Report in which the committee requests to be kept informed of development - Report No 353, March 2009

Case No 2539 (Peru) - Complaint date: 14-NOV-06 - Closed

Allegations: Anti-union dismissals of leaders of the Union of Workers of Owens-Illinois Perú SA and unlawful suspension from work without pay of two leaders of the Union of Workers of the SIDERPERU Plant

1. 1091. The Committee last examined this case at its June 2008 meeting, when it presented an interim report to the Governing Body [see 350th Report, paras 1494–1516, approved by the Governing Body at its 302nd Session]. In a communication dated 10 September 2008, the General Confederation of Workers of Peru (CGTP) sent new allegations.
2. 1092. The Government sent its observations in communications dated 3 March, 26, 28 and 30 May, 9 August, 11 and 15 September and 22 October 2008.
3. 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. Previous examination of the case

1. 1094. In its previous examination of the case in June 2008, the Committee made the following recommendations [see 350th Report, para. 1516]:
   • (a) The Committee requests the Government to communicate the text of the court decision in relation to the dismissal of seven leaders of the Union of Workers of Owens-Illinois Perú SA.
   • (b) The Committee regrets that the Government has failed to respond to the allegation by the FEDMINEROS of 16 August 2007 related to the illegal suspension from work without pay for 30 days of the Secretary-General and the Secretary for Defence of the trade union of the SIDERPERU Plant, for having denounced conduct on the part of a company representative who placed the health of workers in jeopardy. The Committee urges the Government to send its observations in this respect without delay.

B. New allegations

1. 1095. In its communication dated 10 September 2008, the CGTP refers to the ruling handed down in the proceedings initiated by the dismissed leaders to have the decision to dismiss them revoked by the Third Labour Court of Callao (Case No. 1628-2005), which ordered the reinstatement of six trade union leaders. The CGTP reports that the ruling stated that “it has been found that the sanction of dismissal imposed by the defendant on the plaintiffs, who were accused of the events in question, is without just cause and the real motive behind the sanction was to damage the organizational structure of the trade union to which they belong and prejudice the exercise of their trade union rights. Consequently, the claim should be upheld.” The ruling also states that “by means of trade union immunity, the State promotes the full exercise of trade union rights by establishing a set of mechanisms which guarantee and facilitate free exercise of freedom of association for the purpose of defending the legitimate interests of workers, in accordance with the provisions of Article 11 of ILO Convention No. 87 and Article 1 of ILO Convention No. 98 on freedom of association and protection of the right to organize and collective bargaining”.
2. 1096. The complainant organization recalls that the company fraudulently accused the leaders of appropriating company property. However, in accordance with a permanent clause of the collective agreement which granted it the autonomous management of the staff canteen, the union had, for more than 20 years, been concluding agreements for the provision of a canteen service under which the contractor handed over a percentage of the receipts to the union. As demonstrated during the court proceedings, these sums were always used to support the union. Furthermore, the complainant organization points out that the workers’ meals were not funded by the company but were paid for by the workers themselves. Hence, the argument that there was an “appropriation of company property” was shown to be untenable and it was proved that this was nothing more than a justification for dismissing the leaders. The CGTP points out that the company appealed against the ruling and that, as a result of this appeal, the workers have to date still not been reinstated in their posts.
3. 1097. The CGTP emphasizes that in view of the excessive and unjustified delay on the part of the judiciary in handing down a ruling in the case brought by the dismissed leaders to have their dismissal revoked and the appeal lodged by the company, the reinstatement of the dismissed workers has been postponed.

C. The Government’s reply

1. 1098. In its communications dated 3 March, 26, 28 and 30 May, 9 August, 11 and 15 September and 22 October 2008, the Government sent the following observations.
2. 1099. With regard to the allegations concerning the company Owens-Illinois Perú SA, the Government indicates that, as reported by the employer, one of the complainant workers, Mr Jorge Luis Martínez Guevara, reached an out-of-court settlement with the company and therefore abandoned the legal proceedings under way.
3. 1100. The Government adds that the company Owens-Illinois Perú SA has distorted the claims of unjustified dismissal of 13 trade union leaders, eight from the current executive committee and five from the previous one, by stating that these workers used their position as members of the union’s executive committee and took advantage of the right granted under the collective agreement signed on 1 December 1993 to collect illegal contributions or “cuts” from contractors providing the staff canteen service. It argues that in this way they made unlawful use of the receipts on meals provided by the employer and the alleged anti-union acts would have to be proved before the judicial authority, in the context of Case No. 1628-2005 currently before the Third Labour Court of Callao, in which the dismissal of the former employees is being contested as null and void.
4. 1101. With regard to the allegations made against the Peruvian Government by the National Federation of Mining, Metallurgy and Steel Workers of Peru (FEDMINEROS) concerning the violation of trade union rights by Empresa Siderúrgica del Perú SAA, the Government points out that the Regional Directorate of Labour and Employment Promotion of Ancash convened an informal meeting attended by both parties but no settlement was reached. The company confirmed its decision to apply the sanction ordered.
5. 1102. The Government adds that no indication is given as to whether subsequent investigations were carried out which complement or add to the information available concerning the events which led to the sanctions applied.
6. 1103. Notwithstanding the above, the National Director of Industrial Relations convened Empresa Siderúrgica del Perú SAA, the Union of Workers of the SIDERPERU Plant and the FEDMINEROS to an informal meeting on 19 July 2007, but no agreement was reached at the meeting and the company confirmed its decision to apply the sanction to the trade union leaders. By means of Note No. 451-2008-MTPE/9.1 (214/214) of 21 May 2008, the National Directorate of Industrial Relations was requested to take the necessary steps to obtain information from the Regional Directorate of Labour and Employment Promotion of Ancash about any new inspection activities carried out.
7. 1104. Finally, the Government reports that both the Union of Workers of the Chimbote Iron and Steel Plant and the Union of Workers of the SIDERPERU Plant have concluded their respective collective agreements for the period 2007–10, which were duly registered with the administrative labour authority on 7 February 2008.

