Interim Report - Report No 340, March 2006

Case No 2400 (Peru) - Complaint date: 17-NOV-04 - Closed

Allegations: Dismissal of trade union leaders and members in several enterprises, acts of harassment against the establishment of trade unions, challenge against the registration of a trade union and refusal to negotiate lists of demands

1199. The complaint is contained in a communication from the General Confederation of Peruvian Workers (CGTP) dated 17 November 2004. Subsequently, the CGTP sent further allegations in communications dated 3 January, 3 February and 11 August 2005.

1. 1200. The Government sent its observations in communications dated 16 March and 9 May 2005 and 16 January 2006.
2. 1201. 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. 1202. In its communication dated 17 November 2004, the General Confederation of Peruvian Workers (CGTP) alleges that, from the time that the employees of the enterprise Gloria S.A., situated in the city of Lima, set up a trade union in 2001, the enterprise began a campaign of harassment (increased working hours, ill-treatment and suspension of workers) against the trade union and that this campaign was intensified in response to a change in the trade union leadership. According to the complainant, since Felipe Fernández Flores’ nomination to the position of secretary-general, two workers (Rubén Darío Villegas Vásquez and Fernando Paholo Trujillo Ramírez) who had recently become trade union members were dismissed and a series of acts of harassment were directed against the trade union’s Secretary for defence and organization, with a view to destroying the trade union. In its communication dated 11 August 2005, the complainant adds that, after submitting the complaint to the ILO, the enterprise Gloria S.A. continued its harassment campaign against the trade union and dismissed the secretary-general, Felipe Fernández Flores, the secretary for organization, Miguel Moreno Avila and the secretary for defence, Gilver Arce Espinoza. According to the complainants, the justification invoked for dismissing them was that they had denounced wage increases granted to employees in positions of trust.
2. 1203. In its communication dated 3 January 2005, the CGTP states that the enterprise Petrotech Peruana S.A. belongs to the transnational enterprise Petrotech International Inc. The complainant adds that, since the trade union was established in December 2002, the enterprise has engaged in a campaign against the trade union and its members to obtain its dissolution. This campaign has taken the form of harassment of members to make them leave the organization, and acts of discrimination and dismissals of trade union leaders. These actions were disguised as penalties for supposed contraventions of the enterprise’s internal rules. In this case, the complainant alleges that, in violation of the trade union immunity provided for under the Peruvian Law of Labour Relations enacted pursuant to D.S. 010-2003-TR as well as under the Peruvian Constitution, Segundo Adán Robles Nunura who on 16 January 2004 was elected chairman of the bargaining committee for the list of demands 2004-05, was dismissed.
3. 1204. The complainant adds that the enterprise’s trade union, in the exercise of its right to representation as provided in the legislation, has engaged in a campaign to improve safety conditions in the workplace. The trade union requested the Piura Regional Department of Labour to carry out an inspection of the enterprise’s installations with a view to ascertaining the conditions in which the labour force carries out its work. This inspection visit was carried out during the morning of 16 January 2004 and, exercising the right of any trade union organization, its representatives Segundo Adán Robles Nunura and secretary-general Cléber Céspedes Zarante took part in the inspection of the enterprise installations. However, the enterprise Petrotech Peruana S.A. sought to deny the leaders in question this right, arguing that they could not enter the premises for security reasons. It should be noted that the enterprise refused to provide the security equipment to the leaders who were to accompany the inspection, although it did provide it to the labour inspector.
4. 1205. The complainant adds that, in pursuit of its anti-union policy, the enterprise Petrotech Peruana S.A. sent a warning letter, on 19 January 2004, to Segundo Adán Robles Nunura, for attempting to participate in the inspection visit in question. He was further ordered, in the same document, to refrain from engaging in such acts in the future. A similar letter was received by secretary-general Cléber Céspedes Zarate, for the same reasons. Simultaneously, as previously stated, on 16 January 2004, an assembly of the elected trade union leader Segundo Adán Robles Nunura as president of the committee to negotiate the 2004-05 list of demands. Following these events, the individual in question continued to work as normal until 25 January 2004 when he cleaned and checked the parts of a compressor located on platform LT-1 Litoral Mar.
