Report in which the committee requests to be kept informed of development - Report No 374, March 2015

Case No 3043 (Peru) - Complaint date: 26-JUL-13 - Follow-up

Allegations: Anti-union dismissals, exclusion of the CGTP from the tripartite national body for social dialogue, and obstacles to the exercise of trade union rights by the complainant union

1. 770. The complaint is contained in communications from the National Union of Health Social Security Workers (SINACUT-ESSALUD) (17 May 2013, with new allegations dated 29 August 2014) and the General Confederation of Workers of Peru (CGTP) (20 January 2014, with new allegations dated 20 January and 11 November 2014).
2. 771. The Government sent its observations in communications dated 4 February, 30 April, 9 June and 15 December 2014.
3. 772. Peru has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and the Labour Relations (Public Service) Convention, 1978 (No. 151).

A. The complainants’ allegations

1. 773. In its communication dated 17 May 2013, SINACUT-ESSALUD alleges that in point 3 of the communication of 17 May 2013, ESSALUD announced the payment of an “exceptional bonus for closure of demands” (in other words, for the conclusion of negotiations) amounting to 2,500 nuevos soles (PEN) per worker, to take effect immediately after the completion of collective bargaining with each trade union, while urging the trade union representatives to reach an agreement through direct negotiation as quickly as possible, thereby enabling the closure of the list of demands for 2013 and the subsequent payment of the said bonus.
2. 774. Various trade unions began their negotiations in March 2013, for example the United Federation of Social Security Health Workers (FED-CUT) launched the round of negotiations for its 2013 list of demands on 21 March 2013 and closed the negotiations after nearly four months with the signature of a collective agreement on 9 July 2013, whereupon ESSALUD announced that it would pay the exceptional bonus to the FED CUT workers on 10 July 2013. Since the ESSALUD offer was abandoned on 10 July 2013 “only to the members” of FED-CUT, the result was general discontent and protests in various ESSALUD branches, whereupon the authority was obliged to make a partial rectification, deciding to pay the bonus to all “non-unionized” workers on 12 July 2013, excluding the “unionized” workers. Union membership is now dwindling because of the precarious situation regarding wages and possible delays in negotiations involving the union to which the workers belong.
3. 775. According to SINACUT-ESSALUD, this means that ESSALUD determines which unions are given priority to start collective bargaining (as far as the union knows, no lots are drawn and no other impartial mechanism is used to prevent “favouritism”) and the unions not given priority are at a disadvantage, with the delay causing losses in membership.
4. 776. The above situation has been calculated by ESSALUD, since it required the trade union, in order to receive the bonus, to engage as soon as possible in direct negotiations to reach an agreement enabling the closure of the list of demands for 2013; this is causing “losses in membership” and “limiting” the freedom to pass through other stages established by the legislation (namely, mediation or conciliation and arbitration).
5. 777. SINACUT-ESSALUD points out that it duly submitted its list of demands for 2013 to ESSALUD on 28 December 2012 but since then no concrete action has been forthcoming as regards the bargaining process, thereby making it impossible to close direct negotiations as soon as possible, as stipulated by the legal provisions applicable to ESSALUD, since SINACUT-ESSALUD has not been called upon, unlike other organizations.
