Report in which the committee requests to be kept informed of development - REPORT_NO382, June 2017

CASE_NUMBER 3069 (Peru) - COMPLAINT_DATE: 14-MRZ-14 - Follow-up

Allegations: Dismissal of 35 founding members of the complainant organization and acts of anti-union interference by a mining company

1. 484. The Committee examined this case at its March 2015 meeting, when it presented an interim report to the Governing Body [see 374th Report, approved by the Governing Body at its 323rd Session (March 2015), paras 833–854].
2. 485. The complainant organization sent additional information in a communication dated 1 June 2015.
3. 486. The Government sent its observations in communications dated 13 July, 5 August and 23 September 2015, and 24 February and 1 June 2016.
4. 487. 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. Previous examination of the case

1. 488. At its March 2015 meeting, the Committee made the following recommendation [see 374th Report, para. 854]:
   • The Committee requests the Government to inform it of any administrative or judicial decision issued in relation to this case, in order to examine, with all the relevant information, the allegations concerning the dismissal of the 35 founding members of the complainant union and acts of anti-union interference, including pressure to give up trade union membership.

B. The complainant’s additional allegations and information

1. 489. In a communication of 1 June 2015, the complainant organization states that: (i) the Regional Directorate of Labour and Employment Promotion of Cusco (Cusco Regional Labour Directorate), by Executive Decision No. 024-2015, overturned the previous decisions of the labour inspectorate which had established a violation of the social and labour rights of the 35 members of the Union of Worker Officials of the Antapaccay Mining Company (SITRAMINA); and (ii) on the basis of the aforementioned executive decision, the mining company resumed its intimidation of the remaining members of the union, thereby securing four new resignations. The complainant also refers to the judicial proceedings in progress, indicating that: (i) a first-instance ruling was issued in favour of Mr Joel Humberto Hernández Tejada, Mr Ángel Gilbert Aparicio Arispe, Mr David Antero Tito Flores, Mr Walter Gusmaldo Chirinos Herrera and Mr Cosme Bayona Carazas, leaders and founding members of the union who were dismissed after refusing to give up their union membership; (ii) after the mining company filed an appeal, a second-instance ruling was issued in December 2014 reversing the initial court decision; (iii) the workers requested advance implementation of the first-instance ruling (precautionary measures), as a result of which they were reinstated in their posts on 11 December 2014; (iv) despite the fact that the precautionary measures were non-appealable and that the five cases were identical, the company succeeded in having one of the five provisional reinstatements cancelled, three were upheld and a decision is still pending in the fifth case; and (v) in response to the second-instance ruling reversing the initial court decision, the union filed a constitutional complaint before the Constitutional Court.

