CNTPE on 23 August 2007. The employers’ representatives proposed that the Special Commission on Productivity and Minimum Wages revise and analyse the warning indicators given in the report on “Growth in productivity and readjustment of the minimum wage” and the differentiated minimum wage. The workers sought to maintain the methodology of periodic adjustment of the minimum wage approved by the CNTPE but also left open the possibility of resuming discussions on the topic in the future. These viewpoints having been established, the permanent session of the Council was declared closed. Finally, it is important to indicate that discussion on this was exhausted in the light of the recent increase, but the possibility has been left open for further discussions in the future.
2. 1272. As regards decent work, in Ordinary Session No. 94 of 2 December 2010, the “Plan of Action of the Ministry of Labour and Employment Promotion for Decent Work” was submitted to the CNTPE by the Director-General for Fundamental Rights and Occupational Safety and Health. It was agreed to reactivate the Council’s standing technical committee on Labour, employment, vocational training and social security, and that they should collaborate on a decent work programme. The Technical Committee for Labour will review the Plan of Action and the proposals agreed by the employers and workers in order to determine the priority topics for discussion in each of the technical committees. In Ordinary Meeting No. 95 of 27 January 2010, the plenary ratified the working methodology approved by the Technical Committee for Labour by which the development of the four main thrusts of the National Decent Work Programme is devolved to the standing committees: effective observance of the fundamental principles and rights at work and promotion of tripartism and social dialogue – Technical Committee for Labour; economic growth to promote employment – Technical Committee on Employment (topics related to training will be examined with the Technical Committee on Vocational Training); and enhancing the efficiency and coverage of social protection systems – Technical Committee on Social Security.
3. 1273. As regards the technical committees, the Technical Committee for Labour has met on four occasions (21 December 2010, 11 and 18 January and 1 February 2001), at which following a review it adopted as a working paper a proposal by the General Directorate for Fundamental Rights and Occupational Safety and Health on “Outlines of a policy on Objectives II and IV of the National Decent Work Plan”. The workers and employers will present their proposals in advance of the 8 February 2011 session; these will complement the proposal of the General Directorate which will be discussed on a tripartite basis at its 8 February 2011 session. The Technical Committee for Social Security convened on 7 February 2011 in Ordinary Session No. 50. At that meeting it took note of the CNTPE agreements regarding involvement of the Commission in the development of the social protection element of the National Decent Work Plan.
4. 1274. As regards the complainant’s demand to repeal Legislative Decree No. 22342 on the promotion of non-traditional exports, this legislation according to the Government was conceived as part of a policy for promoting non-traditional exports and enterprise creation. In order to achieve this goal a special system was established permitting companies to hire staff in the numbers required in order to meet demands for non-traditional exports where the volume of exports is at least 40 per cent of production. For such contracts, specific legal requirements must be met. In order to ensure compliance with these provisions and to prevent them being abused by exporting companies, the MTPE in 2008 drew up guideline No. 002-2008.MTPE/2/11.4 on labour inspection operations in the textiles sector in an attempt to prevent abuse of such contracts by textile enterprises, and efforts are being made to ensure compliance in those enterprises with social and labour obligations and occupational safety and health requirements.
5. 1275. Nevertheless, the Government states that the system is currently under discussion in the Congress, where two bills have been tabled concerning its repeal. These priority Bills Nos 2241/2007-CR and 2272/2007-CR are to be debated by the full Congress. The Committee for Labour has decided in favour, while the Foreign Trade Committee has indicated its opposition. It will be for Congress to decide whether these provisions for the special labour regime in the non-traditional exports sector are to be repealed.