5. 1206. The CGTP states that, upon completion of maintenance work, the compressor was switched on and functioned normally but later broke down during the night. The enterprise therefore decided that it should be checked the following day. On 27 January 2004, the enterprise sent the leader in question a letter giving him prior notice of dismissal, accusing him of negligence when he carried out the maintenance of the aforementioned compressor on platform LT-1 in the Litoral Mar area. In addition, the trade union leader was given a period of six days to offer a defence against the facts alleged against him. He was further relieved from reporting to his place of work. Lastly, on 5 February 2004, the enterprise sent him a dismissal letter charging him with serious faults contained in article 25, subparagraph (a) of Supreme Decree No. 03-97-TR, TUO of Legislative Decree No. 728 (Labour Productivity and Competitiveness Act). He was accused in general terms of negligence, breaching good faith in employment and non-observance of internal work rules.
6. 1207. The complainant states that Segundo Adán Robles Nunura was dismissed in reprisal for his trade union activity, and that it is therefore illegal to allege any grave breach. As a result, and in the legitimate exercise of his rights, the trade union leader in question has submitted the respective labour demand to the judiciary requesting that his dismissal be declared void and that his reinstatement be ordered, subsequent to the breach of Peruvian labour standards contained in D.S. 003-97-TR, section 29; D.S. 010-2003-TR, sections 31 and 32; and D.S. 011-92, section 12.
7. 1208. In its communication of 3 February 2005, the CGTP alleges that the trade union rights of leaders and members of the Unified Trade Union of Employees of the Banco del Trabajo (SUTRABANTRA) have been violated by the exercise of practices that are contrary to ILO Conventions and Recommendations, including non-recognition of SUTRABANTRA’s status as representative in conducting collective bargaining, and dismissal of trade union leaders.
8. 1209. The CGTP states that, in 2004, in the exercise of its legitimate right, a group of workers from the enterprise Banco del Trabajo decided to establish a trade union. The organization was registered by the Regional Department of Labour of Piura, under No. 473-2004-DRPPE-PIURA-DPSC-SDRGPDGAT, pursuant to a decision issued on 17 March 2004. From that time onwards, the enterprise initiated a series of actions to prevent registration of the trade union and its affiliations, and to incite workers belonging to the trade union to give up membership. Consequently, a letter was submitted on 30 March 2004 in which the enterprise Banco del Trabajo challenged the organization’s registration as a trade union before the administrative authority. On 2 July 2004, the enterprise submitted a demand to the court for the dissolution of the trade union organization, alleging as justification that it did not have the legally required number of members.
9. 1210. The complainant adds that, simultaneously, the Banco del Trabajo launched a campaign against the trade union leaders of the new organization, with a view to weakening or liquidating the trade union. The prime example of the anti-union policy conducted by the enterprise was the dismissal of the newly-elected secretary-general, Efraín Calle Flores, on 13 March 2004. This act by the enterprise was blatantly illegal, since it failed even to observe the formalities of national legislation which require the enterprise to send a letter of prior notice, and to receive the worker’s defence, in regard to the fault invoked as cause for dismissal. The trade union leader in question, in the exercise of his right, submitted a request to the Labour Tribunal to overturn the dismissal, and for subsequent reinstatement in his job. This request was submitted on 12 April 2004 and remains pending.
10. 1211. The CGTP alleges that the enterprise Banco del Trabajo pursued its policy of dismissing leaders and dismissed the secretary for defence and human rights, Pedro Daniel León Morales on 20 May 2004 and the secretary for culture and sport, Manuel Eduardo Albirena García, on 5 June 2004.
11. 1212. During the brief existence of the enterprise’s trade union, it has suffered repeated attacks against leaders and members to force them to renounce membership and ultimately to liquidate the organization. These facts were publicly and repeatedly denounced and cases where sufficient evidence existed were reported to the administrative authorities and to the judge for labour disputes. In addition, the complainant organization adds that the enterprise engaged in an intimidation campaign against the trade union members, which took the form of harassment and dismissal of a large group of members during the months of March, April, May and June 2004. Specifically, the following members of the trade union were dismissed: (a) Carmen Ana Lozada Chulli, on 16 May 2004; (b) Eulogia Nedita Arcela Rey, on 16 May 2004; (c) Leda Marcel Carbonell Ugaz, on 5 June 2004; (d) Flavio Enrique Rodriguez Rosas, on 5 June 2004; and (e) Maritza Tello Castillo, on 20 May 2004. Likewise, Jorge Rafael Borazino Salazar and Martin Rojas Roque were forced to accept “voluntary resignation”. As a result, they were obliged to withdraw from the trade union organization.
