Rapport intérimaire - Rapport No. 85, 1966

Cas no 335 (Pérou) - Date de la plainte: 10-MAI -63 - Clos

1. 417. The Committee examined this case previously at its 39th Session (February 1965) and submitted an interim report that appears in paragraphs 57 to 64 of its 82nd Report, which was approved by the Governing Body at its 161st Session (March 1965).
2. 418. The complainants of the Peruvian Workers' Confederation (C.T.P.) are contained in a communication dated 10 May 1963, in another dated 21 May 1963, forwarded by the Secretary-General of the United Nations, and in a third dated 3 June 1963. At each of its sessions in November 1963, February 1964, June 1964 and November 1964 the Committee decided to postpone consideration of this case, since it was awaiting the observations of the Government, which were finally received with a communication dated 5 January 1965. When it examined the case at its February 1965 Session the Committee observed that the Government in its reply did not mention the specific complaints of C.T.P but referred to the observations that had been made on an earlier case concerning different facts. The Committee in paragraph 64 of its 82nd Report therefore recommended the Governing Body to request the Government to furnish its observations on the specific complaints.
3. 419. The Government sent these observations with a communication dated 10 September 1965.
4. 420. 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. A. The complainants' allegations

• Allegations respecting a Legislative Draft to Amend the Penal Code
  421. 421 In their communications of 10 and 21 May 1963 the complainants declare that they reject a legislative draft that would infringe freedom of association. According to the text of the draft, which has been published in the press and a copy of which accompanies the complaint, its purpose is to make various additions to the Penal Code. One section aims at establishing so-called offences against freedom to work and lays down penalties of imprisonment for persons who resort to violence in order to compel another person to take part in a strike or prevent him from entering his workplace and also for the employer or employee who practises coercion to compel another person to take part in a lockout or to leave or join a workers' or employers' organisation. Another section provides penalties of imprisonment for workers and officials in the service of the State or of public bodies who collectively cease work.
  422. 422 In its communication of 10 September 1965 the Government states that the cause of the complaint no longer exists since the draft in question has not become law. In fact, it was a draft legislative decree that was under consideration during the previous régime when the executive was invested with legislative powers. The present Government issued Act No. 15060 of 19 June 1964 to set up the Committee for Drafting the Labour Code. The Government adds that this Committee is sitting and that its work will cover questions relating to freedom of association.
  423. 423 In these circumstances the Committee recommends the Governing Body to take note of the statement of the Government and to decide that there would be no object in examining this aspect of the case further.
• Allegations relating to Presidential Decree No. 009 Governing the Formation of Trade Union Organisations
  424. 424 In its communication dated 3 June 1963 C.T.P states that many provisions of Presidential Decree No. 009 of 3 May 1961, governing the formation of trade union organisations, infringe the principles set forth in the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). The complainants enclose a copy of the decree with their letter and make detailed comments on those of its provisions which they consider to infringe freedom of association. In the following paragraphs the Committee analyses this series of allegations, as well as the observations made on them by the Government in its communication of 10 September 1965.
       • (a) Allegation relating to the Right Not to Join a Trade Union
  425. 425 C.T.P alleges that section 4 of Presidential Decree No. 009, which provides that nobody shall be compelled to join or not to join a trade union, introduces into Peruvian legislation a principle that was rejected by the I.L.O when the Right to Organise and Collective Bargaining Convention (No. 98), was being worked out. C.T.P adds that, at the two sessions of the International Labour Conference during which the question was studied, three amendments submitted by the Employers' members with the object of incorporating the principle of the right not to join a union in Article 1 of Convention No. 98 were rejected. For this reason, and because the principle in question is not to be found in Convention No. 87, C.T.P concludes that it is not proper to include it in the decree giving effect to the latter Convention, which has been ratified by Peru.
  426. 426 The Government asserts that this objection is baseless, since section 4 of the decree is in full harmony with article 27 of the Peruvian Constitution, which establishes the right to freedom of association. The Government adds that no Article of Convention No. 87 authorises, or can authorise, anybody to compel workers to join or not join a union.
