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

Case No 2553 (Peru) - Complaint date: 20-MAR-07 - Closed

Allegations: Acts of anti-union discrimination and anti-union practices and hindrances to collective bargaining in the enterprise Mar y Tierra de IMI del Perú SAC

1. 1111. The Committee last examined this case at its May 2008 meeting, at which it presented an interim report to the Governing Body [see 350th Report of the Committee, paras 1517–1539, approved by the Governing Body at its 302nd Session].
2. 1112. The Government sent its observations in communications dated 23 and 30 May 2008.
3. 1113. 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. 1114. When it examined this case at its May 2008 meeting, the Committee made the following recommendations [see 350th Report, para. 1539]:
   • (a) Regretting the fact that the Government has not sent its reply to the allegations, the Committee requests it to send, without delay, a detailed reply to all the allegations as well as copies of the rulings and administrative decisions concerning this case.
   • (b) The Committee requests the Government to obtain the enterprise’s comments relating to this case through the relevant employers’ organization and to send them to the Committee.
   • (c) The Committee requests the Government to continue to promote collective bargaining as set out in Convention No. 98, which Peru has ratified.

B. The Government’s reply

1. 1115. In its communications dated 23 and 30 May 2008, the Government sent the following observations on the matters still pending, based on a communication from the enterprise, a copy of which was attached.
2. 1116. Concerning the alleged violation of trade union rights committed by the enterprise Mar y Tierra de IMI del Perú SAC against the Single Trade Union of Workers of Mar y Tierra de IMI del Perú SAC, the Government states that, according to the enterprise, the allegations presented by the International Trade Union Confederation (ITUC) are untrue, wholly generic and based on false assertions. According to the enterprise, there had been certain irregularities in the registration of the union with the labour administrative authority (Piura region), including the failure to have the union’s founding documents stamped by a public notary or a judge, lack of the statutory number of members, irregular election of its officers and even failure to hold the union’s constituent assembly.
3. 1117. The Government adds that in report No. 041-2007-DRTPE-PIURA-DPSC, dated 7 May 2007, the Dispute Prevention and Settlement Directorate stated that as regards registration, the union had applied on 21 September 2006 to the labour authority for registration of the Single Trade Union of Workers of Mar y Tierra de IMI del Perú SAC. On 25 September of the same year, the head of the subdirectorate for general registration, certification, workers’ defence and free legal aid of the Piura Regional Directorate for Labour and Employment Promotion issued a decision (unnumbered) requiring the applicants to remedy the defect by having the founding documents stamped by a notary or judicial and to submit a complete copy of the by-laws (as sections 25 and 27 were missing from the document), within a 48-hour time limit. Since the defects in the application were duly remedied, on 3 October 2006 the subdirectorate registered the Single Trade Union of Workers of Mar y Tierra de IMI del Perú SAC in that body’s register of trade unions subject to private sector labour law. On 26 October of the same year, the IMI del Perú SAC enterprise filed a challenge against the union’s registration; on 30 October 2006, the challenge was declared irreceivable because of its late submission. On 8 November 2006, the employer filed a petition against the decision to reject its appeal, which was declared without legal basis in directorial decision No. 192-2006-DRTPE-PIURA-DPSC of 23 November of the same year, which amended the previous decision declaring the appeal irreceivable because the enterprise was not a party to the administrative proceedings.
4. 1118. Concurrently with the matter of trade union registration, in report No. 059-2007-DRTPE-PIURA-DPSC, dated 4 June 2007, the Dispute Prevention and Settlement Directorate of the Piura Regional Directorate for Labour and Employment Promotion stated that on 24 October 2006, the trade union submitted to the Talara Area Office for Labour and Employment Promotion its list of demands for 2006–07, which was presented to the employer; the Talara labour administration then initiated case No. P.R.009-2006-DRTPE-PIURA-ZTPET, requesting the parties to inform it of the outcome of the direct negotiation process.
5. 1119. On 15 November 2006, the enterprise replied that the negotiations could not begin, as the trade union had not provided the minimum amount of information necessary for recognition; however, the Talara labour authority considered that, since this was not required by the current labour legislation, it was not a prerequisite for opening negotiations, and it therefore initiated the conciliation stage on 20 November of the same year. The enterprise disagreed with the labour authority’s decision and filed an appeal against it; on 20 December 2006 the appeal was declared without legal basis and the previous administrative decision upheld.
