Definitive Report - Report No 384, March 2018

Case No 3168 (Peru) - Complaint date: 04-AUG-15 - Closed

Allegations: The complainant organization alleges anti-union practices carried out by a mining company, including press and radio campaigns against the trade union and subjecting union officials to workplace rotation without their consent, in order to break up the union

1. 436. The complaint is contained in a communication from the National Federation of Mining, Metal, Iron and Steel Workers of Peru (FNTMMSP) dated 4 August 2015.
2. 437. The Government sent its observations in a communication dated 2 February 2016.
3. 438. 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 complainant’s allegations

1. 439. In a communication dated 4 August 2015, the National Federation of Mining, Metal, Iron and Steel Workers of Peru (FNTMMSP) alleges that the mining company Antamina, a limited company (hereinafter “the mining company”), used press and radio communications to damage the reputation of the Antamina Workers’ Union (SUTRACOMASA), and that it transferred two trade unionists, without just cause and without their consent, in order to break up the trade union organization. The FNTMMSP indicates that, on 22 July 2015, SUTRACOMASA filed a complaint with the National Labour Inspection Authority (SUNAFIL) regarding these anti-union practices.
2. 440. First, the FNTMMSP alleges that the mining company used press and radio (Radio Yanacancha, which is owned by the company) communications to cause damage to the honour, standing and reputation of SUTRACOMASA. The FNTMMSP attaches to its complaint a copy of the following communications, the alleged aim of which was to reduce membership of SUTRACOMASA and ultimately eliminate the union: (i) a communication dated 15 November 2014, in which the company rejects the version of events recounted by SUTRACOMASA officials regarding an accident involving a trade unionist and underlines that this was the first incident to occur since 10 November, the date when a strike declared illegal by the labour authority began; (ii) a communication dated 21 November 2014, in which the company blames SUTRACOMASA officials for blocking entry to the operations centre and threatening and verbally abusing workers who had decided not to comply with the stoppages; (iii) a communication No. 6, issued by the Vice-President for Human Resources, in which the company reiterates its desire for dialogue and states that calling a strike was unwarranted, given that not all avenues of negotiation between the parties had been exhausted; (iv) a communication dated 3 December 2014, in which the General Secretary of SUTRACOMASA was directly discredited, claiming that he lies and makes inaccurate statements and that he had made groundless allegations, which the company had to refute; (v) a communication dated 16 January 2015 which, purporting to clarify information provided by the trade union, implied that the trade union was spreading lies; and (vi) a communication dated 14 July 2015, in which the company announced that the benefits provided for under a collective agreement will be granted regardless of whether or not workers were members of SUTRACOMASA, thereby encouraging members to resign from the trade union and precipitating its breakup. The FNTMMSP attaches to the complaint copies of letters of resignation submitted between November 2014 and January 2015 by almost 200 members of SUTRACOMASA. Lastly, regarding the radio communications, the FNTMMSP indicates that, despite the fact that SUTRACOMASA requested radio airtime in order to exercise its right to reply, those requests were rejected verbally, with no formal response to its request provided.
3. 441. Second, the FNTMMSP alleges that the mining company violated the trade union immunity of Mr Edwin Farromeque Romero and Mr Henry Bruno Rojas, who were transferred from their workplaces without just cause, with the intention of breaking up SUTRACOMASA. With regard to Mr Farromeque Romero, the FNTMMSP reports that, on the date of his transfer, he was the sole applicant for the position of Assistant General Secretary at the Huarmey base, and the company had therefore violated article 30 of the Collective Labour Relations Act, which provides that “trade union immunity guarantees that certain workers may not be dismissed or transferred to other establishments within the same company, without clearly demonstrated just cause or without their consent. Worker consent is not required if the transfer will not prevent them from carrying out their trade union official duties”, which is complemented by article 31, which states that “trade union immunity is enjoyed by … (d) candidates for trade union office or representation for thirty (30) calendar days prior to the election process and up to thirty (30) calendar days after the election process has been concluded”.