12. 1213. In addition, the CGTP alleges that the enterprise has repeatedly refused to negotiate the list of demands submitted by the trade union for the 2004 period and, in this connection, has benefited from the passive stance of the labour authority which, through its inaction, has effectively supported the illegal action by the enterprise. The list drawn up by the trade union organization was submitted to the enterprise on 21 April 2004, thereby formally initiating the collective bargaining process for the current year. However, the Banco del Trabajo refused to receive the document containing the trade union’s list of demands. Subsequently, the trade union resubmitted the list to the enterprise on two occasions. On 14 May 2004 the document was again submitted and the enterprise returned it on 18 May. Subsequently, the trade union attempted again to submit the list of demands to the enterprise on 11 June and the enterprise returned it on 17 June 2004. The enterprise maintains that the trade union organization was established illegally, and that it is therefore not obliged to discuss the list. But the action by the enterprise disregards the fact that under the Peruvian legal system only the judge can decide, in a normal case, that a trade union has failed to meet the requirements whereby it can represent the workers in an enterprise.
13. 1214. Lastly, as regards the submission to the enterprise of the list of demands, the complainant alleges that both parties have explained their positions to the administrative labour authority and that the enterprise has requested cancellation of the summons to the conciliation meeting. The complainant emphasizes that the administrative labour authority unexpectedly, and in the absence of any court decision, ruled on 17 August 2004 that the collective bargaining process between the enterprise Banco del Trabajo and the trade union of workers was suspended. The parties were notified of this decision on 10 September 2004.
14. B. The Government’s response
15. 1215. In its communication dated 16 March 2005, the Government states that in Peru the right to freedom of association, as embodied in ILO Conventions Nos. 87 and 98, is expressly recognized in article 28, paragraph 1 of the political Constitution. This right is further developed in Supreme Decree No. 010-2003-TR, section 2, single consolidated text of the law on collective labour relations. Likewise, the protection of freedom of association is regulated by the law on collective labour relations, which provides for the mechanisms best suited to defend it. Such protection guarantees that worker representatives have the right not to be dismissed or transferred to other establishments belonging to the same enterprise, without just cause that is duly demonstrated or without their acceptance. It should be noted that it is provided in the single consolidated text of Legislative Decree No. 728 (law on labour productivity and competitiveness) enacted pursuant to Supreme Decree No. 003-97-TR (hereafter called LPCL), that any dismissal motivated by trade union membership or participation in trade union activities is void. In such an event, once the cause has been proved, the judge will order the reinstatement of the worker in his job. Hence, the Peruvian regulations provide for reinstatement of the dismissed worker in cases of anti-union dismissal, unless compensation payable in cases of arbitrary dismissal is preferred; the dismissal will stand only in cases of just cause.
16. 1216. The Government adds that the LPCL meanwhile provides that workers who are of the view that they have been the target of hostility by their employer during the employment relationship may choose between: (i) applying for cessation of hostilities before the respective jurisdictional body, with an order for the payment of the appropriate fine; or (ii) termination of the employment contract, in which case the worker would be entitled to compensation. It should be noted that, at the administrative level, the Ministry of Labour and Job Promotion is responsible for effective compliance with labour standards through labour inspection, which may be triggered by a complaint from any worker who considers himself to be affected. Peruvian labour legislation offers guarantees to workers whose rights are infringed. Workers have the right to request the intervention of the inspection services or to apply to the appropriate jurisdictional bodies if they consider that their employment rights have been infringed.
