Rapport définitif - Rapport No. 355, Novembre 2009

Cas no 2640 (Pérou) - Date de la plainte: 23-AVR. -08 - Clos

Allegations: Obstruction of collective bargaining by the enterprise and failure by the authorities in their duty to promote collective bargaining

1. 1016. The complaint is contained in a communication from the Single Central Organization of Workers of Peru (CUT) dated 23 April 2008. The Government sent its observations in communications dated 3 March and 30 October 2009.
2. 1017. 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. 1018. In its communication of 23 April 2008, the CUT alleges that the Trade Union of Employees of Telefónica Publicidad e Información Perú SAC (now Yell Perú SAC) (SETPI), which has 30 members, presented a list of demands in September 2006 covering the period from 1 November 2006 to 31 October 2007.
2. 1019. The bargaining committee was set up on 15 December 2006, and seven direct negotiation sessions were held. Finally, on 6 August 2007, the Directorate for Labour Relations was informed that the direct negotiation stage of collective bargaining had come to an end, as no settlement had been reached on the proposals put forward in the list of demands. On 18 October 2007, the Subdirectorate for Collective Bargaining declared the direct negotiation stage over and the conciliation phase open.
3. 1020. Nine conciliation sessions were held between 27 November 2007 and 14 February 2008, at which agreement was reached in principle on some points in the presence of the labour administration authority, although the parties reneged on their agreement at subsequent meetings.
4. 1021. On 5 December 2007, the trade union presented the general management of the enterprise with a second list of demands for the period 1 December 2007 to 30 November 2008.
5. 1022. On 15 February 2008, the general management of the enterprise returned the list of demands to the trade union on the grounds that negotiations for the settlement of the demands for 2006–07 were still under way and that the trade union could not seek negotiations on the new list until that round had been concluded. On 22 February 2008, the trade union informed the Subdirectorate for Collective Bargaining of the enterprise’s refusal.
6. 1023. The complainant organization points out in regard to both lists of demands that the underlying problem is the lack of willingness on the part of the Ministry of Labour to speed up the collective bargaining process, as well as the multiple ploys by the enterprise to avoid reaching an agreement that would improve working conditions and supersede the injurious agreements signed by another trade union for a four-year term that covers the entire workforce.
7. 1024. The complainant objects to two letters sent to the trade union on 13 and 15 February 2008, which clearly both displays the enterprise’s interfering stance with regard to the exercise of freedom of association by its workers and reflects management’s real opinion of collective bargaining and its perception of a trade union through the hostile tone of these letters.
8. 1025. As regards the letter dated 13 February 2008, the complainant organization states that it was presented by the enterprise at the conciliation meeting for the negotiation of the
9. 2006–07 list of demands, and describes it as offensive.
10. 1026. The enterprise contradicts itself in the opening paragraphs of the letter, when it states that the proposal for a collective agreement is based on the “special characteristics” of the union members, only to point out further down that “there is no reason for our enterprise to grant your members benefits over and above those afforded to the other trade union”. Thus, while the enterprise initially maintains that the special characteristics of the activity of trade union members create an assumption of different treatment, it then immediately points out that, which it recognizes such distinctions, there exists no reason to apply them in practice.
11. 1027. In paragraph 1 of the letter, the enterprise describes the coverage of the two trade unions, using the term “small universe” to describe the membership of either of the unions. It should be pointed out, however, that the use of this term is pejorative and inaccurate, especially since one cannot refer to half of the workforce of an enterprise as a “small universe”. It is even worse if one considers that the author of this assertion is directly responsible for the fact that the membership could not increase over the past months and years, as evidenced by the enterprise’s insistence on concluding collective agreements for a term of not less than four years.
12. 1028. The complainant organization points out that the enterprise asserts that although it had already signed two collective agreements with the Single Trade Union of Workers, the benefits under the agreements had been extended to the rest of the workforce; this reflects its discriminatory policy against unionization. This is a common anti-union practice which consists in extending the benefits obtained through collective bargaining to the rest of the workforce, with the aim of removing any incentive to unionization.