  427. 427 In the past the Committee has had to examine a number of cases in which legislation has authorised or prohibited the establishment through collective agreements or other voluntary means of union security clauses. In such cases the Committee has rejected the allegations made, reasoning on the basis of the declarations contained in the report of the Committee on Industrial Relations set up by the International Labour Conference at its 32nd Session in 1949 to the effect that the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), could in no way be interpreted as authorising or prohibiting union security arrangements, such questions being matters for regulation in accordance with national practice. Since the Conference accepted this opinion in adopting the report of the Committee on Industrial Relations, the Committee considers that the provision of section 4 of Presidential Decree No. 009 referred to by the complainants does not in itself infringe Convention No. 98, which has been ratified by Peru, or Convention No. 87, which does not refer to the question either.
  428. 428 In these circumstances the Committee recommends the Governing Body to decide that there would be no object in examining this aspect of the case further.
       • (b) Allegation relating to the Prohibition of Political Activities by Trade Unions
  429. 429 C.T.P alleges that section 6 of the decree (which prohibits trade unions from devoting themselves as organised bodies to political or religious activities or economic activities with a gainful purpose) conflicts with Convention No. 87. The Government replies that the restriction is applicable to party politics, which imply the blind acceptance of certain specific lines to the detriment of the union itself, and adds that political action is related to the cultural structure of society. The restriction is based on a full and direct appreciation of the Peruvian situation. Moreover, the Government goes on the provision in question is in harmony with the resolution concerning the independence of the trade union movement, adopted by the International Labour Conference at its 35th Session in 1952. In conclusion, the Government states that political aims, which presuppose party loyalty, are damaging to the internal cohesion of trade unions and to the achievement of their true aims, and uses this argument to justify the prohibition contained in section 6 of the decree.
  430. 430 The Committee observes that neither the complainant nor the Government bases its arguments on the aspects of section 6 devoted to religious activities or to " economic activities with a gainful purpose ". With regard to the political activity of trade unions, the resolution concerning the independence of the trade union movement adopted by the international Labour Conference at its 35th Session (Geneva, June 1952) states in particular that when trade unions undertake political action or participate in it, this action should not be " of such a nature as to compromise the continuance of the trade union movement or its social and economic functions irrespective of political changes in the country ".
  431. 431 The Committee nevertheless recalls in this connection words used by the Committee of Experts on the Application of Conventions and Recommendations in 1959 to the effect that a general prohibition against all political activity by trade unions may raise difficulties, since the interpretation given to the relevant provisions in practice may change at any moment and restrict considerably the possibility of action of the organisations.
  432. 432 In these circumstances the Committee recalls the principle that it has maintained in various earlier cases, particularly Case No. 423 relating to Honduras, that it is not appropriate to prohibit all political activities by occupational organisations in general terms, but that the judicial authorities should be entrusted with the task of pronouncing on abuses that might be committed by organisations that had lost sight of the fact that their fundamental objective, according to the resolution concerning the independence of the trade union movement adopted by the Conference in 1952, is " the economic and social advancement of the workers ".
  433. 433 In these circumstances the Committee recommends the Governing Body to draw the attention of the Government to the importance it attaches to the principle set forth in paragraph 432 above, to suggest to the Government the desirability of studying any reforms that may be necessary to give full expression to this principle, and to express the hope that such reforms will be introduced as soon as possible, perhaps with the promulgation of the Labour Code whose drafting is announced by the Government.
       • (c) Allegations relating to the Minimum Number of Members in a Trade Union
  434. 434 The complainants allege that section 7 of the decree, by requiring a minimum of 20 members for the formation or continuance of a workers' trade union, restricts the scope of Article 2 of Convention No. 87, according to which workers and employers, without distinction whatsoever, shall have the right to establish organisations of their own choosing without previous authorisation. C.T.P adds that this section of the decree also improperly limits the representation of the workers to one delegate in those workplaces that have five or more workers but do not reach the minimum number fixed for the establishment of a trade union. Both provisions, besides conflicting with the Convention, constitute retrograde measures in Peruvian legislation, since the Presidential Decree of 23 March 1936, which is rescinded where it conflicts with Presidential Decree No. 009, required no minimum number of members and provided, moreover, that, in the absence of a trade union, workers could be represented by two delegates. The complainants assert that workers employed in establishments with fewer than 20 employees, which are very numerous in Peru, were able before the promulgation of Decree No. 009 to establish trade union committees or trade unions that were affiliated to trade unions or federations respectively, such as the National Federation of Workers in Hotels and Allied Establishments. Under the new legislation these workers have lost the right to organise and their leaders find themselves denied trade union protection, and the result has been that the employers have carried out a number of dismissals.