6. 1276. As regards the request by the complainant organization for the textiles and clothing employers of ADEX to cease their campaigns to dismiss workers for joining unions, the complainant indicates that the textiles employers, under protection of the Act on nontraditional exports, continues to dismiss workers for joining unions. It alludes specifically to the situations that have arisen in some textile companies. In particular, laws already in force, and specifically Act No. 228806 (General Labour Inspection Act and its Regulations) approved by Supreme Decree No. 019-2006-TR, deem the following to constitute serious offences in labour relations: (1) failure to comply with provisions governing fixed-term contracts, whatever the contracts be called, any distortion of their provisions, fraudulent use, or use to violate the principle of non-discrimination; (2) any acts that affect the freedom of association of workers or of workers’ organizations, including acts that impede free affiliation to a union, encourage people to leave a union, obstruct the establishment of a union, impede union representation, use employment contracts with conditions that affect freedom of association, collective bargaining and the right to strike, or any attempts to undertake fraudulent subcontracting, or any other act of interference in the organization of unions; and (3) discrimination against workers for engaging in their union activities, whether on indefinite-term contracts, temporary contracts, working part-time, or other arrangements. The Government indicates that the Regulations of the General Inspection Act specifically state that labour inspection orders may include orders to the employer to the effect that in relation to a given worker, where laws or regulations in force have not been respected, a temporary employment contract shall be deemed to be a contract of indeterminate duration and thereby ensure continuity of the worker’s employment, where appropriate. These provisions are intended to safeguard workers’ social and labour rights including the right to form and join a union, irrespective of the nature of their employment contract.
7. 1277. The Government sends abundant information on the administrative and judicial measures taken in ten cases involving enterprises cited by the complainant. This information indicates that inspections are being carried out and fines are being imposed for violations of freedom of association where contraventions are found to have occurred.
8. 1278. The Government also states that, between 2006–10, cases were registered involving workers at various companies cited by the complainant. Numerous case files have been registered with the Administrative Conciliation Service, and as regards the Free Judicial Sponsorship Service, cases have arisen concerning disputes between workers and a number of companies over payment of social benefits and/or compensation for arbitrary dismissals in a number of judicial proceedings involving six textile companies.
9. 1279. The Advisory Office of the Subdirectorate for Free Legal Defence and Advice for Workers provides abundant information on workers’ rights and on the actions workers can take if they are dismissed for belonging to a union or union’s executive body, and requests inspection visits if it considers them to be necessary.
10. 1280. The Government states that the free defence services offered by the MTPE guide and encourage employer enterprises by disseminating socially responsible practices, the aim being to promote the right to equality in all aspects of employment, as provided for in the Political Constitution which enshrines the principle of equal opportunities without discrimination in employment.
11. 1281. As regards the claim by the complainant that the national-level list of demands for the textiles and clothing sector should be discussed at the branch level, the Government states that the Subdirectorate for Collective Negotiations of the MTPE has informed it that:
    • – Case file No. 51994-2010-MTPE/2/12210 of the FTTP and the Textiles Committee of the National Society of Industries was opened on 12 April 2010 for one year as of 15 March 2010 to 14 March 2011; it covers all textile and clothing workers who were in their post at the time, and the main points of the collective agreement are as follows: 15 per cent increase in daily wage rates, may day and night work bonuses, benefits for school attendance and higher education, family benefits, death benefits, paid leave in cases of death in the family, and so on.
    • – On 20 April 2010, the opening of the case file and notification of the parties was ordered with a view to starting the direct negotiations stage in accordance with the Collective Labour Relations Act.
    • – On 28 April 2010, official notification was sent to the workers regarding the resolution of 20 April 2010; the writ of notification no. 50010 was returned with an indication that it was not possible to proceed.
    • – As regards Application No. 61148-2010 of 20 April 2010, the National Society of Industries filed an application to return the list of claims. It is claimed that the goahead was being given to collective talks in which it could not act in a representative capacity. It refers to the decision taken by the extraordinary general meeting of 5 August 1992, in which the Textiles Committee of the National Society of Industries agreed unanimously not to continue negotiations on such lists of claims by branch of activity, and agreed that each enterprise should negotiate with its own employees on matters concerning wage increases and conditions of work in the light of increased production, productivity and its own economic situation.
    • – Through a resolution of 18 May 2010 the Subdirectorate for Collective Negotiations asked the National Society of Industries to clarify whether Action No. 61148-2010 was intended as a formal objection to the collective bargaining process.
    • – Through Application No. 72703-2010 dated 26 May 2010 the National Society of Industries replied that Application No. 61148-2010 is for procedural purposes a formal objection and they endorse its contents.
    • – With the resolution of 28 May 2010 the Subdirectorate for Collective Negotiations resolved to take account of and add to the case file the statements of the National Society of Industries, which are communicated to the union in order for it to state its own case.
    • – To date the FTTP has not resolved the objection of the National Society of Industries.
