Definitive Report - Report No 384, March 2018

Case No 3204 (Peru) - Complaint date: 17-DEC-14 - Closed

Allegations: The complainant alleges that violence in the construction sector has been exacerbated by the activities of trade union confederations at the expense of organizations not affiliated to them; it further alleges a refusal to negotiate a list of grievances and administrative suspension from the registry of trade union organizations

1. 473. The complaint is set out in a communication dated 25 August 2014 from the Single Federation of Workers in Civil Construction and Similar Activities of Peru (FUTCCASP).
2. 474. The Government provided its observations in a communication dated 17 December 2014.
3. 475. 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. 476. In its communication of 25 August 2014, the complainant states that it has represented thousands of workers in the construction sector since 2011 and that it is an independent organization that is not affiliated to either of the country’s trade union confederations (the Confederation of Workers of Peru (CTP) and the General Confederation of Workers of Peru (CGTP)), because it objects to how they are run. The complainant alleges that the climate of violence and insecurity prevailing in the construction sector has been exacerbated by a smear campaign carried out by the aforementioned trade union confederations, at the expense of trade union organizations not affiliated to them.
2. 477. The complainant considers that the violence in the construction sector is being recklessly stoked by the Federation of Civil Construction Workers of Peru (FTCCP) and the trade union confederations to harm trade unions and federations that are not aligned with them, in order to preserve the status they had enjoyed up until over ten years ago as a single trade union. It specifically alleges that the FTCCP and the trade union confederations are using their representation on the boards of certain entities (such as the National Service of Training for the Construction Industry (SENCICO) and the National Board of the Fund for the Construction of Housing and Recreational Centres for Civil Construction Workers (CONAFOVICER)) to give preferential treatment to their members, at the expense of members of other trade union organizations. Regarding SENCICO, the complainant alleges that, even though it signed a framework agreement on 20 March 2014 on training and certification for its members, until the date on which the present complaint was submitted, no training activities had actually taken place. According to the information it had received, this was because an additional specific agreement must be approved by the SENCICO board, which has not explained the excessive delay in approving that specific agreement. Regarding CONAFOVICER, the complainant alleges that the FTCCP and the CGTP control that entity’s funds, are preventing free access by workers and trade union leaders who are not part of their trade union structure, and turn down the complainant’s requests to benefit from and use the infrastructure of the recreational centres, giving preference to their affiliated workers.
3. 478. The complainant further alleges that Government representatives, acting in collusion with the leaders of the trade union confederations, have publicly stated that they intend to cancel the registrations of organizations not affiliated to those confederations. It also alleges that, under Supreme Decree No. 007-2014-TR (amending Supreme Decree No. 006-2013 on the registration of trade union organizations in the construction sector), the Administrative Labour Authority is empowered to suspend the registration of trade union organizations whose activities clearly and obviously demonstrate that their purpose has become unlawful, even where the judicial authorities have not ruled on the lawfulness of those activities. According to the complainant, it is up to the judicial authorities to determine whether or not a specific activity is unlawful; Ministry officials have neither the experience nor the authority under the Constitution of Peru to make such a determination. The complainant further considers that the law in question is arbitrary and discriminatory, because the Ministry’s officials are granted this special attribute in respect only of trade union organizations established since January 2004 and only until 31 December 2015, with no indication of the reasons for that disparity.
4. 479. In addition, the complainant alleges that, for the fourth consecutive year, the Peruvian Chamber of Construction (CAPECO) has refused to negotiate a national list of grievances and that the Labour Ministry has declared every year that CAPECO’s refusal is well-founded. According to the complainant, CAPECO argues that a collective bargaining process has been initiated with the FTCCP, with which it has been negotiating for years, that is the subject of a 2003 ruling by the Constitutional Court (STC No. 261-2003-AA/TC). The complainant points out that the Court’s ruling was issued in a context that was very different from the current one and that it upheld the single national list by branch of activity as opposed to the list by site that the government of the day wished to impose. The complainant advocates a single national list of grievances, on the grounds that the special nature of the sector precludes the negotiation of lists by site. It nonetheless demands that it take part in the negotiations on the single list, which, in its view, should bring together representatives of all trade union organizations representing workers.

