Definitive Report - Report No 380, October 2016

Case No 3132 (Peru) - Complaint date: 21-MAY-15 - Closed

Allegations: Anti-trade union dismissals of trade union leaders by the enterprises, Fondo de Garantía para la Pequeña Industria (FOGAPI), Viettel Perú SAC and Centro Cerámico las Flores SAC

1. 796. The complaint is contained in communications dated 21 May and 25 August 2015 from the Confederation of Workers of Peru (CTP).
2. 797. The Government submitted its observations in communications dated 13 August, 7 September and 29 December 2015.
3. 798. 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’s allegations

1. 799. In its communications of 21 May and 25 August 2015, the CTP reports anti-trade union dismissals in three enterprises and alleges an effort to destroy the unions in question after they had been formed.
2. 800. First, the complainant alleges that on 22 and 25 February 2015, the public company, Fondo de Garantía para la Pequeña Industria (FOGAPI), dismissed Mr César Gavilano Cossio, General Secretary of the National Union of FOGAPI Workers (SINTRAFOGAPI), and Ms María Ibáñez Álvarez, Secretary of SINTRAFOGAPI, arbitrarily and without just cause. The complainant indicates that the trade union – which had just been formed on 4 February 2015 – lodged with the National Labour Inspection Authority (SUNAFIL) a complaint that led to the issuance of violation report No. 1010-2015 of 2 June 2015, confirming the commission of very serious offences: the employer’s interference with freedom of association, anti-union dismissals of trade union leaders and violation of trade union rights. The violation report proposed a fine of 154,000 Peruvian sol (PEN) (equivalent to US$45,860).
3. 801. Second, the complainant alleges that on 18 March 2015, the day after the Union of Viettel Perú Workers (SITRAVIET) was registered with the Ministry of Labour, that private company arbitrarily dismissed Mr Rogelio Rosell Mújica, the trade union’s National General Secretary, and, a few days later, Mr Julio Cisneros Postigo, its National Deputy General Secretary; Mr Fernando Santos Salazar, its National Secretary; Mr Roberto Gamero Puma, its National Records Secretary and Archivist; and Mr Martín Berrios Álvarez, one of its members. The complainant reports that the trade union lodged with SUNAFIL a complaint that led to the issuance of an order dated 5 August 2015 in which, it having been verified that the enterprise had not shown just cause for dismissing the aforementioned trade union leaders and that anti-union discrimination was considered to have occurred, the enterprise was instructed to take the necessary measures to ensure respect for the legislation on freedom of association, without prejudice to the possible issuance of a violation report.
4. 802. Third, the claimant alleges that on 9 April 2015, the day after the announcement that the National Union of Centro Cerámico las Flores Workers (SUNATRACCLF) had been registered, the private company referenced arbitrarily dismissed Mr Jaime Chávez Pérez, National General Secretary of the trade union, and Mr Bernardo Mora Ferreiros, its National Secretary. The complainant reports that the trade union lodged with SUNAFIL a complaint that led to the issuance of violation report No. 739-2015, confirming the commission of very serious offences: violation of the trade union rights of leaders and failure to comply with a previous order from the inspection authorities, requiring it to take the necessary measures. The report proposes the issuance of two fines totalling PEN462,000 (approximately equivalent to US$137,580).

