Interim Report - Report No 343, November 2006

Case No 2248 (Peru) - Complaint date: 28-JAN-03 - Closed

Allegations: Dismissal or transfer of trade union members at the following enterprises: Petrotech Peruana S.A.; the Santa Luisa Mining Company S.A.; Aceros Arequipa Corporación S.A.; and the Southern Peru Copper Corporation

1030. The Committee examined this complaint at its November 2005 meeting and on that occasion presented an interim report to the Governing Body [see 338th Report, paras. 1187-1210, approved by the Governing Body at its 294th Session in November 2005].

1. 1031. The General Confederation of Workers of Peru (CGTP) sent additional information in communications dated 25 September 2005, and 6 and 13 January 2006. The Government sent new observations in communications dated 23 January and 8 March 2006.
2. 1032. 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. 1033. In its previous examination of the case at its meeting in November 2005, the Committee made the following recommendations on the questions still pending [see 338th Report, para. 1210]:
2. – With regard to the allegations concerning the dismissal of several members of the Executive Committee of the Petrotech Peruana S.A. trade union (including the General Secretary and Deputy General Secretary) immediately following the formation of the trade union, the Committee requests the Government to take steps to conduct an investigation and, if it is established that the dismissals occurred as a result of the formation of the trade union, immediately to reinstate the dismissed union leaders with payment of any wages owed to them and, if reinstatement is not possible, to ensure they are paid adequate compensation. The Committee considers that it would be appropriate for the Government to obtain, from the company through the employers’ organization concerned, their comments with regard to this point, in particular, whether they were informed that those dismissed were trade union leaders and members.
3. – With regard to the anti-union transfer of trade union leaders from their main productive work to camp cleaning duties at the Santa Luisa Mining Company S.A., the Committee requests the Government to keep it informed of the legal proceedings that have been initiated.
4. – With regard to the allegations concerning the collective dismissal of 132 trade union members, including six union leaders, at Embotelladora Lationamericana S.A., the Committee requests the Government to provide clarification on the scope of the term “surplus” and on whether, despite the ruling by the Ministry of Labour and Employment Promotion against the company’s request for collective layoffs of workers on structural grounds which was considered unjustified, the company proceeded to impose redundancies. The Committee also requests clarification on the total number of workers opting for voluntary retirement, the total number of workers affected by collective redundancy, including trade union leaders, and in the case of these leaders, clarification as to whether a request for the lifting of trade union immunity was lodged prior to dismissal.
5. – With regard to the allegations concerning the dismissal of Mr. Ricardo José Quispe Caso, Toquepala area delegate for the Instrumentation, Electricity and Water Systems Section of the Toquepala Mineworkers’ Union at the Southern Peru Copper Corporation, on the grounds that he was involved in an assault on a worker who did not take part in a strike held between 31 August and 9 September 2004 (on the basis of a complaint made by the worker in question and not the company), the Committee requests the Government to keep it informed of any legal decision handed down.
6. – With regard to the dismissal of more than 300 members of the permanent workforce of Corporación Aceros Arequipa S.A. and their replacement with contract workers enjoying fewer benefits, with the intention of undermining the trade union, the Committee requests the Government to communicate the result of the visit by the authorities of the employment agency and to provide its observations on the dismissal of more than 300 workers.
7. – The Committee requests the Government to provide its observations without delay concerning the allegation of harassment of Mr. Víctor Alejandro Valdivia Castilla, the Press and Propaganda Secretary of the Trade Union of Ancash Regional Government Workers, by the President of the Ancash region.
8. B. Additional information from the
9. complainant organization
10. 1034. In its communication of 26 September 2005, the General Confederation of Workers of Peru (CGTP) alleges that 11 months after the dismissal of its General Secretary, Mr. Ricardo José Quispe Caso, for his trade union activities, the judicial authorities have still not given a ruling. As a result of the dismissal, Mr. Ricardo José Quispe Caso’s children were required to leave their school (run by the Southern Peru Copper Corporation) and lost their health-care benefits.
