Report in which the committee requests to be kept informed of development - Report No 363, March 2012

Case No 2854 (Peru) - Complaint date: 19-APR-11 - Closed

Allegations: Privatization process of the Muelle Norte de Callao port units without convening the complainant or the primary trade union; legal restrictions on the right to strike in ports; the lodging of a complaint against the Secretary-General of the federation and the violation of the principle of good faith by the National Ports Enterprise in the collective bargaining process

1. 1011. The complaint is contained in a communication from the National Federation of Workers of the National Ports Enterprise (FENTENAPU) dated 19 April 2011. The organization sent additional information and new allegations in communications dated 27 May, 30 June, 26 July and 27 October 2011.
2. 1012. The Government sent its observations in a communication dated 23 September 2011.
3. 1013. 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. 1014. In its communications dated 19 April, 27 May, 30 June, 26 July and 27 October 2011, FENTENAPU claims that the state authorities have arbitrarily and unconstitutionally privatized the Muelle Norte de Callao port units, hitherto administered by the state-operated National Ports Enterprise, by granting a concession to the enterprise AMP Terminals Callao. FENTENAPU claims that this privatization process, which entails job losses and a serious deterioration in the working conditions and job security of workers, has been undertaken without the National Ports Enterprise or other authorities having convened the trade union federation or the primary trade union in spite of their high degree of representativeness. The concession holder, on the other hand, has contacted the workers directly through letters informing them that their labour relation has been modified.
2. 1015. FENTENAPU also claims that, in response to protest action and the exercise of the right to strike, the Ministry of Labour has outlawed the strikes of 22, 29 and 31 March and that of 6 April 2011 by virtue of successive directives to that effect. The conditions governing the exercise of the right to strike in the port sector are restrictive. In a letter dated 8 March 2011, FENTENAPU adds that the director of human resources of the National Ports Enterprise sent a letter to the Secretary-General of the federation, Mr Basilio Leopoldo Ortiz, in which it indicated the number of staff that would be necessary to guarantee the services provided by the National Ports Enterprise, deemed to be essential, and enclosed a rather long list of workers which, in practice, renders the right to strike meaningless. Lastly, FENTENAPU claims that, as regards the exercise of the right to strike, the Deputy Attorney-General of the Ministry of Transport and Communications has lodged a complaint with the Criminal Prosecutor’s Office of Callao against the Secretary-General of the federation for offences against public safety, transport services, the media and other public services; for an attack on collective transport services and the media; and for hindering the proper functioning of public services, on the grounds that these work stoppages are hindering and jeopardizing public transport services. This legal action is intended to curtail the legitimate exercise of the right to strike.
3. 1016. Furthermore, FENTENAPU claims that the National Ports Enterprise has seriously violated the principle of good faith in the collective bargaining process, both in negotiating the list of demands submitted by the federation for the 2011 period and at the direct negotiation stage, given that, at the meeting held on 16 March 2011, it offered “to increase the basic salary of all workers by 2.08 per cent in order to satisfy the 2011 list of demands”. Even the President of the Enterprise’s Executive Committee urged the federation to accept this offer. Following consultations with its members, the federation accepted the enterprise’s offer on 24 March 2011. However, just as the agreement was about to be concluded, the enterprise changed its proposal, offering those workers who would have a valid labour relation with the enterprise when the collective agreement was signed an exceptional, one-off, non-remunerative payment of 1,200 nuevos soles (PEN) for the 2011 period instead.
4. 1017. The enterprise attempted to confuse the workers by sending a circular to the country’s various ports, highlighting the advantages of the new proposal. This left the federation no choice but to agree.

