REPRESENTATION (article 24) - PERU - C102 - 1995

1. Latin American Central of Workers (CLAT)

Closed

Report of the Committee responsible for examining the representation made by the Latin American Central of Workers (CLAT) under article 24 of the ILO Constitution alleging non-observance by Peru of the Social Security (Minimum Standards) Convention, 1952 (No. 102)

Decision

1. The Governing Body adopted the report of the tripartite committee. Procedure closed.

Complaint Procedure

1. A. Introduction
2. 1. By a letter dated 27 May 1994, the Latin American Central of Workers (CLAT), referring to article 24 of the ILO Constitution, made a representation to the Office alleging non-observance by the Government of Peru of the Social Security (Minimum Standards) Convention, 1952 (No. 102). In its communication the CLAT referred to documentation transmitted previously to the ILO by the Peruvian Federation of Fishermen for Direct Human Consumption and Artisanal Processing (FETPCHAP), a workers' organization affiliated to the Autonomous Confederation of Peruvian Workers (CATP) and the CLAT.
3. 2. Ratification by Peru of the Social Security (Minimum Standards) Convention, 1952 (No. 102) was registered on 23 August 1961. (Endnote 1) In accordance with Article 2 of Convention No. 102, the Government of Peru accepted the obligations of the Convention with respect to the following parts: Part II, Medical care; Part III, Sickness benefit; Part V, Old-age benefit; Part VIII, Maternity benefit and Part IX, Invalidity benefit. Likewise, in accordance with Article 3, paragraph 1, of Convention No. 102 the Government of Peru stated that it availed itself of the temporary exceptions provided for in Articles 9(d); 12(2); 15(d); 18(2); 27(d); 48(c) and 55(d) of the Convention. Under these conditions, Convention No. 102 is in force in Peru.
4. 3. The provisions of the Constitution of the International Labour Organization respecting representations are as follows:
5. Article 24
6. In the event of any representation being made to the International Labour Office by an industrial association of employers or of workers that any of the Members has failed to secure in any respect the effective observance within its jurisdiction of any Convention to which it is party, the Governing Body may communicate this representation to the government against which it is made, and may invite that government to make such statement on the subject as it may think fit.
7. Article 25
8. If no statement is received within a reasonable period of time from the government in question, or if the statement when received is not deemed to be satisfactory by the Governing Body, the latter shall have the right to publish the representation and the statement, if any, made in reply to it.
9. 4. The procedure for the examination of representations is regulated by the Standing Orders adopted by the Governing Body in March 1980 at its 212th Session. (Endnote 2)
10. 5. In accordance with article 1 and article 2(1) of the Standing Orders, the Director-General acknowledged receipt of the representation made, informed the Government of Peru of it and transmitted it to the Officers of the Governing Body.
11. 6. On 11 August 1994, the CLAT transmitted documentation which it had received from FETPCHAP.
12. 7. At its 261st Session (November 1994), (Endnote 3) on the recommendation of its Officers, the Governing Body decided that the representation was receivable and, for the purposes of its examination, set up a committee composed of the following members: Mr. M. Vargas Campos (Government member, Mexico), Chairman), Mr. W. Durling (Employer member, Panama) and Mr. R. Falbr (Worker member, Czech Republic). At its 264th Session (November 1995), on the recommendation of its Officers, the Governing Body appointed Mr. S. Díaz Infante Méndez (Government member, Mexico) to replace Mr. Vargas Campos, who was no longer a member of the Governing Body.
13. 8. The Committee held its first meeting on 17 November 1994 and decided, in accordance with article 4, paragraph 1(c) of the Standing Orders, to invite the Government of Peru to furnish information on the representation before 28 February 1995. The Committee also decided to request the complainant organization to provide additional information before 15 January 1995, indicating in particular the type of fishing activities carried out by the fishermen covered by the Fishermen's Social Security and Benefit Fund (CBSSP) -- the subject of the representation, with account being taken of the fact that under Article 77, paragraph 1, Convention No. 102 does not apply to seamen or sea fishermen.
14. 9. In a communication dated 4 March 1995, the General Confederation of Peruvian Workers (CGTP), the Autonomous Confederation of Peruvian Workers (CATP) and the Confederation of Peruvian Workers (CTP) informed the ILO that they endorsed and supported the representation made by the CLAT.
15. 10. In a new communication dated 10 March 1995, the CLAT furnished additional information.
16. 11. The Office forwarded copies of all the communications and documentation received to the Government of Peru to enable it to make its own observations to the Committee.
17. 12. The Government of Peru made written observations on the representation, in July and November 1994. In June 1995, a new detailed communication was received from the Government.
18. 13. In addition to the communications from the Government and the complainant organization, the Committee was able to consult the reports presented by the Government under article 22 of the Constitution of the ILO on the application of the Convention as well as the observations made in this respect by the Committee of Expert on the Application of Conventions and Recommendations.
19. 14. The Committee held its first meeting in November 1994, and also met in the months of April and June 1995. At its meeting of 15 November 1995, the Government approved the present report.
20. B. Examination of the representation
