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

Case No 2527 (Peru) - Complaint date: 28-SEP-06 - Closed

Allegations: Dismissal of trade union officers and eviction from their accommodation as a result of the establishment of the Trade Union of Workers of the San Martín Mining Company SA; threats against trade union officers

1092. The complaint is contained in a communication from the Autonomous Confederation of Peruvian Workers (CATP) dated 28 September 2006. The Government sent its observations in communications dated 12 March and 26 October 2007.

1. 1093. 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. 1094. In its communication of 28 September 2006, CATP alleges that on 19 August 2006 representatives of the San Martín Mining Company SA were informed of the establishment and registration of a trade union and its executive in a notarized letter dated 19 August 2006 (attached by the complainant), which stated that the trade union and the list of its officers had been recognized by the labour administrative authority of Lima on 16 August 2006. The CATP adds that on 20 August 2006 a police report was drawn up at the request of trade union officers César Augusto Elías García (general secretary), José Arenaza Lander (defense secretary) and Armando Bustamante Bustamante (press and propaganda secretary) because they had been evicted from their accommodation by order of the general manager of human resources of the San Martín Mining Company SA, who stated that they no longer belonged to the enterprise, according to the police report (attached by the complainant).
2. 1095. According to the allegations, on 21 August 2006, having been informed of the trade union’s existence, the San Martín Mining Company SA prevented the abovementioned officers from entering the workplace by posting a notice on the wall at the entrance (also attached by the complainant).
3. 1096. According to the allegations, the general manager of human resources at the enterprise has been pursuing a policy of repeated violation of the right to organize and freedom of association against trade union officers and unionized workers: once he had been informed of the establishment of the trade union, he started harassing and dismissing the workers, falsely accusing them of misconduct.
4. 1097. The CATP states that it has filed complaints concerning these acts with different authorities and that the enterprise refused to attend a meeting with trade unionists on 27 September 2006 under the auspices of the Ministry of Labour. It alleges further that the trade union officers receive threats against their lives and physical integrity from hired thugs who have direct connections with company officials; one of them, identified as Mr Genero Ayaucan Antialion, is acquainted with the general manager and other staff.
5. B. The Government’s reply
6. 1098. In its communications of 12 March and 26 October 2007, the Government states that the Trade Union of Workers of the San Martín Mining Company SA and its executive, represented by its general secretary, Mr César Augusto Elías García, were registered through the automatic registration procedure on 16 August 2006 for the period 30 June 2006 to 29 June 2008 in the register of the Trade Union Registration Division of the General Registration Subdirectorate of the Ministry of Labour and Employment Promotion. On 19 August 2006, representatives of the San Martín Mining Company SA were informed of the establishment and registration of the trade union and its executive, as well as the recognition of the trade union by the labour administrative authority. According to the trade union members, on 20 and 21 August 2006, the enterprise harassed and denied access to the workplace to trade union officers César Augusto Elías García (general secretary), José Arenaza Lander (defense secretary) and Armando Bustamante Bustamante (press and propaganda secretary), as indicated in the certified report issued by the Cañete police station.
7. 1099. The Government also forwards the views of the enterprise, reproduced below:
