Interim Report - Report No 354, June 2009

Case No 2594 (Peru) - Complaint date: 17-SEP-07 - Closed

Allegations: The complainant organization alleges dismissals, threats of dismissal and other acts of intimidation following the establishment of a trade union at Panamericana Televisión SA (now called Panam Contenidos SA)

1. 1064. The Committee examined this case at its November 2008 meeting and submitted an interim report to the Governing Body [see 351st Report, paras 1162–1179, approved by the Governing Body at its 303rd Session (November 2008)].
2. 1065. The Government sent further observations in communications dated 3 November 2008 and 27 February 2009.
3. 1066. 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. 1067. At its November 2008 meeting, the Committee made the following recommendations on the pending allegations [see 351st Report, para. 1179]:
2. The Committee urges the Government to take measures without delay so that an investigation takes place at Panam Contenidos SA with regard to the alleged dismissals, transfers and other anti-union acts that have reportedly been carried out since the establishment of the trade union, and to inform it of the outcome of that investigation. Furthermore, the Committee requests the Government, if the allegations in question are shown to be valid, to take the necessary measures to ensure that the workers who were dismissed and redeployed for anti-union reasons are reinstated in their posts and paid the wages and other benefits owed to them.
3. B. The Government’s further reply
4. 1068. In its communications dated 3 November 2008 and 27 February 2009, the Government states that since 2007 Panamerica Televisión (now called Panam Contenidos SA) has been preventing the Labour Inspectorate from carrying out inspections ordered by the Ministry of Labour and Employment Promotion (MTPE), for which it has been fined a total of 42,000 new soles. Furthermore, in accordance with Act No. 28806 and Supreme Decree No. 002-2007-TR, the Ministry of Labour has notified the Office of the Public Prosecutor of evidence of an alleged offence against the public administration committed by the said employer and a criminal complaint has been officially lodged with the 43rd Provincial Prosecutor’s Office of Lima with a view to bringing criminal charges or opening a preliminary judicial inquiry, if necessary.
5. 1069. The Government adds that in December 2007, a total of 14 fines had been imposed on Panamericana Televisión SA for obstructing labour inspections, eight of which have already been paid and the remaining six are being collected through a seizure of bank accounts, which has been reported to the Distinctive Signs Office of INDECOPI.
6. 1070. In recent years, Panamericana Televisión SA (now called Panam Contenidos SA) has had a history of refusing to agree to inspections carried out by the Ministry of Labour and Employment Promotion, particularly in the last few years with its continual obstructions and blatant refusal to obey the labour authority that carries out such inspections. Moreover, this had made it impossible to verify the general situation of hundreds of workers who are working at the company, allegedly without any employment benefits, despite the fact that the company has been reporting substantial profits which would enable them to fulfil their employment obligations as established by law.
7. 1071. Furthermore, the Government states that, as a result of the repeated obstructions of labour inspections by the company, by means of Note No. 1302-2008-MTPE/2, dated 18 July 2008, the Deputy Labour Minister requested the Public Prosecutor to initiate legal action to request authorization from the courts to enter the workplace, in accordance with Article 4 of the Regulations issued under the Labour Inspection Act, and that the Public Prosecutor has taken the relevant internal steps to that end.
8. 1072. Furthermore, by means of Note No. 1357-2008-MTPE/2, dated 21 July 2008, a communication has been sent to the judge of the Second Civil Court of Lima Norte, which is currently handling the judicial administration of the company, requesting that an assessment be carried out of the information concerning the irregularities in the company’s compliance with social and labour-related norms and its refusal to obey authority, so that the judicial administration granted may be subject to certain rules of conduct which include proper management based on respect for the labour rights of workers.
9. 1073. In its report dated 29 February 2008, the Legal Department of the MTPE includes the information provided by the MTPE’s Regional Labour Directorate that, to date, a total of 69 inspection visits have been planned for the company in question, but as those inspections have been hindered by the employer, the Ministry of Labour, through its National Inspections Directorate, has been forced to request the support of the police in accordance with the legislation.
10. 1074. The Government indicates that according to section 46 of Supreme Decree No. 019-2006-TR (the Regulations of the Labour Inspection Act), any unfounded refusal to allow inspections, and any attempts to prevent officially appointed inspection supervisors or labour inspectors from entering or remaining in a place of work are serious offences; the company in question has been repeatedly fined and the enforcement department of the Ministry of Labour has brought eight separate actions against the company.
11. 1075. It should be pointed out that on 28 October 2008, the Legal Department of the Ministry of Labour and Employment Promotion submitted an urgent request to the judge of the Second Civil Court of Lima Norte for up to date information on the case before the court under file No. 184-2003, concerning the legal action brought by the Ministry of Labour with a view to obtaining the relevant authorization from the courts to enter the company’s premises in order to check the employment situation of workers whose labour rights have been infringed by the company in question.
12. 1076. In order to give effect to the recommendations of the ILO Committee on Freedom of Association, the Regional Labour and Employment Promotion Directorate of Lima and Callao reports that on 12 December 2008, it issued Inspection Order No. 19300-2008-MTPE/2/12.3, for the attention of Labour Inspector Mr Rey Demetrio Cabezas Lagos, and that at the time of writing this Order has been “delivered”. The Committee will be informed of the outcome of the inspections to be carried out.

