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

Case No 2597 (Peru) - Complaint date: 10-SEP-07 - Closed

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Allegations: The complainant organization alleges the refusal to register a trade union and anti-trade union acts in a company in the mining sector, and acts of anti-trade union discrimination, in particular mass dismissals of trade union officials and members, in a company in the textiles sector
  1. 1177. The complaint is contained in communications of the General Confederation of Workers of Peru (CGTP) dated 10 September 2007 and 14 February 2008.
  2. 1178. The Government sent its observations in communications dated 3 March, 28 May and 15 and 29 August 2008.
  3. 1179. 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. Allegations of the complainant

A. Allegations of the complainant
  1. 1180. In its communication of 10 September 2007, the General Confederation of Workers of Peru (CGTP) alleges that the mining company Barrick Misquichilca SA is violating the trade union rights of the Union of Workers of the Subcontractors and Agencies of the mining company Barrick Misquichilca SA. The CGTP indicates that the Pierina gold mining operations began in 1998. The owner of this mining concession is Barrick Misquichilca (BM), a subsidiary of Barrick Gold, a Canadian-based multinational. In this company, since 2004, there has been the Single Union of Workers of the mining company Barrick Misquichilca SA (SUTRAMBIM). There are approximately 17 rural communities in the zone of influence of the mining operation. These communities have been represented by an informal organization called the Central Committee of Communities in the Zone of Influence of the mining company Barrick Misquichilca SA (CCCIEMBM). Since at least the start of operations, i.e. the actual extraction of ore, in 1998, these communities have provided services to BM under a system of work known as “communal work rotation system”. The CGTP points out that, following a dispute between the members of the communities represented by the CCCIEMBM and the BM company in 2006, which included acts of violence by the police against demonstrators, a process of rapprochement and links at institutional level began between SUTRAMBIM and the rural communities in the zone of influence of BM. According to SUTRAMBIM officials, this rapprochement was not well received by the company. Faced with the charter of solidarity between SUTRAMBIM and the communities concerning the facts described above, representatives of BM went to the trade union premises to protest at SUTRAMBIM’s approach.
  2. 1181. On 10 May 2006, a memorandum of understanding was signed between the representatives of 18 communities in the zone of influence of the mining company, nine officials representing BM and various public authorities including the Ombudsperson in Huaraz. Subsequently, they met on 17 May and signed a second memorandum. In these memoranda, BM directly assumes various undertakings to the rural communities.
  3. 1182. With the support of SUTRAMBIM officials and the Federation of Mine, Metal and Steel Workers of Peru (FTMMSP), on Sunday 1 July 2007, the members of the various rural communities in the BM zone of influence met in a general assembly and decided to constitute and found a trade union to organize the members of the communities who work through various agencies and subcontractors for BM. The constitution of the trade union was published through a notice on a web site. This organization adopted the name of Union of Workers of the Subcontractors and Agencies of the mining company Barrick Misquichilca SA (STCAMB). It arose from the need to represent the workers from the communities in collective bargaining on the economic conditions, conditions of work, occupational safety and health, among other things, which apply when they work for BM.
  4. 1183. The workers belonging to the rural communities in the zone of influence of the mining company BM work for this company indirectly through subcontractors and agencies, on a temporary and rotating work basis. This means that for three or four months hundreds of workers from the communities work for the mining company and then give way to another group, thereby rotating access to work. Thus there are three particular factors which needed to be considered by the community workers when defining the structure of their trade union: (a) the fact that they are workers but also belong to rural communities (community workers), a situation which makes them very vulnerable as workers, as many of them cannot read or write; (b) their work is temporary and rotational since it is subject to a “communal rotating work system”; and (c) they work for BM indirectly, i.e. through various subcontractors and agencies, which means they are employed through more than one employer.
  5. 1184. These factors prevent the community workers from joining SUTRAMBIM which is a union of direct employees, i.e. belonging to the BM payroll. The multiplicity of employers means that a company union is inappropriate. Likewise, forming a traditional type of union which can enrol all workers in general who work for the mining company through subcontractors and agencies is not the best suited to their interests, since it would mean expanding the scope, since workers other than community workers could join, with different working systems, different work involving technical skills which the community workers do not possess, and with different levels of education, problems and ambitions.
  6. 1185. For these reasons, the community members decided that the STCAMB would be a sectoral union which would only enrol community workers in the zone of influence of the mining company, who are working, have worked or expect to work for BM through subcontractors or agencies, who work in units of production which BM has or might have in the city of Huaraz. On 2 July 2007, an application for registration of the trade union was submitted to the Huaraz Labour Zone – Ancash Regional Labour Directorate (ZTH–DRTA). The application was accompanied by the documents required under Peruvian law, namely the minutes of the extraordinary general assembly, the statutes of the trade union, the appointment of the executive committee, the list of members and the list of those present at the general assembly. On 26 July, the administrative authority notified the STCAMB that, by a decision of 3 July 2007, the following were required for registration of the trade union, allowing only two days to comply with the following: (a) that the minutes of the assembly constituting the STCAMB must be entered in the book of minutes authorized by the administrative authority; (b) with respect to the scope of the trade union, it would only be possible for persons actually working to join the trade union; and (c) it was necessary to list the position, profession or office, and the name of the company to which the affiliated workers belonged, thus supposing subjectively that the scope of the trade union is the company.
  7. 1186. The CGTP considers that these requirements are not valid and reflect the arbitrary conduct and subjective opinion of the Head of the Labour and Employment Promotion Zone of Huaraz – Regional Directorate of Labour and Employment Promotion of Ancash. On 1 August 2007, the trade union submitted a written document to the ZTH–DRTA arguing that the requirements demanded by the administrative authority were invalid. On 6 August 2007, the ZTH–DRTA notified the STCAMB that, by a decision of 3 August 2007, the administrative proceeding was closed, thereby denying the STCAMB registration as a trade union. The STCAMB lodged an appeal on 22 August 2007 against the refusal of its registration as a trade union, but this appeal has not yet been decided by the administrative authorities.
  8. 1187. The community workers trusted that, through the trade union and collective bargaining, i.e. democratic dialogue between the workers and employers, it would be possible to achieve better conditions of work. The collective agreement should contain constructive agreements, reconciling the interests of everyone, thereby avoiding confrontations which were costly for both sides, as happened in 2006 as explained in the background to this complaint. However, due to the fact that in Peru registration as a trade union granted by the Ministry of Labour and Employment Promotion allows trade unions to obtain legal personality as a trade union, without that registration, the STCAMB is prevented from initiating a collective bargaining process with a view to concluding a collective agreement which would provide better conditions of work for the community workers. Moreover, the lack of this registration prevents it from accessing other rights or powers, such as trade union status for officials, trade union leave or obtaining deductions of members’ trade union dues from the payroll.
  9. 1188. The CGTP adds that the constitution of the STCAMB and its efforts at rapprochement and negotiation with the company led to the failure to hire a group of workers whose turn it was in the rotation. It also led to the dismissal of another group. It should be noted that they were all members of the union. This situation is incomprehensible because they are workers who have been working for years in the company so there is no question of their ability and expertise. In addition, according to the community workers themselves, the company has hired new workers from outside the communities to replace them in the jobs that they had been doing, and this practice was aggravated when the union was formed.