C. The Government’s reply

1. 490. In a communication dated 13 July 2015, the Government states that the National Labour Inspection Supervisory Authority (SUNAFIL), the central authority of the labour inspection system, will carry out an inspection at the mining company in order to look into the alleged non-compliance with the labour regulations. The abovementioned communication is accompanied by a number of documents from the Ministry of Labour and Employment Promotion (Ministry of Labour), especially two letters from the Director-General for Labour Inspection Policies, both dated 5 April 2015, indicating that: (i) anti-union acts at the mining company gave rise to an infringement report (No. 022-2014-MTPE/2/16) issued by the Labour and Employment Promotion Area Office of the Alto Andinas-Sicuani Provinces, confirmed by a decision of the Cusco Regional Labour Directorate (No. 09-2004-GR-Cusco/DRTPE-OZTPEEEA); (ii) further to an appeal filed by the mining company, the Cusco Regional Labour Directorate initially overturned the aforementioned decision (by Executive Order No. 032-2014-GR-DRTPE-DPSCL-Cusco), on the grounds that no account had been taken of the mining company’s appeal; (iii) the Alto Andinas-Sicuani Labour and Employment Promotion Area Office upheld the proposed fine by means of a second infringement report (No. 015-204-GR-Cusco/DRTPE-OZTPEE); (iv) the aforementioned second report was declared null and void by the Dispute Prevention and Settlement Department at the Cusco Regional Labour Directorate (by Executive Order No. 039-2014-GR-DRTPE-DPSCL-Cusco); (v) the Area Office again confirmed the proposed penalty (Area Decision No. 001-2015-GR-Cusco/DRTPE-OZTPEEEA), on the grounds that it considered that the mining company’s arguments did not invalidate the proposed fines; (vi) the mining company again filed an appeal; (vii) the affected union expressed its concern to the Ministry of Labour at the fact that the Cusco Regional Labour Directorate had not succeeded in imposing the penalty corresponding to the infringements established by the labour inspectorate; (viii) there is evidence of flaws in the handling of the infringement proceedings which might affect the interests of the workers who have filed appeals; and (ix) in view of the above, even though, under the laws on decentralization, the Cusco Regional Labour Directorate has competence in this matter, the Director-General for Labour Inspection Policies at the Ministry of Labour recommends that the Under-Ministry of Labour duly inform the Cusco Regional Labour Directorate and SUNAFIL, in its capacity as central labour inspection authority, so that the corresponding remedial measures can be taken.
2. 491. In a communication dated 5 August 2015, the Government states that: (i) the Deputy Minister of Labour forwarded to SUNAFIL the letter of 5 April 2015 from the Director-General for Labour Inspection Policies; (ii) on 14 May 2015, on the basis of the communication from the Deputy Minister, SUNAFIL requested detailed information from the Cusco Regional Labour Directorate on the administrative infringement proceedings referred to above. In a communication of 23 September 2015, the Government forwards a new communication from SUNAFIL in which the central inspection authority indicates that it will carry out an inspection in relation to the events described in the complaint in October 2015.
3. 492. In communications dated 24 February and 1 June 2016, the Government: (i) forwards Executive Decision No. 024-2015 of 8 May 2015 of the Cusco Regional Labour Directorate which again cancels the penalty imposed on the mining company (the executive decision cancels the penalty on the grounds that there is insufficient objective, timely and conclusive evidence that the dismissals of the five workers – involving the loss of positions of trust and the renunciation of union membership by 28 workers and the request by 17 of them that the union registration should be cancelled – constituted acts of anti-union discrimination); (ii) indicates that, on 19 February 2016, SUNAFIL stated that it had decided not to undertake the inspection relating to the mining company so that the Cusco Regional Labour Directorate could pursue its investigations in this respect, albeit recommending that the Cusco Regional Labour Directorate should undertake a new inspection of the mining company with regard to the alleged anti-union acts; (iii) indicates that the Cusco Regional Labour Directorate considers, with regard to new allegations of pressure to give up union membership, that no acts of anti-union harassment have been established; (iv) communicates the ruling of 4 December 2014 of the High Court of Justice of Cusco overturning the first-instance ruling which had described the dismissals of five of the union’s leaders and founding members as anti-union in nature; and (v) forwards the information supplied by the High Court of Cusco indicating that there are no contradictions in the judicial decisions relating to the five dismissed workers and that the precautionary measures in their favour shall remain in force until a ruling is issued by the Constitutional Court on the appeal filed by the union. In conclusion, the Government states it appears from the documentation obtained that the mining company does not seem to have committed any acts with the aim of interfering with freedom of association and that, as guarantor of the observance of labour rights in Peru, the Government will duly coordinate with the respective bodies and monitor the outcome of the inspection investigations, which it will communicate to the Committee in due course.