B. The Government’s reply

1. 480. In its communication dated 17 December 2014, the Government submits information provided by CAPECO and the general secretariat of the Ministry of the Interior. Regarding the allegations relating to violence in the construction sector, the Government refers to a report by the general secretariat of the Ministry of the Interior indicating that the national police have taken action to combat violence and crime in the civil construction sector, inter alia: instances of duress exerted by union leaders on the employer; conflicts between unions for control of sites within the same territory; organizations that are registered as trade unions and pretend to defend the workers’ interests, but that in reality use their trade union status to extort payments from employers, pseudo-union leaders and workers. The Government points out that, in such cases, the police action is limited to investigating the crimes and delivering the results to the prosecuting authorities for formulation of the corresponding charge.
2. 481. The Government further points out that the National Registry of Workers in Civil Construction (RETCC) and the National Registry of Civil Construction Works (RENOCC) are intended to safeguard labour rights and eliminate violence at civil construction sites, since it is thanks to their implementation that information is obtained on the construction works being carried out and that preventive action can be coordinated to combat the climate of violence in which civil construction workers are contracted. The Government indicates that all contracting and subcontracting firms carrying out work at civil construction sites whose individual costs exceed 50 tax units are registered on the RENOCC, and that registration is automatic, free of charge and processed using a computer application approved by the Ministry of Labour and Employment Promotion.
3. 482. Regarding the alleged refusal of CAPECO to negotiate a list of grievances, CAPECO indicates that no agreement exists with the complainant for negotiation at branch level. Consequently, every time that the FUTCCASP presented a list at branch level, CAPECO filed an objection with the Administrative Labour Authority. CAPECO stresses the free and voluntary nature of collective bargaining and states that, in accordance with the provisions of Peru’s Law on Collective Labour Relations, the parties must agree on the scope of the bargaining and that, in the case at hand, there is no agreement with the complainant to start negotiations at branch level. It further indicates that the Constitutional Court has ruled on various occasions that CAPECO and the FTCCP are validly engaged in negotiations by branch in the civil construction sector because they have continued to negotiate, over the years and before and after the entry into force of the Law on Collective Labour Relations (the Government cites as an example a resolution issued by the Second Chamber of the Constitutional Court on 26 March, 2003).