B. The Government’s reply

1. 1018. In its communication dated 23 September 2011, the Government sent a copy of the comments of the National Ports Enterprise (ENAPU) concerning the complaint. The ENAPU indicates that section 118 of the Constitution provides that the powers and obligations of the President of the Republic include that of implementing the general policy of the Government, in addition to exercising their authority to regulate laws without infringing or denaturing them and, within those limits, to issue decrees and decisions. In accordance with this precept, the national policy governing the transport sector, which was approved by virtue of Ministerial Decision No. 817-2006-MTC/09, establishes that the management of the transport system must give precedence to effectively meeting the mobility needs of the population and, in particular, public transport users. Therefore, the transport infrastructure must be of an adequate standard to provide a secure, efficient and quality service. Thus, in the context of the national policy governing the transport sector, the aim of the specific strategy for the port infrastructure is to promote effective competition within the port services market. Furthermore, section 4 of Act No. 29158, the Organization of the Executive Act, sets out the exclusive powers of the Executive, such as devising and overseeing national and sectoral policies, which are in turn defined by legal norms and regulations established by the sectors in question.
2. 1019. In this connection, the ENAPU adds that the State issued Legislative Decree No. 1022, which amended section 2 of Act No. 27943, the National Port System Act, to include the following final temporary provision:
   • Thirtieth. The management, running, equipping and maintenance of the port infrastructure, which is under public ownership and meant for public use, are deemed essential public services, as are the port services provided by this infrastructure, which are guaranteed by the State. The Executive, through its constituent bodies and in coordination with the competent national or regional port authority, as applicable, shall, in exceptional cases where the provision of those essential port services is suspended, take the measures necessary to ensure that they are permanently, continuously, securely and competitively provided.
3. 1020. The ENAPU underlines that, as a juridical person governed by the judicial system currently in force, it is obliged to comply with the provisions contained in the aforementioned Legislative Decree and to take the measures prescribed by the relevant law in the case of strikes within bodies or enterprises providing essential public services.
4. 1021. Moreover, the ENAPU maintains that it has recognized, respected and encouraged the free exercise of the right to organize, the right to collective bargaining and the right to strike which, in accordance with the Constitution, must be exercised in a way that is compatible with social interests and, as with all rights, these are subject to a number of exceptions and restrictions. In this connection, section 82 of the single uniform text of Decree Law No. 25593, approved by virtue of Supreme Decree No. 010-2003-TR provides that:
   • In the event of the strike affecting essential public services and the need to guarantee essential activities, the workers involved in the conflict must ensure that the necessary staff remain to prevent the total suspension of those services and to guarantee the continuation of services and activities, as required.
   • Annually and during the first trimester, enterprises providing essential services shall communicate to their workers, or to the trade union organizations representing them, and to the labour authority, the number and duties of the workers necessary to maintain those services, the working hours and schedules to which they must adhere, as well as the intervals at which each worker is to be relieved. The purpose of this communication is to enable the workers, or any trade union organization representing them, to provide the appropriate payslip when the strike is held. Those workers failing to provide their services without good reason shall be penalized in accordance with the law. Any disagreements as to the number and duties of the workers to be included in the list referred to in this section shall be settled by the labour authority.
5. 1022. The ENAPU has done nothing but comply with the aforementioned legislative provision by submitting the list of workers who must remain in the enterprise in the event of a strike so as to guarantee the continuation of port services, which was not contested before the administrative labour authority at the appropriate time or in the appropriate manner.
6. 1023. Without prejudice to the above, the ENAPU points out that neither FENTENAPU nor the workers who are members of the trade union organization have taken measures to ensure that the necessary staff remain to prevent the total stoppage of and to guarantee the continuation of port services. On the contrary, every time this workers’ organization has called a work stoppage or a strike, it has been observed by all members, which is why, in practice and regardless of any discussion that may take place concerning the number of workers required to guarantee the continuation of these services, FENTENAPU has ignored its legal obligation to ensure that the necessary staff remain to guarantee the continuation of port activities.
7. 1024. The Government also provides a copy of the comments of the Deputy Attorney-General of the Ministry of Transport and Communications (MTC) on a criminal complaint lodged against the Secretary-General for protest action taken. In this regard, the Deputy Attorney-General maintains that the actions taken to protect the Ministry, as well as its dependent bodies, constitute not only discretional intervention but also respond to the need to involve the Public Prosecution Service, which, ultimately, is the body empowered to institute criminal proceedings. The Office of the Attorney-General of the MTC may only lodge a complaint with a view to an investigation of the actions being carried out. In accordance with section 47 of the Constitution, which establishes the precept on the defence of state interests and with Legislative Decree No. 1068, namely, the Act establishing the legal protection system, along with other relevant norms, Attorney-Generals are authorized to take legal action, report offences and participate in any proceedings in keeping with the office they hold while informing the body’s representative of such actions. It should be understood that here “any proceedings” refers to any action that is perceived as posing a potential threat to the interests of the MTC, its projects, enterprises and/or decentralized public bodies.
