Report in which the committee requests to be kept informed of development - Report No 348, November 2007

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

Allegations: Dismissal of trade union leaders and members in several enterprises; acts of harassment following the establishment of trade unions; legal challenge to the registration of a trade union and refusal to negotiate a list of demands

1066. The Committee examined this case at its meeting in March 2006 and on that occasion presented an interim report to the Governing Body [see 340th Report, paras 1199–1231, approved by the Governing Body at its 295th Session (March 2006)]. The General Confederation of Workers of Peru (CGTP) sent further information in communications dated 26 April 2006 and 6 February 2007.

1. 1067. The Government sent its observations in communications dated 15 February and 25 October 2006 and 26 October 2007.
2. 1068. 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. 1069. At its last meeting, the Committee made the following recommendations [see 340th Report, paras 1199–1231]:
2. (a) Concerning the allegations related to the enterprise Gloria SA, 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.
3. (b) In regard to the alleged anti-union dismissal of Segundo Adán Robles Nunura by the enterprise Petrotech Peruana SA, 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.
4. (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.
5. B. Additional information from the complainant
6. 1070. In its communication of 26 April 2006, the CGTP reports that, with regard to the dismissal from the Gloria SA enterprise of three union leaders who were workers’ representatives in collective bargaining, the workers were also accused of the serious offence of reporting the granting of pay rises to “trusted” staff (computer crime of illicit interference in, accessing or copying of information from a database). In that regard the judge of the 39th Criminal Court of Lima in report No. 25-2006 RDT decided not to open an investigation because one of the requirements for criminal proceedings is that the alleged offender must have been identified, which was not the case, and because if a criminal charge is not backed up by minimal evidence in support of the accusation, it is an arbitrary act, that is, even the criminal judge agrees with the illegally dismissed officials that they have not done anything warranting an accusation, let alone dismissal.
7. 1071. In a communication dated 6 February 2007, the CGTP states that, on 1 September 2006, Mr Arnoldo Efraín Calle Flores, General Secretary of the Unified Trade Union of Employees of the Banco del Trabajo (SUTRABANTRA), was reinstated in his post by a judicial order containing a protective order, after a 30-month legal battle with the Banco del Trabajo. The judicial authority had ruled in favour of the official on two occasions, ordering his reinstatement and the payment of accrued earnings, having found that the true motivation for his dismissal had been the establishment of the trade union and his participation in trade union activities. Currently the main proceedings are under way in the Supreme Court of the Republic of Peru, which is set to confirm the previous rulings. Despite this, in order to prevent the union leader Efraín Calle Flores from working, the Banco del Trabajo illegally assigned him to an inland province, in violation of the trade union immunity that protects him from such anti-union measures. He complained to the Banco del Trabajo and to the court, but the enterprise once again obstructed his admission to work, alleging that he had abandoned his post, disregarding the fact that there was a judicial protective order in his favour.
8. 1072. The CGTP adds that the Banco del Trabajo had legally challenged the registration of SUTRABANTRA, but the request had been definitively rejected by the court in a judgement dated 10 January 2007. Nevertheless, the Banco del Trabajo, in contempt of the judicial ruling, continues to deny recognition to SUTRABANTRA as a legitimate workers’ representative body. As a result of not recognizing SUTRABANTRA, the Banco del Trabajo has refused to bargain collectively with the trade union, and the lists of demands for the years 2004, 2005 and 2006 are still pending resolution.
9. C. The Government’s reply
10. 1073. In its communications of 15 February and 25 October 2006 and 26 October 2007, the Government reports the following with regard to the allegations still pending.
11. Gloria SA enterprise
12. 1074. Case brought by Gilver Arce Espinoza. In ruling No. 183403-2005-298-3erJTL-CFL of 14 August 2006, the judge in the Third Labour Court of Lima referred to information on the status of the case brought by Mr Gilver Arce Espinoza against Gloria SA for wrongful dismissal, set out in file No. 183403-2005-00298. In this regard, he noted that the request made by Mr Gilver Arce Espinoza was admitted to the proceedings on 27 July 2005 by resolution No. 1, and the defendant was accordingly notified. Later, on 27 July 2005, Mr Arce presented a written statement requesting the withdrawal of the case because he had received full payment of his social benefits including length of service pay and other entitlements. Taking account of the request to withdraw the case, the Third Labour Court, through resolution No. 3 of 15 September 2005, ordered the case to be filed; it is currently in the General Archive of the Supreme Court of Justice of Lima.