6. 778. In its communication dated 29 August 2014, SINACUT-ESSALUD alleges that, by official letters of 4 and 7 March and 2 April 2014, the management of ESSALUD informed the SINACUT-ESSALUD general secretary, Mr Enrique Ramírez Dávila, without referring to his status as general secretary, that he and the other executive committee members lacked legal representativeness to act on behalf of the trade union and that for official purposes a record of registration of the executive committee issued by the Ministry of Labour and Employment Promotion (Ministry of Labour) was required. This also applied to starting direct negotiations in relation to the list of demands for 2014 which had been submitted by the union. The deduction of union members’ dues would be effected by means of cheques made payable to SINACUT-ESSALUD (instead of to deputy general secretary Mr Octavio Rojas, as was done previously), otherwise payment would be settled via court order. However, the abovementioned official letters indicate that the legal personality of SINACUT-ESSALUD was being respected since it is duly registered at the Ministry of Labour. The union claims that this is a violation of Convention No. 87 and of trade union autonomy since the “act of suffrage” should be sufficient in itself to accredit the union’s representatives, without any administrative registration being necessary. The requirement to register the executive committee was not imposed on other organizations such as FED-CUT.
7. 779. In addition, full-time union leave is being withheld and no local union office is provided, both of which had been granted during the previous 25 years. This violation is an obstacle to trade union activity and is discriminatory towards SINACUT-ESSALUD by comparison with other organizations.
8. 780. In its communications of 20 January and 11 November 2014, the CGTP alleges that, as a result of the wishes of certain political groups in one sector, it is excluded, despite its representativeness, from participating in the tripartite National Labour Council. The CGTP also alleges that the contract of Mr César Augusto Elías García, CGTP vice-president and general secretary of the Union of Machinery, Heavy and Major Equipment Technical Officers of Peru (SITTOMEP) was not renewed, whereupon he filed an amparo (protection of constitutional rights) appeal seeking reinstatement. This was communicated by the Volcán Compañía Minera SAA company in a letter dated 27 December 2013 after he submitted an application for trade union leave on 23 December 2013 in order to attend various meetings. The CGTP further alleges that this trade union official received death threats on his mobile phone, which he attributes to the management of the San Martín Contratistas Generales SA mining company, which dismissed him in 2006.
9. 781. Furthermore, in its communication of 24 January 2014, the CGTP alleges the dismissal in June 2013 of Mr Andrés Avelino Pizarro Solano, organizational secretary and institutional manager for the Unified Trade Union of Electricity and Allied Workers of Lima and Callao (SUTREL) at the Luz del Sur SAA company, on a false alleged serious misconduct in the handling of funds – in the wake of false testimony by a nurse – at the time of a cash audit in this official’s area of work, during which he had to briefly make himself absent while enlisting the support of a witness. As a prelude to his dismissal, the union official received a reprimand in January 2004 (for sending an email notifying the refusal of the bargaining representatives of the enterprise to reach a settlement with regard to the list of demands), and also two suspensions, one for distributing trade union fliers on 25 and 26 March 2013, the other more recently for denouncing the lack of company support for the families of two workers who had been victims of an extremely serious occupational accident; this denunciation incurred the company’s displeasure, with the general manager issuing threatening statements against the union official in question.