12. 1282. As regards the return of the premises, now held by the Superintendency of National Assets, demanded by the complainant organization, the FTTP indicates that for 55 years it had been granted use of the premises in question by the State, on the sole condition that it had to build a technical school: this it was unable to do and, as a result, the premises were taken from them by the superintendency. Information was requested on this from the superintendency which stated that:
    • – The State is the owner of the 900.14 square metre site at Avenue 28 July 1920 in La Victoria District, Lima Province and Department, land registry number 46789040 and SINABIP No. 12933 – Lima.
    • – In Supreme Resolution No. 113-78-VC-4400 of 29 May 1979, the State attributed the 900.14 square metre site in question to the FTTP to serve as its headquarters and as a technical textiles school.
    • – In Resolution No. 092-2002/SBN-GO-JAR of 31 May 2002, the site which had been allocated to the Federation was re-allocated to the State, on the grounds that in 24 years of use the entity concerned had failed to comply with the conditions concerning the purpose for which it was to have been used.
    • – The State allocated the site to the Federation for the purpose of building its headquarters and a textiles school; however, as 24 years passed without those conditions being met, steps were taken to reallocate the premises; this is an administrative procedure by which the State reassumes direct administration of the site.
13. 1283. As the premises were free, the Department of Adjudications in Resolution No. 095-2007/SBN-GO-JAD of 22 August 2007, as amended by Resolution No. 121-2008/SBN-GO-JAD of 16 October 2008, allocated 402.34 square metres of the total area of 900.14 square metres to the “Micaela Bastidas” Mothers’ Club for the purpose of creating a public canteen. Resolution No. 095-2007/SBN-GO-JAD does not provide for the eviction of the premises but for their allocation to the Mothers’ Club. Subsequently, in Resolution No. 139-2008/SBN-GO-JAD of 24 November 2008, a 479.80 square metre area was allocated to the Ministry of Health to be used for administrative offices of the José Casimiro Ulloa Emergency Hospital. The National Superintendency for State Assets, as the regulatory body in this area, is responsible for supervising state assets, which includes periodic reviews of any action relating to state assets and of compliance with the purpose for which they have been allocated. On 21 January 2011, a technical inspection was carried out at the premises in question and its use as a public canteen was confirmed.
14. 1284. As regards the allegations concerning refusal to grant union leave to union officials of the FTTP, as for example the General Secretary, who was refused union leave by CREDISA – TRUTEX SAA, the Government states that the regulations of the Collective Labour Relations Act (Supreme Decree No. 011-92-TR) stipulate that the union officials entitled to apply for leave from the employer in order to attend events at which their attendance is required include the General Secretary. Section 4 of the Single Text of the Act in question stipulates that the State, employers and their representatives must refrain from any form of action intended to obstruct or restrict in any way the right of workers to form and join unions, or to intervene in any way in the creation, administration or maintenance of union organizations. It is regarded as a very serious offence under section 25 of the regulations of the General Labour Inspection Act to carry out acts that affect the freedom of association of workers or of their organizations, such as those that impede union representation. These provisions are based on article 28 of the Constitution of the Republic, which enshrines collective rights of unionization, collective bargaining and strike action as fundamental human rights. In the light of this legislative framework, the General Secretary of the Federation should not have any difficulty in obtaining union leave from his employer.
15. 1285. The Government also indicates that the labour inspection directorate of the regional directorate for labour and employment promotion of this sector has reported that as regards the company CREDISA – TRUTEX SAA, there has been no report of any order during 2009–10 to carry out an inspection at the company into any acts relating to freedom of association or ant-union discrimination that might include the sort of acts described by the complainant. Nevertheless an inspection initiative in the area of freedom of association has been instigated (Inspection Order No. 29755-2010).
16. 1286. As regards the request by the complainant federation for the legislative authority to table for debate a series of draft laws that are still pending approval, the Government indicates that according to information provided by the Congress of the Republic:
    • – As regards the General Labour Act, Bills Nos 67, 128, 271, 610, 815 and 837 have been submitted for discussion; on 16 May 2007 the Labour Committee issued a favourable ruling, and the issue has been on the agenda since 30 May 2007 to be tabled for discussion in the plenary session. On 28 May 2007, the Board of Spokespersons exempted Bill No. 610 from the ruling of the Committee for Economics, Banks, Finance and Financial Intelligence, which on 28 November 2008 decided against the bill.
