Report in which the committee requests to be kept informed of development - Report No 349, March 2008

Case No 2559 (Peru) - Complaint date: 26-MAR-07 - Closed

Allegations: The complainant alleges the anti-union dismissal of a union official from the Donoso Experimental Facility of the National Institute for Agricultural Research (INIA)

1. 1171. The complaint is contained in a communication from the Union of Agricultural Public Sector Workers (SUTSA) dated 26 March 2007. The SUTSA sent additional information in communications dated 27 May, 19 June, 17 July, 2 August, 13 September, 31 October 2007 and 16 January 2008.
2. 1172. The Government sent its observations in a communication dated 26 October 2007 and 3 March 2008.
3. 1173. 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. 1174. In its communications of 26 March, 27 May, 19 June, 17 July, 2 August, 13 September and 31 October 2007, the SUTSA alleges the arbitrary and anti-union dismissal of Mr Roger Augusto Rivera Gamarra, General Secretary of the SUTSA at the time of his dismissal and currently one of its national officials, on 29 December 2003, from the Donoso Experimental Facility of the Kiyotada Miyagua Centre for Horticultural Research and Training of the National Institute for Agricultural Research (INIA). The complainant indicates that the union official concerned appealed to the judicial authority against his dismissal, and that in 2005 the First Civil Court of Huaral upheld the claim on the nullity of the dismissal lodged by Mr Roger Augusto Rivera Gamarra and ordered that he be reinstated in his job and paid outstanding wages. The complainant also points out that, on 23 March 2006, the Civil Chamber of the High Court of Justice of Huaral concluded that the real reason for the plaintiff’s dismissal was his position as a union official and confirmed the ruling ordering his reinstatement and payment of outstanding wages. An appeal for judicial review was lodged against this ruling, and the Interim Constitutional and Social Law Chamber of the Supreme Court of Justice declared the appeal to be unfounded.
2. 1175. The complainant states that, bearing in mind the rulings ordering the reinstatement of the official concerned, it demanded, without success, that these rulings be implemented. On 27 July 2007, the judicial authority renewed its demand that the reinstatement order be implemented, warning that it would otherwise be carried out by the representative of the law; nevertheless, the reinstatement order was not implemented. In its communication of 16 January 2008, the complainant organization indicates that by decision of 22 November 2007, the judicial authority ordered the Director of the Donoso Experimental Facility to reintegrate Mr Rivera Gamarra, and issued a warning that the corresponding penal proceedings would be initiated if reinstatement did not take place.

B. The Government’s reply

1. 1176. In its communication of 26 October 2007, the Government states that, with regard to this case, it has followed the required procedures of the various bodies of the Ministry of Agriculture and the judiciary. In this regard, the Supreme Court of Justice of the Republic, through official letter No. 6917-2007-SG-CS-PJ of 13 September 2007, states that the appeal for judicial review No. 1216-2006, lodged by the attorney of the Ministry of Agriculture under the proceedings for the nullification of the dismissal initiated by Mr Roger Augusto Rivera Gamarra against the Donoso Experimental Facility of the INIA, was declared unfounded. Accordingly, the reinstatement of the dismissed worker in his job was justified, as had been declared in the rulings of first and second instance. The Government adds that, on 12 October 2007, the attorney of the Ministry of Agriculture indicated that the ministerial office for agriculture has been informed that the Legal Adviser’s Office of the INIA will take steps with the Ministry of Economics and Finance (MEF) concerning the budgetary resources required to re-establish the position held by the plaintiff and the payment of outstanding wages dating from his dismissal (29 December 2003). In a communication of 3 March 2008, the Government indicates that in October 2007 the Ministry of Agriculture informed the Ministry of Labour that it was making budgetary arrangements for the creation of a post in which the complainant would be reintegrated. Through official letter No. 107-2008-INIA-OGAJ/DG, dated 27 February 2008, the Ministry of Labour was informed that on 18 January 2008, the First Civil Court of Huaral carried out the reinstatement of Roger Augusto Rivera Gamarra in the post he occupied in the Donoso Experimental Facility (Huaral), under the provisions of Legislative Decree No. 276. This measure has been made possible by the INIA through the transfer of a vacant post from the San Roque–Iquitos Experimental Facility to the Donoso Experimental Facility, since the Economic and Financial Office had refused the request for budgetary increases in this facility during the fiscal year 2007–08.

C. The Committee’s conclusions

1. 1177. The Committee observes that, in the present case, the complainant alleges the anti-union dismissal of union official Mr Roger Augusto Rivera Gamarra, General Secretary of the SUTSA at the time of his dismissal and currently one of its national officials, on 29 December 2003, from the Donoso Experimental Facility of the Kiyotada Miyagua Centre for Horticultural Research and Training of the INIA, and that, although the judicial authority ordered his reinstatement on many occasions, including under warning of initiating penal proceedings, and the payment of outstanding wages, these measures have not been adopted.
2. 1178. In this regard, the Committee notes that the Government states that: (1) on 13 September 2007, the Supreme Court of Justice of the Republic declared as unfounded the appeal for judicial review lodged by the attorney of the Ministry of Agriculture under the proceedings for nullification of the dismissal initiated by Mr Roger Augusto Rivera Gamarra and that, accordingly, the reinstatement of the dismissed worker in his job was justified, as had been declared in the rulings of first and second instance; and (2) that on 12 October 2007, the attorney of the Ministry of Agriculture indicated that the ministerial office for agriculture has been informed that the Legal Adviser’s Office of the INIA will take steps with the Ministry of Economics and Finance concerning the budgetary resources required to re-establish the position held by the plaintiff and the payment of outstanding wages dating from his dismissal (29 December 2003). Finally, the Committee notes with interest that the Government indicates that Mr Roger Augusto Rivera Gamarra has been reinstated in his previous post.
3. 1179. The Committee deplores the considerable time taken to implement the rulings to reinstate the union official concerned and recalls that cases concerning anti-union discrimination contrary to Convention No. 98 should be examined rapidly, so that the necessary remedies can be really effective [see Digest of decisions and principles of the Freedom of Association Committee, 2006, fifth edition, para. 826]. In these circumstances, the Committee requests the Government to ensure the payment of the corresponding outstanding wages and other benefits to union official Mr Roger Augusto Rivera Gamarra, and to keep it informed in this regard.

The Committee's recommendations

1. 1180. In light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
   • The Committee requests the Government to ensure the payment of the corresponding outstanding wages and other benefits to union official Mr Roger Augusto Rivera Gamarra, and to keep it informed in this regard.