B. The Government’s reply

1. 442. In a communication dated 2 February 2016, the Government transmits its observations, as well as the observations of the mining company. First, the Government indicates that the anti-union practices alleged in this complaint were reported on 22 July 2015 by SUTRACOMASA to SUNAFIL, the body responsible for promoting, supervising and monitoring compliance with legislation on social, labour and occupational safety and health matters. In this regard, the Government states that, on 15 October 2015, and having carried out the second and final inspection visit to the company, SUNAFIL prepared its report (attached by the Government) which concludes that it found no evidence of labour-related violations.
2. 443. With regard to the transfer of the workers Mr Farromeque Romero and Mr Rojas, the Government states that they are currently working in their usual workplace at the concentrator plant located in the Port of Punta Lobitos (PPL) in the town of Huarmey. Moreover, the mining company claims that the transfer to the mine, which took place on 30 March 2015, was not implemented with a view to affecting their right to freedom of association, but was a temporary measure duly justified given the existence of a training programme. As detailed by the company, it has a training programme for the “concentrator”, which meant that the workers in question were rotated so that they could undergo comprehensive training in the various duties involved in operating the plant. The Government attached a copy of the letters sent by the company to the workers on 15 September 2015, in which it informed them that, as they had completed their six-month rotation period, they were to return to their previous positions on 8 October. The Government indicates that, as confirmed by SUNAFIL in its inspection report, Mr Farromeque Romero and Mr Rojas returned to their workplaces on 8 and 13 October 2015 respectively.
3. 444. The mining company refers in detail to the rotation-based training programme (cross training), which was initiated in 2013, and the company also indicates the numbers of workers that participated in the programme in that year and those that were subject to rotation for a period of six months. As indicated by the company, the programme suffered delays for reasons beyond its control, but in January 2015 it was ready to proceed with the rotation of workers who had still not taken part in the programme. In the specific case of workers at the PPL concentrator plant, four workers had yet to be rotated and, as two of these were not in a position to take up the rotation, the programme continued with the two remaining workers, Mr Farromeque Romero and Mr Rojas, who were aware of the programme and were informed early on about their rotation and the temporary nature of the transfer. The company emphasizes that, in Mr Farromeque Romero’s case, his temporary transfer at no time prevented him from carrying out his duties in SUTRACOMASA, as he was granted leave for trade union activities during that period. In its report of 15 October 2015, SUNAFIL concludes that, given that Mr Farromeque Romero and Mr Rojas returned to their workplaces on 8 and 13 October respectively, it was unable to continue with the investigation.
4. 445. Concerning the press and radio communications issued by the company, the mining company states that they were simply for information purposes and were disseminated in November and December 2014, during periods in which SUTRACOMASA called for, and encouraged its members to take part in, two strikes that were declared unlawful because of the failure to provide a list of the names of workers who would cover essential posts during the stoppages. In addition, the company states that the communications were limited to clarifying the company’s position on the false and inaccurate allegations made during the stoppages and that, from reading those communications, there is no evidence of any references or statements being made that might impede the free exercise of the right to freedom of association or even harm the good image of the trade union organization.
5. 446. With regard to the failure to grant radio airtime to SUTRACOMASA, the mining company states that the Yanacancha radio station was founded in 2007 by the Yanacancha Civil Association, in order to provide an opportunity to share information with the workers. The Yanacancha association hired Prodial Comunicación Integral PLC (hereinafter “PCI”) to manage and operate the radio station. Concerning the request from SUTRACOMASA to have 30 minutes of airtime twice a day to broadcast trade union information, the company claims that it had no legal obligation to grant airtime on a private radio station, whose purpose was to create a channel of communication between the company and its workers, in particular given that none of the company’s communications were offensive towards the trade union organization. In this regard, in its report, which is attached by the Government, SUNAFIL concluded that any decisions relating to the use of radio broadcasts were the sole responsibility of the PCI, and thus there has been no violation of the right of freedom of association, and that under paragraph 37 of the current collective agreement SUTRACOMASA is free to disseminate within the workplace any trade union communications it considers to be relevant, as well as to make use of other mass media channels, including the Internet and the San Pedro satellite radio.