  435. 435 With regard to these specific allegations the Government confines itself to stating that the requirement of a minimum number of members meets the necessity of guaranteeing the existence of the trade unions, because it is customary in Peru to establish trade unions with large executive committees of ten to 15 members, and that, in the absence of the requirement of section 7, trade unions would consist only of their executive committees. Moreover, the Government goes on, this legal requirement does not prevent the representation of workers who are not affiliated to a trade union for the purposes of making claims and concluding collective agreements.
  436. 436 The complainants also say that section 9 of the decree infringes Article 3 of the Convention. Subsection (b) of section 9 stipulates that in order to be a member of a workers' trade union a person shall belong to the undertaking or activity uniting them. The Government makes no observations on this point in its reply.
  437. 437 The Committee considers that, before expressing an opinion on this aspect of the case, it must have certain additional information from the Government. It therefore recommends the Governing Body to request the Government to state whether workers in work centres with fewer than 20 members can unite with those of other work centres to form a trade union and, if so, subject to what conditions.
  438. 438 The Committee also considers it necessary in connection with these allegations to examine section 11 of the decree, amended by Presidential Decree No. 021 of 21 December 1962, which is referred to by the Government in its report on the application of Convention No. 87. Section 11 as amended requires that a trade union shall consist of more than 50 per cent of the wage earners if it is a wage earners' union, more than 50 per cent of the salaried employees if it is a salaried employees' union, and more than 50 per cent of the wage earners and of the salaried employees if it is a mixed union.
  439. 439 The Committee recalls that the Committee of Experts on the Application of Conventions and Recommendations, when examining a similar provision in Burmese legislation, stated that such a provision was not in conformity with Article 2 of the Convention, which provides that workers shall have the right " to establish ... organisations of their own choosing without previous authorisation ". The Committee of Experts added that such a legal provision placed a major obstacle in the way of the establishment of trade unions capable of " furthering and defending the interests " of their members and moreover had the indirect result of prohibiting the establishment of a new trade union whenever a trade union already existed in the undertaking or establishment concerned.
  440. 440 In these circumstances the Committee recommends the Governing Body to draw the attention of the Government to the opinion expressed by the Committee of Experts on the Application of Conventions and Recommendations mentioned in the previous paragraph, to suggest to the Government the desirability of studying any reforms that may be necessary to bring Peruvian legislation in this connection into harmony with Convention No. 87, which has been ratified by Peru, and to express the hope that such reforms will be introduced as soon as possible, perhaps with the promulgation of the Labour Code whose drafting is announced by the Government.
       • (d) Allegation relating to the Personal Quality of Trade Union Office
  441. 441 Section 10 of Presidential Decree No. 009 provides that membership or office in a trade union is strictly personal, and that it cannot be transferred or delegated for any reason. In their communication of 3 June 1963 the complainants state that this provision prohibits the granting of mandates. As an example of the difficulties with which this faces trade unionists they add that under the section referred to trade union leaders are compelled to travel themselves to Lima every time there is business to transact, with all the consequent expenses, unless they wish to see business protracted indefinitely.
  442. 442 The Committee observes that in its reply the Government makes no observation on this allegation.
  443. 443 The Committee therefore recommends the Governing Body to request the Government to state whether section 10 of Presidential Decree No. 009 must be interpreted or not as denying trade union officers the power of conferring a mandate on third parties to carry out business on behalf of the trade union.