C. The Committee’s conclusions

1. 483. The Committee observes that, in the present case, the complainant (FUTCCASP) alleges that: (i) the climate of violence prevailing in the civil construction sector has been exacerbated by a smear campaign carried out by the trade union confederations, at the expense of organizations not affiliated to them; (ii) the Administrative Labour Authority is empowered to suspend the registration of trade union organizations in the absence of any court ruling to that effect; and (iii) for the fourth consecutive year, CAPECO has refused to negotiate a list of grievances presented by the FUTCCASP.
2. 484. The Committee notes, first, the complainant’s general allegation that the climate of violence and insecurity prevailing in the construction sector has been exacerbated by a smear campaign carried out by the FTCCP and the country’s trade union confederations (the CGTP and the CTP), at the expense of trade union organizations not affiliated to them. More specifically, the complainant alleges the following: (i) the FTCCP and the trade union confederations are using their representation on the boards of certain entities (such as SENCICO and CONAFOVICER) to give preference to their members, at the expense of members of other trade unions; (ii) Government representatives, working in collusion with the leaders of the trade union confederations, have publicly stated that they intend to cancel the registrations of organizations not affiliated to those confederations; and (iii) by virtue of Supreme Decree No. 007-2014-TR, the Administrative Labour Authority is empowered to suspend the registration of a trade union organization whose activities clearly and obviously demonstrate that its purpose has become unlawful, without the judicial authorities having ruled on the lawfulness.
3. 485. Regarding the climate of violence prevailing in the construction sector, the Committee notes that the Government indicates that the national police are acting to fight the violence and crimes occurring in the sector, inter alia, the existence of mafia gangs and pseudo-unions engaging in extortion, and problems spawned by inter-union conflict. Considering that the Committee is already examining the problem of violence in the civil construction sector in connection with Case No. 2982, the Committee will concentrate, in the present case, on the other, more concrete allegations mentioned above.
4. 486. Regarding the allegation that the FTCCP and the trade union confederations are using their representation on the boards of SENCICO and CONAFOVICER to give preferential treatment to their members, at the expense of the members of other trade union organizations, the Committee, while observing that the Government does not reply on this point, observes that these are inter-union allegations and that the complainant has not provided the necessary information or details on the anti-trade union nature of the problem. Recalling that questions of trade union rivalry do not, in principle, fall within the remit of the ILO Conventions on freedom of association, the Committee will not pursue its examination of this allegation.
5. 487. Regarding the allegation that Government representatives, acting in collusion with the trade union confederations, have publicly declared that they intend to cancel the registrations of organizations not affiliated to those confederations, the Committee observes that the Government does not reply on that point. It further observes that, while the newspaper clippings appended by the complainant show that the Government intends to cancel the registrations of pseudo-unions that are fronts for extortionists and gunmen, they do not show that the Government is acting in collusion with the confederations to harm organizations not affiliated to them. The Committee will therefore not pursue its examination of this allegation.
6. 488. The Committee further notes the allegation that, by virtue of the third additional final provision of Supreme Decree No. 007-2014-TR (which introduced modifications to the rules governing the registration of trade union organizations in the civil construction sector), the Administrative Labour Authority is empowered to suspend the registration of a trade union organization whose activities clearly and obviously demonstrate that its purpose has become unlawful, even if the judicial authorities have not ruled on the lawfulness. In that regard, the Committee notes that, in its reply, the Government simply indicates that the RETCC and the RENOCC are intended to safeguard labour rights and eliminate violence at civil construction sites, since they serve to obtain information on ongoing construction works and to coordinate action to prevent violence in the contracting of civil construction workers.
7. 489. The Committee observes that the third additional final provision of the abovementioned decree expressly establishes the following: (i) exceptionally, and for the sole purpose of guaranteeing security in the civil construction sector, the Administrative Labour Authority shall suspend the registration of a trade union organization whose activities clearly and obviously demonstrate that its purpose has become unlawful; (ii) the Administrative Labour Authority has a period of ten days in which to request the judicial dissolution of the trade union organization by the competent court and to request, simultaneously, an interim measure aimed at maintaining the suspension; (iii) suspension from the registry is extinguished if, after the ten-day period, no request is made for judicial dissolution or if the corresponding interim measure is not requested; (iv) the administrative suspension of the registration is likewise extinguished by the notification of the resolution rejecting the interim measure; and (v) this administrative power is extraordinary and applies only to trade union organizations established since January 2004 and only until 31 December 2015.
8. 490. Given the exceptional nature of the Administrative Labour Authority’s power to suspend trade union registrations, the purpose of which is to guarantee security in a sector characterized by violence and the existence of criminal groups and pseudo-unions (a matter being examined by the Committee in the context of Case No. 2982), and observing that the measure is limited in time and must be confirmed by the courts, the Committee considers that the decree in question provides sufficient guarantees to ensure respect for freedom of association. Consequently, the Committee will not pursue its examination of this allegation.
9. 491. Regarding CAPECO’s refusal to negotiate a national list of grievances presented by the complainant, the Committee notes that the latter, while advocating a single national list, given the special nature of the sector, considers that the negotiations should involve representatives of all trade union organizations representing workers. In that regard, the Committee notes the Government’s statements that: (i) the single amended text of the Law on Collective Labour Relations (which comprises Decree-Law No. 25593 and Law No. 27912) states that the level at which negotiations take place shall be established by mutual agreement, in other words, that there must be a mutual agreement to start negotiations at a specific level; (ii) the negotiations must be free and voluntary, and CAPECO is not obliged to negotiate with the complainant; and (iii) CAPECO has agreed to negotiate only with the FTCCP pursuant to various Constitutional Court rulings indicating the existence of an obligation to negotiate the list of grievances of the construction sector with that trade union organization.
10. 492. In that regard, the Committee recalls that, for a trade union at the branch level to be able to negotiate a collective agreement, it should be sufficient for the trade union to establish that it is sufficiently representative. In this case, while observing that neither the complainant nor the Government has provided information on the representativeness of the different trade union organizations in the civil construction sector, the Committee notes that the complainant does not assert that it is the most representative organization in the sector and does not question the level of representativeness of the FTCCP, with which COPECO has been negotiating. As a result, the Committee will not pursue its examination of this allegation.

The Committee’s recommendation

1. 493. In the light of the foregoing conclusions, the Committee invites the Governing Body to decide that this case does not call for further examination.