13. 1029. The enterprise uses the term “market levels” in the letter to justify its signing of the list of demands recently signed by the Single Trade Union, as though this topic had been discussed among the members themselves. The complainant organization points out in this regard that this wording is biased, as it highlights the fact that an economic benefit was obtained for workers who “were below market levels … excluding those who were above market levels”. It is also biased because the average reader is led to question the union’s solidarity. There can additionally be no question of “market levels” when the company holds the monopoly in the sector in which it operates, since there is only one other recently established enterprise that can serve as a benchmark in the same market. Moreover, paragraph 1 states that it does not seem ethical to have established another trade union and to claim additional social benefits, neither does it seem reasonable to claim wage increases, through another list of demands, for the small group of workers who are allegedly privileged in regard to “market levels”.
14. 1030. Added to this is the lack of a trade union culture on the part of management, as well as its attempt to undermine the legitimacy of the list of demands, which of course is not merely aimed at wage increases but also at claiming and recovering the rights lost in the collective agreement signed by the other union.
15. 1031. Moreover, the letter directly accuses the union not only of having been established for the sole purpose of obtaining better financial benefits, displaying a lack of solidarity with the other unionized workers, but also of having encouraged co-workers to withdraw from membership of the other union, the Single Trade Union. These assertions are aimed at prejudicing the workers and members against the union. Lastly, given the wording used and its incriminating tone, the letter is prejudicial to the trade union and constitutes a blatant act of interference by the enterprise.
16. 1032. Paragraph 3 of the letter contains the term “legal security”, stating that the establishment of the union affects the “legal security of the enterprise”. This phrase is also incorrect and biased, as the establishment of a trade union cannot affect the legal security of an enterprise, provided that it is done in the legitimate exercise of freedom of association enjoyed by all the workers. On the contrary, legal security, which is protected by the democratic State, is jeopardized by the existence of enterprises that distort the fundamental rights which their workers enjoy as human beings. Legal security can never be impaired by collective bargaining, as this is the most effective mechanism for redressing the imbalance of power between workers and employers.
17. 1033. Moreover, in paragraph 3 of the letter, the enterprise asserts that benefits cannot be granted, as it would mean accepting effective collective bargaining and that would constitute a threat to the enterprise. In this regard, the trade union considers that this is an expression of the enterprise’s anti-union stance reflected in the last months of direct negotiations with the trade union and in the collective agreement, which is prejudicial to the workers, signed for a four-year term with the other trade union.
18. 1034. In regard to this paragraph, it should be pointed out that the enterprise misinterprets the legislation applicable to collective agreements when it states that the trade union has not complied with the statutory minimum term for collective agreements, which is one year. Collective agreements and their term of validity are established by agreement between the parties, in the absence of which their term shall be one year, and the trade union has not claimed otherwise. The list of demands presented in 2006 covers one year; if the union has presented a list for 2007–08, it is because no collective agreement has been signed. The union has acted in full compliance with the law, but the enterprise claims that the union has devised “a scheme aimed at flouting the law” which undermines the stability and legal security of the enterprise.
19. 1035. On 15 February 2008, the enterprise returned the list of demands for 2007–08 to the trade union on the same grounds, thus not only further obstructing the collective bargaining process, but also putting forward a number of arguments intended to confuse the trade union and undermine its reputation.
20. 1036. Lastly, the complainant considers that the enterprise clearly reveals its hostile attitude to collective bargaining and the right to freedom of association when it states that to accept the union’s proposal would mean unleashing “an inflationary spiral of benefits that would be increasingly reckless and unmanageable, leading to the destruction of the enterprise”. The trade union expresses its discontent and uneasiness, given that a higher unionization rate would only point to democratization of the agreements and good labour practices. For the enterprise to say that an increase in the number of members or workers actively exercising freedom of association would mean the destruction of the enterprise reflects a medieval attitude and unwillingness to engage in dialogue.
21. 1037. Another aspect raised in the complaint relates to the bargaining process and the role of the Ministry of Labour, as the labour authority, in furthering that process. In this regard, according to the complainant, the Ministry of Labour has failed in its duty to act effectively, rapidly and appropriately in these cases: firstly, because it has not played a more active role at the conciliation stage, and, secondly because it has allowed the conclusion of collective agreements prejudicial to the workers. Moreover, although the legislation provides for strikes as an option and a right in cases of collective bargaining, it requires compulsory arbitration where no agreement is reached between the bargaining parties if the trade union opts for arbitration. However, in recent years the Ministry has taken a different approach, despite the fact that the law has not changed, and has only accepted voluntary arbitration.