8. 1025. In the exercise of this power, on 30 January 2011, the Office of the Attorney-General of the MTC called for a preliminary investigation of Mr Rogdal Wilmer Estévez Morales and all others likely to be responsible before the Public Prosecution Service for alleged attacks on collective transport services and the media; and for hindering the proper functioning of public services. Furthermore, a request was made for the Puerto de Callao Dockers Union to be included as a civilly liable third party. The MTC took this action in response to a warning of an attack on transport services resulting from the work stoppages in the Puerto de Callao in so far as these would lead to ships being neglected, which could jeopardize port activities and, as a result, hinder public services transporting heavy goods, were such a work stoppage to take place without taking steps to preserve the essential nature of port activities. Moreover, if the right to strike is to be recognized, then, given that an essential public service is involved, in accordance with section 82 of the single uniform text of the Collective Labour Relations Act, it is incumbent on a group of workers to take the measures necessary to guarantee the continuation of that service so that other services and activities are not adversely affected. However, this was not the case, as the activities of the trucks attempting to enter the Puerto de Callao were restricted. The Deputy Attorney-General of the MTC concludes that there is no link between the complaint lodged and the request for an investigation. Therefore, the Secretary-General of FENTENAPU, Mr Basilio Leopoldo Ortiz Centty, has not been the subject of the complaint lodged with the Public Prosecution Service. Furthermore, it maintains that the requested investigation of Mr Rogdal Wilmer Estévez Morales and the others responsible for alleged attacks on collective transport services and the media, and for hindering the proper functioning of public services, has been conducted within the appropriate constitutional and legal framework.
9. 1026. The Government underlines that it was the duty of the trade union organizations to ensure that the necessary staff remained to allow port services to operate, which, in itself, cannot be considered as an anti-union act.
10. 1027. The Government also provides a copy of the comments of the ENAPU concerning the concession of the multi-purpose north terminal of the Puerto de Callao. The enterprise indicates that by virtue of Emergency Decree No. 039-2010, the Government added the project to modernize the multi-purpose north terminal of the Puerto de Callao to those priority projects of national necessity overseen by PROINVERSIÓN.
11. 1028. In its capacity as the governmental body competent to promote investment projects aimed at public infrastructure and public services by means of concessions, PROINVERSIÓN, by virtue of an agreement concluded by its Executive Committee, approved the plan to promote private investment in the multi-purpose north terminal of the Puerto de Callao on 16 July 2010.
12. 1029. Subsequently, on 20 July 2010, the ENAPU issued a directive approving the conditions governing the concessionary process and, with the agreement of the Executive Committee of PROINVERSIÓN, on 21 July 2010, the conditions governing the concessionary process of the aforementioned port terminal were approved, culminating in APM Terminals Callao being granted the concession.
13. 1030. On 11 May 2011, the State signed a concession contract for the multi-purpose north terminal of the Puerto de Callao with APM Terminals Callao, thereby transferring to it the rights pertaining to the design, construction, funding, conservation and running of the area of the multi-purpose north terminal, as well as the exclusive rights to port activities and services within the infrastructure for a period of 30 years.
14. 1031. In accordance with the concession contract, APM Terminals Callao was obliged to offer a contract to a number of workers of the ENAPU who worked in the Callao port terminal and who accounted for 60 per cent of the total operational staff required to run the multi-purpose north terminal. In accordance with the concession contract, the concession holder offered a contract to 436 operational workers, which was accepted by 432 workers; a situation in which the ENAPU would not have intervened, given that this was an obligation incurred by APM Terminals Callao under the concession contract it concluded with the State.
15. 1032. As regards the workers who did not accept the offer made by APM Terminals Callao, it has been communicated that they are still employed by the ENAPU and, in an effort to foster a climate of trust, a statement guaranteeing their rights, their job security and the continuation of the enterprise has been issued.
16. 1033. Moreover, the ENAPU is currently implementing a voluntary redundancy programme, which offers financial benefits to the workers of the Callao port terminal.
17. 1034. As regards the alleged violation of the principle of good faith in the negotiation of the aforementioned pay rise, the ENAPU recalls that FENTENAPU accuses it of violating the principle of good faith in the collective bargaining of the 2010 list of demands, given that, at the direct negotiation stage, it offered, at the meeting held on 16 March 2011, to increase the basic salary of all workers by 2.08 per cent, a compromise that was subsequently modified by the offer of an exceptional, one-off and non-remunerative payment of PEN 1,200 instead. The ENAPU states that it is true that, initially, the negotiating committee proposed “to increase the basic salary of all workers by 2.08 per cent” as part of the negotiations. However, at that same meeting and without consulting its members, the trade union representatives stated that “they did not agree with the proposal”. It is for this reason that the enterprise made a new proposal offering an exceptional payment instead of the aforementioned pay rise. It also adds that there is no question of interference since no document encouraging either staff from the provinces or staff from Callao to accept or reject the ENAPU’s proposal was ever issued.
18. 1035. In its capacity as the governmental body competent to promote investment projects aimed at public infrastructure and public services, by means of concessions, PROINVERSIÓN states that the plan to promote private investment in the multi-purpose north terminal was executed in a manner that was totally transparent and that respected the current legal norms applicable to the process. The Government states that the current legislation governing the concessionary process has been respected and that the complaint is being investigated by the Criminal Prosecutor’s Office. Criminal charges will be brought only if there is sufficient evidence to prove that an offence has been committed.