B. The Government’s reply

1. 782. In its communications dated 4 February and 15 December 2014, the Government refers to the allegations of SINACUT-ESSALUD and to the following information from ESSALUD concerning supposed restrictions of the right to collective bargaining.
2. 783. At the 12th ordinary session of the ESSALUD executive board, it was agreed, through an agreement dated 26 June 2013, to authorize an exceptional, one-off bonus of PEN2,500 as an extraordinary bonus to the workers of the institution which would not be regarded as remuneration or be pensionable. Moreover, as regards the form of payment of the bonus, ESSALUD established general guidelines for all workers and trade unions, with implementation to be gradual and without conditions or discrimination of any kind; to date, the bonus has been granted to all entitled workers.
3. 784. In 2013 ESSALUD, through its bargaining committee, initiated collective bargaining processes with 11 of its trade unions, resulting in a satisfactory conclusion in nine cases with the signing of the respective collective agreements. Hence, as can be verified, ESSALUD has done nothing to violate the right to freedom of association or, especially, the right to collective bargaining.
4. 785. At present two collective bargaining processes are still under way, one of them with SINACUT-ESSALUD, which was launched by ESSALUD. Nevertheless, SINACUT ESSALUD did not meet the repeated requests to submit documents substantiating the legal representativeness of its leaders.
5. 786. The accreditation of representativeness of trade union officials serves as a guarantee to the employer that the persons claiming that status represent the interests of the workers who belong to the union and are therefore authorized to act on their behalf.
6. 787. ESSALUD has repeatedly requested accreditation from SINACUT-ESSALUD (supporting evidence submitted), and despite the fact that these requests were not met, ESSALUD does not use this as grounds for not engaging with the workers who put themselves forward as officials of that union, including with regard to initiating collective bargaining. The fact that it trusts the veracity of the union’s affirmations is proof of good faith by ESSALUD with regard to all the existing trade unions. In accordance with the legislation, deductions for trade union dues are made on behalf of the trade union organization.
7. 788. Furthermore, the Ministry of Labour sent ESSALUD details of the last SINACUT ESSALUD executive committee, which showed that the committee’s term of office was from 17 January 2003 to 16 June 2005. This being the case, a renewed request was sent to SINACUT-ESSALUD to submit documents accrediting the status of its officials in order to address trade union requests (trade union leave, etc.). This absence of registration of the executive committee was noted by the labour inspectorate in January 2014, while the trade union invoked on that occasion the loss of the minute book.
8. 789. The Peruvian State has not committed any act through ESSALUD that violates or otherwise affects the freedom of association of the more than 20 trade unions that exist within the institution as a whole. In the light of all the above, the Committee is requested to dismiss the allegations.
9. 790. In its communication dated 30 April 2014, the Government forwarded the information provided by the company Luz del Sur SAA concerning the alleged anti-union dismissal of Mr Andrés Avelino Pizarro Solano, organizational secretary and institutional manager for the SUTREL, who, as indicated in the complaint, has filed a judicial appeal.
10. 791. The Government considers that it was not necessary for the CGTP to decide to file a complaint since it was fully aware that the topic is currently under discussion in the 16th Permanent Specialized Labour Court of Lima (Case No. 22783-2013-0-1801-JR-LA-16). The relevant proceedings are currently under way, with 28 March 2014 having been set as the date for the single hearing, though this had to be rescheduled owing to the strike by judiciary workers.
11. 792. The Government adds that, according to the company, the dismissal of Mr Pizarro occurred after the complainant was found to have committed three acts of serious misconduct warranting dismissal under the labour legislation in force. The three counts of serious misconduct are directly related to the deficiencies in Mr Pizarro’s handling of the petty cash assigned to him, which were noticed by the company after implementing the regular auditing procedure.
12. 793. According to the audit, Mr Pizarro not only failed to abide by the internal procedure for handling the petty cash under his responsibility but he also sought, unsuccessfully, to appropriate an amount of money corresponding to the said petty cash, and was obliged to raise the money in order to repay it. Such serious misconduct is in addition to Mr Pizarro’s failure to perform his duties on many counts long before his dismissal. Hence this is not a case of anti-union reprisals; the presentation of the facts in the complaint contains numerous contradictions and inaccuracies. As regards the statements of the complainants regarding previous penalties as a prelude to the dismissal, ESSALUD denies this allegation and emphasizes that the complainants have not demonstrated any causal link. It also denies the existence of any threats made by the general manager against Mr Pizarro and emphasizes that these have not been substantiated.
13. 794. In its communication of 9 June 2014, the Government refers to the allegation concerning the unfair dismissal of the trade union official Mr César Augusto Elías García by the company Volcán Compañía Minera SAA. The Government states that the labour inspectorate did not record any infringements of labour standards at the company and that Mr César Augusto Elías García and the company San Martín Contratistas Generales SA reached an out-of-court financial settlement, pointing out that if the employment relationship was terminated, this was at the wish of Mr César Augusto Elías García himself. As can be seen, the Government adds, further to the completion of the legal inspection activities within the deadlines established by the internal regulations, there has been no violation of fundamental rights to the detriment of Mr César Augusto Elías García. This being the case, the Government considers that these allegations should be dismissed.