C. The Committee’s conclusions

1. 1077. The Committee recalls that, in the present case, the complainant alleges that since the appointment of the receiver of Panam Contenidos SA (formerly Panamericana Televisión SA) in February 2003, an anti-labour and anti-union policy has been applied; confronted with so many labour problems, the workers decided to establish a trade union in 2005 and asked Ms María Vilca Peralta, Ms Ana María Sihuay and Ms Carmen Mora to assume the leadership of the trade union. The complainant alleges that: (1) in December 2005 and April 2006, the workers held peaceful protests in Arequipa Avenue and outside the channel’s headquarters; the company’s management tried to identify the organizers of the protests and, to that end, monitored electronic mail and telephone conversations; finally, 16 workers were identified as the instigators and it was decided to intimidate them using various methods; (2) because they had organized a trade union, the company dismissed María Vilca Peralta, Fanny Quino, Liliana Sierra, Laura Chahud and Guillermo Noriega, and transferred the following employees to posts unrelated to their professions: Carmen Mora, Ana María Sihuay, Enrique Canturin, Carlos Mego and Rafael Saavedra; and (3) as a result of a request from the workers to the Ministry of Labour and Employment Promotion, an inspection of the company was carried out, but the inspectors showed a passive and complacent attitude towards the company and, prior to an inspection in July 2006, the company threatened with dismissal any workers who reported irregularities [see 351st Report, para. 1175].
2. 1078. The Committee further recalls the Government’s statements to the effect that: (1) the Regional Labour Directorate of the Ministry of Labour and Employment Promotion provided information that, to date, a total of 69 inspection visits have been planned for the company in question; as those inspections have been hindered by the employer, the National Inspections Directorate has been forced to request the support of the police in accordance with the legislation; (2) according to section 46 of Supreme Decree No. 019-2006-TR (the regulations of the Labour Inspection Act), any unfounded refusal to allow inspections, and any attempts to prevent inspection supervisors, labour inspectors, assistant inspectors, or officially appointed experts or technicians responsible for carrying out an inspection, from entering or remaining in a place of work or specific areas thereof, are serious offences, and Panam Contenidos SA has accordingly been fined; and (3) the enforcement department of the Regional Labour Directorate has brought eight separate actions against the company for failing to pay the fines [see 351st Report, para. 1176].
3. 1079. The Committee notes that in its latest reply the Government states that: (1) the company continues to prevent the carrying out of inspections by the Labour Inspectorate, that the 14 fines imposed for these offences total 42,000 new soles and that the company has paid eight of them (the other fines are being collected by means of a seizure of bank accounts); the enforcement department has brought eight separate actions against the company; (2) the Public Prosecutor has taken action to obtain authorization from the courts to enter the workplace to carry out inspections; (3) the support of the police has been sought to carry out the 69 planned inspections; (4) the judicial authority (Second Civil Court of Lima) has been asked to obtain information on any irregularities in the company’s compliance with labour standards and its refusal to obey authority and to grant the relevant legal authorization to enter the company’s premise; and (5) with a view to giving effect to the recommendations of the Committee on Freedom of Association, the Regional Labour and Employment Promotion Directorate of Lima issued an inspection order on 12 December 2008 which has been delivered.