C. The Committee’s conclusions

1. 447. The Committee observes that, in the present case, the complainant alleges that a mining company used press and radio communications to cause damage to the honour, standing and reputation of SUTRACOMASA, with a view to reducing membership of the union and that, in addition, the company violated the trade union immunity of Mr Edwin Farromeque Romero and Mr Henry Bruno Rojas, who were subjected to workplace rotation without just cause and without their consent, in order to break up the trade union.
2. 448. The Committee observes that, as indicated by the complainant and the Government, SUTRACOMASA reported alleged anti-union practices on 22 July 2015 to SUNAFIL, the body responsible for promoting, supervising and monitoring compliance with legalization on social, labour and occupational safety and health matters. In that regard, the Committee observes that the Government attached a copy of the SUNAFIL’s inspection report, issued on 15 October 2015, which concludes that it found no evidence of any labour-related violations.
3. 449. With regard to the transfer of Mr Edwin Farromeque Romero (who, on the date of his transfer, was applying for a union leadership post) and Mr Henry Bruno Rojas, the Committee observes that their transfer took place on 30 March 2015 and that, on 15 September of that year, the mining company sent them a letter (attached by the Government) informing them that, as they had completed their six-month rotation period, they were to return to their previous positions on 8 October. The Committee observes that, as indicated by the company and confirmed by SUNAFIL in its inspection report, the workers returned to their workplaces on 8 and 13 October 2015 respectively.
4. 450. While observing that the workers were transferred without their consent, the Committee notes that the complainant attached a copy to its complaint of the letters sent by the mining company to the workers on 25 February 2015. Those letters indicated that their transfers were part of the training programme run by the company for workers at the concentrator plant, and that it was a temporary transfer in order to receive comprehensive training in the various duties that are involved in the plant. The Committee also notes that, as indicated by the company, the training programme was initiated in 2013 and that, under the programme, other workers from the company were also transferred on a temporary basis. Furthermore, there is no evidence of the allegations that, once transferred, the workers were prevented from carrying out trade union activities. In Mr Farromeque Romero’s case, the Committee notes that, as indicated by the mining company, his transfer did not prevent him from carrying out his duties in SUTRACOMASA, as he was granted leave for trade union activities during that period. Under the circumstances, the Committee will not pursue the examination of this allegation.
5. 451. With regard to the communications issued by the mining company, both press communications and radio communications broadcast on Yanacancha radio (owned by the company), the Committee observes that the complainant and the Government attached a copy of those communications, from which it is evident that: (i) the complaint refers to communications disseminated in November and December 2014, that is to say at a time when SUTRACOMASA called for, and encouraged its members to take part in, two strikes that were declared unlawful because of the failure to provide a list of the names of workers who would cover essential posts during the stoppages; (ii) in almost all of the communications, the company directly criticizes the trade union and the actions carried out by its officials during the stoppages, challenging the veracity of their statements; and (iii) in those communications the company also emphasized that it remained open to dialogue.
6. 452. The Committee also observes that, during the period in which the communications were issued, almost 200 workers resigned from the trade union. While it is true that some of them stated in their letters that they disagreed with the actions carried out by the union officials in connection with the stoppages, most submitted letters of resignation without explaining their reasons for doing so. While the Committee’s attention is drawn to the high number of resignations tendered to the trade union during the stoppages, the Committee also notes that the complainant makes no reference to direct pressure from the company to force workers to resign from the trade union, nor does it allege that during that period it was not free to disseminate union communications it considered relevant, either inside or outside the workplace.
7. 453. In this regard, the Committee draws attention to the Communications within the Undertaking Recommendation, 1967 (No. 129), which stipulates that employers and their organizations as well as workers and their organizations, should, in their common interest, recognize the importance of a climate of mutual understanding and confidence within undertakings that is favourable both to the efficiency of the undertaking and to the aspirations of the workers. Similarly, the communication methods should in no way derogate from freedom of association; they should in no way cause prejudice to freely chosen workers’ representatives or to their organizations or curtail the functions of bodies representative of the workers in conformity with national law and practice. In view of the above, the Committee encourages the parties, making possible use of the Government’s facilitative role, to make every effort to establish relations based on dialogue and mutual respect.

The Committee’s recommendation

1. 454. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
2. The Committee encourages the parties, making possible use of the Government’s facilitative role, to make every effort to establish relations built on dialogue and mutual respect.