  10. 1189. The CGTP indicates that the workers barred from working and those dismissed by the company are as follows. Officials: (1) deputy general secretary, Tito Huamaliano, prevented; (2) legal secretary, Julio Dionisio Obispo Delgado, dismissed; (3) treasurer, Mario Walter Mejía Prince, dismissed; (4) mining health and safety secretary, Cipriano Rosas Heredia, dismissed. Members: (1) Rómulo Chávez Montenegro, dismissed; (2) Jesús Huaman, barred; (3) Norberto Méndez, dismissed; (4) Reynaldo Hilario Vergara Guerrero, barred; (5) Emilio Zacarías Sánchez Gonzáles, dismissed; (6) Elías Inocente Delgado Huamaliano, dismissed; (7) Mauro Félix Delgado Huamaliano, dismissed; (8) Juan Rupay, dismissed; (9) Villafuerte Rupay Caushi, dismissed; (10) David Huamaliano, dismissed; (11) Perci Damián Delgado Huamaliano, dismissed.
  11. 1190. According to the complainant organization, all of this shows clear evidence of anti-trade union practice since, in the middle of a collective bargaining process, affiliated workers were dismissed and not allowed to renew their contracts, undermining the trade union and encouraging workers not to join. In addition, it reflects unequal treatment of community workers because of their situation compared with other workers, both by the BM company and the Peruvian State, consisting of: different conditions of work; lack of training; decision-making without taking them into account; lack of interest in their claims and even in extreme cases the use of force.
  12. 1191. The CGTP emphasizes that under article 14 of the consolidated text of the Collective Industrial Relations Act (TUO), Supreme Decree No. 010-2003-TR: “To be constituted and continue in existence, trade unions must have a membership of at least 20 workers in the case of company trade unions or 50 workers in other types of trade union.” Currently, STCAMB, which is a sectoral trade union, has a membership of over 50 workers and thus fully meets the requirements to be constituted and to exist. According to article 17 of the TUO: “The trade union must be registered in the appropriate register maintained by the Labour Authority. Registration is a formal act, not a substantive one, and cannot be refused except where the requirements established in this Act are not fulfilled.” Furthermore, article 22 of the TUO states: “Registration of the trade unions described in article 17 of the Act shall be automatic simply on submission of the application in the form of a sworn declaration, in accordance with the requirements established in the previous article.”
  13. 1192. As can be seen, entry in the trade union register has a formal and not a substantive character and is automatic if the requirements of the law are satisfied. However, the Ministry of Labour refused to register the trade union, clearly violating domestic law. Despite the challenge by the trade union, the ZTH–DRTA refused registration. This act is therefore a violation of the right of workers to establish organizations of their own choosing without previous authorization, and thus violates the right of freedom of association.
  14. 1193. In Peru, the right to collective bargaining has constitutional rank and is thus a fundamental right, full respect for which is essential to the recognition of human dignity. However, up to now, in this case, the state authorities have not provided efficient and effective protection to workers to ensure that they can enjoy that right in full.
  15. 1194. As regards anti-trade union practices, article 29 of the consolidated text of Legislative Decree No. 728 provides that “dismissal on the grounds of membership of a trade union or participation in trade union activities, being a candidate for workers’ representative or acting or having acted in that capacity is void”. Thus, according to national law and jurisprudence, dismissal of workers on the grounds of their membership and/or official position in a trade union is prohibited. It must therefore be concluded that, when the BM company on the occasion of the constitution of the trade union, dismissed the members and officials and/or did not hire them as they should have done under the employment scheme, it acted in an illegal manner and violated the right of freedom of association.
  16. 1195. Finally, the CGTP indicates that the State has ratified Conventions Nos 87 and 98. Yet, despite the fact that these Conventions establish obligations for the Peruvian State, through its administrative organs, it has been breaching its international obligations.
  17. 1196. Furthermore, in its communication of 14 February 2008, the CGTP alleges acts of anti-trade union discrimination in several companies, specifically.
    • Topy Top SA
  18. 1197. The clothing firm Topy Top SA is a company which exports clothing which it manufactures itself. Its main base is in Zárate, San Juan de Lurigancho, where it started operating in 1998 as Creaciones Flores. Subsequently it traded under the name of Topy Top SA, and embarked on an aggressive expansion into the domestic and international markets, generating turnover of over 65 million dollars and trading profits under the ATPDEA treaty. Topy Top SA has an average of 5,000 workers, of which 95 per cent are employed under a variety of contractual arrangements, with the objective of precluding any trade union organization, by the following measures: (1) punishing trade union membership by threat of dismissal; (2) undermining the trade union by dismissing officials; and (3) mass dismissals of workers for belonging to a trade union.
  19. 1198. On 21 January 2008, the human resources department sent a letter to the trade union informing it that, due to the decline in production, there would be redundancies at the factory. At the same time, the Union of Topy Top SA Workers (SINTOTTSA) was founded on 25 February 2007 and began the process of registration with the Ministry of Labour and Employment Promotion on 5 March 2007. Topy Top SA revived an aggressive anti-trade union policy involving renewed threats against the trade union, with massive and arbitrary dismissals between 31 January and 1 February 2008 of 60 unionized workers, alleging, among other things, that their contracts had terminated. This is belied by the policy statements and requests for affiliation to the SINTOTTSA union. (The dismissed unionized workers are as follows: (1) Hilda Valer Huaman; (2) Marilú Mendoza Barrientos; (3) Segundo Reque Chamioque; (4) Flor de María Saldarriaga Carrión; (5) Beatriz Monroy Ríos; (6) Eida Flores Ramos; (7) Rosalinda Sedano Cuya; (8) Dina Chacara Narváez; (9) Rosa Pardo Oria; (10) Antonio Alva Alcántara; (11) Eloy Asaul Quispe Timoteo; (12) Janet Flores Aranda; (13) Liliana Maza Chincha; (14) José A. Almeida Villanueva; (15) Lucía N. Rivera Quispe; (16) William Castillo Rimac; (17) Miriam Porras Cosme; (18) Julia Burga Díaz; (19) Carlos Olivera Atapoma; (20) Katy Ríos Cusihuaman; (21) Leoncio Bravo Ocaña; (22) Sonia Quevedo Reyes; (23) Lizet Villacorta Sánchez; (24) Neker Bravo Padilla; (25) Irenio Medina Bustamante; (26) Elton J. Fernández Aguayo; (27) Jessica Malqui Flores; (28) Claudio Barahona Ccorahua; (29) Ambrosio Velásquez Juan; (30) Javier Cahuana Mendoza; (31) Segundo Hernández Acedo; (32) Edith Valdivia Quispe; (33) Miriam Bautista Típula; (34) Debora Tapia Vicente; (35) Russell Medrano Matías; (36) Jackeline Acencio Monterroso; (37) Mariela Paredes Vega; (38) Lidia Moreno Días; (39) Roberto Bocanegra Asencio; (40) Jenny Medina Días; (41) Janet Medina Tanca; (42) Jorge Coronado Pasache; (43) Fiorela Salinas Villagaray; (44) Mirilla Trujillo Mejía; (45) Milagros Llumpo Cabrera; (46) Elizabeth Hilario Meza; (47) Nancy Mantilla Peccalaico; (48) José Almeida Ochoa; (49) Jessica Alvites Huaroto; (50) José Jara Apaza; (51) Marcia Barrionuevo Zarate; (52) Cecilia Neciosup Navarro; (53) José Villanueva Blas; (54) Rosa Sánchez Llatas; (55) Yovana Pajares Cano; (56) María Zegarra Rodríguez; (57) Nancy Pérez Mallma; (58) Charito Vega Serrano; (59) Miguel Quispe Medina; (60) Ana Paucar Quispe.)
