Definitive Report - Report No 321, June 2000

Case No 1979 (Peru) - Complaint date: 16-JUN-98 - Closed

Allegations: Anti-union dismissals

1. 385. The Committee examined this case at its June 1999 meeting, when it submitted an interim report to the Governing Body (see 316th Report, paras. 670-680, approved by the Governing Body at its 275th Session (June 1999)). The Government sent its observations in communications dated 21 January and 8 February 2000.
2. 386. 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. 387. In its previous examination of the case, which deals with allegations concerning dismissals and other anti-union actions, the Committee made the following recommendations (see 316th Report, para. 680):
   • -- as regards the alleged dismissals of seven union officials at the National Bank, the Committee requests the Government to provide it with the text of any rulings on the six appeals still pending as soon as they are handed down and trusts that if it is found that they were victims of anti-union discrimination that they will be reinstated immediately; and
   • -- with respect to the allegations of the CGTP concerning the refusal of the authorities to discuss the list of demands submitted by the Single National Union of Workers and Employees of the General Corps of Voluntary Fire-fighters of Peru, the mass anti-union dismissals of workers at the Enrique Guzmán y Valle National University, anti-union acts against workers of the municipality of Villa el Salvador, anti-union dismissals of union officials at the Federico Villareal National University, and the break-in perpetrated by the authorities at the union's premises, the Committee requests the complainants to provide more detailed information.

B. The Government's reply

1. 388. In its communications of 21 January and 8 February 2000, the Government states the following in connection with the judicial proceedings under way concerning the trade union officials dismissed from the National Bank:
   • -- Marco Antonio Maraví Orellana. In the Committee's previous report, it was pointed out that the Labour Court of Huancayo ruled on the merits of the request of 8 January 1996, and subsequently the reinstatement of Maraví Orellana. However, on 12 August 1996, the Labour Chamber of Huancayo overruled the abovementioned lower court ruling since the plaintiff did not lodge his appeal through the corresponding procedural channels;
   • -- Pedro Cristóbal Reyes Sáenz. The reinstatement of Cristóbal Reyes Sáenz at the National Bank was overruled and amended by the Third Labour Court (second instance), which declared his request unfounded. The Third Labour Court specified that in this case the ending of the labour relationship was not of an arbitrary, unfounded and/or unjustified nature; the termination was a consequence of a lay-off duly authorized by the corresponding administrative labour authority and that its authorization had been granted in accordance with the respective legal provisions and regulations in force. Finally, on 25 July 1997, the Constitutional Law Chamber of the Supreme Court ruled that the appeal lodged by Reyes Sáenz was unfounded, thus upholding the ruling of the higher court since he had not been dismissed but made redundant as his labour relationship had come to an end as the result of a lay-off that was in accordance with labour standards in force;
   • -- Luis Fernando Cárdenas Campana. The appeal lodged by Luis Fernando Cárdenas Campana was upheld by the lower court (first instance). However, on 17 February 1997, the Second Labour Court of Lima rejected the appeal since the plaintiff, by virtue of the fact he had accepted retirement benefits paid to him on a monthly basis, was party to an agreed termination of the labour relationship;
   • -- Joaquín Gutiérrez Maduaño. The lower labour court (First Labour Court) ordered that compensation be paid in lieu of reinstatement because the plaintiff had just received his pension in accordance with Act No. 20530 and could not at the same time be paid a pension and a wage as prescribed in Legislative Decree No. 276;
   • -- Ronald Avila Candiotti. The Constitutional Law Chamber of the Supreme Court ordered the reinstatement of the plaintiff Ronald Avila Candiotti. Avila Candiotti is continuing with his usual work at the National Bank in a perfectly normal way;
   • -- Felipe Callacondo Durand. The respective labour court rejected the appeal lodged by the former worker of the National Bank since Mr. Callancondo had just started receiving monthly retirement benefits in accordance with Act No. 20530 and could not at the same time be paid a pension and wages in accordance with the provisions of Legislative Decree No. 276.
     • (The Government encloses with its reply the judicial rulings concerning these cases.)

C. The Committee's conclusions

1. 389. In its previous examination of the case, dealing with allegations concerning the dismissal of union officials at the National Bank, the Committee noted that judicial proceedings were under way and requested the Government to provide it with the text of any rulings handed down on these cases.
2. 390. In this respect, the Committee notes that the Government stated in its replies that: (1) the judicial authorities did not grant requests for reinstatement made by Marco Antonio Maraví Orellana, Pedro Cristóbal Reyes Sáenz, Luis Fernando Cárdenas Campana and Felipe Callacondo Durand; and (2) the Constitutional Law Chamber of the Supreme Court ordered the reinstatement of Ronald Avila Candiotti who is carrying out his usual work at the National Bank.
3. 391. The Committee notes that according to the rulings a number of trade union officials (Felipe Callacondo Durand, Joaquín Gutiérrez Maduaño and Luis Fernando Cárdenas Campana) were not reinstated because they were receiving pension benefits thereby opting for the voluntary settlement of their employment relations. In these circumstances, the Committee is unable to determine whether the dismissals in question were linked or not to their status as trade union officials or to their trade union activities since the judicial authorities have not ruled in this regard. The Committee recalls that the dismissal of workers on grounds of membership of an organization of trade union activities violates the principles of freedom of association (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 702) and requests the Government to ensure that in future it guarantees the respect of this principle.
4. 392. Finally, noting that the complainant failed to communicate the details that the Committee had requested in connection with its allegations concerning: the refusal by the authorities to discuss the list of demands submitted by the Single National Union of Workers and Employees of the General Corps of Voluntary Fire-fighters of Peru; mass anti-union dismissals of employees at the Enrique Guzmán y Valle National University; anti-union acts against workers of the municipality of Villa el Salvador; anti-union dismissals of trade union officials of the Federico Villareal National University; and the break-in perpetrated by the authorities at the union's premises, the Committee is unable to proceed with the examination of these matters.

The Committee's recommendations

1. 393. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
   • The Committee requests the Government to ensure, in future, that it guarantees respect of the principle whereby the dismissal of workers on grounds of membership of an organization or trade union activities violates the principles of freedom of association.