6. 1120. The IMI del Perú SAC enterprise did not agree with the administrative decisions on the validity of the first-level trade union’s registration, and therefore filed administrative proceedings with the Piura High Court of Justice requesting that the decisions granting registration to the trade union be cancelled, along with the other administrative decisions rejecting its appeal. These administrative proceedings are currently pending before the Fourth Civil Court of Piura, in case No. 4672–2006. In the main proceedings filed on 18 December 2006 seeking a declaration of nullity, the enterprise requests that the decision granting registration of the trade union be cancelled, along with the other administrative decisions rejecting the challenges filed by the employer in that regard. The action was admitted in decision No. 01 of 29 December of that year and the hearing of the evidence took place on 14 May 2007.
7. 1121. In addition, on 22 February 2007, the plaintiff submitted a motion for a precautionary measure suspending the effect of the registration of the Single Trade Union of Workers of Mar y Tierra de IMI del Perú SAC; the court granted the motion in decision No. 01 of 29 January 2007, specifying that the measure referred to in its decision applied solely to the collective bargaining process that had been initiated with the plaintiff, on a provisional basis, pending a final decision in the main proceedings. On 1 February 2007, the court decision was communicated to the Piura Regional Directorate for Labour and Employment Promotion, which forwarded it to the Talara Area Office for Labour and Employment Promotion. Pursuant to the court decision, the effect of the registration of the Single Trade Union of Workers of Mar y Tierra de IMI del Perú SAC was suspended on 20 February of the same year, along with the collective bargaining process.
8. 1122. The Government states that the motion to cancel the union’s registration was declared irreceivable by the court; in addition, the precautionary measure in respect of collective bargaining was revoked on 16 November 2007. The case is currently pending an appeal judgment in the First Civil Chamber of Piura, which is to rule on the challenges filed by the parties against the content of the judgment.
9. 1123. As regards the arbitrary dismissal of union members and officers, the Government states that, according to the enterprise, their employment was terminated in accordance with the labour legislation in force, using the channels provided for by law in such cases. According to the communication from the enterprise, two of the persons dismissed were not working for the enterprise; in another case the worker’s contract was simply not renewed, while in the remaining case the worker was dismissed for serious misconduct. Civil, criminal and labour proceedings have been initiated in the Piura High Court of Justice as a result of these cases.
10. 1124. The Government adds that the labour authority reported that inspections conducted in the enterprise, whether at the initiative of the inspectorate or at the request of the union allegedly affected, have not found any evidence of anti-union practices, arbitrary dismissals or non-compliance with labour standards by the IMI del Perú SAC enterprise.
11. 1125. The Government states that in the context of measures taken by the labour authority in this case, the IMI del Perú SAC enterprise filed complaints with the Public Prosecutor’s Office against two officials for abuse of authority (failure to perform their official duties); the complaint was rejected by the Eighth Criminal Court of Piura in decision No. 01 of 16 March 2007. That decision was supported by the senior regular prosecutor of the Combined Superior Prosecutor’s Office of Piura, which issued opinion No. 186–2007 of 27 April of the same year requesting the First Criminal Chamber of Piura to uphold the decision of the court of first instance.
12. 1126. Lastly, the Government states that the competent labour authority summoned the parties to out-of-court meetings to settle the dispute, which had not yielded the intended results, owing to the antagonistic stance of the parties.
13. 1127. As regards the alleged criminal complaint filed against the IMI del Perú SAC enterprise and some of its officials with the Provincial Criminal Prosecutor’s Office of Talara, concerning offences against freedom of labour in the form of coercion of workers into leaving the trade union, using threats of dismissal, the enterprise states in the communication sent as an attachment by the Government that it is unaware of the complaint, as it has not been informed of any complaint having been filed. It was only summoned by the Peruvian National Police to make a statement in regard to a complaint by the trade union, which was shelved by the Public Prosecutor’s Office on the grounds that it had no legal basis.
14. 1128. As regards the resignation of Mr Julio César Morales Ortega from his office as secretary responsible for defending union rights and as member of the Single Trade Union of Workers of Mar y Tierra de IMI del Perú SAC, allegedly as a result of pressure by the enterprise, the enterprise denies the allegations. It adds that in his letter of voluntary resignation, Mr Julio César Morales Ortega informs the trade union that his resignation from union office and membership was motivated by purely personal reasons.
15. 1129. As regards the alleged dismissal of Mr Pedro Pablo Ayala, press and propaganda secretary of the trade union, while on annual leave, the enterprise states that he was dismissed for serious misconduct on 12 January 2007. The dismissal took effect after his return from leave. His employment was terminated after it had been proved – following an internal disciplinary procedure against him, with all the guarantees of due process being provided – that he was guilty of the serious misconduct of which he had been accused. It transpires from communications between the dismissed officer and the enterprise, sent by the enterprise as an attachment, that the dismissal was due to his having spoken badly of the enterprise and its representatives on a television programme.