    • Sur Color Star SA
  20. 1199. The clothing company Sur Color Star SA provides weaving, dyeing and cloth finishing services to Topy Top SA. Sur Color Star SA is based in Zárate, San Juan de Lurigancho, and started operating in November 2007. The Union of Workers of Sur Color Star (SINSUCOS) was founded on 14 December 2007 and was recognized by registration as a trade union on 8 January 2008.
  21. 1200. On 29 December 2007, when the company became aware of the existence of the trade union, it began the collective dismissal of three officials and ten members; then, on 3 January it dismissed a further five officials and three members. Informal meetings were held between the company and the trade union in the Ministry of Labour and Employment Promotion on 7, 11 and 17 January 2008, and on 8 and 13 February 2008, without achieving the reinstatement of the dismissed trade union officials and workers, who are named as follows: (1) Omar Castro Julia, general secretary; (2) Juan Piscoya Díaz, legal secretary; (3) Pierre Ocas Meza, organization secretary; (4) Roberto Pisconte Romano, disciplinary secretary; (5) Alfredo Nery Soto, treasurer; (6) Willy Mejía Rodríguez, minutes and archive secretary; (7) César Meza Chacaliaza, press secretary; (8) Sandro Román Ureta, technical and statistics secretary; (9) Javier García Alva; (10) Jaime Yupanqui Iñigo; (11) José Torres Huamán; (12) Shady Quiroz Cornejo; (13) Elmer Pedro M.; (14) Miguel Gonzales Oré; (15) Randú Montalvo Huallca; (16) Wilder Arias Huaynate; (17) Manuel Santisteban M.; (18) José Rivadeneyra Vidal; (19) Segundo Peña L.; (20) Víctor Puente Vásquez; (21) José Cruzado Navarrete).
    • Star Print SA
  22. 1201. The clothing company Star Print SA engages in washing, printing, classifying and finishing services relating to weaving, dyeing and finishing of garments for Topy Top SA. Star Print SA is based at Av. Santuario 1350, Zárate – San Juan de Lurigancho, and started operating around May 2004. The Star Print SA Workers’ Union was founded and duly recognized by registration as a trade union on 21 January 2008. On 17 January 2008, when the company became aware of the existence of the trade union, it began by dismissing six officials and 20 members, invoking alleged serious misconduct of the worker and an alleged termination of contract, and is still continuing with this policy of dismissals. Informal meetings were held between the company and the trade union in the Ministry of Labour and Employment Promotion on 5, 6 and 11 February 2008, without achieving the reinstatement of the dismissed trade union officials and workers (who are as follows: (1) Walter Chupillon Guerrero, general secretary; (2) Jorge Rafael Pariaton Almestar, organization secretary; (3) Jesler Cateriano Ramírez Giraldo, legal secretary; (4) Milton Sandoval Ruiz, press and publicity secretary; (5) Iván Narciso Gonzales Antaurco, treasurer; (6) Jakcson Tanca Chuquitapa, minutes secretary; (7) Jacqueline Daysi Alhuay Carrillo; (8) Diana Elizabeth Sánchez Rosales; (9) Jimmy Alberto Ulloa Condor; (10) Juan Orlando Retete Carhuapoma; (11) Ronald Serapio Amaro Leyva; (12) Isabel Gladys Calderón Anahua; (13) Jenny Jeanet Poma Sabarde; (14) Andrea Geri Porras; (15) José Feliciano Alvarado Villena; (16) Danny Lozada Santa María; (17) Carlos Chapoñan Sánchez; (18) Julio César Pisconte Rosales; (19) Manuel Rafael Lozada Varias; (20) Gustavo Díaz Mayta; (21) Jorge Taipe Paredes; (22) Miguel Alvarado Villena; (23) Mariela Fuentes Tafur; (24) Paulo René Badillo Cáceres; (25) Mercedes Hinostroza Valderrama; (26) Lisbeth Gina Pumarrumi Osorio).
  23. 1202. According to the CGTP, Topy Top SA, Sur Color Star SA and Star Print SA are systematically violating the right of freedom of association and other workers’ rights.

B. The Government’s reply

B. The Government’s reply
  1. 1203. In its communication of 3 March 2008, the Government states that, according to the information provided by the Ancash Regional Director of Labour and Employment Promotion on 20 February 2008, on 2 July last year, application No. 02496 was received for the registration of the Union of Workers of the Subcontractors and Agencies of the mining company Barrick Misquichilca SA, which was considered by a decision of 3 July of that year (notified on 26 July) as follows: the minute of the assembly constituting the trade union was not contained in a minute book authorized by the Labour Administrative Authority and the scheme did not state positions, professions or offices of the members, or the name of the company for which they worked.
  2. 1204. In order to remedy these omissions, they were granted a period of two working days (which expired definitively on 31 July 2007). However, the appellants submitted their document containing corrections on 1 August, for which reason the application was refused and deemed not to have been submitted. In the light of this, the interested parties submitted a time-barred appeal on 22 August 2008 (outside the time limit of three working days to appeal, which expired on 8 August of that year), and the appeal was declared inadmissible because it was time-barred. In consequence, the said pronouncement became final under administrative procedures.
  3. 1205. In its communication of 28 May 2008, the Government reports that the mining company Barrick Misquichilca SA, in a communication dated 22 February 2008 concerning the problem, indicated the following: (a) firstly, that the Huaraz Labour Zone granted the statutory time limit to the trade union to provide the additional documentation required, and that time limit was not respected by the interested parties; thus the application for registration was deemed not to have been submitted; (b) the requirements under the provisions of national legislation for the registration of a trade union are not barriers to the creation of trade unions, but are actually deigned to ensure that the process is transparent; (c) concerning the impediment to opening collective bargaining, they point out that, under ILO Conventions Nos 87 and 98, the obligation to register is a matter of the need to establish a system of recognition which allows the identification of the group as a legal entity with a status favourable to the exercise of its activity, and (d) additionally, the mining company concerned already has the Single Union of Employed Workers of the mining company Barrick Misquichilca SA (formed in 2004), with which it has to date signed two collective agreements, one which was in force up to June 2007 and the second which was signed on 29 October last year and will remain in force until June 2010.