C. The Committee’s conclusions

1. 1036. The Committee notes that, in the present case, the complainant alleges the process of privatization of the Muelle Norte de Callao port units without convening the complainant or the primary trade union; legal restrictions on the right to strike in ports; the lodging of a complaint against the Secretary-General of the federation and the violation of the principle of good faith by the National Ports Enterprise (ENAPU) in the collective bargaining process.
2. 1037. As regards the allegation that both the ENAPU and the authorities failed to convene the complainant and the primary trade union during the privatization process (the granting of a concession to a private enterprise) of the port units of the Muelle Norte de Callao, namely, the multi-purpose north terminal of the Puerto de Callao, despite the fact that this process, which was described as arbitrary and unconstitutional by the complainant, entailed job losses and a serious deterioration in the working conditions and job security of workers, the Committee notes that, in its reply, the Government does not comment on the allegation concerning the exclusion of the trade union organizations from this process but does confirm the allegation that the concession holder approached the workers directly, according to the Government’s reply, which indicates that the enterprise offered a contract to 436 workers, which 432 accepted while the remainder are still employed by the ENAPU.
3. 1038. In this regard, the Committee wishes to recall the principle according to which it can only examine allegations concerning economic rationalization programmes and restructuring processes, whether or not they imply redundancies or the transfer of enterprises or services from the public to the private sector, only in so far as they might have given rise to acts of discrimination or interference against trade unions. In any case, the Committee can only regret that in the rationalization and staff reduction process, the Government did not consult or try to reach an agreement with the trade union organizations [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 1079]. Given that neither the Government nor the enterprise have denied the allegation that both the ENAPU and the authorities failed to consult the federation and the primary trade union during the privatization process, the Committee regrets that no discussions or consultations were held between the authorities and the enterprises concerned on the one hand and with the trade union organizations on the other. The Committee firmly expects that, in the future, there will be timely consultations with the trade unions concerned in respect of any contemplated restructuring or privatization processes prior to their being taken. The Committee calls on the Government to initiate without delay such consultation as regards the effects of the privatization.
4. 1039. As regards the allegation that the administrative authority outlawed several strikes organized in protest of the privatization process, and the ENAPU’s statement, contained in the Government’s reply, on the power to determine the number and duties of the workers required to maintain a minimum service in the event of a disagreement between the parties provided for in the legislation of the administrative authority, the Committee wishes to underline that the services provided by the National Ports Enterprise and ports themselves do not constitute essential services, although they are an important public service in which a minimum service could be required in case of a strike. A minimum service may be set up in the event of a strike, the extent and duration of which might be such as to result in an acute national crisis endangering the normal living conditions of the population. Such a minimum service should be confined to operations that are strictly necessary to avoid endangering the life or normal living conditions of the whole or part of the population; in addition, workers’ organizations should be able to participate in defining such a service in the same way as employers and the public authorities [see Digest, op. cit., paras 616 and 610]. The Committee requests the Government to take measures to align its legislation with the aforementioned principles.
5. 1040. As regards the way in which the strikes took place during the privatization process, the Committee takes note of the enterprise’s statement to the effect that it submitted the list of workers required to maintain a minimum service but that the complainant, which, in the complaint, stated that the number of workers was so great that it rendered the right to strike meaningless, failed to do so and so, whenever a strike was called, in practice the strike was observed by all members, which means that the complainant ignored its legal obligation to ensure that the necessary staff remain to guarantee the continuation of port activities. The Committee also takes note of the Government’s reply regarding the lodging of a complaint against the Secretary-General of the complainant organization for hindering the proper functioning of public services, and that its reply contains a copy of the comments of the Deputy Attorney-General of the Ministry of Transport and Communications (MTC), which confirms the lodging of a complaint by the Office of the Attorney-General of the MTC with the Public Prosecution Service, which is the body empowered to institute criminal proceedings and will take the final decision. According to the Deputy Attorney-General: (1) on 30 January 2011, the Office of the Attorney-General of the MTC called for a preliminary investigation of Mr Rogdal Wilmer Estévez Morales and the others responsible before the Public Prosecution Service for alleged attacks on collective transport services and the media; and for hindering the proper functioning of public services. Furthermore, a request was made for the Puerto de Callao Dockers Union to be included as a civilly liable third party; (2) the MTC took this action to prevent the work stoppages in the Puerto de Callao as this would lead to ships being neglected, which could jeopardize port