Report in which the committee requests to be kept informed of development - Report No 367, March 2013

Case No 2826 (Peru) - Complaint date: 17-NOV-10 - Closed

Allegations: Confiscation of the trade union premises used by the complainant; refusal to grant union leave to trade union officials

1. 1008. The Committee last examined this case at its November 2011 meeting, when it presented an interim report to the Governing Body [see 362nd Report of the Committee on Freedom of Association, paras 1261–1305, approved by the Governing Body at its 312th Session (November 2011)].
2. 1009. The Government sent new observations in communications dated 23 February and 27 April 2012.
3. 1010. 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. 1011. In its previous examination of the case in November 2011, the Committee made the following recommendations on the matters still pending [see 362nd Report, para. 1305]:
   • (a) The Committee requests the Government to keep it informed of the debates in Congress on Legislative Decree No. 22342, the Act concerning non-traditional exports. The Committee requests the Government, pending the decision of Congress on the repeal of the legislative decree criticized by the complainant federation, to take measures to ensure that the Labour Inspectorate is diligent in preventing, verifying and where appropriate punishing, any act of anti-union discrimination in the textiles sector of non-traditional exports.
   • ...
   • (c) As regards the Administrative Resolutions of 2002 and 2007 of the Superintendency of National Assets which, according to the allegations, reclaimed the premises which the complainant federation had used for many years, the Committee requests the Government to inform it whether the complainant has initiated any judicial proceedings and, if not, invites it, taking into account the specific features of this case, to consider the possibility of allocating some public premises to the complainant federation for its use.
   • (d) The Committee requests the Government to inform it of the inspection ordered by the Labour Inspectorate in connection with the matter of union leave for the complainant organization’s General Secretary in the enterprise where he works.
   • (e) Lastly, the Committee requests the complainant organization to send it the legal texts which in its view are not consistent with trade union rights, and to indicate in what manner they restrict those rights, and more detailed information on its allegations regarding deficiencies in the functioning of labour courts (slowness of procedure, etc.) and the need to strengthen sanctions in cases of violation of labour law.

B. The Government’s reply

1. 1012. In its communications dated 23 February and 27 April 2012, the Government refers to the Committee’s request for information on the decision to be taken by Congress on the repeal of Legislative Decree No. 22342, the Act concerning non-traditional exports, which has been criticized by the complainant. The Government states that during the current legislative session of Congress (2011–16), the Nationalist Parliamentary Group GANA PERU, through congress member Mr Justiniano Rómulo Apaza Ordóñez of the Labour and Social Security Committee, submitted Bill No. 761/2011-CR on 20 January 2012 (attached to the Government’s reply). The Bill repeals sections 32, 33 and 34 of Legislative Decree No. 22342, the Act concerning non-traditional exports, and section 80 of the Consolidated Text of Legislative Decree No. 728, approved by Supreme Decree No. 003-97-TR. The Bill also provides that all workers who, on the date of its publication, have worked in the enterprises referred to in Legislative Decree No. 22342 for more than five years and were subject to its labour provisions, shall be considered to be workers employed for an indefinite term, and that this will be implemented gradually over a period not exceeding one year. The Government informs the Committee that on 8 February 2012, the Labour and Social Security Committee of Congress referred the Bill to the Foreign Trade Committee in order for it to give its opinion, which will be communicated to the Committee on Freedom of Association once it has been received.
2. 1013. The Government adds that, in 2011, the Administrative Labour Authority carried out 21 inspections throughout the textile sector of non-traditional exports and has developed procedural guidelines on freedom of association, which are in the process of being validated and disseminated by labour inspectors. The guidelines are an important tool for guiding inspection activities in this area and will have a positive impact on the investigation of any anti-union acts that might occur in the textiles sector of non-traditional exports.
3. 1014. Moreover, as regards the matter of union leave, the Government states that, in accordance with Inspection Order No. 29755-2010-MTPE/1/20.43, the Administrative Labour Authority, through Subdirectorate Resolution No. 224-2011-MTPE/1/20.43, sanctioned Compañía Industrial Textil Credisa–Trutex SAA for having refused to grant union leave on 6 and 7 August 2010, as required by the fundamental standards governing freedom of association. The Resolution states that “the refusal to grant union leave was not duly supported in an objective manner by providing fair and reasonable grounds, and thereby violated the right to freedom of association of the worker and trade union representative Mr Vicente Castro Yacila, who suffered prejudice on account of being a trade union representative when he was prevented from exercising the functions inherent in his office”.
4. 1015. Lastly, as regards the request for information on the judicial proceedings initiated by the complainant against the appropriation of their institutional premises, the Government states that the Superintendency of National Assets informed it that the complainant did not initiate any judicial proceedings whatsoever against the administrative resolutions issued by that body.

C. The Committee’s conclusions

1. 1016. As regards the Committee’s recommendation requesting to be kept informed of the debates in Congress on the repeal of Legislative Decree No. 22342, the Act concerning non-traditional exports (according to the allegations, the Legislative Decree authorized the non-renewal of temporary contracts for anti-union purposes) and requesting the Labour Inspectorate to take measures to verify and punish any act of anti-union discrimination occurring in the textiles sector, the Committee takes note of the Government’s statement to the effect that the Nationalist Parliamentary Group GANA PERU submitted, through a congress member, a Bill (No. 761/2011-CR) on 20 January 2012 concerning the textiles sector and including provisions for job stability, which has been referred to the Foreign Trade Committee in order for it to give its opinion. The Committee requests the Government to keep it informed of any developments regarding the processing of Bill No. 761/2011-CR, the Act concerning non-traditional exports, by Congress. Furthermore, the Committee is pleased to note that 21 inspections have been carried out in the textiles sector of non-traditional exports and that procedural guidelines on freedom of association have been developed, which, according to the Government, will have a positive impact on the investigation of anti-union acts.
2. 1017. As regards the Committee’s recommendation requesting information on the appropriation of the institutional premises of the complainant as a result of administrative resolutions issued by the Superintendency of National Assets, the Committee notes that, according to the Government, the Superintendency informed it that the complainant federation had not initiated any judicial proceedings whatsoever. The Committee reiterates its previous recommendation inviting the Government, taking into account the specific features of this case, to consider the possibility of allocating some public premises to the complainant for its use.
3. 1018. As regards the request for information on the labour inspection ordered in connection with the matter of union leave for the complainant’s General Secretary, the Committee duly takes note of the information provided by the Government to the effect that, in accordance with the Order issued by the Labour Inspectorate, the Administrative Labour Authority sanctioned Compañía Industrial Textil Credisa–Trutex SAA for having refused union leave to the aforementioned trade union official without fair or reasonable grounds.
4. 1019. Lastly, the Committee regrets that the complainant has failed to send the additional information requested during its previous examination of the case in November 2011 and will therefore not pursue its examination of these allegations.

The Committee’s recommendations

1. 1020. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government to keep it informed of any developments regarding the processing of Bill No. 761/2011-CR, the Act concerning non-traditional exports, by Congress.
   • (b) The Committee reiterates its previous recommendation inviting the Government, taking into account the specific features of this case, to consider the possibility of allocating some public premises to the complainant for its use.