    • – As regards the Act concerning the Participation in Profits Act, Bills Nos 1267, 1670, 1686 and 1804 refer to the topic, and on 8 November 2007, the Labour Committee decided in favour, and this has been on the agenda since 22 May 2008 for debate in the plenary.
    • In this regard, on 8 November 2007 the Board of Spokespersons exempted Bills Nos 1679, 1686 and 1804 from the ruling of the Committee for Economics, Banks, Finance and Financial Intelligence, which on 18 November 2008 gave a negative ruling.
    • – As regards the restoration of the Political Constitution of 1979, Bills Nos 129 and 720 have been tabled and have been pending a ruling by the Constitution and Regulations Committee since 11 September and 5 December 2006 respectively.
    • – As regards the repeal of Legislative Decree No. 22342 (Act concerning nontraditional exports), Bills Nos 2241 and 2271 were tabled, and on 4 June 2008, the Commission for Labour gave a favourable ruling which has been on the agenda since 26 September 2008. The Committee for Foreign Trade and Tourism gave a negative ruling on Bill No. 2241.
    • – Regarding the lowering of the retirement age from 65 to 60 years, Bill No. 2101 has been pending a decision by the Social Security Committee since 6 February 2008.
17. 1287. It should be noted that in 2009 the Government promulgated the framework Act No. 29344 on universal health insurance, which establishes a legislative framework for universal health insurance in order to guarantee the full and progressive right of all persons to enjoy social health insurance and to provide legal standards on access to insurance and to its regulation, financing, benefits and supervision. The reform of the social health insurance system is thus under way.
18. 1288. As regards the allegations calling into question the effectiveness and independence of the judicial and labour authorities, the Government states that Section III of the Preliminary Title of Act No. 29497 (the new Labour Procedures Act) stipulates the following:
    • In all labour proceedings judges shall ensure that the inequality of the parties involved does not affect the conduct or outcome and to that end they shall endeavour to ensure real equality between the parties, give priority to substance over form, interpret the requirements and presumptions in respect of procedure in a way that favours continuity of procedure, adhere to due process, judicial protection and the principle of reasonableness. In particular, emphasis shall be placed on these obligations in dealing with pregnant women, minors and disabled persons.
    • Labour judges have a central role in the conduct of proceedings. They shall prevent and punish conduct contrary to the duty to ensure veracity, probity, fairness and good faith among the parties, their representatives, their legal advisors, and third parties.
    • Labour proceedings shall be free of charge for the service provider in all instances when the total amount of the claims does not exceed 70 “procedural reference units”.
19. 1289. The legislative framework thus establishes clear parameters to guide judges, who must aim to ensure equality between the parties. This notwithstanding, the concerns expressed by the Federation will be communicated to the judicial authority.
20. 1290. As regards the implementation of the new Labour Procedures Act, the following should be noted:
    • (a) With Act No. 29497 approval was given for the Labour Procedures Act, which establishes the principles of directness, orality, concentration, rapidity, efficiency and veracity. Its ninth supplementary provision stipulates that the new law will be implemented progressively in the judicial districts specified by the Executive Council of the Judiciary.
    • (b) With Administrative Resolution No. 136-2010-CE-PJ of 13 April 2010 the Executive Council of the Judiciary established the Technical Institutional Team for the Implementation of the Labour Procedures Act.
    • (c) Through Administrative Resolution No. 232-2010-CE-PJ of the Executive Council of the Judiciary, approval was given for the timetable for implementation of the Labour Procedures Act for 2010: (i) Tacna judicial district, from 15 July 2010; (ii) Cañete judicial district, from 16 August 2010; (iii) La Libertad judicial district from 1 September 2010; (iv) Arequipa judicial district, from 1 October 2010 and (v) Lambayeque judicial district, from 2 November 2010.
      • This resolution stipulates that for the purpose of implementing the Act in accordance with the plans, objectives and requirements of the technical team, presiding judges of the aforementioned higher courts are authorized to take any measures that may be necessary. A district commission for the implementation of the Labour Procedures Act must be appointed, headed by the presiding judge of the Higher Court and including a senior judge, a specialist judge, a qualified justice of the peace and the head of the district administration. The commission must coordinate directly with the Technical Institutional Team.