  4. 1206. In the light of the foregoing, it is worth pointing out that, having analysed the substance of the complaint of the CGTP, the Government concludes that the Peruvian State has scrupulously observed current domestic and international labour legislation, and that there has been no violation of and/or detriment to the exercise of the rights contained in collective labour legislation or the Conventions of the International Labour Organization governing those rights. In short, the assertions formulated by the trade union have no basis in fact, given that the impossibility of collective bargaining and/or obtaining recognition from the Labour Administrative Authority arose as a consequence of the actions of the trade union itself when it submitted its application for registration, with omissions which should have been remedied by the applicants, in accordance with the provisions of the Collective Industrial Relations Act.
  5. 1207. The Government considers that responsibility for the refusal by the Labour Administrative Authority (Ancash region) should not be blamed on the Government, the mining company or the Peruvian State, but solely and exclusively on the complainant organization which failed to fulfil the relevant legal requirements.
  6. 1208. In its communication of 22 February 2008, transmitted by the Government, the mining company Barrick Misquichilca SA refers, with regard to the refusal of trade union registration, to the requirements set out in the single text of administrative procedures
    • of the Ministry of Labour and Employment Promotion, approved by Supreme Decree
  7. No. 16-2006-TR, in force at the time of the events, previously described by the Government. The company indicates that the trade union STCAMB, in its application for registration, did not comply with the requirements established in national legislation. Specifically, the trade union did not indicate the post, profession or special skill of the workers affiliated to the trade union, and the name of the company where they worked and the respective dates of entry. Furthermore, the minutes book containing the constitution of the trade union had not been stamped by the Ministry of Labour and Employment Promotion. In addition, it is important to note that the Huaraz labour zone granted a time limit to the trade union to complete the documentation submitted, a time limit which was not respected by the trade union, for which reasons the application for registration was deemed to have not been submitted.
  8. 1209. As regards the legitimacy of the requirements demanded by the Peruvian State for registration of trade unions and their application in this specific case, the company considers that they are consistent with the provisions of Conventions Nos 87 and 98, as well as the precedents set by the Committee on Freedom of Association of the International Labour Organization in previous cases, on the grounds that entry in the register is a mere formality and not in any way a matter left to the discretion of the Peruvian State.
  9. 1210. The company indicates that it is not an attack on freedom of association when States provide for compliance with certain requirements in order for trade unions to obtain registration. In this specific case, the requirements laid down by national legislation for registration of the trade union with the Labour Administrative Authority are minimal. They do not present any obstacles to the creation of a trade union and their sole purpose is to ensure that the process is made public. Thus, this procedure is a mere formality and does not imply any kind of prior authorization by the Peruvian State. On this question, the Peruvian State asks the Committee to take into consideration that these procedures are subject to a system of automatic approval, i.e. according to the provisions of article 31 of the General Administrative Procedures Act, No. 27444.
  10. 1211. The envisaged administrative procedure does not contain any impediment to registration, and is merely subject to subsequent control. This subsequent control is intended to avoid any detriment to the rights of the interested parties which might arise as a result of delay by the administration in checking the documents submitted. The legal order means that the rights of those administered may not be subject to any delay beyond the time necessary for the administration to check that the documents submitted comply with the legal requirements. This being the case, in accordance with the principle of presumption of veracity, the administrative authority automatically approves the application submitted, subjecting it to subsequent control, as expressly laid down by article 32 of Act No. 27444. As can be seen, far from containing impediments to the process of trade union registration, it has been designed to guarantee fully the rights of those concerned, in this specific case, the right of freedom of association.
  11. 1212. With regard to the supposed impediment to proposing collective bargaining, the company indicates that, as laid down in Conventions Nos 87 and 98, and by the Committee on Freedom of Association itself in previous cases, the obligation to register is a matter of the need to establish a system of recognition which allows the group to be identified as a single legal entity and granted specially favourable status for the exercise of its activities. It should further be emphasized that the Peruvian State does not permit acts of discrimination in any form. Discrimination in access to employment is prohibited under the legal system and there are no claims pending against the company in any court or administrative body filed by any community member, community worker or rural community.
  12. 1213. The company states that its productive activities are carried on by personnel employed directly by the company, in accordance with the relevant legal provisions. Some specialist activities, such as drilling and blasting, construction and maintenance, have been outsourced, in accordance with the relevant legislation. In order to promote employment opportunities for the local population, in accordance with Supreme Decree No. 042-2003-EM, it was requested and recommended that, where possible, local labour should be given preference in hiring under the aforementioned contracts.
  13. 1214. In addition to the above and in order to help improve family incomes in the communities neighbouring the mine works, the Barrick mining company also set up a rotational employment programme for inhabitants of these communities. This programme involves complementary activities such as road-sweeping, control of erosion, handling stores, building communal premises, office cleaning, etc., and relies on the services of duly constituted employment agencies. The work under the rotational employment programme normally lasts three months which, in some cases, may be more or less, depending on the characteristics and requirements of the work, and it has always sought to involve as many local people as possible in the programme.
  14. 1215. Each community designates the people under its jurisdiction to allow them to participate in the programme. On the seventh day of each month a meeting is held in the company with the delegates nominated by each community, representatives of the employment agencies and company staff. The purpose of the meeting is to ensure transparency in the distribution of the number of workers of the various communities which take part in the rotational employment programme. It is also worth mentioning that, at the request of the communities themselves, subjects such as rotational employment and others are discussed directly with the respective officials or representatives designated by each community.
  15. 1216. The company indicates that in September 2007 it received an invitation from the National Directorate of Industrial Relations in the Ministry of Labour and Employment Promotion to an informal meeting with representatives of the trade union, who alleged that the company was engaging in anti-trade union practices against members of the union. As was stated in that informal meeting, the formation of the trade union in question was a matter belonging to the sphere of industrial relations between those workers and their respective employers. As the name of the trade union indicates, its members are workers who do not belong to the Barrick Misquichilca SA mining company.
  16. 1217. Furthermore, it would be hard to accuse the company of anti-trade union practices against workers who belong to other companies when the company itself has a union formed in 2004 called the Single Union of Workers of the mining company Barrick Misquichilca SA, Huaraz, with which at that time it concluded a collective agreement in force until 2007 and, on 29 October 2007, signed the subsequent agreement lasting until June 2010. It should further be indicated that there is no proceeding in which the company trade union has issued a summons or initiated a complaint of violation of the right of freedom of association, which clearly shows respect for the right of workers to organize.
  17. 1218. In conclusion, it states that it is the policy of Barrick Mining to comply scrupulously with each and every one of the country’s laws, especially legislation specific to the sector and that referring to its obligations as employer, and it demands the same compliance from the companies that provide services to it.
  18. 1219. In its communication of 15 August 2008, the Government, referring to the alleged acts in violation of freedom of association by the companies Topy Top SA, Sur Color Star SA and Star Print SA, states the following with regard to the collective bargaining process and trade union registration:
    • – Topy Top SA: according to a certificate of automatic registration dated 5 March 2007, the Union of Workers of Topy Top SA was registered in the trade union register. The first and only set of claims submitted by this trade union to date was that set out in claim No. 242686-2007-MTPE/2/12.210, initiated on 10 October 2007. The details of the processing of this set of claims were sent by the Sub-directorate of Collective Bargaining to this Regional Directorate in report No. 060-2008-MTPE/2/12.210. It should also be mentioned that trade unionists Messrs Víctor Edmundo Tataje Castañeda and Delfín César Tadeo Gamarra informed the Sub-directorate of General Registers of the cancellation of the trade union registration, which was declared “inadmissible” on 11 May 2007, and confirmed on 27 July 2007 by the Directorate of Prevention and Settlement of Disputes in Directorate Order No. 054-2007-MTPE/2/12.2.
