Report in which the committee requests to be kept informed of development - Report No 355, November 2009

Case No 2596 (Peru) - Complaint date: 10-SEP-07 - Closed

Allegations: The complainant alleges that: (1) the Manuel Polo Jiménez FAP School applied for the dissolution of the Manuel Polo Jiménez FAP School Single Union of Workers (SINPOL); refuses to engage in collective bargaining with the union or operate the payroll check-off facility; and dismissed the union’s general secretary, Ms Nelly Palomino Pacchioni; (2) the La Pampilla SA oil refinery (RELAPASA) dismissed Mr Pedro Germán Murgueytio Vásquez, former general secretary of the Refinería La Pampilla SA Single Union of Workers and current general secretary of the Single National Federation of Petroleum, Energy and Allied Workers of Peru (FENUPETROL); (3) the BBVA Continental Bank dismissed the external secretary of the BBVA Continental Bank Federated Union of Employees, Mr Luis Afocx Romo, and a union member, Mr Rafael Saavedra Marina; (4) the Agroindustrias San Jacinto SA company dismissed the social assistance secretary of the Agroindustrias San Jacinto SA Single Union of Workers

1. 964. The Committee last examined this complaint at its March 2009 meeting [see 353rd Report, paras 1143–1176, approved by the Governing Body in its 304th Session].
2. 965. The Government sent its observations in communications dated 25 February, 17 April and 11 May and 2 November 2009.
3. 966. 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. 967. At its meeting in March 2009, the Committee made the following recommendations [see 353rd Report, para. 1176]:
   • (a) The Committee requests the Government to launch an investigation without delay into the dismissal of Ms Nelly Palomino Pacchioni, general secretary of the SINPOL, and, if the dismissal proves to have been on anti-union grounds, to take steps to ensure that the union leader is reinstated in her post without delay and her outstanding wages are paid. The Committee requests the Government to keep it informed in this regard and to inform it of the final outcome of the judicial application for the dissolution of SINPOL in progress in Labour Court No. 18.
   • (b) The Committee requests the Government to send its observations without delay with regard to: (1) the dismissal of Mr Pedro Germán Murgueytio Vásquez, former general secretary of the Refinería La Pampilla SA Single Union of Workers and current general secretary of the FENUPETROL; (2) the dismissal of Mr Luis Afocx Romo, external secretary of the BBVA Continental Bank Federated Union of Employees, and Mr Rafael Saavedra Marina, a union member; (3) the dismissal of the social assistance secretary of the Agroindustrias San Jacinto SA Single Union of Workers in connection with which the judicial authority ordered the worker’s reinstatement (Mr Pedro Gutiérrez Ramirez) but the order was not implemented because of an appeal lodged by the company.

B. The Government’s reply

1. 968. In its communication of 17 April 2009, the Government states that by a ruling of Labour Court 6 in the Case 2006-241, Mr Pedro Gutiérrez Ramírez was reinstated at the enterprise Agroindustrias San Jacinto SA on 27 May 2008, in the same post as before his dismissal. The Government adds that this information has been corroborated by the General Confederation of Workers of Peru (CGTP) in communication No. 150-2009-SD/CGTP dated 14 May 2009.
2. 969. In its communications of 25 February and 11 May 2009, the Government reiterates the information transmitted previously, and indicates that: (1) concerning the situation of the general secretary of the Manuel Polo Jiménez FAP School Single Union of Workers (SINPOL), proceedings to overturn the dismissal have been initiated by Ms Nelly Palomino Pacchioni in the Sixth Labour Court of Lima under file 183406-2007-00476-0; and (2) with regard to the issue of the registration of SINPOL, it is advisable to await the ruling that will be handed down regarding the union’s registration, as that will determine the legal basis, if any, of the claims that have been made; the case in question is being heard before Labour Court 18 (file 183418-2007-0235-0).
3. 970. In its communication of 2 November 2009, the Government states that the process concerning the dismissal of trade union leader Ms Palomino Pacchioni is still pending and that three courts have dismissed: (1) actions brought by trade unionists Mr Murgueytio and Luis Afocx against their dismissal for the commission of serious offences against their enterprise; and (2) actions brought by trade unionist Rafael Saavedra for violation of due process (rejecting three actions brought by this trade unionist). The Government sent these cases.