B. The Government’s reply

1. 1038. In its communication of 3 March 2009, the Government recalls that the subject of this complaint covers three main aspects: the list of demands of the SETPI for the period
2. 2006–07, the list of demands for 2007–08 and the action taken by the labour inspectorate in the enterprise.
3. 1039. On the first point, the Government states that under file No. 227072-2006-DRTPELC-DPSC-SDNC (list of demands for 2006–07), the procedure was opened on 2 November 2006, covering the workers who were members of that union and who had completed their probationary period on 1 November of that year. The Government adds that that procedure is currently pending legalization of the arbitration agreement signed between the parties on 18 April 2008.
4. 1040. As regards the list of demands for 2007–08, the Government points out that under file No. 298201-2007-MTPE/2/12.210, the procedure was opened on 5 December 2007, covering the workers who were members of that union and who had completed their probationary period on 1 December of that year. The Government states further that that procedure is currently at the conciliation stage, and that the parties were summoned to the first conciliation meeting on 24 September 2008.
5. 1041. By official letter No. 2920-2008-MTPE/2/12.3, the Directorate for Labour Inspection informed the Lima – Callao Regional Directorate for Labour and Employment Promotion that three inspection orders had been issued on the following points:
   • Order No. / Objects of inspection / Conclusions / Date of opening and closing of file / Status
6. 1141-2007 / Keeping of lists of members, anti-union and other discrimination / No violation of the right to organize and collective bargaining found / 31 January 2007 - 20 March 2007 / Closed
7. 13747-2007 / Privacy, dignity and harassment / The veracity of the allegations could not be checked; the complainants have the right to seek a remedy through the courts / 9 August 2007 - 28 April 2008 / Closed
8. 7064-2008 / Privacy, dignity and other harassment / No violation of labour legislation by the enterprise found / 5 May 2008 - 13 August 2008 / Closed
9. 1042. In this regard, the Government points out that the labour administration authority of the State of Peru has respected the national and international labour law in force, and its role is aimed at preventing violations of the exercise of any right laid down in collective labour legislation or the Conventions of the International Labour Organization governing those rights.
10. 1043. The Government states further that, in a letter dated 24 September 2008, the general manager of Yell Perú SAC makes the following points: (1) the complaint is based on unfounded assertions, as is clear from the fact that the enterprise management did not at any time interfere in the process of establishing the complainant trade union; (2) moreover, the employer states that there is no truth in the assertion that Yell Perú SAC has obstructed or prevented the exercise of the right to strike by the members of the SETPI; (3) the company emphatically denies that delaying tactics were used in the process of collective bargaining between the enterprise and the complainant trade union, stating that Yell Perú SAC has shown itself entirely willing to reach a mutually beneficial agreement, but it is the trade union that is holding up the process by not deeming the enterprise’s proposals satisfactory; and (4) lastly, as regards the use of the term “small universe”, it should be pointed out that Yell Perú SAC states that it did not intend to use those words in any pejorative sense, but that they reflect the real nature of the trade union, which is a minority union, and hence the agreements reached by it through collective bargaining are limited in scope (since they can only cover its members under the national labour legislation). In its communication dated 30 October 2009, the Government indicates that SETPI and the enterprise have concluded a collective agreement that extends from 1 November 2006 to 31 October 2009.