17. 1217. The Government states that, on 3 November 2004, the Single Trade Union of Workers of Gloria S.A. requested an inspection visit to the enterprise in question. Consequently, on 6 November 2004, the deputy director for inspection of labour health and safety issued an inspection order for 22 November 2004. Following the inspection, Gloria S.A. was fined the sum of 800 new soles, pursuant to the deputy director’s resolution 414-2004-DRTPELC/DPMSST/DSISST for breaches of labour health and safety. Also, two of the alleged prejudiced workers have, of their own initiative, initiated judicial proceedings as to protect their rights. It should be noted that decisions regarding complaints submitted by workers can only be taken by the courts which are the appropriate mechanisms to provide redress for any violation of rights that may have occurred. The jurisdictional function is independent of other State bodies, for which reason the Ministry of Labour and Employment Promotion cannot intervene in the proceedings involving Gloria S.A. employees. However, the Government will be attentive to the outcome of these proceedings in order to be able to inform the committee of the final decision.
18. 1218. The Government adds that, prior to these proceedings, the CGTP had twice requested the Ministry of Labour and Employment Promotion to step in as mediator to seek an agreement between Gloria S.A. and its employees in matters relating to the disputes occurring in the enterprise. The National Directorate of Labour, within the Ministry of Labour and Employment Promotion, twice summoned the parties, but the enterprise failed to attend. Subsequently, the trade union applied to the courts. Consequently, the Government is of the view that it is premature to conclude that the right to freedom of association has been infringed, since court proceedings in this regard are still ongoing.
19. 1219. In its communication of 16 January 2006, the Government states that trade union leaders, Felipe Fernández Flores, Miguel Moreno Avila and Gilver Arce Espinoza have initiated a court action in relation to their dismissal. The Government finds it safer to await the court’s decision in this regard.
20. 1220. The Government enclosed, with its response, a communication from the enterprise Gloria S.A. in which it declares it has not violated any freedom of association right against any worker, trade union leader or not. As regards the allegation according to which, from the time the employees set up a trade union, the enterprise began a relentless campaign of harassment, dismissals and alleged provocations towards the trade union, the enterprise informs it has had a trade union for more than 30 years and that the freedom of affiliation has been respected since the start of the enterprise. Concerning the dismissals of the workers mentioned by the complainant, meaning Rubén Darío Villegas Vásquez and Fernando Paholo Trujillo Ramírez, they are absolutely without connection with their affiliation to the trade union organization. As regards Fernando Paholo Trujillo Ramírez, the worker was dismissed for a serious mistake, in accordance with paragraphs (a) and (b) of section 25 of D.S. 003-97-TR, approved by the single consolidated text of Legislative Decree No. 728 of the law on labour productivity and competitiveness, which corresponds to the breach of obligation resulting in the violation of good faith at work, to repeated resistance to the carrying out of tasks, the non-observance of internal labour regulation, as well as the deliberate reduction of efficiency and work quality of the concerned worker. Such breaches are considered, in the juridical view, as a just cause for dismissal, linked to the worker’s behaviour, in accordance with section 24, paragraph (a), of the aforementioned purview. In this case, a trial is in progress and the enterprise has answered the complainant’s allegations. As regards Rubén Darío Villegas Vásquez, his dismissal does not result from a serious misconduct, which is why a sum corresponding to a month and a half’s salary per year of service, in addition to social benefits, was paid to him, in accordance with the law. Furthermore, the worker in question, on 30 November 2004, has withdrawn from his legal action in protection lodged before the court, on the grounds that the enterprise has paid him his social benefits in full, in accordance with the law. The enterprise adds that it is untrue that the dismissal of two workers was, in effect, to increase the workload of officials in charge of the defence and organization of the trade union. The thesis put forward by the CGTP is absolutely unfounded, so far as no enterprise would promote its own ineffectiveness and that affects its own productivity. There is no, and never was any, bad treatment nor unjust suspension. The suspension measures taken by the enterprise have been taken in strict respect of internal standards, provided in the internal labour regulation as approved by the Ministry of Labour and employment promotion.
21. 1221. In its communication of 9 May 2005, the Government refers to the allegations presented by the complainant against the enterprise Petrotech Peruana S.A., in connection with the dismissal on 5 February 2004 of Segundo Adán Robles Nunura, who is the trade union leader and member of the negotiating committee for the 2004-05 list of demands, accusing him of grave misconduct in the nature of insufficient productivity and negligence in the discharge of his duties. According to the complainant organization, the real motive for his dismissal was his involvement in trade union activities.