13. 1075. Case brought by Mr Miguel Moreno Avila. The judge in the Twenty-first Labour Court of Lima reported that with regard to the case brought by Mr Miguel Moreno Avila against the Gloria SA enterprise for wrongful dismissal, file No. 183421-2005-00303, notification of the case was sent to the defendant, who duly responded to the claim, and both parties were convened on 18 July 2006 for the single hearing. The proceedings are pending on appeal.
14. 1076. Case brought by Mr Felipe Fernández Flores. The judge in the Twenty-Fourth Labour Court of Lima reported on the status of the case brought by Mr Felipe Fernández Flores against the Gloria SA enterprise (file No. 183424-2005-00301). He indicated that, as the case had been declared procedurally valid and the evidence on disputed points had been heard, resolution No. 13 of 15 June 2006 provided that the documents could be decided and was ready for ruling. It should be noted that Mr Fernández applied to the court to grant the protective order for payment of a provisional allowance, which was declared inadmissible because it had not shown convincingly that the party concerned had been unfairly dismissed. The proceedings are pending on appeal.
15. Petrotech Peruana SA
16. 1077. With regard to the case of the anti-union dismissal of Mr Segundo Adán Robles Nunura, the Government notes that the Supreme Court of Justice of Lima reported that the Sixth Court ruled on case No. 183406-2004-00093-0 on 11 May 2006 declaring the claim to be “unfounded”. An appeal against the ruling was lodged by Mr Segundo Adán Robles Nunura; the appeal was upheld in a resolution dated 12 June 2006 and the case referred to the Labour Tribunal. This case has been before the First Labour Tribunal since 15 August 2006 and assigned case No. 4342. A hearing before the Tribunal has been scheduled for 3 October 2006, and the case is still pending. Once the proceedings are concluded, a report on the result of the proceedings will be issued. The Government adds that in letter No. 6M-179-2006 dated 11 August 2006, the General Manager of the Petrotech Peruana SA enterprise reported on the proceedings brought by Mr Segundo Adán Robles Nunura before the Sixth Labour Court of Lima to annul his dismissal.
17. Banco del Trabajo
18. 1078. With regard to the allegations of dismissals of union officials and members of the SUTRABANTRA in the context of a harassment campaign by the Banco del Trabajo, and allegations that the Banco del Trabajo had challenged the registration of the union and refused to negotiate a list of demands, the Government states that the administrative authority requested the General Manager of the Banco del Trabajo to report on the status of the cases brought by SUTRABANTRA. In response, the General Manager of the Banco del Trabajo provided information in letter GL/312-06 of 22 September 2006 that the SUTRABANTRA union had initiated judicial proceedings against their client to cease hostilities, and the case was currently before the Second Labour Court of Piura under file No. 2004-092.
19. 1079. With regard to the two lists of demands that are pending before the Administrative Labour Authority, having been presented by the aforementioned trade union, the Government states that the Banco del Trabajo opposed them because there was another union in the city of Lima called the Single Union of Employees of the Banco del Trabajo (SUDEBANTRA), to which some members of SUTRABANTRA also belonged; signing up to both organizations at the same time was illegal. On this point, it is worth noting that, through official letter No. 643-2006-MTPE/9.1, dated 15 August 2006, the Regional Director for Labour and Employment Promotion of Piura was requested to report on the status of the lists of demands between SUTRABANTRA and the Banco del Trabajo. In that regard, a letter was received on 8 September 2006, No. 454-2006-Gob.Reg.DRTPE-DR, from the Regional Directorate for Labour and Employment Promotion of Piura, stating that the Subdirectorate for Collective Bargaining of the Regional Directorate for Labour and Employment Promotion of Piura was dealing with three cases pertaining to negotiations of lists of demands between SUTRABANTRA and the Banco del Trabajo, corresponding to the years 2004, 2005 and 2006. It mentioned that report No. PR-002-2004-DRTPE-PIURA-SDNCIHSO sets out the written administrative proceedings initiated by the Banco del Trabajo on 16 August 2004, in which they oppose consideration of the 2004 list of demands presented by SUTRABANTRA because they had lodged a request for “cancellation of union registration” with the First Labour Court of Piura, which has been hearing the case since 18 June 2004.
