Report in which the committee requests to be kept informed of development - Report No 375, June 2015

Case No 3066 (Peru) - Complaint date: 24-MAR-14 - Closed

Allegations: Unlawful dismissal of a union leader and other anti-union practices by various enterprises in the textile sector

1. 460. The complaint in Case No. 3065 is contained in communications dated 20 March and 10 June 2014 from the Federation of Textile Workers of Peru (FTTP). The Government sent its observations in communications of 20 June, 7 July, 11 August and 15 September 2014.
2. 461. The complaint in Case No. 3066, which concerns only one of the allegations in the Case No. 3065 complaint, is contained in a communication dated 24 March 2014 from the Confederation of Workers of Peru (CTP). The Government sent its observations in a communication of 1 July 2014.
3. 462. 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. The complainant organizations’ allegations

1. 463. In the communications of 20 March and 10 June 2014 from the FTTP (Case No. 3065) and the communication of 24 March 2014 from the CTP (Case No. 3066), the complainants allege that various enterprises in the textile sector have engaged in anti-union practices.
2. 464. Both complainants allege that the enterprise INCA TOPS SA refused to grant trade union leave to and dismissed without just cause Mr José Abel López Motta, General Secretary of the Southern Federation of Textile Workers (FERETTEX SUR) and, until December 2013, General Secretary of the INCA TOPS SA Union and Solidarity trade union. They maintain that the dismissal of Mr López Motta, allegedly for 15 days of unexcused absence over a period of 180 working days, was a form of punishment for his success as a union leader. The dismissal letter sent to Mr López Motta claimed that he had used trade union leave to which he was not entitled, having requested it as the leader of FERETTEX SUR, a higher-level trade union that had not signed a collective agreement granting trade union leave to its leaders. However, Mr López Motta had requested trade union leave in accordance with the Collective Labour Relations Act, section 38 of which states that the legislation applicable to trade unions, including 30 days of trade union leave per year, also applies to federations and confederations. The complainants report that the labour inspectorate penalized the enterprise for refusing to grant Mr López Motta trade union leave because, in its view, the enterprise had not taken into account the fact that:
   • … the higher-level trade union is made up of lower-level trade unions. Thus, by participating in the former’s activities, they are safeguarding the latter’s interests. For this reason, it is reasonable for trade union leave to be granted as applicable; otherwise, the higher-level unions … would never be able to perform their functions unless the collective agreement in force authorized the granting of trade union leave for specific higher-level activities
3. which would “clearly undermine the freedom of association” (infraction notice No. 017-2014-SDILSST-ARE). Similarly, in its subdirectorate Decision No. 230-2014-GRA/GRTPE-DPSC-SDILSST, the Arequipa regional government stated that
   • … even in the absence of a collective agreement between the enterprise and the higher-level trade union and where the granting of trade union leave to the latter’s representatives has not been expressly agreed with the lower-level trade union, the right to organize is a fundamental right that the enterprise must respect by facilitating its exercise since, from a constitutional perspective, the absence of an agreement cannot deprive workers of the full exercise of their rights.
4. The decision fined the enterprise 24,624 Peruvian Nuevo Soles (PEN).
5. 465. The FTTP also alleges that the textile factory Pisco SAC refused to grant trade union leave to Mr Francisco Juvencio Luna Acevedo, leader of the factory’s trade union and FTTP defence secretary and Regional Secretary for the southern region. The complainant federation also alleges that the enterprise failed to comply with administrative decisions ordering an across-the-board increase of PEN2.60 in the daily wage, issued in 2011 as the result of a strike.
6. 466. The FTTP further alleges that the manufacturing enterprise Romosa SAC engages in anti-union practices, including by harassing and discriminating against workers who perform trade union functions through wage cuts, requiring that their communications be made through a notary, installing audio-visual equipment only in the parts of the facility that are occupied by union members and changing working hours and shifts (the federation attaches a copy of labour inspectorate infraction notice No. 2500-2013, which states that the enterprise has committed a very serious offence by failing to inform the trade union organization of a change in working hours). In addition, the FTTP maintains that the enterprise refused to negotiate wage increases, introduce job improvements or appoint an arbitrator (the federation attaches a copy of the Ministry of Labour directorate order No. 014 2014 MTPE/1/20.2 of 10 March 2014, stating that the enterprise’s refusal to deal with the list of demands for the period 2013–14 was groundless and requesting it to convene the negotiating committee).
7. 467. The FTTP alleges that the enterprise Tecnología Textil SA engages in anti-union practices. It ignores or fails to implement some provisions of the collective agreement that has been signed and fails to pay the textile bonus. It requires unionized workers to work in a separate area, sets up special shifts for them and places audio-visual equipment in their workplace; places restrictions on the breaks that they have traditionally been allowed to take; limits or denies them established allowances, customs and traditions; discriminates against them with regard to treatment and wages by differentiating between unionized and non-unionized workers. The complainant federation alleges that, in order to destabilize, disrupt and eliminate the trade union organization, the enterprise imposes restrictions, uses blackmail and offers advantages and benefits to workers who agree to withdraw from the trade union. It attaches documents rejecting requests for trade union leave and a request by the enterprise’s trade union that the labour inspectorate consider this rejection as an obstruction of trade union activities.
8. 468. With regard to legislation, the complainant federation submits additional complaints concerning Peruvian law. The FTTP calls for the repeal of sections 32, 33 and 34 of the Act on the promotion of non-traditional exports and section 80 of Legislative Decree No. 728, which authorizes the hiring of temporary workers in unlimited numbers and for unlimited time periods, undermining thousands of textile workers’ right to job security and thus limiting their ability to unionize and exercise their right to bargain collectively.
9. 469. Lastly, the FTTP mentions alleged labour law violations that are unrelated to the exercise of trade union rights.