21. I. Allegations made by the complainant organization
22. 15. The complainant organization alleged that the Peruvian Government issued several decrees which directly infringed the basic standards in the field of social security, as laid down in the Social Security (Minimum Standards) Convention, 1952 (No. 102). On 11 December 1992, in Supreme Resolution No. 020-92-TR, the Government ordered the Fishermen's Social Security and Benefit Fund (CBSSP) to adapt to the provisions of Supreme Decree No. 162-92-EF, dated 9 October 1992, which repealed various provisions relating to the system of financing of the Fund, the application of specific measures for the collecting of contributions and the modification of its organizational structure. As a consequence, various articles of the Fund's statutes were temporarily suspended and such suspension was subsequently extended. On 11 March 1993, in Supreme Resolution No. 004-93-TR, the state representation in the CBSSP was ended. Supreme Resolution No. 011-93-TR, dated 21 July 1993, established the executive and supervisory bodies of the CBSSP with the participation of employers (shipowners) and workers (fishermen) in the Fishermen's Social Security and Benefit Fund. Supreme Resolution 011-93-TR established in particular that two representatives appointed by the Association of Fishing Shipowners of Peru and the Chairman appointed by common agreement would become members of the Executive Council in place of the representatives of the State.
23. 16. The complainant organization added that on 8 and 9 February 1994, the Executive Council of the CBSSP approved the Fund's new statutes. These statutes, in the opinion of the complainant organization, seriously impair the fishermen's social security and the social aims and objectives for which the Fund was set up. The complainant organization added that the new statutes were approved without the consent of all the members of the Executive Council, since the representative of the Peruvian Federation of Fishermen for Direct Human Consumption and Artisanal Processing (FETPCHAP), acting on behalf of this organization, rejected the text. The complainant organization alleged that in these circumstances the Fund was being converted into a "benefit fund for the shipowner, that is, the employer". This organization also objected to a series of articles in the new statutes of the CBSSP and stressed the fact that these articles failed to mention the creation of services for fishermen and their families (off-season fund, housing, education and technical training, occupational rehabilitation and retraining, labour law aid, recreation and leisure funds and a rotating mutual aid fund).
24. 17. The complainant organization also stated that on 16 March the twentieth Court of Lima handed down a decision declaring the petition for protection filed by the FETPCHAP to be well-founded and ordered the suspension of the statutes of the CBSSP. It ordered the Executive Council of the Fund to comply with this decision. However, the complainant organization said that the resolutions adopted by the Government remained in force.
25. 18. The above situation explains the representation by the CLAT to the ILO and its view that the Peruvian Government is allowing the social security funds, which were previously administered by the respective parties themselves, to be completely distorted. In the case of the CBSSP, the workers' interests and their contributions have been placed in the hands of the employers (shipowners). In the view of the complainant organization this clearly contradicts and denies the basic social principles of the Fund.
26. 19. The complainant organization presented the Committee with copious documentation on the statutes of the CBSSP and the judicial petitions made, as well as a copy of the communications sent by the FETPCHAP to the statutory meetings of the CBSSP. It also appended information on the specific labour and social security regulations applicable to fishermen and on living and working conditions of the category of workers made up by fishermen in Peru.
27. II. The Government's observations
28. 20. In its report of 11 July 1994, the Government referred to the privatization of social security. In accordance with articles 10 and 11 of the Political Constitution of Peru, the right of workers to social security, both through the intermediary of the Peruvian Social Security Institute and the private administrations of pension funds and other kinds of bodies, such as the CBSSP, was guaranteed, as was the supervision of the effective operation of such bodies. The Government also states that it has not failed to comply with any of the provisions of the Convention.
29. 21. In its communication the Government examines successively the questions concerning the functioning of and the exclusion of state representation from the CBSSP, the modification of the CBSSP statutes and their relation to the social purposes and objectives of protecting fishermen. As regards the functioning of the CBSSP, the Government recalls that although the obligation for industrial fishing enterprises to obtain a certificate of payment from the CBSSP and to present it to the customs authority in order to be able to export, had been repealed, the new CBSSP statutes established that contributions could be subject to mandatory collection, without paralysing regular fishing activities.
30. 22. The Government also recalls that Legislative Decree No. 25897 of 27 November 1992, which set up a private system of administration of pension funds, stipulates that bodies which provide pension benefits shall be subject to supervision by the Superintendency of Private Administrations of Pension Funds. Considering that the CBSSP fell within the scope of the above-mentioned standard, Supreme Resolution No. 004-93-TR, dated 11 March 1993, the exclusion of state representatives from the Executive Council and the Supervisory Council of the Fund was ordered. The Government states that this measure was not an attack against social security but reflected the non-interventionist policy of the State.