22. 1222. In this regard, the Government states that freedom of expression is protected in different ways in the domestic legal order. Two of these are closely interlinked. The Government states that it is necessary, in this context, to distinguish: (1) between the institution of trade union immunity; and (2) that of invalid dismissal. The former provides a guarantee to certain workers (including trade union leaders and workers belonging to committees responsible for negotiating a list of demands) that they will not be dismissed or transferred to other establishments belonging to the same enterprise, without duly proven just cause or without due prior notice. The latter renders invalid a dismissal motivated by, among other causes, participation in trade union activities.
23. 1223. The Government states that, in the case in question, the controversy surrounding the dismissal of Segundo Adán Robles Nunura may be settled only by determining whether this act was motivated by grave misconduct as imputed to the worker in question by the undertaking (insufficient productivity or negligence); or, on the contrary, that it was motivated by the fact that he was a trade union leader and engaged in trade union activities (specifically, his attempt to participate in the inspection visit by the labour authority to the undertaking in January 2004). The former situation would constitute justified dismissal while the latter would constitute an infringement of trade union community and an invalid dismissal.
24. 1224. The Government goes on to state that the substance of the complainant reveals that the worker involved in the disciplinary measure adopted by the undertaking Petrotech Peruana S.A. has brought a case before the courts challenging the validity of his dismissal and seeking reinstatement. This makes it clear that the worker in question has activated the mechanism provided for by the national juridical order to give effect to protection, with the result that it may be concluded that he is not without a means of defence. Consequently, the judiciary, under its responsibility for the administration of justice, will have the task of deciding on how to settle this dispute.

The Committee’s conclusions

1. 1225. The Committee notes that in the present case the complainant organization submits allegations regarding anti-union dismissals and a harassment campaign against members of the trade union in the enterprise Gloria S.A., anti-union dismissal of the president of the negotiating committee for the 2004-05 list of demands in the enterprise Petrotech Peruana S.A. and anti-union dismissals in the Banco del Trabajo (SUTRABANTRA) and refusal to negotiate the list of demands.
2. 1226. As regards the allegations concerning the anti-union dismissals (initially of trade union members Rubén Darío Villegas Vásquez and Fernando Paholo Trujillo Ramírez, and subsequently of secretary-general Felipe Fernández Flores, and of the secretary for organization, Miguel Moreno Avila and the secretary for defence, Gilver Arce Espinoza), and the campaign of harassment (increased working hours, ill-treatment and suspension of workers) in the enterprise Gloria S.A. after a trade union was established, the Committee notes the Government’s statements to the effect that: (1) in Peru, the right to freedom of association is expressly recognized and protection of freedom of association is regulated by the law on collective labour relations; (2) workers who are of the view that they have been the target of hostility by their employer during the employment relationship can apply for cessation of hostilities before the respective jurisdictional body, with an order for the payment of the appropriate fine or termination of the employment contract, in which case the worker would be entitled to compensation; (3) the National Directorate of Labour, within the Ministry of Labour and Employment Promotion, twice summoned the representatives of the enterprise and of the trade union with a view to finding a settlement to the disputes that had arisen, but the enterprise failed to attend; and (4) the employees of the enterprise Gloria S.A. with alleged grievances, Rubén Darío Villegas Vásquez and Fernando Paholo Trujillo Ramírez, and trade union leaders Felipe Fernández Flores, Miguel Moreno Avila and Gilver Arce Espinoza, voluntarily sought protection of their rights by the jurisdictional bodies and information will duly be sent on the outcome of these cases.
3. 1227. In this regard, the Committee takes note of the information submitted by the enterprise, through the Government, according to which: (1) it is untrue that a campaign of harassment against the trade union and its leaders was launched following the set up of the trade union organization, the right to associate having been respected for the 30 years of the enterprise’s existence; (2) the dismissal of the worker Fernando Paholo Trujillo Ramírez is a result of grave misconduct on his behalf and a judicial action is in process; (3) the dismissal of Rubén Darío Villegas Vásquez does not result from a grave misconduct he committed, and, therefore, a sum corresponding to a month and a half’s salary per year of service, in addition to social benefits, was paid to him and he decided to withdraw himself from the lawsuit he initiated, considering he had received his social benefits in full; (4) there were no bad treatments nor unjust suspensions; the suspension measures taken have respected the internal standards provided for in the internal labour regulation approved by the Ministry of Labour.