B. The Government’s reply

1. 470. In its communications of 1 and 7 July and 15 September 2014, the Government sent comments by and information from the relevant enterprises (summarized below) and requested that the cases be declared closed.
2. 471. Concerning the allegation that Mr López Motta’s dismissal for unauthorized use of trade union leave constituted anti-union bias, the enterprise INCA TOPS SA states that the dismissal was duly substantiated and carried out in accordance with the regulations applicable to serious misconduct: 15 days of unexcused absence over a 180-day period. The enterprise notes that the default leave provisions contained in section 32 of the Collective Labour Relations Act apply only in the absence of an agreement. In that connection, it states that the agreement provides for the granting of 30 days of paid trade union leave to the general, defence and organization secretaries of its three trade unions. It maintains that it granted the trade union leave that Mr López Motta requested in his capacity as General Secretary of the Union and Solidarity trade union, one of the enterprise’s three trade unions. However, the leave requests that he submitted in his capacity as General Secretary of FERETTEX and his request for 30 days of additional leave per year to take care of the federation’s business were denied because the enterprise considered that the agreements made no provision for such leave. Despite having been denied leave, Mr López Motta missed work and was therefore dismissed for serious misconduct, as is established in and penalized under the labour laws. The enterprise emphasizes that, having been denied leave, Mr López Motta could have used a portion of the 30 days of annual leave to which he was entitled under an agreement in his capacity as General Secretary of the Union and Solidarity trade union. The Government observes that the enterprise has appealed against subdirectorate Decision No. 230-2014-GRA/GRTPE-DPSC-SDILSST, under which a fine was imposed for refusal to grant leave, and that this appeal is pending before the Directorate for Dispute Prevention and Resolution in the Arequipa Ministry of Labour. The Government also reports that Mr López Motta has brought an amparo (protection of constitutional rights) appeal against his dismissal. The Government therefore concludes that both parties are exercising their rights and that it will be for the courts to determine whether there was a just cause for dismissal.
3. 472. With regard to the allegation that the textile factory Pisco SAC refused to grant trade union leave, the enterprise notes that the current agreement provides for granting of the trade union leave envisaged in the Collective Labour Relations Act and states that it has granted such leave in accordance with domestic law. This was confirmed by the labour inspectorate in its report on inspection activities (inspection order No. 121-2013-JZ-PIS) of 20 September 2013, which states that the enterprise received requests for trade union leave from Mr Luna Acevedo and granted them, making no mention of the violation alleged by the FTTP. Concerning the administrative decisions issued in 2011 as the result of a strike, the Government provides detailed information on the judicial proceedings that led to the repeal of these decisions and states that the enterprise’s union has brought an appeal against their repeal, which is currently pending before the Supreme Court.