31. 23. Following the exclusion of state representatives, the CBSSP approved its new statutes and established a joint organic structure composed of the Executive Council, the Directorate, the Supervisory Committee and the General Management. The Executive Council was made up of eight full members (four representatives of the shipowners and four representatives of the fishermen) and the Directorate of 13 members, six representatives of the shipowners and six representatives of the workers, with its Chairman being appointed by the Executive Council. The Government points out that the shipowners and the workers are equally represented, and thus the complainants cannot affirm that it is an "employers' fund".
32. 24. In its communication dated 15 November 1994, the Government adds that the State was not a party to the decisions adopted by the body in question, the CBSSP. Thus in the event of any violation of their rights, workers could take their case to the judicial authorities.
33. 25. In another report dated 9 June 1995, the Government reiterates that the State should not interfere with the functioning and supervision of an institution subject to private law, with its own legal personality and patrimony, which is separate from the State and in which membership is voluntary, such as the CBSSP. It recalled that the CBSSP was subject to the supervision of the Superintendency of Private Administrations of Pension Funds (SAFP) and the provisions established by that body.
34. 26. The Government explains that two forms of recruitment are used in fishing activities. The first comprises fishermen in a dependent relationship (employees), i.e. those who conclude a contract of employment with a shipowner. These fishermen must be affiliated by the shipowner to the Peruvian Social Security Institute under the provisions of the law. The second method is a "share" system in which each fisherman (or group of fishermen) receives a pre-established percentage of the catch or product of the sale of the catch. The CBSSP was made up of groups of shipowners and fishermen operating under the "share" system. According to the Government, all fishermen in Peru operated according to this system. Furthermore, those fishermen who were not in a dependent employment relationship could join the IPSS on a voluntary basis.
35. 27. The Government states that it provides minimum social security benefits to the population and that the CBSSP is a private body which does not necessarily operate as a substitute for or direct complement to the social security scheme provided by the State.
36. 28. Emphasizing the autonomy of the judiciary, the Government recalls that FETPCHAP brought criminal proceedings against the CBSSP in the competent national courts, alleging misuse of funds and fraud in the administration of legal persons.
37. 29. As regards the obligations assumed concerning the scope of the Convention, the Government points out that CBSSP membership comprises approximately 0.99 per cent of the population as compared with the population insured by the IPSS.
38. III. The Committee's conclusions
39. 30. The Committee notes that the allegations of the complainant organization on the non-compliance with the Convention are relatively general and based on the claim that the Government is not fulfilling its responsibilities concerning social security benefits, in particular in the fishing sector. The complainant organization protests in particular against amendments to the CBSSP statutes, adopted without the approval of a fishermen's organization; modifications concerning the financing of the body, the collecting of contributions and its functional structure, as well as the lack of state representation in the management bodies of the CBSSP.
40. 31. The matters referred to by the complainant organization are part of the more general context of the privatization of the pension scheme established in 1992. At its meeting in February-March 1995, the Committee of Experts examined Legislative Decree No. 25897, of 27 November 1992, and the supplementary legislation on the establishment of a private pensions scheme. The Committee has noted the observations made by the Committee of Experts on Convention No. 102, which pointed out that the private system for the administration of pension funds raised certain questions concerning the application of the Convention.
41. 32. Despite the importance of the matters raised, the Committee believes that the allegations made by the complainant organization do not require further detailed examination since, in accordance with the information transmitted and available, the workers covered by the CBSSP are sea fishermen, who are expressly excluded from the scope of Convention No. 102, under Article 77(l).
42. 33. This provision states that the Convention "does not apply to seamen or sea fishermen; (Endnote 4) provision for the protection of seamen and sea fishermen has been made by the International Labour Conference in the Social Security (Seafarers) Convention, 1946 (No. 70), and the Seafarers' Pensions Conventions, 1946 (No. 71)". (Endnote 5)
43. C. The Committee's recommendations
44. 34. The Committee recommends the Governing Body:
45. (a) to approve the present report;
46. (b) to declare closed the procedure initiated by the presentation of the representation.
47. Endnote 1
48. Official Bulletin, 1961, Vol. XLIV, No. 8, p. 553.
49. Endnote 2
50. See Official Bulletin, Vol. LXIV, 1981, Series A, No. 1, pp. 93-95.
51. Endnote 3
52. Document GB.261/14/13.
53. Endnote 4
54. Article 87 of Convention No. 102 indicates that the English and French versions of the text of this Convention are equally authoritative. The English version of Article 77(1) of Convention No. 102 refers to sea fishermen; the French version refers to "pêcheurs maritimes".
55. Endnote 5
56. Conventions Nos. 70 and 71 were ratified by Peru on 4 April 1962. Convention No. 70 did not enter into force.