D. The Committee’s conclusions

1. 1105. The Committee notes the new allegations made by the CGTP and the Government’s observations on the pending issues.
2. 1106. With regard to the allegations concerning the anti-union dismissal of seven trade union leaders of the Union of Workers of Owens-Illinois Perú SA and the pending legal proceedings instituted by the workers affected, the Committee notes the information provided by the Government that the company denies that there were anti-union motives behind the dismissals and points out that one of the complainant workers reached an out-of-court settlement and therefore dropped the legal action. The Committee also notes that the CGTP reports that the Third Labour Court of Callao has handed down a ruling in pending proceedings and that the court considered that the dismissals had no just cause and were intended to damage the structure of the union to which the leaders belonged. It declared the dismissals null and void and ordered the reinstatement of the workers and payment of wages owed to them. The Committee also notes that the company has lodged an appeal against this ruling.
3. 1107. In this regard, taking into account the court’s ruling which declared the dismissals null and void, although that ruling is the subject of a pending appeal, the Committee requests the Government to take the necessary steps to have the dismissed leaders reinstated without delay, while awaiting a final ruling from the court of appeal. The Committee requests the Government to keep it informed of developments in this regard, including the final outcome of the appeal.
4. 1108. With regard to the allegations made by the FEDMINEROS concerning the illegal suspension from work without pay for 30 days of the General Secretary (Mr Eduardo Manrique Alvarez) and the Defence Secretary (Mr Jaime Luján Garrido) of the Union of Workers of the SIDERPERU Plant, for having denounced the conduct of a company representative who allegedly put the health of the workers at risk, the Committee notes that the Regional Directorate of Labour and Employment Promotion of Ancash and the National Director of Industrial Relations both convened informal meetings, but no agreement was reached in either case between the company and the trade union organization. The Government adds that the Regional Directorate of Labour and Employment Promotion of Ancash has been requested to report on whether any new inspections have been carried out.
5. 1109. In this regard, observing that serious allegations have been made concerning the suspension from work of two trade union leaders without pay for 30 days following their denouncement of a company representative who allegedly had put the workers’ health at risk, and that this matter has been pending since its last examination of the case, the Committee requests the Government to take the necessary steps without delay to have an investigation carried out to determine whether the sanction imposed was anti-union in nature and if the allegations are found to be true, to take the necessary steps to compensate the trade union leaders affected and their organization. The Committee requests the Government to keep it informed in this regard.

The Committee's recommendations

1. 1110. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) With regard to the allegations concerning the anti-union dismissal of seven trade union leaders of the Union of Workers of Owens-Illinois Perú SA and the pending legal proceedings initiated by the workers affected, the Committee, taking into account the judicial authority’s ruling declaring the dismissals null and void, although that ruling is the subject of a pending appeal, requests the Government to take the necessary steps to have the dismissed leaders reinstated in their posts without delay, while awaiting the final ruling to be handed down by the court of appeal. The Committee requests the Government to keep it informed of any developments in this regard, including the final outcome of the appeal.
   • (b) With regard to the allegations made by the FEDMINEROS concerning the illegal suspension without pay for 30 days of the General Secretary (Mr Eduardo Manrique Alvarez) and the Defence Secretary (Mr Jaime Luján Garrido) of the Union of Workers of the SIDERPERU Plant, for denouncing the conduct of a company representative who allegedly put the workers’ health at risk, the Committee, observing that these are serious allegations which have been pending since its last examination of this case, requests the Government to take the necessary steps to ensure that an investigation is carried out without delay to determine whether there were anti-union motives behind the sanction imposed and if the allegations are found to be true, to take the necessary steps to compensate the trade union leaders affected and their organization. The Committee requests the Government to keep it informed in this regard.