4. 473. In response to the allegation that the manufacturing enterprise Romosa SAC engages in anti-union practices targeting unionized workers, the enterprise states, with regard to the alleged wage cuts, that the remuneration of unionized workers was decreased at the express request of the trade union’s members, who wished to work only eight hours per day and not to be asked to work overtime. The enterprise also states that the majority of the workers (92, including two trade union members) were in favour of the change in working hours; 36 workers, all of them members of the union, opposed it. The enterprise maintains that communication through a notary was not, in principle, required; it felt compelled to adopt that practice because many union members refused to accept communications. Concerning a case that had been documented by the FTTP as an example of harassment of a trade union member, the enterprise stated that, as a penalty, the worker in question had been sanctioned with one day without pay after being found reading a newspaper during working hours rather than carrying out the assigned tasks. With respect to the refusal to increase wages and introduce job improvements pursuant to two lists of as-yet-unresolved union demands and to appoint an arbitrator for optional arbitration, the enterprise states that the Ministry of Labour itself had ordered the issuance of economic and financial directives on the enterprise’s situation, which stated that the enterprise had been suffering losses that made it impossible for it to increase wages.
5. 474. Concerning the allegation that the enterprise Tecnología Textil SA engages in anti-union practices by discriminating against unionized workers, failing to implement the agreement and refusing to grant trade union leave, the enterprise states that on 6 January 2014, after months of negotiations with the trade union, an agreement providing for immediate and substantive economic improvements was reached. It also states that the textile bonus established in the collective agreement has been paid, as confirmed by the labour inspectorate (subdirectorate Decision No. 712-2013-MTPE/1/20.45, which, to the enterprise’s knowledge, has not been called into question by the complainant federation). According to the enterprise, its premises are undivided and there are no special shifts, restrictions on breaks or similar situations, nor has the labour inspectorate mentioned anything of the kind during its visits. With respect to the alleged refusal to grant trade union leave, the enterprise states that union representatives are granted leave as established in the Collective Labour Relations Act and its implementing regulations and recalls that, according to section 32 of the Act, “… employers shall only be required to grant leave for events at which attendance is compulsory”. It goes on to state that, where leave has been denied, it was because the trade union had failed to identify and substantiate the events at which its representatives’ attendance was compulsory and that the labour inspectorate has yet to comment on any of the union’s requests for verification.
6. 475. With respect to the FTTP allegations calling for repeal of sections 32, 33 and 34 of the Act on the promotion of non-traditional exports and section 80 of Legislative Decree No. 728, the Government, in its communication of 20 June 2014, reports that the draft legislation for the repeal of those provisions is currently before Congress pending the issuance of an opinion by the Labour and Social Security Committee. The Government states that, as the issue is a complex one, it is being examined in greater depth and opinions and technical reports have been requested from the relevant institutions. At the current stage, information is being gathered with a view to preparation of a preliminary opinion for discussion by the Labour and Social Security Committee. Concerning the federation’s legislative allegations, in its communication of 11 August 2014, the Government states that the legislative instruments in question raise no issues of compatibility with the ILO Conventions on freedom of association that have been ratified by Peru.