       • (e) Allegations relating to the Compulsory Registration of Trade Unions
  444. 444 According to the complainants the chapter of Presidential Decree No. 009 dealing with the registration of trade unions (sections 11 to 19) contains provisions impairing the guarantees of Convention No. 87 by making registration compulsory and so empowering the labour authorities (section 15) to refuse registration on the grounds of infringement of, or failure to comply with, the legal provisions. They add that the decree goes so far as to require the submission of documents attested by a notary or justice of the peace, or certified by the members of the executive committee on their own responsibility, and they consider that the requirement of registration as derived from the provisions of the decree has the character of original legislation and not that of regulations issued in accordance with Convention No. 87, whose principles have been incorporated in Peruvian legislation by virtue of ratification. In fact, a reading of section 11, as amended by Presidential Decree No. 021 of 21 December 1962 (see paragraph 438 above), shows that the law requires the submission of an application accompanied by the following documents: copy of the minutes of the founding meetings, stating the number of workers and proving that the trade union has been established with the required number of members; a full list of members; and a copy of the by-laws and of the minutes of the general assembly approving them. These documents are to be submitted in duplicate, attested by a notary or, in the absence of a notary, a justice of the peace, or certified by the members of the executive committee. Section 13, also as amended by Presidential Decree No. 021, lays down in detail the form in which the list of members is to be submitted. This is to be typed and to contain, in separate lists for wage earners and salaried employees, various personal details including nationality and the number of the military and electoral record books, each person having to sign or make his fingerprint.
  445. 445 With regard to these allegations the Government replies that the compulsory registration of trade unions fulfils the purpose of establishing their existence so that the authorities can give them fuller attention and attribute representative status. The Government adds that it is not a question of recognition, which has been abolished in Peru, but of " statistical registration ".
  446. 446 The Committee observes in this connection that section 2 of Presidential Decree No. 021 of 21 December 1962, amending Presidential Decree No. 009, provides that the compulsory registration of trade unions shall grant representative status with the employers and the labour authorities in labour claims. The Committee also observes that compulsory registration is indispensable if the trade unions are to be considered in the formation of national or international bodies or committees of a bipartite or tripartite nature.
  447. 447 In these circumstances the Committee considers it necessary to recall what was expressed by the Committee of Experts on the Application of Conventions and Recommendations in 1959. The Committee of Experts considered that, although the founders of an organisation were not freed from the duty of observing formalities as to publicity or other similar formalities which might be prescribed by certain legislation, these formalities must not be such as to be equivalent in practice to previous authorisation. The Committee of Experts, while it pointed out that in some countries the formalities prescribed by law (deposit of Constitution and rules, registration or other measures of publicity) were compulsory and in other countries optional, expressed the opinion that the compulsory or optional nature of the formalities prescribed did not always provide a sufficient criterion for determining whether there was or was not a requirement of previous authorisation. In fact, in some cases, although registration was compulsory, the authority competent to effect the registration had no power to refuse it or, which amounted to the same thing in practice, could refuse registration only because of a formal defect which it was always possible to remedy. Nevertheless, the Committee of Experts concluded that when registration, even if it was optional, conferred on the registered organisation the basic rights that it needed in " furthering and defending the interests " of its members, possession by the authority responsible for registration of power to refuse it led to a situation that was not very different from that in cases in which previous authorisation was required.
  448. 448 The Committee therefore recommends the Governing Body to draw the attention of the Government to the importance it attaches to the opinion of the Committee of Experts on the Application of Conventions and Recommendations referred to in paragraph 447 above, to suggest to it the desirability of studying any reforms that may be necessary to bring Peruvian legislation in this connection into harmony with Convention No. 87 and to express the hope that such reforms will be introduced as soon as possible, perhaps with the promulgation of the Labour Code whose drafting is announced by the Government.
       • (f) Allegations relating to the Right to Organise of State Employees
  449. 449 According to the complaint of C.T.P section 28 of the decree removes from the scope of Convention No. 87 workers in the service of the State and of semi-state bodies and so impairs the right to organise established under this Convention for workers without distinction whatsoever. This deprives the workers referred to of the opportunity of advancing their claims, and so many of them have to endure unfavourable working conditions and others have been the object of damaging measures. In this connection the complainants mention the fines imposed on the workers of the Tobacco Agency for having refused to carry out voluntary work, the " subhuman " conditions in which the workers of the Guano and Salt Company work, and other facts.