8. – the San Martín Mining Company provides services for the execution of mining and construction projects, in which the work is intrinsically temporary; this is especially true of the activities on the site in question, which involve preliminary work on a site for a gas liquefying plant under a contract signed with the client, Perú LNG SRL, located in Pampa Melchorita at km 169, Cañete, the labour for which was recruited under the special regulations governing the civil construction sector. Owing to the temporary nature of work in the sector, the workers recruited for the project are members of the civil construction trade unions of Cañete and Chincha, depending on where they live, which have site trade union committees at the project. The enterprise points out that it maintains cordial and respectful relations with those trade unions (relevant documents are attached);
9. – concerning the termination of employment of César Augusto Elías García, José Arenaza Lander and Armando Bustamante Bustamante, this was strictly in keeping with the nature of their civil construction contracts and with paragraph 2 of Ministerial Resolution No. 480, which provides that civil construction workers may be “dismissed” without notice from a site on the weekly closing day. Further, they were informed in memorandum No. 001.06.ADM, dated 19 August 2006, of their termination on grounds that the work they had been recruited for had been completed and the corresponding budget item terminated and nationalized; accordingly, the severance pay due in respect of their length of service had been prepared and they were consequently not allowed to enter the site or to use the accommodation and catering facilities, which are reserved for employees. Concerning recognition of the Trade Union of Workers of the San Martín Mining Company, the enterprise was informed of this after the date on which the employment of César Augusto Elías García, José Arenaza Lander and Armando Bustamante Bustamante was terminated. The enterprise states further that on the date their employment was terminated, they were members of the Civil Construction Workers’ Trade Union, as attested to by documents in the company’s possession;
10. – the enterprise states further that the assertions in the complaint concerning alleged threats against trade union officers’ lives and physical integrity turned out to be nothing more than talk, and were not based on any convincing proof; given that those making the allegations should provide proof, the enterprise requests that the complaint be rejected for lack of evidence. The enterprise points out that the trade union has not attached any certified copy of police reports or judicial action proving its allegations.
11. 1100. The Government refers to a number of measures taken by the Ministry of Labour and Employment Promotion concerning this case. Specifically, on 19 and 20 September 2006 the Ministry summoned the San Martín Mining Company SA and Perú LNG SRL and representatives of the Trade Union of Workers of the San Martín Mining Company to an out-of-court meeting to be held on 27 September 2006 at the offices of the Regional Directorate for Labour and Employment Promotion in Lima-Callao. Despite the above, on 27 September 2006 only the trade union representatives appeared, and it was placed on record that the employer side, the San Martín Mining Company SA and Perú LNG SRL, did not attend the meeting. In a letter (Ref. No. 518-2007-MTPE/2/12.1), the Regional Labour Directorate in Lima-Callao sent the following information on complaints filed with the Ministry of Labour concerning violation of freedom of association of the workers at the San Martín Mining Company SA:
12. – In a petition filed under No. 1721129, dated 25 August 2006, Mr César Augusto Elías García requested that an inspection be conducted at the enterprise to verify a case of arbitrary dismissal. On 31 August 2006, the assigned labour inspector went to the premises of the enterprise to carry out the inspection. Paragraph 4 of the inspection report states that “No ordinary or notarized letter giving notice of dismissal, letter of dismissal or letter accusing the worker of serious misconduct was shown. On 21 August 2006, the petitioner was informed verbally that he was to stop working at the Perú LNG Phase II site, owing to termination of the budget item corresponding to the work that he was engaged in. The petitioner has shown a certificate of automatic registration (file No. 132930-06-DRTPELC/DPSC/SDRG/DR) dated 16 August 2006, in which he is named as general secretary of the Trade Union of Workers of the San Martín Mining Company SA.”