20. 1080. The Government adds that, as official documents confirmed that the Banco del Trabajo’s request for “dissolution of the union” was awaiting a ruling from the competent body, and in accordance with the provisions of article 13 of the Organic Law of the Judiciary, the Labour Authority of First Instance in an unnumbered resolution of 17 August 2004 suspended the case until the aforementioned proceedings were resolved. In a document dated 15 September 2004, the trade union made an appeal to challenge the Labour Authority rulings, referring the rulings to the Regional Directorate for Labour and Employment Promotion of Piura for a second instance ruling, which in directorial resolution No. 096-2004-DRTPE-PIURA-DPSC of 29 October 2004 covered the issues raised by the trade union and found in favour of the legal challenge, nullifying the ruling of the Labour Authority of First Instance and enabling the collective bargaining process to continue.
21. 1081. Subsequently, at the request of the trade union, the Labour Authority of the Negotiation Subdirectorate forwarded the relevant file to the Technical Administrative Office of the Regional Directorate so that it could carry out a “financial economic study” of the Banco del Trabajo enterprise. In view of this, the Banco del Trabajo filed an “opposition” motion, again alleging that the parties were in a dispute before the courts. The Labour Authority accepted the opposition motion, because the enterprise guaranteed that it had lodged an appeal to annul the judicial proceedings for the cancellation of union registration; the Technical Administrative Office was accordingly instructed to suspend its “financial economic study” of the enterprise pending the results of the judicial proceedings. The trade union appealed, and in directorial ruling No. 066-2006-DRTPE-PIURA-DPSC of 9 May 2006, the first instance ruling was overturned and the revised resolution declared the Banco del Trabajo’s opposition to be unfounded.
22. 1082. The Government adds that in ruling No. 306-2006-DRTPE-PIURA-SDNCIHSO, the Negotiation Subdirectorate sent the Technical Administrative Office the relevant set of instruments so that it could continue with the “financial economic study” of the enterprise. In this context, on 19 July 2006, the First Specialized Tribunal for Civil Matters of Piura handed down resolution No. 16 upholding the appealed ruling and agreeing to the request brought by the Banco del Trabajo against the Directorate for Prevention and Resolution of Labour Disputes of the Regional Directorate for Labour and Employment Promotion, on the contentious administrative proceedings; as a result directorial resolution No. 096-2004-DRTPE-PIURA-DPSC of 29 October 2004 was overturned, and the Regional Directorate was directed to issue a new resolution in accordance with what was laid down in the ruling. In accordance with the judicial mandate, the Regional Directorate recalled the legal norms handed down by the First Court and issued a decision in directorial resolution No. 153-2006-DRTPE-PIURA-DPSC of 29 August 2006, declaring that the appeal made by SUTRABANTRA was unfounded. As a result, it confirmed the decision of the Labour Authority of First Instance in the unnumbered resolution of 17 August 2004, that is, to suspend the proceedings relating to the list of demands for 2005 and the list of demands for 2006 in files Nos 003-2005-DRTPE-PIURA-SDNCIHSO and 002-2006-DRTPE-PIURA-SDNCIHSO. In respect of these rulings, the negotiation of the lists of demands has been suspended until the ongoing legal case is resolved.
23. 1083. Lastly, with regard to the issue of the registration of SUTRABANTRA, the Government reports that the Subdirectorate for General Registrations concurs with the Regional Directorate for Labour and Employment Promotion of Piura that the registration of this trade union remains unchanged.

D. The Committee’s conclusions

1. 1084. The Committee observes that the allegations that had remained pending in the present case concern: (1) judicial proceedings as regards Fernando Paholo Trujillo Ramírez, General Secretary Felipe Fernández Flores, Organization Secretary Miguel Moreno Avila, and Defence Secretary Gilver Arce Espinoza; (2) the alleged anti-union dismissal of Segundo Adán Robles Nunura by the enterprise Petrotech Peruana SA, following his appointment as president of the negotiating committee for the 2004–05 list of demands; and (3) the dismissals of trade union officials and members SUTRABANTRA in the context of a harassment campaign conducted by the Banco del Trabajo, and the allegation that the enterprise in question has challenged the trade union’s registration and refused to negotiate the list of demands.