  450. 450 In its reply of 10 September 1965 the Government states that public servants have the opportunity of associating for cultural and sporting activities and for purposes of welfare and co-operation and are protected by a scheme covering stability of employment, holidays with pay, special leave, redundancy and retirement pensions, an assistance fund and other forms of social security. The Government adds that it is, moreover, bringing Peruvian legislation into harmony with the Convention and that the new Act No. 15215 (establishing a charter and register for the teaching profession in Peru) will provide for the right to organise in this sector of the public service.
  451. 451 Reference to section 28 of Presidential Decree No. 009 shows that the decree applies to employers, wage earners and salaried employees in the private sector and that employees subject to special statutes will be governed by their own regulations. It should not, therefore, be inferred that this provision in itself excludes employees of the State or of semi-state bodies from enjoying the rights and guarantees set forth in Convention No. 87. The Government in its reply seems to give implicit recognition to its obligation, arising from the ratification of Convention No. 87, to grant public employees the right to organise. Article 2 of Convention No. 87 provides that workers, " without distinction whatsoever, shall have the right to establish ... organisations of their own choosing without previous authorisation ", and the only restriction envisaged in this Convention is that of Article 9, which allows the extent to which the guarantees provided for in the Convention shall apply to the armed forces and the police to be determined by national laws or regulations.
  452. 452 In these circumstances the Committee expressly emphasises, as it has done on other occasions, the importance of ensuring that persons employed in the service of the State should be guaranteed the right to establish trade unions and to register them with a view to their lawful operation, and recommends the Governing Body to bring this principle to the attention of the Government and to request the latter to keep it informed of any progress made towards giving full effect to the principle.
       • (g) Allegations relating to Requirements for the Formation of Federations and Confederations
  453. 453 C.T.P asserts that various provisions of the chapter in the Presidential Decree dealing with organisations of higher degree (sections 22 to 27) restrict the right held by workers' organisations under Article 5 of Convention No. 87 to establish federations and Confederations with the guarantees provided for basic organisations under Articles 2 and 3 of the Convention. According to the complainants the requirement of five trade unions for the establishment of a federation and ten federations for the establishment of a Confederation not only infringes the Convention but also disregards the real situation of the country, since in Peru there are what are known as trade union associations covering trade unions of a single political or geographic area and this does not exclude the uniting of the basic organisations within an industry to form the corresponding federation. Thus, with the agreement of the C.T.P congresses, the trade union organisation of Peru embraces the provincial, departmental and regional associations, besides the Private Employees' Trade Union Federation and the industrial federations, the latter often consisting of the trade union committees of small establishments or craft centres. These industrial federations are in many cases true craft unions established by workers in the same trade working in various work centres.
  454. 454 In its reply of 10 September 1965 the Government states that section 23 of the decree, respecting the number of trade unions or federations required for the establishment of organisations of higher degree, meets the necessity of taking account of the average number of organisations existing in each branch of activity. The Government also asserts that, under the present régime of Constitutional government, no measures have been adopted affecting the activities of the existing trade union associations, and it refers to what it has already stated in connection with the promulgation of Act No. 15060 of 19 June 1964 establishing the Committee for Drafting the Labour Code.
  455. 455 The Committee observes that section 23 of Presidential Decree No. 009 has also been amended by Presidential Decree No. 021 (see paragraph 438 above). Even in its amended form, section 23, which requires the combination of no fewer than five trade unions in the same type of activity for the formation of a federation and no fewer than ten federations for the formation of a Confederation, conflicts with Articles 5 shall 6 of the Convention, which lay down that " workers' and employers' organisations shall have the right to establish federations and Confederations "and that the guarantees provided for basic organisations by Article 2 of the Convention shall apply to the establishment of these organisations of higher degree. In the present case it should be pointed out in particular that section 23 of the presidential decree appears, as the complainants maintain, to prevent the establishment of organisations of higher degree combining trade unions or federations of different activities operating in the same locality or area.
  456. 456 The Committee therefore recommends the Governing Body to draw the attention of the Government to the importance that it attaches to the provisions of Articles 5 and 6 of Convention No. 87, which are infringed by section 23 of Presidential Decree No. 009, to suggest to the Government the desirability of studying any legislative reforms that may be necessary to eliminate the contradiction, and to express the hope that such reforms will be introduced as soon as possible, perhaps with the promulgation of the Labour Code whose drafting is announced by the Government.