C. The Committee’s conclusions

1. 971. The Committee recalls that when it examined this case at its meeting in March 2009, it requested the Government to launch an investigation without delay into the dismissal of Ms Nelly Palomino Pacchioni, general secretary of SINPOL, and, if the dismissal proved to have been on anti-union grounds, to take steps to ensure that she was reinstated in her post without delay and her outstanding wages paid, to keep it informed in that regard and to inform it of the final outcome of the judicial application for the dissolution of SINPOL in progress in Labour Court 18. Furthermore, the Committee requested the Government to send its observations without delay with regard to (1) the dismissal of Mr Pedro Germán Murgueytio Vásquez, former general secretary of the Refinería La Pampilla SA Single Union of Workers and current general secretary of the Single National Federation of Petroleum, Energy and Allied Workers of Peru (FENUPETROL); (2) the dismissal of Mr Luis Afocx Romo, external secretary of the BBVA Continental Bank Federated Union of Employees and of Mr Rafael Saavedra Marina, a union member; (3) the dismissal of the social assistance secretary of the Agroindustrias San Jacinto SA Single Union of Workers, Mr Pedro Gutiérrez Ramírez, in connection with which the judicial authority ordered the worker’s reinstatement but the order was not implemented because of an appeal lodged by the company.
2. 972. As regards the allegations concerning the dismissal on 26 October 2007 of the general secretary of SINPOL, Ms Nelly Palomino Pacchioni, the Committee notes the Government’s statements to the effect that the union officer in question initiated proceedings to overturn the dismissal, which are in progress before Labour Court 6 of Lima. In this regard, the Committee hopes that the judicial authority will hand down a ruling in the near future, and again requests the Government, if the dismissal is shown to have been for anti-union reasons, to take the necessary steps to ensure that she is reinstated in her post. The Committee requests the Government to inform it of the outcome of the judicial proceedings currently under way.
3. 973. As regards the allegation concerning the dissolution of SINPOL, in relation to which the Committee had noted that judicial proceedings were under way, the Committee notes the Government’s statement to the effect that it is advisable to await the ruling that will be handed down in the proceedings currently under way in Labour Court 18. The Committee hopes that the judicial authority will give its ruling in the near future, and requests the Government to inform it of the final outcome of the proceedings.
4. 974. As regards the allegation concerning the dismissal of the social assistance secretary of the Agroindustrias San Jacinto SA Single Union of Workers, Mr Pedro Gutiérrez Ramírez, with regard to which the judicial authority ordered his reinstatement, which was appealed by the company, the Committee takes due note of the Government’s statements to the effect that, pursuant to the ruling of Labour Court 6, Mr Pedro Gutiérrez Ramírez was reinstated at the company on 27 May 2008, a fact that has been corroborated by the General Confederation of Workers of Peru.
5. 975. Lastly, the Committee notes the observations of the Government concerning: (1) the dismissal of Mr Pedro Germán Murgueytio Vásquez, former general secretary of the Refinería La Pampilla SA Single Union of Workers and current general secretary of FENUPETROL; and (2) the dismissal of Mr Luis Afocx Romo, the external secretary of the BBVA Continental Bank Federated Union of Employees, and of Mr Rafael Saavedra Marina, a union member. The Committee notes that the judicial authority dismissed the three appeals filed.

The Committee's recommendations

1. 976. In view of the foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government to inform it of the final outcome of the judicial proceedings to overturn the dismissal initiated by the general secretary of SINPOL, Ms Nelly Palomino Pacchioni, and, if her dismissal is found to have been for anti-union reasons, to take the necessary steps to ensure her reinstatement.
   • (b) The Committee hopes that the judicial authority will hand down a ruling in the near future on the judicial proceedings in connection with the dissolution of SINPOL, and requests the Government to inform it of the outcome of those proceedings.