    • (d) Through Resolution No. 310-2010-CE-PJ of the Executive Council of the Judiciary, the Cuzco judicial district was included in the implementation timetable for the Labour Procedures Act from 1 December 2010.
    • (e) Authorization was given to carry out the induction course on the implementation of Act No. 29497 in Cuzco judicial district from 23 to 27 October 2010.
21. 1291. In summary, the Government states that as regards the request to convene the CNTPE to discuss the issue of the minimum living wage and decent work, this has already been done; that as regards the request to repeal Act No. 22342 concerning the promotion of non-traditional exports, this is still pending a debate in the plenary Congress; as regards the complaint regarding alleged dismissals in the textiles sector of workers wishing to join a union, the MTPE, in the exercise of its investigative powers through the Labour Inspectorate, is enforcing workers’ trade union rights.

C. The Committee’s conclusions

1. 1292. As regards the allegation regarding the need to resume dialogue within the National Labour Council (a tripartite body), and for its agenda to include the minimum wage and decent work, the Committee notes with interest the Government’s statements to the effect that dialogue in the National Labour Council has been resumed, that following a number of meetings it agreed to an increase in the minimum wage which was approved by a supreme decree, and that the Council is advancing with work on a decent work programme, identifying its objectives and reaching a number of agreements regarding social protection.
2. 1293. As regards the request by the complainant federation to repeal Legislative Decree No. 22342, the Act concerning non-traditional exports, the Committee notes that according to the Government, there are two priority bills to repeal the legislative decree in question and they are pending debate in the Congress of the Republic. The Committee requests the Government to keep it informed of the debates on this legislative decree in Congress.
3. 1294. As regards the alleged campaigns by the textiles employers to dismiss workers for joining unions since 2005, under protection of the legislative decree referred to above, which according to the allegations facilitates dismissals or non-renewals of contracts for antiunion reasons, the Committee notes the Government’s statements to the effect that Act No. 28806, the General Labour Inspection Act and its Regulations, as approved by Supreme Decree No. 019-2006-TR, deem the following to be very serious violations in labour relations: (1) non-observance of the provisions relating to fixed-term hiring, whatever the type of contract, attempts to distort the terms thereof, its fraudulent use, or its use in order to violate the principle of non-discrimination; (2) acts which affect the freedom of association of a worker or workers’ organizations such as those that impede free affiliation to a trade union, encourage workers to leave the union, obstruct the establishment of unions, obstruct union representation, use temporary employment contracts to undermine freedom of association, collective bargaining and the exercise of the right to strike, or any fraudulent subcontracting arrangements, or any other interference in trade unions; and (3) discrimination against a worker for the free exercise of his or her union activity, whether hired for an indeterminate period, on a temporary contract, working part-time, or under other terms and conditions; in this regard the Regulations of the General Inspection Act stipulate that labour inspection orders may include orders to the employer to the effect that in relation to a given worker, where laws or regulations in force have not been respected, a temporary employment contract shall be deemed to be a contract of indeterminate duration, thereby ensuring a worker’s continuity in employment where appropriate.
4. 1295. The Committee notes that the Government sends abundant information on the administrative and judicial measures taken in connection with the cases of ten enterprises cited by the complainant organization. The Committee notes that, according to the information, inspections have been carried out, and fines have been imposed where violations of freedom of association are found to have occurred; it also notes the various measures mentioned by the Government to promote the exercise of trade union rights.
5. 1296. Under these circumstances, given that the authorities have found violations of trade union rights to have occurred in recent years in a number of textiles enterprises, the Committee requests the Government, pending a decision by the Congress on the repeal of the legislative decree criticized by the complainant federation, to take steps to ensure that the Labour Inspectorate is diligent in its efforts to prevent, verify and, as appropriate, punish any act of anti-union discrimination in the textiles sector.
6. 1297. As regards the alleged refusal since 2010 by the employers of the textiles sector to bargain collectively at the branch level, the Committee notes the Government’s statements to the effect that the Subdirectorate for Collective Negotiations of the Ministry of Labour and Employment Promotion has reported that:
   • – Case file 51994-2010-MTPE/2/12210, of the FTTP and the Textile Committee of the National Society of Industries was opened on 12 April 2010 for a period of one year from 15 March 2010 until 14 March 2011; it covers all textiles and clothing workers who were in their post at the time, the main points of the draft collective agreement being the following: a 15 per cent increase in daily wage rates, May Day bonuses, bonus for night work, benefits for school attendance and further education, family benefits, death benefits, paid leave in the case of death of a family member, and others.