2. 1085. With regard to the ongoing judicial proceedings concerning the dismissals in the Gloria SA enterprise, the Committee notes the Government’s information that: (1) Mr Gilver Arce Espinoza presented a written statement to the court requesting the withdrawal of the case because he had received payment of his social benefits, including length of service pay and other entitlements. The judicial authority ordered the case to be filed; (2) in the case brought by Mr Felipe Fernández Flores, and by Mr Miguel Moreno Avila, the proceedings are pending on appeal. In these circumstances, the Committee expects that the proceedings will be concluded soon, and requests the Government to keep it informed of the outcome of the proceedings concerning union officials Felipe Fernández Flores and Miguel Moreno Avila. In addition, the Committee urges the Government to keep it informed without delay of the proceedings concerning the dismissal of Mr Fernando Paholo Trujillo Ramírez, about which it has sent no information. The Committee also notes the complainant’s information, according to which the three union officials from the Gloria SA enterprise had been accused of committing offences, but the judicial authority decided not to launch criminal proceedings.
3. 1086. With regard to the alleged anti-union dismissal of Mr Segundo Adán Robles Nunura by the Petrotech Peruana SA enterprise, following his appointment as president of the negotiating committee for the 2004–05 list of demands, the Committee notes the Government’s statements to the effect that: (1) the Sixth Court handed down a ruling on 11 May 2006 declaring the claim to be “unfounded”, an appeal was lodged by Mr Segundo Adán Robles Nunura and upheld in a resolution dated 12 June 2006, and the case was referred to the Labour Tribunal; (2) this case has been before the First Labour Tribunal since 15 August 2006 and assigned file No. 4342. The hearing of the case by the Tribunal has been scheduled for 3 October 2006; this case is still ongoing. Once the proceedings are formally concluded, a report will be issued on the outcome; and (3) in letter No. 6M-179-2006 dated 11 August 2006, the General Manager of the Petrotech Peruana SA enterprise reported on the proceedings brought by Mr Segundo Adán Robles Nunura before the Sixth Labour Court of Lima to annul his dismissal. In these circumstances, the Committee expects that the judicial proceedings will be concluded soon and requests the Government to keep it informed of their outcome.
4. 1087. With regard to the alleged dismissals of union officials and members of SUTRABANTRA in the context of a campaign of harassment by the Banco del Trabajo, the Committee notes the Government’s statements to the effect that according to the report of the General Manager of the Banco del Trabajo, the SUTRABANTRA union had initiated judicial proceedings against the Banco del Trabajo to cease hostilities, and the proceedings are currently under way before the Second Labour Court of Piura. The Committee also notes the complainant’s statement that: (1) on 1 September 2006, Mr Arnoldo Efraín Calle Flores, General Secretary of SUTRABANTRA, was reinstated in his post by a judicial order containing a protective order, after a 30-month legal battle with the Banco del Trabajo; (2) the court had found in favour of the official on two occasions, ordering his reinstatement and the payment of accrued earnings, after finding that the true motivation for his dismissal had been the establishment of the trade union and his participation in trade union activities. Currently the main proceedings are under way before the Supreme Court of the Republic of Peru, which is set to confirm the previous rulings; and (3) despite this, in order to prevent union leader Efraín Calle Flores from working, the Banco del Trabajo illegally assigned him to an inland province, violating the trade union immunity that protects him from such anti-union measures. The union leader complained to the Banco del Trabajo and to the court, but the enterprise once again obstructed his admission to work, alleging that he had abandoned his post, disregarding the fact that there was a judicial protective order in his favour. In these circumstances, taking into account the information sent by the complainant and in particular the judicial decisions in his favour, the Committee requests the Government to take the necessary measures to ensure that the General Secretary of SUTRABANTRA, Mr Efraín Calle Flores, is reinstated in his previous post, with the payment of lost wages, pending the final judgement of the Supreme Court and to keep it informed in that respect. In addition, the Committee urges the Government to send its observations with regard to the other alleged dismissals of officials and members of the SUTRABANTRA union.
5. 1088. With regard to the alleged challenge against the union registration of SUTRABANTRA by the Banco del Trabajo, the Committee notes the Government’s statements to the effect that the registration of this trade union remains unchanged. The Committee notes the complainant’s statements to the effect that the legal challenge to the union registration by the Banco del Trabajo has been definitively rejected by the court in a judgement dated 10 January 2007, but that, nevertheless, the Banco del Trabajo is still refusing to recognize SUTRABANTRA as a legitimate workers’ representative body. In these circumstances, the Committee requests the Government to take the necessary measures to ensure that the Banco del Trabajo recognizes SUTRABANTRA as an organization representing the interests of its members.