C. The Committee’s conclusions

1. 476. Concerning the alleged anti-union dismissal of Mr López Motta for unauthorized use of trade union leave, the Committee notes that, according to the enterprise INCA TOPS SA, the dismissal was substantiated in accordance with the current legislation governing unauthorized absences and that the representatives of higher-level trade union organizations are not entitled to trade union leave because it is not envisaged in the trade unions’ agreements with the enterprise. The Committee observes that, according to the enterprise, when his request for trade union leave was denied, Mr López Motta could have used a portion of the 30 days of annual leave to which he was entitled under an agreement in his capacity as General Secretary of one of the enterprise’s trade unions. It also observes that, according to section 32 of the Collective Labour Relations Act, in the absence of an agreement, additional leave is “considered leave without pay or other benefits”. The Committee notes that the labour inspectorate fined the enterprise for refusing to grant trade union leave. The Committee recalls that federations and confederations “should … enjoy the various rights accorded to first-level organizations, in particular as regards their freedom of operation, activities and programmes” [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 730]. The Committee also recalls that mutual respect for the commitment undertaken in collective agreements is an important element of the right to bargain collectively and should be upheld in order to establish labour relations on stable and firm ground [see Digest, op.cit., para. 940]. It notes that the parties’ complaints are under review by the competent authorities and requests the Government to send the administration or judicial decisions issued in relation to this matter.
2. 477. With respect to the allegation that the textile factory Pisco SAC refused to grant trade union leave, the Committee notes that both the enterprise and the labour inspectorate deny the allegations and state that trade union leave was granted in accordance with the law. Concerning the administrative decisions issued in 2011, the Committee requests the Government to keep it informed of the outcome of the appeal brought by the Pisco SAC workers’ union, which is currently before the Supreme Court.
3. 478. The Committee observes the complainant federation’s allegation that the manufacturing enterprise Romosa SAC engages in anti-union discrimination and refuses to enter into negotiations. The Committee takes note of the information provided by the enterprise, particularly with regard to its financial situation (losses) and the labour inspectorate resolutions stating that a very serious offence – failing to inform the trade union organization of a change in working hours – had been committed and that the enterprise’s refusal to deal with the list of demands for the period 2013–14 was groundless. The Committee emphasizes the importance of consultation between enterprises and trade unions on labour issues and industrial relations matters of mutual interest. The Committee encourages the parties to negotiate in good faith and hopes that all pending demands can be dealt with as soon as the financial situation improves.
4. 479. The Committee observes the complainant federation’s allegation that the enterprise Tecnología Textil SA, engages in anti-union practices by discriminating against unionized workers and refusing to grant trade union leave. The Committee takes note of the information provided by the enterprise concerning the labour inspections carried out and the conclusion of a new collective agreement and its explanation that, where leave has been denied, it was because the trade union had failed to identify and substantiate the events at which its representatives’ attendance was compulsory, for which leave must be granted under domestic law.
5. 480. The Committee notes the FTTP allegations concerning the use of audio-visual equipment for anti-union purposes. It observes that the Government has not replied to these allegations and, in the light of their generic nature, requests the FTTP to provide further detailed information in this regard.
6. 481. The complainant federation calls for the repeal of certain legal provisions (sections 32, 33 and 34 of the Act on the promotion of non-traditional exports and section 80 of Legislative Decree No. 728). The federation considers that, by allowing the unlimited use of short-term contract arrangements, these provisions restrict workers’ rights and limit the exercise of their trade union rights. As regards allegations of a legislative nature, the Government states that the legislative instruments under consideration do not raise any compatibility issue with the ILO Conventions on freedom of association ratified by Peru. The Committee recalls that it has invited the Government “to examine, with the most representative workers’ and employers’ organizations, a way of ensuring that the systematic use of short-term temporary contracts in the non-traditional export sector does not become in practice an obstacle to the exercise of trade union rights” and has requested the Government to keep it informed in that respect [see 357th Report of the Committee, Case No. 2675, para. 875]. Furthermore, in its previous (March 2015) report, the Committee recalled “that fixed-term contracts should not be used deliberately for anti-union purposes” and that “in certain circumstances, the employment of workers through repeated renewals of fixed-term contracts for several years can be an obstacle to the exercise of trade union rights” [see 374th Report of the Committee, Case No. 2998, para. 723]. The Committee reiterates these conclusions and requests the Government to keep it informed of the legislative process regarding the draft legislation for the repeal of the legislation challenged by the complainant federation.

The Committee’s recommendations

1. 482. 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 send it the administrative and judicial decisions concerning the enterprise INCA TOPS SA.
   • (b) The Committee requests the Government to keep it informed of the outcome of the appeal brought by the Pisco SAC workers’ union, which is currently before the Supreme Court.
   • (c) The Committee, stressing the importance of consultation between enterprises and trade union organizations on labour issues and industrial relations matters of mutual interest and of encouraging and promoting the full development and utilization of machinery for collective bargaining, encourages Romosa SAC and the trade union to negotiate in good faith on all pending demands as soon as the financial situation improves.
   • (d) The Committee requests the FTTP to provide further detailed information with regard to the allegations that audio-visual equipment is being used for anti-union purposes.
   • (e) The Committee, recalling that fixed-term contracts should not be used deliberately for anti-union purposes and that, in certain circumstances, the employment of workers through repeated renewals of fixed-term contracts for several years can be an obstacle to the exercise of trade union rights, requests the Government to keep it informed of the legislative process regarding the draft legislation for the repeal of sections 32, 33 and 34 of the Act on the promotion of non-traditional exports and section 80 of Legislative Decree No. 728.