   • – On 20 April 2010, the case file was opened with a view to beginning direct negotiations in accordance with the Collective Labour Relations Act;
   • – On 28 April 2010, an official communication was issued to notify the union of the resolution dated 20 April 2010; as the Notification Writ No. 50010 was returned with an indication that it was not possible to proceed;
   • – With Application No. 61148-2010 dated 20 April 2010, the National Society of Industries sought to return the list of claims. It states that a collective bargaining process was being allowed to proceed in which it could not act in a representative capacity. It refers to the decision adopted by the extraordinary meeting of 5 August 1992, in which the Textiles Committee of the National Society of Industries agreed unanimously not to continue negotiating lists of claims at the branch level, and agreed instead that each enterprise should negotiate the list of claims with its workers, whether with regard to wage increases or conditions of work, in the light of increased production, productivity and its economic situation;
   • – In resolution dated 18 May 2010, the Subdirectorate for Collective Negotiations asked the National Society of Industries to clarify whether Action No. 61148-2010 was intended as a formal objection to the collective bargaining process;
   • – In Action No. 72703-2010 dated 26 May 2010, the National Society of Industries stated that Action 61148-2010 is for procedural purposes a contesting action, the substance of which it endorses;
   • – In resolution dated 28 May 2010 the Subdirectorate for Collective Negotiations resolved to take account of and add to the case file the statements of the National Society of Industries, which are communicated to the union in order for it to state its own case; and
   • – To date the FTTP has not resolved the objection of the National Society of Industries.
7. 1298. The Committee regrets the delays that have occurred in the administrative proceedings due to objections or communication of information by the parties concerned. The Committee has had occasion to examine the question of the level of collective bargaining in Peru [see 338th Report, Case No. 2375], and refers to the conclusions which it formulated in this regard [see 338th Report, paras 1225–1227]:
   • The Committee recalls that measures should be taken 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 the regulation of terms and conditions of employment by means of collective agreements [see Digest of decisions and principles of the Freedom of Association Committee, fourth edition, 1996, para. 781].
   • The Committee recalls that, with regard to the level of collective bargaining, the Collective Bargaining Recommendation, 1981 (No. 163), provides, in Paragraph 4(1), that “measures adapted to national conditions should be taken, if necessary, so that collective bargaining is possible at any level whatsoever, including that of the establishment, the undertaking, the branch of activity, the industry, or the regional or national levels”. The Committee also recalls that, on previous occasions, it has considered that “according to the principle of free and voluntary collective bargaining embodied in Article 4 of Convention No. 98 the determination of the bargaining level is essentially a matter to be left to the discretion of the parties and, consequently, the level of negotiation should not be imposed by law, by decision of the administrative authority or by the case-law of the administrative labour authority [see Digest, op. cit., para. 851]. The Committee has considered that the best procedure for safeguarding the independence of the parties involved in collective bargaining is to allow them to decide, by mutual agreement, the level at which bargaining should take place. Nevertheless, it appears that, in many countries, this question is determined by a body that is independent of the parties themselves. The Committee considers that in such cases the body concerned should be truly independent [see Digest, op. cit., para. 855]. For its part, the Committee of Experts has stated the following:
   • The principle of voluntary negotiation of collective agreements, and thus the autonomy of the bargaining partners, is the second essential element of Article 4 of Convention No. 98. The existing machinery and procedures should be designed to facilitate bargaining between the two sides of industry, leaving them free to reach their own settlement. However, several difficulties arise in this respect, and an increasing number of countries restrict this freedom to various extents. The problems most frequently encountered concern unilateral decision as to the level of bargaining; the exclusion of certain matters from the scope of bargaining; making collective agreements subject to prior approval by the administrative or budgetary authorities; observance of criteria pre-established by the law, in particular as regards wages; and the unilateral imposition of working conditions.