    • – Sur Color Star SA: according to a certificate of automatic registration dated 8 January 2008, the Union of Workers of Sur Color Star, Topy Top SA Textiles Division, SINSUCOS, was registered in the trade union register.
    • – Star Print SA: according to a certificate of automatic registration dated 21 January 2008 the Union of Workers of Star Print SA was registered in the trade union register.
  19. 1220. The Government adds that the Directorate of Labour Inspection, in letter No. 2393-2008-MTPE/2/12.3, dated 31 July 2008, forwarded letter No. 619-2008-MTPE/2/12.350, in which it stated that, with respect to various complaints of anti-trade union practices and claims concerning collective agreements, it issued inspection orders for inspections of the companies Topy Top SA, Star Print SA and Sur Color Star SA, as follows: (a) Topy Top SA: inspection order No. 5628-2007, inspection order No. 1503 2008 and inspection order No. 2576-2008; (b) Star Print SA: inspection order No. 1023-2008, inspection order No. 6495-2008 and inspection order No. 8167-2008; and (c) Sur Color Star SA: inspection order No. 168-2008, inspection order No. 603-2008, inspection order No. 4264-2008, and inspection order No. 6494-2008.
  20. 1221. In its communication of 29 August 2008, the Government states in relation to the companies Topy Top SA, Sur Color Star SA and Star Print SA that: it issued orders for inspections in relation to anti-trade union practices and matters relating to collective agreements.
  21. 1222. For the company Topy Top SA the following inspection orders were issued:
    • – Inspection order No. 5628-2007. Notice of violation No. 1538-2007-MTPE/2/12.3 was raised relating to the members of the Union of Workers of Topy Top SA, 130 in number, according to the list of members shown in the records. The following social and labour legislation was violated: the Political Constitution of Peru of 1993, article 28 of the Constitution, which recognizes that right to organize, collective bargaining and strike, and guarantees freedom of association; the Collective Industrial Relations Act, Supreme Decree No. 010-2003-TR, articles 3 and 4, which seek to guarantee freedom to join a trade union and protect freedom of association against those who seek to violate it, thus ensuring its effectiveness; the Universal Declaration of Human Rights; ILO Conventions Nos 87 and 98; Supreme Decree No. 019-2006-TR, article 46.1, for unjustified refusal or prevention of entry or stay in a workplace or in certain areas thereof of supervising inspectors, labour inspectors, assistant inspectors or officially appointed experts or engineers, to carry out an inspection; Supreme Decree No. 0192006-TR, article 46.3, on refusal of the inspected company or its representatives to provide supervising inspectors, labour inspectors, assistant inspectors with the information and documentation necessary to allow them to perform their tasks, by not providing the required documentation on 28 May 2007; Supreme Decree No. 019-2006-TR, article 46.5, on preventing the participation of the worker or his representative or workers or the trade union, by not allowing them to participate on 30 May 2007 in the inspection carried out on that date; Supreme Decree No. 019-2006-TR, article 46.7, for the fact that they did not comply in a timely manner with the order of 30 May 2007 to adopt measures to comply with social and labour legislation, having been ordered to refrain from acts which might obstruct, restrict and undermine the right to organize; in addition, not to continue intimidating workers to give up their membership under threat of dismissal, but it continued to do so, as on visiting the workplace on 1 June 2007, workers were found outside the company premises, having been locked out of the workplace, the majority of them union members according to the list of members.
    • – Qualification of the violation:
      • (a) Violation of social and labour legislation by directly encouraging workers to give up their union membership by sending 45 notarial letters and the payment and sending of a notarial letter as indicated in paragraphs 12 and 13 of the established facts, and statements by workers which refer to paragraphs 16 and 17 of the verified facts and which were not refuted, contradicted or clarified by the inspected subject, which lead to the inference of the existence of anti-trade union practices. This violation was qualified as very serious, in accordance with article 33 of the General Inspection of Labour Act, No. 28806,and paragraph 25.10 of its regulations approved by Supreme Decree No. 0192006TR, which expressly defines as a violation the commission of acts which prevent free affiliation to a trade union, such as the use of direct or indirect means to hinder or impede membership of a trade union or encourage giving up membership.
      • (b) Not having duly complied with the order dated 30 May 2007 on the adoption of measures to ensure compliance with social and labour legislation, this violation being qualified as a very serious violation, in accordance with article 31 of the General Inspection of Labour Act, No. 28806, and article 46.7 of its regulations approved by Supreme Decree No. 019-2006-TR, which states “The following failures of compliance are very serious violations: … 46.7 Failure to comply in a timely manner with an order to adopt measures to comply with social and labour legislation.”
      • (c) The inspected company on 30 May 2007 refused to provided facilities for the conduct of the inspection, by refusing to show the required documentation on 28 May 2007, this violation being qualified as a very serious violation, in accordance with article 36 of the General Inspection of Labour Act, No. 28806, and article 46.3 of its regulations approved by Supreme Decree No. 0192006TR.
      • (d) Impeding the participation of representatives of the trade union on 30 May 2007, being qualified as a very serious violation, in accordance with article 36 of the General Inspection of Labour Act, No. 28806, and article 46.5 of its regulations approved by Supreme Decree No. 019-2006-TR.
      • (e) Not allowing entry of inspectors to the workplace on 1 June 2007, despite having been duly notified and, on 30 May 2007, preventing the inspectors from having access to the installations of the workplace, being qualified as a very serious violation relating to labour inspection, in accordance with article 36.1 of the General Inspection of Labour Act, No. 28806, and article 46.1 of its regulations approved by Supreme Decree No. 019-2006-TR.
    • – Proposed sanction: (1) a fine of 80 per cent of 20 tax units (UIT) equivalent to the sum of 55,200 new soles, for the violation of social and labour legislation relating to anti-trade union practices: (2) a fine of 80 per cent of 20 tax units (UIT) equivalent to the sum of 55,200 new soles, for the violation of failure to comply with the inspection order; (3) a fine of 80 per cent of 20 tax units (UIT) equivalent to the sum of 55,200 new soles, for the violation of failing to provide facilities for the conduct of the inspection; (4) a fine of 80 per cent of 20 tax units (UIT) equivalent to the sum of 55,200 new soles, for the violation of impeding the participation of the representatives of the trade union; (5) a fine of 80 per cent of 20 tax units (UIT) equivalent to the sum of 55,200 new soles, for the violation of failing to allow entry of inspectors to the workplace and preventing their access to the installations of the workplace. As the UIT for 2007 was the equivalent of 3,450 new soles, under Supreme Decree No. 213-2003-EF, the total amount of the fine comes to 276,000 new soles. However, bearing in mind article 39 of the General Inspection of Labour Act, No. 28806, which provides that the maximum fine for all violations in total may not exceed 30 UIT for the year in question, in consequence the amount of the fine proposed is 103,500 new soles. The amount of the proposed sanction takes into account the seriousness of the offences and the number of workers affected.