activities and, as a result, hinder public services transporting heavy goods, were such a work stoppage to take place without taking steps to preserve the essential nature of port activities; (3) if the right to strike is to be recognized, then, given that an essential public service is involved, in accordance with section 82 of the single uniform text of the Collective Labour Relations Act, it is incumbent on a group of workers to take the measures necessary to guarantee the continuation of that service so that other services and activities are not adversely affected. However, this was not the case, as the activities of the trucks attempting to enter the Puerto de Callao were restricted; (4) there is no link between the complaint lodged and the request for an investigation as the Secretary-General of FENTENAPU, Mr Basilio Leopoldo Ortiz Centty, has not been the subject of the complaint lodged with the Public Prosecution Service; (5) the requested investigation of Mr Rogdal Wilmer Estévez Morales and the others responsible for alleged hindering of collective transport services and the media, and thereby the proper functioning of public services, has been conducted within the appropriate constitutional and legal framework.
6. 1041. The Committee wishes to underline that, in the context of the allegations concerning the exercise of the right to strike, the relevant legislation, while it recognizes the right to strike in the port sector and requires a minimum service to be maintained, is unclear. Moreover, the system for defining minimum services may prove problematic in practice. As regards minimum port services, the Committee highlights that, in the event of a strike, the National Port System Act provides that the Executive will take “the measures necessary to ensure that they are permanently, continuously, securely and competitively provided”, which could be interpreted in a variety of ways. The single uniform text of Decree Law No. 25593, which is also applicable, offers a narrower range of interpretations, as it provides that the workers involved in the conflict “must ensure that the necessary staff remain to prevent the total suspension of those activities and to guarantee the continuation of services and activities, as required”, and, as has been mentioned above, that the enterprise must communicate the number of workers necessary to the trade union organization and that the trade union organization must, in turn, submit the list of these workers. Furthermore, it provides that any disagreements should be settled by the labour authority (a power that the Committee has criticized above). In this case, both the enterprise and the MTC maintain that the trade union organization representing the port workers did not comply with the minimum service requirement, and, according to their statements, the trade union organization failed to submit a minimum service proposal, leading to ships being neglected and the activity of the trucks attempting to enter the Puerto de Callao being restricted, which gave rise to the complaint against the trade unionist and the others responsible, which is awaiting a decision from the Public Prosecution Service.
7. 1042. While drawing attention to the fact that the legislation is unclear and that certain aspects thereof are not in line with the Committee’s principles on the right to strike, as well as to the lack of consultations with trade union organizations during the privatization process, which is closely linked to the four short-lived strikes that took place, the Committee recalls that no one should be deprived of their freedom or be subject to penal sanctions for the mere fact of organizing or participating in a peaceful strike [see Digest, op. cit., para. 672]. The Committee requests the Government to inform it of the decision of the Public Prosecution Service concerning the complaint and expects that this decision will take into account the conclusions and the abovementioned principle. The Committee also requests the Government to take measures to align the legislation on the right to strike in the port sector with the aforementioned principles.
8. 1043. Lastly, as regards the alleged violation of the principle of good faith by the enterprise during the negotiation of the collective agreement for the 2011 period by withdrawing its offer to increase the basic salary of all workers by 2.08 per cent, which the complainant organization had accepted, offering a non-remunerative payment of PEN1,200 for the 2011 period instead, the Committee notes that the Government presents the point of view of the enterprise, according to which, at the meeting where the 2.08 per cent increase was proposed, the trade union representatives stated that they did not agree with the proposal, which is why the enterprise subsequently proposed the exceptional payment.
9. 1044. In view of the contradictions existing between the allegations and the Government’s reply, the Committee is not in a position to formulate conclusions on this matter.

The Committee’s recommendations

1. 1045. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee firmly expects that, in the future, there will be timely consultations with the trade unions concerned in respect of any contemplated restructuring or privatization processes prior to their being taken. The Committee calls on the Government to initiate without delay such consultation as regards the effects of the privatization.
   • (b) The Committee requests the Government to take measures to align the legislation with the principles on the right to strike referred to in its conclusions.
   • (c) In view of the circumstances of this case, the Committee believes that penal sanctions should not be imposed on the trade unionists who participated in the strikes or on trade union organizations. The Committee requests the Government to inform it of the decision of the Public Prosecution Service concerning the complaint lodged against several strikers by the Office of the Attorney-General of the Ministry of Transport and Communications and expects that this decision will take into account the conclusions and the relevant abovementioned principle.