11. 1035. In its communications of 6 and 13 January 2006, the CGTP states that a ruling of 14 December 2005 ordered the reinstatement of Mr. Ricardo José Quispe Caso in his post and payment of benefits owed to him.
12. 1036. The CGTP adds that the Jorge Basadre district public prosecutor, in a written complaint on 15 November 2005, accused Mr. Ricardo José Quispe Caso of the criminal offence of disrupting public order by holding a disorderly meeting intended to damage the Southern Peru Copper Corporation (this differed significantly from a previous ruling, which had ordered that the case be filed), although there was no credible evidence that Mr. Ricardo José Quispe Caso had committed the offences of which he was accused. The conduct of the Jorge Basadre district judge, who accepted the prosecution case and 13 days later initiated preliminary criminal proceedings and issued a summons, was most regrettable. In the view of the CGTP, this constituted anti-union conduct.
13. 1037. The CGTP states that, in all the proceedings involving Mr. Ricardo José Quispe Caso, the evidence presented included an expert’s report on video footage of events which took place during a strike by the miners of Toquepala between 31 August and 12 September 2004. This video shows that Mr. Ricardo José Quispe Caso assisted and protected the occupants of a mining company vehicle and took no part in the violence alleged by the company.
14. C. New reply by the Government
15. 1038. In its communications of 23 January and 8 March 2006, the Government states, with regard to the dismissals at Petrotech Peruana S.A., that legislation provides for the reinstatement of workers or trade union officials who are dismissed because of their union membership or union activities. It is for the judge to issue a ruling on this. The Regional Department of Labour and Employment Promotion (DRTPE-PIURA) carried out a special inspection on 28 October 2005, and it was confirmed on that occasion that Mr. Leónidas Campos Barranzuela (the union’s general secretary) was reinstated in his post on 24 September 2004.
16. 1039. As regards the alleged anti-union transfer of union officials from their main productive work to camp cleaning duties at the Santa Luisa Mining Company, the Government states that the judicial complaint lodged by the company union was ruled by the courts to be without foundation, since the case had been filed. According to documentation supplied by the Government, a number of different courts rejected the union’s complaint on the grounds that it described as “dismissed” a worker who had chosen to leave the company and the complaint made no reference to specific workers or specific contraventions (inadequate procedural corroboration).
17. 1040. As regards the collective dismissal of 132 unionized workers (including six trade union officials) at Embotelladora Latinoamericana S.A. (ELSA), the Government states that, on 2 September 2004, the Department for the Prevention and Settlement of Disputes of the Ministry of Labour and Employment Promotion (MTPE) gave a ruling rejecting a request by ELSA to authorize the collective dismissal of workers on structural grounds since there was no evidence of a structural cause that might justify such a measure. Subsequently, both the DRTPE-PIURA of Lima Callao and the National Department for Labour Relations endorsed that decision. It should be noted that the collective dismissal originally applied to 233 workers but, between 25 May and 12 July 2004, some 133 workers accepted voluntary retirement and another 32 were transferred and continue to work, so that only 68 workers of the original number would benefit from the refusal to authorize the collective dismissal; the company is thus obliged to reinstate those workers because the company’s original application for authorization of the collective dismissal was not upheld. This suggests that there is no threat to or violation of the complainants’ rights of freedom of association on the part of the Government. The Government also refers to the allegations concerning the dismissal of Mr. Ricardo José Quispe Caso, Toquepala area delegate for the Instrumentation, Electricity and Water Systems Section of the Toquepala Mineworkers’ Union, by the Southern Peru Copper Corporation, for his part in assaulting a worker who had refused to join a strike between 31 August and 9 September 2004. The Government states that the proceedings are now at the decision stage.
18. 1041. In order to ensure appropriate follow-up to the conclusions and the recommendations made in this case by the Freedom of Association Committee, the Government needs to have the definitive decisions of the courts on the questions referred to them. However, in the light of the examination of each of these questions so far, the Government considers that in view of the above, it does not threaten the complainants’ rights of freedom of association, and has endeavoured in various ways to ensure that those rights are respected. Lastly, the Government states that it will continue to provide information on the other questions still pending.