    • – Inspection order No. 1503-2008, under which notice of violation No. 731-2008 was issued, concerning the members of the Union of Workers of Topy Top SA. Social and labour legislation violated and workers affected: Legislative Decree No. 713, articles 10, 15, 16 and 17, and Supreme Decree No. 012-92-TR. This company has not paid the full amount of holiday remuneration for the last period due to each worker entitled to that pay based on date of recruitment and did not grant holiday to each of
    • the workers entitled to it; Supreme Decree No. 003-97-TR and Supreme Decree
  22. No. 001-96-TR, article 83 of the regulations relating to failure to provide workers with a copy of the contract of employment within three working days from the date of its submission to the Labour Administrative Authority, or indeed outside that time limit, which affects 302 workers; Supreme Decree No. 010-2003-TR, article 55, and Supreme Decree No. 019-2006-TR for failure to provide the trade union with documentation relating to the economic, financial, social situation and other relevant matters, which affects 302 workers. Qualification of the violation: the proven facts in this act violate the provisions of Supreme Decree No. 019-2006-TR. Minor violation, article 23.2: failure to provide the worker, within the established time limits and in accordance with the requirements, of a copy of the contract of employment. Serious violation, article 24.9: failure to provide the trade union with documentation relating to the economic, financial, social situation and other relevant matters. Very serious violation, article 25.6: failure to pay holidays to all its workers entitled to it. These facts constitute three violations, under Supreme Decree No. 019-2006-TR. Proposed sanction: a fine is proposed, article 23.2: 81 per cent of 1 UIT = 2,835 new soles, for failure to provide copies of contracts of employment to unionized workers, which affects 302 workers; article 24.9: 81 per cent of 6 UIT = 17,010 new soles, for failure to provide the trade union with documentation relating to the economic, financial, social situation and other relevant matters, which affects 302 workers; article 25.6: 81 per cent of 11 UIT = 31,185 new soles, for failure to pay holiday accrued in the last period to all the workers entitled to it, which affects 675 workers. Total: 51,030 new soles.
    • – Inspection order No. 2576-2008. In relation to which Notice of Violation No. 13922008 was issued concerning members of the Union of Workers of Topy Top SA. Social and labour legislation violated and workers affected: the proven facts violate the following provisions: fraudulent use of contracts of employment subject to special conditions: article 73 of the Competitiveness and Productivity of Labour Act, affecting 105 workers (article 25.5, Supreme Decree No. 019-2006-TR); article 46.7 of Act No. 28806: failure to comply in a timely manner with the order to take measures to comply with social and labour legislation: Collective Industrial Relations Act relating to the fact of dismissing workers for belonging to a trade union affecting 46 workers (article 4 of Supreme Decree No. 010-2003-TR). Qualification of the violation: these facts constitute the following violations: fraudulent use of contracts of employment subject to special conditions, qualified and classified as a very serious violation, as laid down in article 31 of the General Inspection of Labour Act No. 28806, and article 25.5 of Supreme Decree No. 019-2006-TR. Failure to comply in a timely manner with social and labour legislation, failure to comply with the duty to cooperate with labour inspectors, qualified and classified as a very serious violation, as laid down in article 31 of the General Inspection of Labour Act No. 28806, and article 46.7 of Supreme Decree No. 019-2006-TR. Commission of acts which affect the freedom of association of the worker or workers’ organization … or any other act of interference in the organization of the trade union, qualified and classified as a very serious violation, as laid down in article 31 of the General Inspection of Labour Act No. 28806, and article 25.10 of Supreme Decree No. 019-2006-TR. Proposed sanction: a fine of 41 per cent of 11 UIT, amounting to 15,785 new soles for failing to provide contracts of employment as required by law; a fine of 41 per cent of 11 UIT, amounting to 15,785 new soles for failing to comply with the order to take measures; 41 per cent of 11 UIT, amounting to 8,085 new soles for acts affecting the freedom of association of workers. Total: 39,655 new soles.
  23. 1223. For the company Start Print SA the following inspection orders were issued:
    • – Inspection order No. 1023-2008, in relation to which notice of violation No. 777-2008 was issued, as members of the Union of Workers of Star Print SA were affected. Social and labour legislation violated and workers affected: article 19 of Supreme Decree No. 001-98-TR; article 23 of the Universal Declaration of Human Rights: on everyone’s right to form and to join trade unions for the protection of his interests; article 28.1 of the Political Constitution which provides that the State shall guarantee freedom of association; ILO Conventions Nos 87 and 98; article 7 of the NonTraditional Exports Act, Decree Law No. 22342; article 5 of the General Inspection of Labour Act No. 28806 and articles 9 and 15 of Supreme Decree No. 0192006-TR. Qualification of the violation: the facts constitute the following violations: (1) not providing the worker with payslips with the required content is qualified as a minor violation in labour relations under article 23.2 of Supreme Decree No. 019-2006-TR; (2) failure to comply with the provisions relating to fixed-term contracts, irrespective of what the contracts are called, their perversion and fraudulent use is qualified as a very serious violation in relation to labour relations under article 25.5 of Supreme Decree No. 019-2006-TR; (3) the commission of acts which affect the worker’s freedom of association is qualified as a very serious violation in relation to labour relations under article 25.10 of Supreme Decree No. 019-2006-TR; and (4) actions or omissions which disrupt, delay or impede the conduct of inspections by labour inspectors is qualified as a very serious violation against the work of inspection under article 45.2 of Supreme Decree No. 019-2006-TR. Proposed sanction. A fine was proposed for the following violations: for the first violation: 100 per cent of 5 UIT being the sum of 1,500 new soles; for the second violation, 90 per cent of 15 UIT equivalent to 47,250 new soles; for the third violation, 18 per cent of 15 UIT equivalent to 9,450 new soles; for the fourth violation, 81 per cent of 8 UIT equivalent to 22,680 new soles. The total proposed fine is therefore 96,880 new soles.
    • – Inspection order No. 6495-2008. In relation to which notice of violation No. 1398-2005-MTPE/2/12.3 was issued, as the members of the Union of Workers of Start Print SA were affected. Legislation violated and workers affected; (1) the verified facts concerning lack of collaboration affecting 16 workers of that company; (2) the facts verified in point 5 relating to the failure to attend a meeting duly and properly notified, affecting 16 clearly identified workers. Qualification of the violation: these facts constitute the following violations: violations relating to inspection work: the fact of not providing labour inspectors with the information necessary for them to carry out their work. This violation is qualified as a very serious violation under article 31 of the General Labour Inspection Act No. 28806, and article 46.3 of Supreme Decree No. 019-2006-TR. The fact of not attending a proceeding fully notified in advance by the labour inspectors. This violation is qualified as a very serious violation under article 31 of the General Labour Inspection Act No. 28806, and article 46.10 of Supreme Decree No. 019-2006-TR. Proposed sanction: for the violation in relation to labour inspection: a fine of 13 per cent of 20 UIT equivalent to 9,100 new soles for lack of cooperation with the labour inspectorate, and a fine of 13 per cent of 20 UIT equivalent to 9,100 new soles for failure to attend a meeting duly notified in advance. These sums make a total of 18,200 new soles.