D. The Committee’s conclusions

1. 493. The Committee recalls that the present case refers to allegations of acts of anti-union interference by a mining company in relation to the establishment of a trade union, including pressure to give up union membership which led 28 of the 35 founding members to resign from the union and to the dismissal of five union leaders and founding members (Mr Joel Humberto Hernández Tejada, Mr Ángel Gilbert Aparicio Arispe, Mr David Antero Tito Flores, Mr Walter Gusmaldo Chirinos Herrera and Mr Cosme Bayona Caraza) who reportedly refused to sign a letter whereby they would give up their union membership and request the invalidation of the union’s registration.
2. 494. The Committee notes the additional allegations and information from the complainant organization, to the effect that: (i) the third infringement report drawn up by the labour inspectorate in 2014 against the mining company was again quashed in 2015 by the Cusco Regional Labour Directorate, whereupon the acts of harassment resumed and another four members of the union gave up their membership; (ii) in December 2014, the High Court of Justice of Cusco overturned the court decision which had declared the dismissals of the five founding members to be anti-union in character, whereupon the union filed an appeal with the Constitutional Court; and (iii) on the basis of the second-instance ruling, the company requested the revocation of the precautionary measures whereby the five workers had been provisionally reinstated; this request gave rise to conflicting decisions on the part of the judiciary.
3. 495. The Committee also notes the observations and information supplied by the Government, to the effect that: (i) the Directorate-General for Labour Inspection Policies at the Ministry of Labour considered in April 2015 that there were flaws in the handling of the infringement proceedings against the mining company by the Cusco Regional Labour Directorate which justified an examination by the central inspection authority, SUNAFIL; (ii) the penalty imposed on the mining company by the labour inspectorate in 2014 was cancelled by a decision of 8 May 2015 of the Cusco Regional Labour Directorate, on the grounds that there was insufficient evidence in the initial decision that anti-union acts had occurred; (iii) with regard to the new allegations of anti-union acts, the Cusco Regional Labour Directorate stated in January 2016 that it considered that no acts of harassment had occurred; (iv) in a communication of February 2016, SUNAFIL indicated that it had decided not to conduct investigations since this was a matter for the Cusco Regional Labour Directorate, albeit recommending that the Directorate in question should conduct a new inspection at the mining company in relation to the reported events; and (v) further to the ruling of the High Court of Cusco of 4 December 2014 overturning the first-instance decision which established the anti-union character of the dismissals, the courts confirmed that the precautionary measures issued in favour of the five workers remain in force until the Constitutional Court issues a definitive ruling on their dismissal. The Committee notes that the Government concludes that the documentation obtained shows that the mining company does not appear to have committed any acts aimed at interfering with freedom of association and that, as guarantor of the observance of labour rights in Peru, the Government will duly coordinate with the respective bodies and monitor the outcome of the inspection investigations, which it will communicate to the Committee in due course.
4. 496. In the light of the above, the Committee observes that the infringement proceedings instituted by the labour inspectorate, in relation to the events described in the present complaint, were cancelled in May 2015 by the Cusco Regional Labour Directorate on the grounds that the infringement reports did not contain sufficient evidence of the existence of anti-union acts and that, as regards the new allegations of pressure to give up union membership, the Cusco Regional Labour Directorate considered that no acts of anti-union harassment had been established. In this respect, the Committee also notes that: (i) the information supplied by the Government shows that the abovementioned cancellation was the third in relation to the events described in the present complaint, the labour inspectors responsible for the investigation having drawn up three successive infringement reports and three corresponding proposals to impose fines; (ii) the Directorate-General for Labour Inspection Policies at the Ministry of Labour considered in April 2015 that there was evidence of flaws in the handling of the infringement proceedings which could affect the interests of the workers and forwarded the file to SUNAFIL so that the appropriate remedial action could be taken; and (iii) SUNAFIL stated in February 2016 that it would not be taking action in this matter so that the Cusco Regional Labour Directorate could pursue its investigations, albeit recommending that the Directorate in question should undertake a new inspection in relation to the alleged anti-union acts.
5. 497. In the light of the above, the Committee requests the Government to provide information on the additional inspection at the mining company, recommended by SUNAFIL, and also on the outcome thereof. Moreover, the Committee recalls that it may often be difficult, if not impossible, for workers to furnish proof of an act of anti-union discrimination of which they have been the victim. This shows the full importance of Article 3 of Convention No. 98, which provides that machinery appropriate to national conditions shall be established, where necessary, to ensure respect for the right to organize [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 819]. In this respect, observing that the labour inspection system in Peru has been subject to a process of decentralization and regionalization and that its coordinating authority, SUNAFIL, is a recently created body, the Committee recalls that the Government has the obligation to ensure respect for freedom of association throughout the country.
6. 498. With regard to the court proceedings relating to the dismissal of five of the founding members and leaders of the union, the Committee notes that the workers have been provisionally reinstated and that their reinstatement remains valid until the Constitutional Court issues a definitive ruling in this case. The Committee also notes that the High Court of Justice of Cusco, by a ruling of 4 December 2014, overturned the first-instance ruling which had found the dismissals to be anti-union in nature and that, further to the second-instance ruling, the union filed a constitutional complaint before the Constitutional Court. In this respect, the Committee observes that the first-instance court quashed the dismissals on the grounds that the trade union immunity of the five union leaders and founding members had been violated since they had been dismissed a few days after notifying the labour administration of the establishment of the union and on the grounds that the aforementioned workers, whose dismissal letters referred to a loss of trust, had never occupied positions of trust. The Committee further observes that the High Court considered that the first-instance court had failed to demonstrate that the employer had been aware of the establishment of the union at the time of the dismissals. The Committee also notes that the grounds that supposedly justified the dismissal of the workers were not examined in the High Court. In this respect, the Committee has drawn attention to the Workers’ Representatives Recommendation, 1971 (No. 143), which recommends, as one of the measures that should be taken to ensure the effective protection of workers’ representatives, the adoption of provision for laying upon the employer, in the case of any alleged discriminatory dismissal or unfavourable change in the conditions of employment of a workers’ representative, the burden of proving that such action was in fact justified [see Digest, op. cit., para. 830]. The Committee requests the Government to keep it informed of the outcome of the complaint filed with the Constitutional Court.

The Committee’s recommendations

1. 499. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government to provide information on the additional inspection at the mining company, recommended by SUNAFIL, and also on the outcome thereof.
   • (b) The Committee requests the Government to keep it informed of the outcome of the appeal filed with the Constitutional Court.