       • (h) Allegations relating to the Dismissal of Trade Union Officers
  457. 457 C.T.P alleges that the officers of trade union organisations already existing but not meeting the requirements of Presidential Decree No. 009 have been deprived of trade union protection and are being dismissed.
  458. 458 The Government makes no specific reference to the alleged dismissals in its reply.
  459. 459 In these circumstances the Committee recommends the Governing Body to request the Government to send its observations as soon as possible on the alleged dismissals, which may be infringements of Article 1 of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), which has been ratified by Peru.

The Committee's recommendations

1. 460. With regard to the case as a whole, the Committee recommends the Governing Body:
   • (a) in respect of the allegations relating to a legislative draft to amend the Penal Code, to take note of the Government's statement to the effect that there is no longer any intention of promulgating this draft and to decide that there would be no object in examining this aspect of the case further;
   • (b) in respect of the allegation relating to the right not to join a trade union (section 4 of Presidential Decree No. 009), to decide, for the reasons given in paragraph 427 above, that there would be no object in examining this aspect of the case further;
   • (c) in respect of specific allegations relating to other provisions of Presidential Decree No. 009, to draw the attention of the Government:
   • (i) to the importance of ensuring that persons employed in the service of the State should be guaranteed the right to establish trade unions, a principle that derives from Convention No. 87, which has been ratified by Peru, and under Article 2 of which workers, without distinction whatsoever, shall have the right to establish organisations of their own choosing without previous authorisation;
   • (ii) to the importance it attaches to the principle that it is not appropriate to prohibit all political activities by occupational organisations in general terms, but that the judicial authorities should be entrusted with the task of pronouncing on abuses that might be committed by organisations that had lost sight of the fact that their fundamental objective, according to the resolution concerning the independence of the trade union movement adopted by the Conference in 1952, is " the economic and social advancement of the workers ";
   • (iii) to the importance it attaches to the opinion expressed by the Committee of Experts on the Application of Conventions and Recommendations that, although the founders of an organisation are not freed from the duty of observing formalities as to publicity or other similar formalities which may be prescribed by legislation, these formalities must not be such as to be equivalent in practice to previous authorisation, and that, when registration confers on the organisations the basic rights that they need in furthering and defending the interests of their members, the fact that registration can be refused at the discretion of the authorities leads to a situation that is not very different from that in cases in which previous authorisation is required;
   • (iv) to the importance that must be attached to the provisions of Articles 5 and 6 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), provisions that are infringed by section 23 of Presidential Decree No. 009 as amended by Presidential Decree No. 021, which requires a minimum number of trade unions or federations for the establishment of organisations of higher degree and prevents the establishment of federations and Confederations bringing together the trade unions or federations of different activities in a specific locality or area;
   • (v) to the importance that it attaches to the opinion expressed by the Committee of Experts on the Application of Conventions and Recommendations, when examining a provision similar to that of section 11 of Presidential Decree No. 009, which provides that a trade union can exist only if it organises more than 50 per cent of the workers concerned, namely that such a provision is not in conformity with Article 2 of Convention No. 87, places a major obstacle in the way of the establishment of trade unions and has the indirect result of prohibiting the establishment of a new trade union whenever a trade union already exists in the undertaking or establishment concerned;
   • (vi) to the desirability of studying any reforms that may be necessary to bring Peruvian legislation, as soon as possible, into harmony with the principles and considerations set forth in clauses (i) to (v) above;
   • (d) in respect of the allegations relating to the minimum number of 20 members required for the establishment of a trade union, to request the Government to state whether workers in work centres with fewer than 20 members can unite with those of other work centres to form a trade union and, if so, subject to what conditions;
   • (e) in respect of the allegation of the complainants that under section 10 of Presidential Decree No. 009 trade union officers are denied by law the power of conferring a mandate on third parties to carry out business on behalf of the trade union, to request the Government to send its observations as soon as possible;
   • (f) in respect of the dismissals of trade union officers alleged by the complainants, which are mentioned in paragraph 457 above, to request the Government to send its observations as soon as possible;
   • (g) to take note of this interim report, on the understanding that the Committee will submit a further report when it has received from the Government the observations and information referred to in subparagraphs (d), (e) and (f) of this paragraph.