  24. 1224. For the company Sur Color Star SA the following inspection orders were issued:
    • – Inspection order No. 168-2008, resulting in notice of violation No. 925-2008-MTPE/2/12.3 concerning the members of the Union of Workers of Sur Color Star. Social and labour legislation violated and workers affected: (1) relating to contracting of personnel, Supreme Decree No. 003-97-TR: the inspected company was not accredited as an industrial company exporting non-traditional products, and was not entitled to conclude contracts with its workers under the special non-traditional exports scheme; (2) concerning freedom of association: the Political Constitution of Peru, the Universal Declaration of Human Rights, the American Declaration of the Rights and Duties of Man, the Additional Protocol to the American Convention on Human Rights (Protocol of San Salvador); Conventions Nos 87 and 98. The following facts were determined as a result of inspections of the company: (1) the link with the company Topy Top SA, in which the dismissed workers had worked (and that company had considerably exceeded the probationary period) and the company Sur Color Star SA. The probationary period is intended, for the employer, to ascertain whether the worker is able or not to perform the work for which he was hired and not, on the grounds that they are in a probationary period, to terminate the services of workers who have decided to form a trade union. The company’s argument that the workers were terminated because they had not successfully completed their probationary period was spurious as, at the time when the company hired them, it already knew the qualification of these workers, especially as they continued to perform the same work in the Sur Color Star SA company as they had been doing in Topy Top SA. Furthermore, when it drew up the contracts of employment, the company expressly indicated that the workers were qualified to satisfy the needs of production; (2) the decision of the inspected company to terminate the services of the 11 workers who made up the executive committee of the Union of Workers of Sur Color Star, Topy Top SA Textiles Division, SINSUCOS, and other workers who were members of that union, conceals an anti-trade union practice on the part of the inspected company. These actions tend to impede, restrict and undermine freedom of association, since leaving only three members of the executive committee and dismissing many other members seriously affects the trade union activities that they can carry out as an organization and also has an adverse impact on workers who see their job at risk in the face of the threat of dismissal for joining the trade union; (3) The General Labour Inspection Act No. 28806; Supreme Decree No. 019-2006-TR. The failure of the inspected company to attend, when it did not appear at 4 p.m. on 22 February 2008, despite being duly notified of the planned meeting, constitutes a violation against the work of the inspectorate, as laid down in article 36.3 of the General Labour Inspection Act No. 28806 and article 46.10 of the regulations pursuant to the General Labour Inspection Act approved by Supreme Decree No. 019-2006-TR. In addition, the inspected company did not provide the information and documentation necessary for the conduct of the inspection work, and failed in its duty to cooperate with the labour inspectors, as laid down in paragraphs (a) and (c) of article 9 of the General Labour Inspection Act No. 28806 and article 15.1 of the regulations pursuant to the General Labour Inspection Act approved by Supreme Decree No. 019-2006-TR, which constitutes a violation against the work of the labour inspectorate, as laid down in article 46.3 of the General Labour Inspection Act; (4) General Labour Inspection Act No. 28806 and Supreme Decree No. 019-2006-TR. The inspected company did not comply in due time with the requirement to adopt measures to comply with the applicable social and labour legislation, which constitutes a violation against the work of labour inspection under article 46.7 of the regulations pursuant to the General Labour Inspection Act approved by Supreme Decree No. 0192006-TR.
  25. 1225. The qualification of the violations by the company Sur Color Star SA is as follows: the proven facts consisting of the following violations: (1) the failure to comply with the provisions on contracting of personnel is qualified and classified as a very serious violation concerning labour relations, under article 31 of the General Labour Inspection Act No. 28806 and article 25.5 of the regulations pursuant to the General Labour Inspection Act approved by Supreme Decree No. 019-2006-TR, amended by Supreme Decree No. 0192007-TR; (2) the termination of the services of eight trade union officials and 13 unionized workers, with justified or proven cause, based on the arguments expressed and the observed facts, constitutes an assault on freedom of association and is therefore qualified and classified as a very serious violation concerning labour relations, under article 31 of the General Labour Inspection Act No. 28806 and article 25.10 of the regulations pursuant to the General Labour Inspection Act approved by Supreme Decree No. 019-2006-TR, amended by Supreme Decree No. 019-2007-TR; (3) violation against labour inspection, in that the inspected company, pursuant to the order dated 21 February 2007, did not duly adopt measures to comply with social and labour legislation, is qualified and classified as a very serious violation concerning labour relations, under article 31 of the General Labour Inspection Act No. 28806 and article 46.7 of the regulations pursuant to the General Labour Inspection Act approved by Supreme Decree No. 019-2006-TR, amended by Supreme Decree No. 019-2007-TR; (4) Violations against labour inspection: the failure of the inspected company to attend a meeting, when it did not appear at 4 p.m. on 22 February 2008, despite being duly notified, failure to provide the information and documentation necessary for the conduct of the inspection work, and failure to fulfil its duty to cooperate with the labour inspectors, are qualified and classified as a very serious violation against labour inspection, under article 46.7 of the regulations pursuant to the General Labour Inspection Act approved by Supreme Decree No. 019-2006-TR. Proposed sanction: according to the provisions of articles 38 and 39 of the General Labour Inspection Act No. 28806 and articles 47 and 48 of its regulations, the following is proposed: (1) a fine of 81 per cent of 11 UIT equivalent to the sum of 31,185 new soles for the very serious violation concerning contracting of personnel; (2). a fine of 16 per cent of 11 UIT equivalent to the sum of 6,160 new soles for the very serious violation concerning freedom of association; (3) a fine of 81 per cent of 11 UIT equivalent to the sum of 31,185 new soles for failure to comply in due time with the order of 21 February 2008 on the adoption of measures to comply with social and labour legislation. (4) a fine of 81 per cent of 11 UIT equivalent to the sum of 31,185 new soles concerning the very serious violations of failure to cooperate in providing information and documentation necessary for the work of the inspectors and failure to attend the meeting indicated for 22 February 2008 at 4 p.m. As the UIT in effect for the year 2008 is 3,500 new soles, under Supreme Decree No. 209-2007-EF, the total amount of the fine comes to 99,715 new soles. However, bearing in mind article 39 of the General Inspection of Labour Act, No. 28806, which provides that the maximum fine for all violations in total may not exceed 20 UIT for the year in which the offence occurred, in consequence the amount of the fine proposed is 70,000 new soles.