13. – In a petition filed under No. 172132, dated 25 August 2006, Mr José Antonio Arenaza Lander requested that an inspection be conducted at the enterprise to verify a case of arbitrary dismissal. On 31 August 2006, the assigned labour inspector went to the premises of the enterprise to carry out the inspection, and found the following, as stated in paragraph 4 of the inspection report: “No letter giving notice of dismissal, letter of dismissal or letter accusing the worker of serious misconduct was shown during the inspection. On 21 August 2006, the petitioner was informed verbally that he was to stop working at the Perú LNG Phase II site, owing to termination of the budget item corresponding to the work that he was engaged in”.
14. – In a petition filed under No. 192560, dated 19 September 2006, Mr Armando Enrique Bustamante Bustamante requested that an inspection be conducted at the enterprise to verify a case of arbitrary dismissal. On 21 September 2006, the assigned labour inspector went to the premises of the enterprise to carry out the inspection, and found the following, as stated in paragraph 4 of the inspection report: “No letter of dismissal or letter giving notice of dismissal was given to the petitioner, who states that on 18 September 2006, he was informed verbally that he was to stop working at the site. I returned to the company headquarters in Lima and asked the person concerned about his situation; the complainant said he had been dismissed, adding that this situation of harassment was due to his holding office as press and propaganda secretary of the Trade Union of Workers of the San Martín Mining Company, and showing me a copy of an attestation submitted by the trade union to the Ministry of Labour and Employment Promotion dated 23 August 2006. The human resources manager, however, stated that the petitioner had not been dismissed, but had been transferred from the site on which he was working to another site of the enterprise, and showed me a transfer record indicating that the petitioner had been transferred on 18 September 2006 from the site where he was working to the company headquarters in San Juan de Miraflores, Lima.”
15. 1101. The Government states that, in accordance with section 45 of the regulations under Legislative Decree No. 728, approved by Presidential Decree No. 001-96-TR, the labour administrative authority, at the request of one of the parties, will assist in verifying whether arbitrary dismissal took place, manifested in the unjustified refusal by the employer to allow a worker access to the workplace, and will draw up a record of the outcome. The worker may also request a report from the police, which should indicate the identity and office of the persons involved, the location and the statements of the parties.
16. 1102. The Government points out that the labour administrative authority and, in some cases, the police, may, at the worker’s request, verify arbitrary dismissal when the employer unjustifiably refuses to allow the worker to enter the workplace. In the cases of Mr César Elías García and Mr José Antonio Arenaza Lander, the inspection report states that they were verbally informed that they would no longer be employed, while in that of Mr Armando Enrique Bustamante Bustamante, the employer stated that he was not dismissed, but transferred to another site.
17. 1103. The object of the complaint is the reinstatement of the three workers, or the action taken by the Peruvian Government to ensure that the workers’ right to freedom of association is respected. If the workers whose employment has been terminated maintain their allegation of dismissal on account of trade union membership, Peruvian labour law affords them the option of filing an action for nullity with the courts since, according to section 29 of the consolidated text of Legislative Decree No. 728, dismissal shall be deemed null and void if it is based on grounds of membership of a trade union or participation in trade union activities. The competence of the labour administrative authority thus ends with the findings of the inspection report, which will serve as evidence should the worker decide to institute judicial proceedings. Determining whether or not the workers were covered by trade union immunity is a matter for the judicial authority, not the labour administrative authority.
18. 1104. In this regard, the Government points out that in October 2006 the two persons who were dismissed (not Mr Bustamante, who was only transferred) filed proceedings to nullify the dismissal with the ordinary jurisdiction. Both cases are currently pending before the courts; the Committee on Freedom of Association will be informed of the outcome.