B. The Government’s reply

1. 803. In its communications of 13 August, 7 September and 29 December 2015, the Government sends comments and information provided by the relevant enterprises, as well as information provided by the inspection authorities and the Department of Labour. The Government emphasizes that Peru’s legal system guarantees the exercise of freedom of association and establishes mechanisms that provide protection against anti-trade-union dismissals – including the provisions of trade union law and those that establish the invalidity of anti trade union dismissals – and requests that the case be declared closed.
2. 804. With regard to the alleged anti-trade-union dismissals of SINTRAFOGAPI leaders, the relevant enterprise indicates that the two workers in question were dismissed for serious misconduct, not because they were trade union leaders. It alleges that Mr César Gavilano Cossio was dismissed for two uncertified absences and reports that he has filed an appeal against his dismissal, which is currently before the Supreme Court. The enterprise indicates that Ms María Ibáñez Álvarez initiated court proceedings and that a subsequent court settlement terminated her employment with the agreement of both parties. The Government also reports that after conducting the legally required inspections, the authorities issued violation report No. 1010-2015 against the enterprise in question, having identified violations of the labour legislation on freedom of association and, in particular, discrimination against workers owing to their membership in SINTRAFOGAPI and violation of the trade union rights of its leaders. The Government explains that Dispute Settlement Chamber No. 3 of the Lima Metropolitan Labour Inspection Authority is expected to issue a ruling at first instance on this violation order, in which it will decide whether to penalize the enterprise that was inspected.
3. 805. Concerning the alleged dismissal of leaders of SITRAVIET, which was in the process of formation on 18 March 2015, the enterprise in question indicates that all of the aforementioned workers were dismissed for serious and duly verified misconduct, not because they were trade union leaders. In that connection, it adds that it did not learn of the trade union’s existence until 17 April 2015 and that the union was registered on 26 and not 17 March 2015 (the day before the first of the aforementioned dismissals) as the complainant claims. The Government also reports that by inspection order No. 7745-2015, the labour inspector was instructed to carry out inspections to determine whether the enterprise was compliant with the provisions of labour law concerning freedom of association and that those inspections are currently under way. Furthermore, in its most recent communication (of 29 December 2015), the Government reports that SITRAVIET and the relevant enterprise have reached a non-court settlement and provides a copy of the resulting agreement, signed in the presence of the labour authorities, in which the trade union and the enterprise agreed on the reinstatement of Mr Rosell Mújica, the National General Secretary, and of the two trade union leaders, Mr Cisneros Postigo and Mr Santos Salazar.
4. 806. Concerning the alleged dismissal of SUNATRACCLF leaders, the enterprise in question indicates that the job title of the two workers (Mr Jaime Chávez Pérez and Mr Bernardo Mora Ferreiros) was Chief of Operations, a position of trust since their work entailed working directly with the employer and gave them access to the enterprise’s confidential information. The enterprise states that they were dismissed legally because they had lost the enterprise’s trust, not because they were trade union leaders. It adds that the two workers did not announce that they had joined the trade union until the day after their termination; thus, they could not have been dismissed for being union members. The enterprise also reports that both workers have appealed for reinstatement with the enterprise before the Lima Labour courts and that final judgments have not been issued in either of those cases. Furthermore, the Government states that the inspections carried out by the labour inspectorate resulted in the issuance of violation order No. 739-2015 against the enterprise for the offence of violating the trade union rights of the trade union leaders and failing to take the measures indicated by the labour inspector with regard to the workers who had been dismissed. The Government indicates that Dispute Settlement Chamber No. 3 of the Lima Metropolitan Labour Inspection Authority is expected to issue a ruling at first instance on this violation order (which proposes a total fine of PEN462,000, approximately equivalent to US$137,580), in which it will decide whether to penalize the enterprise that was inspected.
5. 807. The Government also provides general information on the provisions of Peruvian law that protect freedom of association, and particularly those of trade union law (which stipulate that trade union leaders and members of trade unions in the process of formation may not be arbitrarily dismissed or transferred) and those that invalidate anti-trade-union dismissal (which must be invoked before a labour court judge, who is empowered to order reinstatement of the worker in question).

The Committee’s conclusions

1. 808. The Committee observes that the complaint concerns the alleged dismissal of trade union leaders in three enterprises. It takes due note of the Government’s statement that in all of the alleged cases, the national procedures – both inspection and judicial – that have been established in order to ensure respect for freedom of association and to provide protection against anti-trade union discrimination were followed: (a) with regard to the SINTRAFOGAPI leaders, Mr César Gavilano Cossio has filed an appeal against his dismissal, which is currently before the Supreme Court; Ms María Ibáñez Álvarez’s dismissal was the subject of a court settlement that resulted in an agreement between the parties; and the investigation carried out by the labour inspectorate resulted in the issuance of a violation report against the enterprise, FOGAPI, establishing discrimination against workers on the grounds of trade union membership and violation of the leaders’ trade union rights (the competent authorities have yet to decide whether, as proposed in the violation report, the enterprise should be penalized); (b) with respect to the SITRAVIET leaders, the labour inspectorate has opened an investigation into the enterprise, Viettel Perú SAC and, as a result of a non-court settlement signed in the presence of the labour authorities, the parties have agreed to reinstatement of three of the four trade union leaders who had been dismissed; and (c) both of the SUNATRACCLF leaders have appealed before the labour courts for reinstatement with the enterprise, Centro Cerámico las Flores SAC (although final judgments have not been issued in either of those cases); and the investigation carried out by the labour inspectorate resulted in the issuance of a violation report against the enterprise, stating that it had violated the trade union rights of the trade union leaders and had failed to take the measures indicated by the labour inspector in that regard (the competent authorities have yet to decide whether to penalize the enterprise as proposed in the violation report).
2. 809. The Committee is confident that the investigations and court proceedings with regard to the complainant’s allegations will continue through the national inspection and judicial procedures established in order to provide protection against anti-trade-union discrimination and that if these allegations are proved, deterrent penalties will be imposed on those responsible and the victims will be compensated appropriately.

The Committee’s recommendation

1. 810. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
   • The Committee is confident that the investigations and court proceedings with regard to the complainant’s allegations will continue through the national inspection and judicial procedures established in order to provide protection against anti-trade-union discrimination and that if these allegations are proved, deterrent penalties will be imposed on those responsible and the victims will be compensated appropriately.