    • – Inspection order No. 6494-2008, under which notice of violation No. 1581-2008-MTPE/2/12.3 was raised concerning the members of the Union of the Workers of Sur Color Star SA. Legislation violated and workers affected: (1) an act was committed against the labour inspectorate to conceal information, for which it is proposed to sanction the inspected company as the workers of that company are affected; (2) the facts described above constitute an anti-trade union act for which reason it is proposed to impose a fine on the company, as its workers are affected. Qualification of the violation: these facts constitute the following violations: violations against the inspection of labour: the fact of not complying with the duty to cooperate with authorized labour inspectors in the exercise of their duties. This violation is qualified as serious under article 31 of General Labour Inspection Act No. 28806 and article 45.1 of the regulations pursuant to the General Labour Inspection Act approved by Supreme Decree No. 019-2006-TR. With respect to labour relations: concerning the acts which interfere with the freedom of association of the trade union consisting of interference in its economic life by not deducting trade union dues and paying the funds collected to the trade union, this violation is qualified as serious under article 31 of General Labour Inspection Act No. 28806 and article 25.10 of the regulations pursuant to the General Labour Inspection Act approved by Supreme Decree No. 019-2006-TR. Proposed sanction: according to the provisions of articles 38 and 39 of General Labour Inspection Act No. 28806 and articles 47 and 48 of its regulations, the following is proposed: violation of labour inspection: a fine of 52 per cent of 10 UIT equivalent to the sum of 18,200 new soles for failure to comply with its duty of cooperation; with respect to labour relations, a fine of 52 per cent of 20 UIT equivalent to the sum of 36,400 new soles for engaging in activities which interfere with the activity of the trade union. The two fines together make a total of 54,600 new soles.

C. The Committee’s conclusions

C. The Committee’s conclusions
  1. 1226. The Committee notes that, in the present case, the CGTP complains of the refusal to register the STCAMB and consequently the impossibility of bargaining collectively, as well as antiunion acts by the mining enterprise Barrick Misquichilca SA and acts of anti-union discrimination, in particular mass dismissals of trade union officials and members in textile enterprises (Topy Top SA, Sur Color SA and Star Print SA) once they had been informed of the establishment of trade unions.
    • Mining enterprise Barrick Misquichilca SA
  2. 1227. As regards the refusal to register the STCAMB, the Committee takes note of the Government’s and the company’s statements to the effect that: (1) the administrative authority in an order dated 3 July 2007 objected to the application to register the union because the record of the union’s constituent meeting was not included in a document registered by the authority and the list of members did not include the duties, occupations and trades of the union’s members or the name of the company for which they worked; (2) in order to rectify these omissions, a period of two working days was allowed; that period elapsed on 31 July 2007, but the union provided written confirmation that the faults had been rectified only on 1 August and so its application was rejected; (3) the union presented an appeal at short notice, which was therefore overruled. The Committee notes that, according to the company, the requirements of national legislation for the registration of a trade union do not constitute impediments to the establishment of unions, but are in fact intended to ensure procedural transparency; they are consistent with the terms of Conventions Nos 87 and 98, and the fact that States may require compliance with certain formal conditions for unions to become registered is not an infringement of freedom of
    • association. In this regard, the Committee regrets the short period of time (48 hours) given to the union to act on the observations made by the administrative authority as a condition of registration, and regrets the fact that the application, once submitted with the errors rectified, was rejected only one day after the period allowed had expired. Under these circumstances, the Committee requests the Government to register the STCAMB without delay if the legal requirements are met.
  3. 1228. As regards the alleged impossibility of bargaining collectively owing to the union’s non-registered status, the Committee notes that the Government has forwarded the company’s comments according to which: (1) the requirement to register is due to the need to establish a system of formal recognition which will allow the group in question to be identified as a single subject of law and give it a status that will help it to operate; and (2) there is another union at the enterprise with which to date two collective agreements have been concluded; the most recent of these will be in force until June 2010. The Committee considers that the requirement to register a trade union as a condition of being able to bargain collectively, if this does not involve excessive delays and the competent authority does not have discretionary power in this regard, does not violate the principles of freedom of association. Under these circumstances, the Committee requests the Government to provide assurances that, as soon as the STCAMB is registered, it will be assured of the rights to carry out collective bargaining on the conditions of employment covered by the relevant legislation.
  4. 1229. As regards the alleged acts of anti-union discrimination following the establishment of STCAMB (the complainant organization mentions by name four union officials and 11 members allegedly laid off or prevented from working by non-renewal of their employment contracts), the Committee notes that the Government has communicated observations from the enterprise according to which: (1) the State does not allow acts of discrimination in any form, and discrimination in employment is prohibited by law; (2) there is no pending complaint against the enterprise currently before the courts or administrative authorities in connection with any alleged violation of freedom of association; (3) in September 2007, the enterprise was invited by the National Directorate for Labour Relations of the Ministry of Labour and Employment Promotion to support a meeting with STCAMB representatives who claimed that the company had been perpetrating anti-union practices against union members, and on that occasion the company stated that the establishment of STCAMB was a matter pertaining to labour relations between the workers and their respective employers; and (4) the mining enterprise cannot be accused of perpetrating anti-union practices against workers employed by other enterprises. Under these circumstances, the Committee requests the Government to send its observations on the allegations concerning the four union officials and 11 members of STCAMB mentioned by name in the complaint, who were allegedly dismissed or prevented from working and, according to the mining company, were employed by other enterprises.
    • Enterprises Topy Top SA, Sur Color Star SA
    • and Star Print SA
  5. 1230. As regards the allegations of anti-union acts – mass dismissals of union officials and members mentioned by name in the complaint, as well as other anti-union practices – once these companies had been informed of the establishment of unions, the Committee notes the Government’s information according to which: (1) numerous inspection orders were issued for inspections at the enterprises in question; (2) very serious infringements of trade union and workers’ rights were found to have taken place; and (3) it was proposed that the companies in question should be fined. The Committee regrets the anti-union acts found by the administrative authority to have taken place. The Committee requests the Government: (1) to inform it if the fines proposed by the labour inspectorate for anti-union acts have been imposed on these three textile enterprises; (2) to inform it if the union officials and members of the Trade Union of Workers of Topy Top SA, the Trade Union of Workers of Color Star SA and the Trade Union of Workers of Star Print SA have instigated reinstatement proceedings; (3) to take the necessary measures, in the light of the anti-union acts found by the administrative authority to have taken place, to apply its good offices to bring about the reinstatement of the union officials and members dismissed for anti-union reasons; (4) to ensure that trade union rights are respected in the enterprises in question. The Committee requests the Government keep it informed in this regard.

The Committee's recommendations

The Committee's recommendations
  1. 1231. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
    • (a) The Committee requests the Government, if the formal requirements are met, to register the STCAMB without delay, and to ensure that the rights of collective bargaining on conditions of employment as provided for by legislation are guaranteed.
    • (b) The Committee requests the Government to send its comments on the allegations concerning the four trade union officials and 11 members of the STCAMB mentioned by name in the complaint, who were allegedly dismissed or prevented from working (according to the mining company, the individuals concerned were employed by other enterprises).
    • (c) The Committee requests the Government: (1) to inform it if the fines proposed by the labour inspectorate for anti-union acts have been imposed on the three textile enterprises concerned; (2) to inform it if the union officials and members of the Trade Union of Workers of Topy Top SA, the Trade Union of Workers of Color Star SA and the Trade Union of Workers of Star Print SA have instigated reinstatement proceedings; (3) to take the necessary measures, in the light of the anti-union acts found by the administrative authority to have taken place, to apply its good offices to bring about the reinstatement of the union officials and members dismissed for anti-union reasons; (4) to ensure that trade union rights are respected in the enterprises in question. The Committee requests the Government to keep it informed in this regard.
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