4. 1228. The Committee further observes that the Government does not deny the allegations of a harassment campaign conducted by the undertaking following the establishment of the trade union. The Committee recalls that “the dismissal of workers on grounds of membership of an organization or trade union activities violates the principles of freedom of association” and that “cases concerning anti-union discrimination contrary to Convention No. 98 should be examined rapidly, so that the necessary remedies can be really effective”. An excessive delay in processing cases of anti-union discrimination, and in particular a lengthy delay in concluding the proceedings concerning the reinstatement of the trade union leaders dismissed by the enterprise, constitute a denial of justice and therefore a denial of the trade union rights of persons concerned [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, paras. 702 and 749]. Under these circumstances, the Committee requests the Government to keep it informed of the outcome of the judicial actions in process concerning the dismissal of Fernando Paholo Trujillo Ramírez, the secretary-general Felipe Fernández Flores, and of the secretary for organization, Miguel Moreno Avila and the secretary for defence, Gilver Arce Espinoza, and that, if the dismissals of trade union leaders are ascertained to have been of an anti-union nature, the Committee requests the Government to take measures to ensure that they are reinstated in their posts, and if that is not legally possible, that they are fully compensated; such compensation should include sufficiently dissuasive sanctions against the employer for such anti-union conduct.
5. 1229. In regard to the alleged anti-union dismissal of Segundo Adán Robles Nunura by the enterprise Petrotech Peruana S.A. following his nomination as president of the negotiating committee for the 2004-05 list demands, the Committee notes that, according to the Government: (1) in this situation, it is necessary to determine whether the dismissal was motivated by the serious faults imputed to the employee by the undertaking or whether, on the contrary, it was motivated by his position as trade union leader, and (2) as stated by the complainant organization, the worker involved has brought a case before the courts challenging the validity of his dismissal and, consequently, the judiciary will have the task of deciding on how to settle this dispute. In this respect, the Committee expects that the judicial authority will promptly reach a decision regarding the dismissal of the trade union official in question and requests the Government to keep it informed of the judgement.
6. 1230. Lastly, the Committee regrets to note that the Government has failed to send its observations concerning allegations regarding dismissals of trade union officials and members of the Unified Trade Union of Workers of the Banco del Trabajo (SUTRABANTRA) in the context of a harassment campaign conducted by the Banco del Trabajo, and allegations that the enterprise in question has challenged the trade union’s registration and refused to negotiate the list of demands. In this regard, the Committee urges the Government promptly to send its observations regarding these allegations.

The Committee's recommendations

1. 1231. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) Concerning the allegations related to the enterprise Gloria S.A., the Committee asks the Government to keep it informed of judicial proceedings as regards Fernando Paholo Trujillo Ramírez, the secretary-general Felipe Fernández Flores, the secretary for organization, Miguel Moreno Avila and the secretary for defence, Gilver Arce Espinoza, and that, if the dismissals of trade union leaders are ascertained to have been of an anti-union nature, the Committee requests the Government to take measures to ensure that they are reinstated in their posts and if that is not legally possible, that they are fully compensated; such compensation should include sufficiently dissuasive sanctions against the employer for such anti-union conduct.
   • (b) In regard to the alleged anti-union dismissal of Segundo Adán Robles Nunura by the enterprise Petrotech Peruana S.A., following his designation as president of the negotiating committee for the 2004-05 list of demands, the Committee expects that the judicial authority will promptly reach a decision regarding the dismissal of the trade union official in question and requests the Government to keep it informed of the judgement.
   • (c) Regretting that the Government has failed to send its observations concerning allegations regarding dismissals of trade union officials and members of the Unified Trade Union of Workers of the Banco del Trabajo (SUTRABANTRA) in the context of a harassment campaign conducted by the Banco del Trabajo, and allegations that the enterprise in question has challenged the trade union’s registration and refused to negotiate the list of demands, the Committee urges the Government promptly to send its observations regarding these allegations.