   • As was pointed out in Chapter VII, the right to bargain collectively should also be granted to federations and confederations; any restriction or prohibition in this respect hinders the development of industrial relations and, in particular, prevents organizations with insufficient means from receiving assistance from higher level organizations, which are in principle better equipped in terms of staff, funds and experience to succeed in such bargaining. On the other hand, legislation which makes it compulsory for collective bargaining to take place at a higher level (sector, branch of activity, etc.) also raises problems of compatibility with the Convention. The choice should normally be made by the partners themselves, since they are in the best position to decide the most appropriate bargaining level, including, if they so wish, by adopting a mixed system of framework agreements supplemented by local or enterprise-level agreements [see General Survey of the Reports on 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), 1994, paras 248 and 249].
   • In these circumstances, the Committee requests the Government to take the necessary steps to change article 45 of Decree-Act No. 22593 and article 46 of Act No. 27912 to bring them into conformity with the international labour standards and the principles indicated, so that the level of collective bargaining is determined freely by the parties concerned. With regard to the issue of the level of collective bargaining when the parties are not in agreement, the Committee notes the arguments of the decision of the Constitutional Court of 26 March 2003, favouring in such cases collective bargaining at the level of the branch of activity in the construction sector. The Committee notes the Government’s interest in promoting collective bargaining in accordance with the national Constitution and with Article 4 of Convention No. 98. However, the Committee believes that, when there is no agreement between the parties as to the level of negotiation, rather than a general decision by the judicial authorities favouring negotiation at the level of the branch of activity, it would be more in keeping with the letter and the spirit of Convention No. 98 and Recommendation No. 163 to have a system established by common accord of the parties in which in each new collective bargaining they may assert their interests and points of view in a specific way. The Committee requests the Government to invite the most representative workers’ and employers’ organizations to establish a mechanism to resolve conflicts relating to the level at which collective bargaining should take place.
8. 1299. The Committee reiterates the conclusions and principles enounced in Case No. 2375.
9. 1300. As regards the Administrative Resolutions of 2002 and 2007 of the Superintendency of National Assets, by which, according to the allegations, premises that had been used by the Federation for many years were reclaimed on the grounds that it had not established a technical textile school, all of which was done for anti-union reasons in mind and as a result of connivance between the political authorities and the employer, the Committee notes the Government’s statements to the effect that: (1) the State is the owner of the 900.14 square metre site where the union premises are located; (2) in Supreme Resolution No. 113-78-VC-4400 of 29 May 1979, the State allocated the premises in question to the FTTP for use as its headquarters and for a textiles school; (3) Resolution
10. No. 092-2002/SBN-GO-JAR of 31 May 2002 reclaimed the site from the Federation in favour of the State, on the grounds that 24 years had passed and the Federation had not complied with the terms of use; according to the Government, the Federation had been granted the use of the premises for the purpose of building its headquarters and a textiles school, but 24 years had passed without that condition being met and accordingly the premises were reclaimed; this was an administrative procedure by which the state resumes direct administration of the premises; (4) as the premises in question were free, the Department of Adjudications in Resolution No. 095-2007/SBN-GO-JAD of 22 August 2007, amended by Resolution No. 121-2008/SBN-GO-JAD of 16 October 2008, allocated to the “Micaela Bastidas” Mothers’ Club an area of 402.34 square metres, which is part of the 900. 14 square metres area, for the purpose of creating a public canteen; Resolution No. 095-2007/SBN-GO-JAD does not order eviction but allocates the premises to the Mothers’ Club for its use; (5) subsequently, in Resolution No. 139-2008/SBN-GO-JAD of 24 November 2008, some 479.80 square metres of the total 900. 14 square metres were allocated to the Ministry of Health for use as the administrative offices of the José Casimiro Ulloa Emergency Hospital; (6) the Superintendency of Public Assets as the regulatory body of the national system for management of state assets carries out periodic reviews in relation to the use of state assets and ensures that the conditions of use are being met; on 21 January 2011, a technical inspection of the premises in question was carried out and their use as a public canteen was confirmed.
11. 1301. Taking this information into consideration, and the fact that the complainant federation had held the premises for many years, the Committee requests the Government to inform it whether the complainant has instigated judicial proceedings and, if not, invites it, taking into account the specific features of this case, to consider the possibility of allocating some public premises to the complainant federation for its use.