6. 1089. With regard to the alleged refusal of the Banco del Trabajo to negotiate the lists of demands for the years 2004, 2005 and 2006, the Committee notes the Government’s statements to the effect that: (1) the Banco del Trabajo indicated its opposition on the grounds that there was another union – SUDEBANTRA – to which some members of SUTRABANTRA also belonged, and signing up to both organizations at the same time was illegal; (2) the Subdirectorate for Collective Bargaining of the Regional Directorate for Labour and Employment Promotion of Piura was dealing with three cases pertaining to negotiations of lists of demands between SUTRABANTRA and the Banco del Trabajo, corresponding to the years 2004, 2005 and 2006; (3) report No. PR-002-2004-DRTPE-PIURA-SDNCIHSO sets out the written administrative proceedings brought by the Banco del Trabajo on 16 August 2004, in which it opposed consideration of the 2004 list of demands presented by SUTRABANTRA because an application to “cancel union registration” had been filed with the First Labour Court of Piura, which has been hearing the case since 18 June 2004 (therefore, as official documents confirmed that the Banco del Trabajo’s request for “dissolution of the union” was still pending a ruling from the competent body, the Labour Authority of First Instance in an unnumbered resolution of 17 August 2004 suspended the case until the aforementioned proceedings were resolved); (4) in a document dated 15 September 2004, the trade union made an appeal to challenge the ruling by the Labour Authority, referring the rulings to the Regional Directorate for Labour and Employment Promotion of Piura for a second instance ruling, and ordered that the collective bargaining process continue; (5) at the request of the trade union, the Labour Authority of the Negotiation Subdirectorate forwarded the relevant file to the Technical Administrative Office of the Regional Directorate so that it could carry out a “financial economic study” of the Banco del Trabajo enterprise, but the Banco del Trabajo lodged an “opposition”, again alleging that the parties were in a dispute before the court. The Labour Authority accepted the enterprise’s opposition motion, because it guaranteed that it had lodged an appeal to annul the judicial proceedings for the cancellation of the union registration; (6) following various administrative and judicial proceedings, the Labour Authority of First Instance in the unnumbered resolution of 17 August 2004, suspended the proceedings relating to the lists of demands for 2005 and 2006, and the negotiation on the lists of demands has been suspended until the case is resolved concerning the request to cancel SUTRABANTRA registration (the complainant organization indicates that this question has now been resolved by a final court decision of 10 January 2007 rejecting the request for cancellation of the registration). The Committee notes the complainant’s allegation that, as a result of not recognizing SUTRABANTRA, the Banco del Trabajo has refused to bargain collectively and the lists of demands for the years 2004, 2005 and 2006 are still pending resolution.
7. 1090. In these circumstances, the Committee expects that the ongoing case before the courts which led to negotiations on the lists of demands being suspended will be resolved very soon, and requests the Government to endeavour to promote collective bargaining between the parties. The Committee requests the Government to keep it informed in this respect.

The Committee's recommendations

1. 1091. 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 keep it informed of the outcome of the judicial proceedings (pending on appeal) concerning the dismissals of union officials Felipe Fernández Flores and Miguel Moreno Avila from the Gloria SA enterprise, and urges the Government to keep it informed without delay of the judicial proceedings concerning the dismissal from the same enterprise of Mr Fernando Paholo Trujillo Ramírez, about which it has sent no information.
   • (b) With regard to the anti-union dismissal of Mr Segundo Adán Robles Nunura by the Petrotech Peruana SA enterprise, the Committee expects that the judicial proceedings will be concluded soon, and requests the Government to keep it informed of their outcome.
   • (c) The Committee requests the Government to take the necessary measures to ensure that the General Secretary of SUTRABANTRA, Mr Efraín Calle Flores, who was dismissed from the Banco del Trabajo, is reinstated in his previous post, with the payment of lost wages, pending the final judgement of the Supreme Court, and to keep it informed in this regard. In addition, the Committee urges the Government to send its observations concerning the other alleged dismissals of union officials and members of the SUTRABANTRA union.
   • (d) The Committee requests the Government to take the necessary measures to ensure that the Banco del Trabajo recognizes SUTRABANTRA as an organization representing the interests of its members, and to make an effort to promote collective bargaining between the parties.