C. The Committee’s conclusions

1. 1130. The Committee recalls that, according to the allegations presented by the International Trade Union Confederation (ITUC) considered during the previous examination of the case: (1) the enterprise challenged the registration of the Single Trade Union of Workers of Mar y Tierra de IMI del Perú SAC on the grounds that it did not meet the legal requirements for establishment; (2) the labour authority declared the challenge irreceivable, but the enterprise appealed against that decision in court; (3) the enterprise has refused to negotiate the list of demands presented by the union on the grounds that the union did not meet the abovementioned requirements for establishment; (4) the enterprise failed to attend the conciliation meeting convened by the labour authority, requested the courts to cancel the union’s registration and filed a criminal complaint against the Ministry of Labour; (5) after the trade union was established, the Mar y Tierra de IMI del Perú SAC enterprise dismissed four workers who were close relatives of union leaders and members working in the same group of the IMI enterprise; (6) the enterprise coerced workers into leaving the union, using threats of dismissal: as a result of pressure by the enterprise, Mr Julio César Morales Ortega resigned from his trade union office; and (7) dismissal of Mr Pedro Pablo Ayala, the union’s press and propaganda secretary, while on annual leave.
2. 1131. The Committee notes that the Government states in its observations that, according to the communication sent by the enterprise, the latter denies the allegations of anti-union discrimination, considering them to be false.
3. 1132. As regards the allegations concerning the challenge filed against the registration of the Single Trade Union of Workers of Mar y Tierra de IMI del Perú SAC and the enterprise’s refusal to bargain collectively on the grounds that the union had not met the legal requirements for establishment, the Committee notes that the Government states that according to the enterprise, the union had not met the notarization requirement, did not have the minimum number of members, had appointed its officers in an irregular manner and had not held a constituent assembly, and there were thus irregularities in its registration. However, the Committee also notes that the administrative authority required the applicants to remedy the defects and that this was done. Accordingly, the trade union was registered on 3 October 2006. The Committee notes that the enterprise filed an appeal, which was rejected.
4. 1133. The Committee notes further that the Government states that concurrently, on 24 October 2006, the union presented a list of demands to start the collective bargaining process, but the enterprise refused to begin direct negotiation on the grounds that the union had not provided the minimum amount of information required in order to be recognized. However, the labour authority considered that this requirement was not legal and initiated the conciliation stage on 20 November 2006. The Committee notes that the appeal filed against these decisions by the enterprise with the labour authority was found to be without legal basis on 20 November 2006, and that the enterprise therefore filed a motion to cancel the decisions granting registration to the trade union, as well as the subsequent administrative decisions, and requesting a precautionary measure so that it would not have to engage in collective bargaining with a trade union it did not recognize.
5. 1134. The Committee notes the information from the Government stating that the judicial authority declared the motion to cancel the union’s registration irreceivable and revoked the precautionary measure suspending collective bargaining which it had granted to the enterprise. The Committee notes that the case is currently pending an appeal judgement before the First Civil Chamber of Piura. The Committee notes that the enterprise and the trade union have been summoned to conciliation hearings, which the enterprise has refused to attend.
6. 1135. In these circumstances, the Committee expresses its concern at the alleged action taken by the enterprise to prevent registration of the trade union and collective bargaining. Given that the judicial authority of first instance rejected the motion to cancel the union’s registration, the Committee urges the Government to ensure that, pending a final decision by the judicial authority of second instance, the trade union is able to carry out all its activities, including collective bargaining (the latter point having been expressly endorsed by the judicial authority of first instance). The Committee urges the Government to pursue its efforts to bring the parties together through out-of-court conciliation hearings and to keep it informed of any developments in this regard, and of the final outcome of the pending judicial proceedings.
7. 1136. As regards the dismissal of four workers who were close relatives of union officers and members working in the same group of the IMI enterprise, the Committee notes that the Government states that according to information provided by the enterprise, the dismissals were carried out in accordance with the legislation in force. The Committee notes that the communication from the enterprise indicates that two of the workers allegedly dismissed were not working for the enterprise and that in the other two cases, one worker’s contract was simply not renewed, while the other was dismissed for serious misconduct.
8. 1137. As regards the allegations that the enterprise is coercing workers into leaving the trade union, as in the case of Mr Julio Morales Ortega, who resigned from his office as secretary responsible for defending union rights, the Committee notes that the communication from the enterprise indicates that it is not aware of any criminal complaint concerning coercion, with the exception of a police summons to make a statement concerning a complaint filed by the trade union against the enterprise, which was shelved by the Public Prosecutor’s Office on the grounds that it had no legal basis. The Committee notes further that the communication sent by Mr Morales to the trade union (attached to the communication sent by the enterprise) indicates that he resigned voluntarily from union office. The Committee points out, however, that if he was forced to resign, that communication would have no evidential value.
9. 1138. As regards the alleged anti-union dismissal of Mr Pedro Pablo Ayala, press and propaganda secretary of the trade union, while on annual leave, the Committee notes that according to the information provided by the enterprise to the Government, Mr Ayala was dismissed for serious misconduct. The Committee notes, however, that the communications relating to the dismissal sent by the enterprise and forwarded by the Government indicate that the dismissal was due to the fact that Mr Ayala, in his capacity as union leader, had spoken badly of the enterprise and its representatives (accusing them of offences and conduct contrary to morality and decency) in a television programme while on annual leave. The Committee points out, however, that the enterprise has not reproduced the union officer’s statements. It thus requests the Government to provide this information.
10. 1139. The Committee notes further that the Government states that inspections conducted in the enterprise, whether at the initiative of the inspectorate or at the union’s request, have not found any cases of anti-union practices, arbitrary dismissal or non-compliance with labour standards by the enterprise. The Committee notes further that the enterprise filed complaints with the Public Prosecutor’s Office against two labour inspection officials for abuse of authority and failure to perform their duties, and that the complaint was rejected by the judicial authority.
11. 1140. In view of the discrepancy between the allegations concerning dismissals and coercion of workers and the enterprise’s reply, and given that the Government has not expressed its position on these matters, and in order to determine conclusively whether or not the acts referred to constituted anti-union discrimination, the Committee requests the Government to take the necessary steps to ensure that a thorough and independent investigation is carried out without delay into the following:
    • (i) The alleged dismissal of four workers who were close relatives of union leaders and members working in the same group of the IMI enterprise.
    • (ii) Alleged coercion by the enterprise of workers into leaving the union, using threats of dismissal, in particular in the case of Mr Julio Morales Ortega, who resigned from union office.
    • (iii) The dismissal of Mr Pedro Pablo Ayala, press and propaganda secretary of the trade union, while on annual leave.
12. 1141. The Committee requests the Government, should the investigation called for find that the acts referred to were motivated by anti-union considerations, to take the necessary steps to ensure that they are revoked, that the dismissed workers are reinstated and fully compensated, and that the prescribed penalties constituting sufficiently dissuasive sanctions are applied where appropriate. The Committee requests the Government to keep it informed in this regard.