12. 1302. As regards the allegation concerning the refusal to grant union leave to officials of the FTTP, for example the case of the General Secretary of the Federation, who was refused union leave by the company CREDISA – TRUTEX SAA “CREDITEX”, the Committee notes that according to the Government the Regulations of the Collective Labour Relations Act, Supreme Decree No. 011-92-TR, stipulate that the trade union officials entitled to request leave from the employer in order to attend meetings at which attendance is mandatory include the General Secretary. According to the Government, section 4 of the Single Text of the Collective Labour Relations Act stipulates that the state, employers, and representatives of either, must refrain from any act intended to coerce, constrain or infringe in any way the right of workers to join unions or to intervene in any way in the creation, management or maintenance of workers’ trade union organizations; it is regarded as a very serious infringement in the area of labour relations, under section 25 of the Regulations under the General Labour Inspection Act, to carry out acts that affect workers’ or their unions’ freedom of association, such as those that might obstruct union representation; the provisions of the Act and Regulations are based on article 28 of the Political Constitution which establishes collective rights of association, collective bargaining and strike action as fundamental rights of the person. The Committee notes that the Government emphasizes that the legislative framework described above is such that the Federation’s General Secretary should not face any obstacle in obtaining union leave from his employer, and that there was no report of any inspection order being issued in 2009–10 against the company in question in connection with any acts in the specific area of freedom of association or “anti-union discrimination” which might include the anti-union acts described by the complainant organization. The Committee welcomes the fact that the Government has initiated an inspection in relation to the issue of freedom of association with Order No. 29755-2010. The Committee requests the Government to inform it of the labour inspection ordered in connection with the granting of union leave to the complainant organization’s General Secretary at the aforementioned enterprise.
13. 1303. As regards the request from the complainant organization that the Legislative Authority table for debate a number of bills awaiting approval, the Committee notes that the Government provides information on the current status of these bills in the Congress. The Committee notes, however, that its terms of reference do not allow it to interfere in the functioning of the legislative branch, especially in areas not connected with freedom of association (institutions, social security).
14. 1304. Lastly, the Committee requests the complainant organization to send the legal texts which in its opinion are not consistent with trade union rights, to indicate in what way they restrict those rights, and to provide more detail of its allegations regarding deficiencies in the operation of the labour courts (slow procedures, etc.) and on the need to strengthen sanctions in cases of violations of labour law.

The Committee's recommendations

1. 1305. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government to keep it informed of the debates in Congress on Legislative Decree No. 22342, the Act concerning nontraditional exports. The Committee requests the Government, pending the decision of Congress on the repeal of the legislative decree criticized by the complainant federation, to take measures to ensure that the Labour Inspectorate is diligent in preventing, verifying and where appropriate punishing, any act of anti-union discrimination in the textiles sector of nontraditional exports.
   • (b) As regards the alleged refusal since 2010 by the textiles sector employers to bargain collectively at the branch level, the Committee reiterates its conclusions and principles as set out in Case No. 2375. In particular, the Committee considers that, when there is no agreement between the parties as to the level of negotiation, rather than a general decision by the judicial authorities favouring negotiation at the level of the branch of activity, it would be more in keeping with the letter and the spirit of Convention No. 98 and Recommendation No. 163 to have a system established by common accord of the parties in which in each new collective bargaining they may assert their interests and points of view in a specific way. The Committee requests the Government to invite the most representative workers’ and employers’ organizations to establish a mechanism to resolve conflicts relating to the level at which collective bargaining should take place.
   • (c) As regards the Administrative Resolutions of 2002 and 2007 of the Superintendency of National Assets which, according to the allegations, reclaimed the premises which the complainant federation had used for many years, the Committee requests the Government to inform it whether the complainant has initiated any judicial proceedings and, if not, invites it, taking into account the specific features of this case, to consider the possibility of allocating some public premises to the complainant federation for its use.
   • (d) The Committee requests the Government to inform it of the inspection ordered by the Labour Inspectorate in connection with the matter of union leave for the complainant organization’s General Secretary in the enterprise where he works.
   • (e) Lastly, the Committee requests the complainant organization to send it the legal texts which in its view are not consistent with trade union rights, and to indicate in what manner they restrict those rights, and more detailed information on its allegations regarding deficiencies in the functioning of labour courts (slowness of procedure, etc.) and the need to strengthen sanctions in cases of violation of labour law.