C. The Committee’s conclusions

1. 795. As regards the obstacles faced by the SINACUT-ESSALUD trade union in the exercise of its union rights in 2013 (obstacles to collective bargaining and discrimination towards the members of SINACUT-ESSALUD in not granting them the bonus of PEN2,500 approved by the ESSALUD executive committee) and in 2014 (union leave, deduction of membership dues, refusal to provide a union office), the Committee notes the Government’s statements to the effect that: (1) ESSALUD, which has 30 trade unions, has concluded collective agreements with nine unions and two more bargaining processes are still under way with two trade unions; with one of them (SINACUT-ESSALUD), collective bargaining was initiated even though its executive committee had not been accredited (registered) with the Ministry of Labour since 2005, despite repeated requests to this effect; and (2) collective bargaining has been implemented progressively and without discrimination, and to date all workers have been granted the bonus of PEN2,500 agreed on with the ESSALUD executive committee for 2014.
2. 796. The Committee observes that the Government responded to the allegations concerning the refusal to grant trade union leave, the deduction of union dues and the refusal to provide an office for the complainant union (which the union also links to the fact that its executive committee has not been registered at the Ministry of Labour) by indicating that the labour inspectorate noted the absence of registration of the trade union’s executive committee in January 2014 and that registration was required in accordance with the legislation for trade union requests concerning facilities available to trade unions. Furthermore, the Committee observes that the Government has not denied that the bonus of PEN2,500 (as an exceptional, one-off payment) was tied at least initially to the launch of direct negotiations in the bargaining process, which does not appear to have occurred in the case of the 2013 negotiations between ESSALUD and the complainant union, and this has caused delays in receipt of the bonus by the union members. The Committee stresses that it is important that the complainant union should enjoy all trade union rights in the same way as the other unions at ESSALUD but at the same time would point out that the requirement of registering the union executive committee at the Ministry of Labour is not incompatible with Convention No. 87 and that, in general, this registration tends to promote recognition and protection for union officials. Hence it suggests to the complainant union that it might consider the registration of its executive committee at the Ministry of Labour and suggests to the Government that in the meantime it should facilitate the exercise of all union rights for the complainant union, including negotiation of the new collective agreement without delay.
3. 797. As regards the alleged exclusion of the complainant confederation from the tripartite National Labour Council, the Committee regrets that the Government has not responded to this allegation and requests it to do so without delay.
4. 798. As regards the allegations relating to the renewal of the contract of the trade union official Mr César Augusto Elías García, the Committee notes the Government’s statement that the labour inspectorate did not record any infringements of the labour regulations at Volcán Compañía Minera SAA and that the union official and the company reached an out-of-court financial settlement, with the statement that if the employment relationship was terminated, this was at the wish of Mr Elías García himself. In these circumstances, the Committee will not pursue its examination of this allegation. As regards the alleged death threats via the union official’s mobile phone which he attributes to another company that dismissed him in 2006, the Committee invites the complainant confederation to supply all possible information and details in this regard and to indicate whether legal action has been taken in the criminal court. The Committee requests the Government to send detailed information in this regard on the basis of the above statements.
5. 799. As regards the penalties that were imposed, according to the complainant confederation, as a prelude to the dismissal of this union official, the Committee notes that the company denies these allegations and declares that the complainant confederation has not substantiated them and underlines the lack of a causal link between its statements and the dismissal.
6. 800. As regards the allegations relating to the dismissal of the trade union official Mr Andrés Avelino Pizarro, the Committee notes the contradictions between the version of the complainant confederation as regards motives (anti-union reprisals) and the version of the company Luz del Sur SAA (which, on the basis of an auditing report, claims serious misconduct including the appropriation of a sum of money from the cash box for which this official was responsible in his area of work). The Committee requests the Government to keep it informed of the outcome of the legal action brought by this union official.

The Committee’s recommendations

1. 801. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee stresses that it is important that the complainant union should enjoy all trade union rights in the same way as the other unions at ESSALUD (collective bargaining, union leave, deduction of membership dues and union office) but at the same time would point out that the requirement of registering the union executive committee at the Ministry of Labour is not incompatible with Convention No. 87 and that, in general, this registration tends to promote recognition and protection for union officials. Hence it suggests to the complainant union that it might consider the registration of its executive committee at the Ministry of Labour and suggests to the Government that in the meantime it should facilitate the exercise of all union rights for the complainant union, including negotiation of the new collective agreement without delay.
   • (b) As regards the alleged exclusion of the complainant confederation from the tripartite National Labour Council, the Committee regrets that the Government has not responded to this allegation and requests it to do so without delay.
   • (c) As regards the alleged death threats via the union official Mr César Augusto Elías García’s mobile phone which he attributes to another company that dismissed him in 2006, the Committee invites the complainant confederation to supply all possible information and details in this regard and to indicate whether legal action has been taken in the criminal court. The Committee requests the Government to send detailed information in this regard on the basis of the above statements.
   • (d) As regards the allegations relating to the dismissal of trade union official Mr Andrés Avelino Pizarro, the Committee notes the contradictions between the version of the complainant confederation as regards motives (anti-union reprisals) and the version of the company Luz del Sur SAA (which, on the basis of an auditing report, claims serious misconduct including the appropriation of a sum of money from the cash box for which this official was responsible in his area of work). The Committee requests the Government to keep it informed of the outcome of the legal action brought by this union official.