C. The Committee’s conclusions

1. 1105. The Committee observes that in this case the complainant alleges, first, the dismissal of three trade union officers ( Mr César Augusto Elías García, Mr José Arenaza Lander and Mr Armando Bustamante Bustamante) as a result of the establishment of the Trade Union of Workers of the San Martín Mining Company SA, their eviction from their accommodation on the order of the mining and construction enterprise, and denial of access to the workplace; and, second, threats against the lives and physical integrity of the officers of the trade union by persons connected with managers of the enterprise.
2. 1106. Concerning the alleged dismissal of three trade union officers, the Committee notes that according to the Government, the enterprise states that Mr Enrique Bustamante Bustamante was engaged in activities that were intrinsically temporary and that his employment was terminated on 19 August 2006 as a result of completion of the work, and therefore he was not allowed to enter the workplace or to use the housing facilities; the Government points out that according to the enterprise, he was not dismissed but transferred to another site. The Committee observes that, according to the Government, the labour inspectorate verified the record of this trade union officer’s transfer to another site on 18 September 2006. The Committee also observes that, according to this trade union officer’s statement to the labour inspectorate on 19 September 2006, he considered himself dismissed in the context of harassment on account of his status as a trade union officer, after a conversation with the site manager on 18 September 2006. The Committee recalls the general principle that dismissal of trade union officers on account of their trade union office or activities, even if they are subsequently reinstated, is contrary to Article 1 of Convention No. 98, and could in cases, where dismissal has been proven, amount to intimidation preventing the exercise of their trade union functions; it also recalls that the transfer of trade union officers could obstruct the exercise of trade union activities. It requests the Government to indicate whether trade union officer Mr Armando Enrique Bustamante Bustamante has been regularly employed by the San Martín Mining Company SA since September 2006.
3. 1107. Concerning the alleged dismissal of trade union officers Mr César Augusto Elías García and Mr José Arenaza Lander, the Committee notes that according to the Government, the San Martín Mining Company SA states that the reason for termination of their employment on 19 August 2006 was the intrinsically temporary nature of their work and the completion of the work for which they had been employed, and hence they were not allowed to go to work or use the housing facilities; according to the enterprise, Ministerial Resolution No. 480 stipulates that civil construction workers may be “dismissed” without notice from a site on the weekly closing day. The Committee further notes that according to the Government, the enterprise stated that it was only informed of the trade union after the employment of Mr César Augusto Elías García and Mr José Arenaza Lander was terminated on 19 August 2006.
4. 1108. The Committee notes the Government’s statements in regard to the latter two dismissals to the effect that: (1) the labour inspectorate reported that the enterprise had shown no letter giving notice of dismissal, letter of dismissal or letter accusing the workers of serious misconduct (the workers were informed verbally that they were to stop working on the site); (2) according to section 29 of the consolidated text of Legislative Decree No. 728, dismissal shall be deemed null and void if it is based on grounds of membership of a trade union or participation in trade union activities; and (3) the two trade union officers have filed proceedings for nullity (which are currently before the court of appeal) and it is for the judicial authority to determine whether or not they were covered by trade union immunity (in which case the law provides for reinstatement).
5. 1109. The Committee notes that, according to the Government, the trade union and its executive were registered with the Ministry of Labour and Employment Promotion on 16 August 2006, that the enterprise was informed of this on 19 August 2006 and that the latter admits that the employment of the trade union officers was terminated on that day.
6. 1110. The Committee recalls that one of the fundamental principles of freedom of association is that workers should enjoy adequate protection against all acts of anti-union discrimination in respect of their employment, such as dismissal, demotion, transfer or other prejudicial measures. This protection is particularly desirable in the case of trade union officials because, in order to be able to perform their trade union duties in full independence, they should have a guarantee that they will not be prejudiced on account of the mandate which they hold from their trade unions. The Committee has considered that the guarantee of such protection in the case of trade union officials is also necessary in order to ensure that effect is given to the fundamental principle that workers’ organizations shall have the right to elect their representatives in full freedom [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 799]. In these circumstances, the Committee requests the Government to inform it of the outcome of the proceedings to nullify the dismissal filed by trade union officers Mr César Augusto Elías García and Mr José Arenaza Lander and expects that the judicial authority will take the above principles fully into account. The Committee expects the judicial authority will hand down a ruling in the near future.
7. 1111. Lastly, concerning the alleged threats against the lives and physical integrity of trade union officers, the Committee notes that according to the Government, the enterprise states that these allegations are not supported by any evidence, such as police reports or penal complaints. The Committee observes that the allegations are excessively vague and do not contain any specific information (names of the trade union officers threatened, dates of the threats, etc.) and therefore it will only pursue its examination of these allegations if the complainant organization provides more information.

The Committee's recommendations

1. 1112. 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 indicate whether trade union officer Mr Armando Enrique Bustamante Bustamante has been regularly employed by the San Martín Mining Company SA since September 2006.
   • (b) The Committee requests the Government to inform it of the outcome of the proceedings (which are currently before the court of appeal) to nullify the dismissal filed by trade union officers Mr César Augusto Elías García and Mr José Arenaza Lander and expects that the judicial authority will take the principles mentioned in the conclusions fully into account. The Committee expects that the judicial authority will hand down a ruling in the near future.