Definitive Report - Report No 357, June 2010

Case No 2689 (Peru) - Complaint date: 02-DEC-08 - Closed

Allegations: Refusal of companies to recognize union representation by a federation in the telephone sector for the purpose of collective bargaining

1. 909. The complaint is contained in a communication from the Peruvian Unitary Confederation of Workers (CUT) dated 2 December 2008.
2. 910. The Government sent its observations in communications dated 17 November 2009 and 25 May 2010.
3. 911. 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. 912. In its communication dated 2 December 2008, the CUT alleges that its organization affiliated to the National Federation of Telephone Workers in Peru (FETRATEL) represents unions and workers employed in companies of the Telefónica Group in Peru, including Telefónica Centro de Cobro SAC, Telefónica Multimedia SAC, Teleatento del Perú SAC, Telefónica Servicios Comerciales SAC and Telefónica Móviles SA.
2. 913. The CUT adds that unions affiliated to FETRATEL authorized it in 2007 to conduct collective bargaining within each company. FETRATEL thus, through five written communications dated 31 October 2008, requested the Administrative Labour Authority to initiate collective talks with the companies concerned.
3. 914. The CUT states that the five companies in question opposed the start of collective talks as promoted by FETRATEL on the grounds that it was a branch organization and talks should be held in each undertaking by the appropriate union at the enterprise level; the Department for Prevention and Settlement of Disputes of the Lima–Callao Regional Directorate for Labour and Employment Promotion endorsed FETRATEL’s stance and ruled that the companies had no grounds to oppose FETRATEL’s involvement in collective talks. The five companies lodged an administrative appeal against the decision.
4. 915. The Lima–Callao Regional Directorate for Labour and Employment Promotion formally endorsed FETRATEL’s bargaining mandate at the company level. The five companies then sought a review of the decisions. Those appeals were upheld by the National Directorate for Managerial Resolutions in September and October 2008, thereby setting aside the previous decisions in favour of FETRATEL. The CUT considers that this is contrary to Convention No. 98 and to the principles espoused by the ILO’s supervisory bodies, specifically the right of federations to engage in collective bargaining.

B. The Government’s reply

1. 916. In its communications of 17 November 2009 and 25 May 2010, the Government states that in principle, article 28 of the Political Constitution provides that the State recognizes the rights of association, collective bargaining and strike action, guaranteeing freedom of association, promoting collective bargaining and regulating the right to strike to ensure that it is exercised in a manner consistent with the public interest. The right of freedom of association has two aspects, one organic, the other functional. The first consists in the right of all individuals to establish organizations for the purpose of defending their collective interests. The second consists in the right to join or not to join such organizations, which in turn implies the protection of the worker who is a member against any actions that might jeopardize his or her rights. Consequently, any act aimed at arbitrarily and in an unjustified manner obstructing or restricting the possibilities of such action or the capacity of a union to operate violates the right of freedom of association.
2. 917. With regard to the current provisions of legislation that guarantee and protect the right of workers subject to private sector labour law, the following provisions are applicable:
   • – the Single Ordained Text of Legislative Decree No. 728 (the Act concerning labour productivity and competitiveness);
   • – the Single Ordained Text of the Act concerning collective labour relations, Supreme Decree No. 010-2003-TR dated 5 October 2003;
   • – Regulations under the Act concerning collective labour relations, Supreme Decree No. 011-92-TR dated 14 October 1992.
3. 918. The Government states that in a context similar to the one of the CUT complaint, the ILO’s Committee on the Application of Conventions and Recommendations stated that:
   • ... the right to bargain collectively should also be granted to federations and confederations; any restriction or prohibition in this respect hinders the development of industrial relations and, in particular, prevents organizations with insufficient means from receiving assistance from higher level organizations, which are in principle better equipped in terms of staff, funds and experience to succeed in such bargaining.
4. 919. The Government explains that, in the light of these considerations, the ministerial decisions criticized by the CUT have been declared null and void by the Office of the Deputy-Minister of Labour on the grounds that the reasons given for those decisions have infringed freedom of association in failing to recognize FETRATEL’s bargaining capacity.
5. 920. The Government attaches copies of the decisions issued by the Office of the Deputy-Minister of Labour dated 5 December 2008 and 2 March 2009, which annul the decisions against which the CUT appealed, and also attach copies of national directorate decisions stating that applications for review lodged by the companies concerned (Telefónica Centro de Cobro SAC, Telefónica Multimedia SAC, Teleatento del Perú SAC, Telefónica Servicios Comerciales SAC, and Telefónica Móviles SA) are without foundation.

C. The Committee’s conclusions

1. 921. The Committee notes that, in the present complaint, the complainant organization objects to certain decisions adopted in 2008 by the Ministry of Labour which, at the third administrative level (request for review) and revising previous decisions that had upheld the right of FETRATEL to negotiate on behalf of its affiliated unions, supports the stance of the five companies concerned, in contravention of the standards and principles of the ILO which guarantee the right of federations to bargain collectively.
2. 922. The Committee notes that, according to the Government, the administrative decisions that had favoured the five companies concerned were set aside, in accordance with national legislation and the ILO Conventions, by decisions of 5 December 2008 and 2 March 2009, acknowledging thereby the right of FETRATEL to negotiate on behalf of its affiliated unions.
3. 923. Under these circumstances, given that the issue raised in the complaint has been resolved, the Committee considers that this case does not call for further examination.

The Committee's recommendations

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