The Committee's recommendations

1. 1142. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) As regards the allegations concerning the challenge filed against the registration of the Single Trade Union of Workers of Mar y Tierra de IMI del Perú SAC and the enterprise’s refusal to bargain collectively on the grounds that the union did not meet the legal requirements for establishment, in view of the fact that the judicial authority of first instance rejected the motion to cancel the union’s registration, the Committee urges the Government to ensure that, pending a final decision by the judicial authority, the trade union is able to carry out all its activities, including collective bargaining. The Committee urges the Government to pursue its efforts to bring the parties together through out-of-court conciliation hearings and to keep it informed of any developments in this regard, and of the final outcome of the pending judicial proceedings.
   • (b) Concerning the allegations concerning dismissals and coercion of workers and the enterprise’s reply in that regard, in view of the discrepancy between them, and given that the Government has not expressed an opinion on these matters, and in order to determine conclusively whether or not the Acts referred to constituted anti-union discrimination, the Committee urges the Government to take the necessary steps without delay to ensure that a thorough and independent investigation is carried out into the following:
   • (i) The alleged dismissal of four workers who were close relatives of union leaders and members working in the same group of the IMI enterprise.
   • (ii) Alleged coercion by the enterprise of workers into leaving the union, using threats of dismissal, in particular in the case of Mr Julio Morales Ortega, who resigned from union office.
   • (iii) The dismissal of Mr Pedro Pablo Ayala, press and propaganda secretary of the trade union, while on annual leave.
   • (c) The Committee requests the Government, should the investigation called for find that the Acts referred to were motivated by anti-union considerations, to take the necessary steps to ensure that they are revoked, that the dismissed workers are reinstated and fully compensated, and that the prescribed penalties constituting sufficiently dissuasive sanctions are applied where appropriate. The Committee requests the Government to keep it informed in this regard.