4. 1080. In this regard, the Committee welcomes the action and initiatives taken by the authorities but regrets that they have not produced results thus far. The Committee also notes that the Government has not sent its specific observations concerning the alleged anti-union dismissals and transfers and other intimidating practices following the establishment of a trade union at Panam Contenidos SA and that it has merely provided information on the difficulties encountered in carrying out inspections of the company, which makes it extremely difficult to draw conclusions on the concrete and serious allegations of violations of trade union rights. The Committee recalls that “anti-union discrimination is one of the most serious violations of freedom of association, as it may jeopardize the very existence of trade unions”, and that “no person should be dismissed or prejudiced in employment by reason of trade union membership or legitimate trade union activities, and it is important to forbid and penalize in practice all acts of anti-union discrimination in respect of employment” [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, paras 769 and 771].
5. 1081. The Committee notes the various steps taken by the Ministry of Labour to ensure that labour inspections can be carried out at the company. The Committee regrets the time that has passed since the alleged anti-union dismissals and transfers took place, without any possibility of investigating whether the allegations were true or adopting measures to redress the situation, if necessary. The Committee further regrets the uncooperative attitude of the company, which, according to the Government, has prevented labour inspections from being carried out.
6. 1082. In these circumstances, the Committee notes the slowness and ineffectiveness of the system for investigating labour offences in the case of allegations of serious violations of trade union legislation by the employer, as in the present case in which the employer refuses to receive labour inspectors, and emphasizes that justice delayed is justice denied. The Committee once again urges the Government to take measures without delay so that a thorough investigation takes place at the company with regard to the alleged dismissals, transfers and other anti-union acts that have reportedly been carried out since the establishment of the trade union, and to inform it of the outcome of that investigation. Furthermore, the Committee requests the Government, if the allegations in question are shown to be valid, to take the necessary measures to ensure that the workers who were dismissed and redeployed for anti-union reasons are reinstated in their posts and paid the wages and other benefits owed to them, and that the fines for such violations should be significantly increased so as to constitute sufficiently dissuasive sanctions.
7. 1083. The Committee also requests the Government to keep it informed of the various procedures and actions under way to ensure that the company fulfils its legal obligations as regards labour and trade union matters.
8. 1084. The Committee requests the Government to take steps to amend the legislation so that the system for the prompt protection of trade union rights by the Labour Inspectorate is truly effective, including sufficiently dissuasive sanctions, particularly in cases in which a company refuses to allow the Labour Inspectorate to carry out inspections of workplaces.

The Committee's recommendations

1. 1085. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee once again urges the Government to take measures without delay so that a thorough investigation takes place at Panam Contenidos SA with regard to the alleged dismissals, transfers and other anti-union acts that have reportedly been carried out since the establishment of the trade union, and to inform it of the outcome of that investigation. Furthermore, the Committee requests the Government, if the allegations in question are shown to be valid, to take the necessary measures to ensure that the workers who were dismissed and redeployed for anti-union reasons are reinstated in their posts and paid the wages and other benefits owed to them, and that the fines for such violations should be significantly increased so as to constitute sufficiently dissuasive sanctions.
   • (b) The Committee requests the Government to keep it informed of the various procedures and actions under way to ensure that the company fulfils its legal obligations as regards labour and trade union matters in relation to the present case.
   • (c) The Committee requests the Government to take steps to amend the legislation so that the system for the prompt protection of trade union rights by the Labour Inspectorate is truly effective, including sufficiently dissuasive sanctions, particularly in cases in which a company refuses to allow the Labour Inspectorate to carry out inspections of workplaces.