D. The Committee’s conclusions

1. 1042. The Committee takes note of the Government’s replies on four of the six requests for information or action contained in the recommendations made at its meeting in November 2005.
2. 1043. As regards the recommendation concerning the dismissal of trade union officials (the general secretary, Mr. Leónidas Campos Barranzuela, and deputy general secretary, Julio Purizaca Cornejo, in December 2002) at Petrotech Peruana S.A. immediately following the establishment of a trade union organization, the Committee notes the Government’s statements to the effect that Mr. Leónidas Campos Barranzuela, the union’s general secretary, was reinstated in his post, and that legislation provides that the judicial authorities should order the reinstatement of the other officials or members dismissed for anti-union reasons. The Committee requests the Government to indicate whether the trade union official, Mr. Julio Purizaca Cornejo, has applied to the courts for reinstatement and, if that is the case, to communicate the outcome of that application.
3. 1044. As regards the alleged anti-union transfer of trade union officials by the Santa Luisa Mining Company, the Committee notes the Government’s statements to the effect that the legal amparo action initiated by the union was not upheld by the judicial authority.
4. 1045. As regards the alleged collective dismissal of 132 unionized workers (including six trade union officials) at Embotelladora Latinoamericana S.A., the Committee notes the Government’s statements in this regard, and specifically those to the effect that: (1) the Ministry of Labour in September 2004 refused to authorize the request for a collective dismissal of workers on the “structural grounds” cited by the company, on the grounds that there was no evidence of any structural cause that might justify such action; (2) before this, some 133 workers had accepted voluntary retirement and a further 32 were transferred; and (3) as a result of the Ministry of Labour ruling, the company was obliged to reinstate the remaining 68 workers.
5. 1046. As regards the dismissal of Mr. Ricardo José Quispe Caso, the Committee notes with interest that the complainant organization has reported that this union official has been reinstated in his post under the terms of a judicial ruling. The Committee regrets the dismissal of the official in question and the length of the judicial proceedings before he was reinstated, and the fact that his children had to be removed from their school and were without health-care coverage until he was reinstated. Noting the allegations concerning the criminal proceedings initiated against union official, Mr. Ricardo José Quispe Caso, by the Southern Peru Copper Corporation for disrupting public order (“disorderly meeting”), in the absence (according to the complainant organization) of any credible evidence and for anti-union motives, the Committee requests the Government to communicate any ruling handed down.
6. 1047. The Committee reiterates its recommendations of November 2005 in relation to the questions to which the Government has not replied, and urges it to send its observations without delay, in particular:
7. – With regard to the dismissal of more than 300 members of the permanent workforce of Corporación Aceros Arequipa S.A. and their replacement with contract workers enjoying fewer benefits, with the intention of undermining the trade union, the Committee requests the Government to communicate the result of the visit by the authorities of the employment agency and to provide its observations on the dismissal of more than 300 workers.
8. – The Committee requests the Government to provide its observations without delay concerning the allegation of harassment of Mr. Víctor Alejandro Valdivia Castilla, the Press and Propaganda Secretary of the Trade Union of Ancash Regional Government Workers, by the President of the Ancash region.

The Committee's recommendations

1. 1048. In the light of the foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government to indicate whether the trade union official, Mr. Julio Purizaca Cornejo (Petrotech Peruana S.A.) has applied to the courts for a reinstatement order and, if he has done so, to communicate the outcome.
   • (b) Noting the allegations concerning the criminal proceedings initiated against the trade union official, Mr. Ricardo José Quispe Caso, by the Southern Peru Copper Corporation for disrupting public order (“disorderly meeting”), in the absence (according to the complainant organization) of any credible evidence and for anti-union motives, the Committee requests the Government to send a copy of any ruling handed down.
   • (c) As regards the alleged dismissal of more than 300 workers of the permanent workforce at the Corporación Aceros Arequipa S.A. and their replacement with workers hired on less favourable terms with a view to undermining the trade union, the Committee once again urges the Government, without delay, to communicate the outcome of the inspection visit carried out by the authorities to the enterprise and to send its observations on the dismissal of more than 300 workers.
   • (d) The Committee once again urges the Government without delay to send its observations on the allegations concerning harassment of Mr. Victor Alejando Valdivia Castilla, the press and propaganda secretary of the Trade Union of Ancash Regional Government Workers, by the President of the Ancash region.