C. The Committee’s conclusions

1. 1044. The Committee observes that in this complaint, the complainant organization alleges the lack of willingness on the part of the Ministry of Labour to speed up the collective bargaining process with the Yell Perú SAC enterprise concerning the lists of demands presented by the SETPI trade union (which has 30 members) for the periods 2006–07 and 2007–08, as well as the enterprise’s reluctance to reach an agreement, reflected, inter alia, in unacceptable proposals for a collective agreement or in the letters sent to the SETPI. According to the complainant organization, this situation has been exacerbated by the fact that a previous collective agreement had been signed for a four-year term between the enterprise and another trade union, containing terms which the complainant organization believes to be prejudicial to the workers.
2. 1045. The Committee notes the Government’s statement concerning the list of demands for 2006–07 presented by the SETPI, to the effect that the process is currently pending implementation of the arbitration agreement signed between the parties on 18 April 2008. In these circumstances, given that the parties have jointly signed an arbitration agreement, the Committee will not pursue its examination of this allegation.
3. 1046. As regards the list of demands for 2007–08, the Committee notes the Government’s statement that the process is currently at the conciliation stage (the first meeting having been held on 24 September 2008). The Committee notes the statements of the Yell Perú SAC enterprise, denying that delaying tactics were used in the collective bargaining process; the enterprise states that it has shown itself entirely willing to reach a mutually beneficial agreement, but it is the SETPI trade union that is holding up the process by not deeming the enterprise’s proposals satisfactory. The Committee further notes that the enterprise points out that when it used the term “small universe” in referring to the SETPI, it did not mean it in any pejorative sense, but that it reflects the minority nature of the trade union, which means that the agreements reached by it through collective bargaining are limited in scope, as they can only cover its members under the national legislation.
4. 1047. The Committee notes the content of the letters from the enterprise dated 13 and 15 February 2008 (see appendices), which is deemed unacceptable by the complainant organization. After examining both letters, the Committee concludes that its content gives no reason to assert that the enterprise has refused to bargain collectively with the SETPI; as regards the list of demands for 2006–07, the letter of 13 February 2008 puts forward the enterprise’s stance and views to the effect that it is unethical to claim additional benefits when there is already a collective agreement with the majority trade union, which was concluded for a term of four years (benefits applicable to the entire workforce of the enterprise, as the SETPI had not yet been established at the time); that the SETPI had been established “for the sole purpose of obtaining greater benefits, encouraging the members of the first trade union to withdraw from it”; and that the trade union’s actions are “a scheme aimed at openly flouting the minimum term of one year applicable under the law to all collective agreements”; according to the letter, the position of the enterprise is to grant the same benefits through collective bargaining with SETPI as those afforded to the other trade union, in order to avoid undermining legal security.
5. 1048. The Committee recalls that the question as to whether or not one party adopts an amenable or uncompromising attitude towards the other party is a matter for negotiation between the parties [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 938]. The Committee considers that although the arguments, expressions and value judgements of the enterprise to which the complainant organization objects are clearly critical and at times aggressive, they are based on the existence of a previous collective agreement with a trade union that is more representative than the SETPI and do not go any further than the expressions commonly used in collective disputes. The Committee observes that, in any case, the allegations concerning the letter of 13 February 2008 are no longer relevant, as they refer to the list of demands for 2006–07 and the parties have since reached an arbitration agreement, as pointed out above.
6. 1049. As regards the letter of 15 February 2008, concerning the SETPI’s list of demands for 2007–08, in which the enterprise maintains its proposal for a collective agreement for a four-year term, the Committee observes that the tone of the letter is not disrespectful and that the allegations relating to this list are no longer relevant, since, according to the Government, the bargaining process entered the conciliation stage on 24 September 2008. The Committee observes that the authorities have held conciliation meetings between the parties since the first list of demands was presented by the SETPI, and draws the complainant’s attention to the fact that since the legislation recognizes the right to strike of the workers represented by the SETPI, there are no grounds – contrary to its claim – for compulsory arbitration at the request of one of the parties. Therefore, in the light of the circumstances, although it notes the complainant’s views that the Ministry of Labour has not played a sufficiently active role during the conciliation process, the Committee considers that the Ministry of Labour cannot be said to have maintained a passive stance or failed to have promoted collective bargaining.
7. 1050. In addition, the Committee notes the enterprise’s statement denying any obstruction of SETPI’s right to strike, as well as the Government’s information on the labour inspections carried out in the enterprise, which failed to find any acts of anti-union discrimination or violations of the right to collective bargaining or of labour legislation.
8. 1051. Lastly, the Committee notes with interest the Government’s indication that the enterprise and the trade union SETPI have concluded a collective agreement that extends from 1 November 2006 to 31 October 2009.

The Committee's recommendations

1. 1052. In the light of its foregoing conclusions, the Committee invites the Governing Body to decide that the present case does not call for further examination.