Report in which the committee requests to be kept informed of development - Report No 397, March 2022

Case No 3267 (Peru) - Complaint date: 26-DEC-16 - Follow-up

Allegations: the complainant organization reports violations of freedom of association in three enterprises in the agro-industry sector

1. 672. The complaint is contained in a communication dated 26 December 2016 submitted by the National Federation of Agro-industry and Allied Workers (FENTAGRO).
2. 673. The Government sent its observations on the allegations in its communication of 17 July 2017, and provided additional information in communications dated 28 December 2017, 5 October 2018, 8 November 2018, 1 July 2019, 11 July 2019, 1 February 2021 and 24 January 2022.
3. 674. 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. 675. In its communication of 26 December 2016, the complainant organization states that, under current legislation, which provides for nine different types of temporary contracts, including intermittent contracts and seasonal contracts, the vast majority of workers in the agro-industry sector work on temporary contracts and with low pay. In the above-mentioned context, the complainant organization specifically reports the violation of the right to freedom of association in three enterprises in the agro-industry sector.
2. 676. The complainant organization indicates that the Union of Workers of the Virú SA Agricultural Enterprise (SITESAV) was established in 2007 and, since then, has had institutional recognition. On 3 June 2016, SITESAV held a self-convened general assembly, during which it was agreed by decision of its members to re-establish the trade union, and a new executive board comprising 16 members was elected.
3. 677. The complainant organization denounces a series of acts carried out by enterprise A aimed at infringing the freedom of association of the workers belonging to SITESAV, following the re-establishment of the trade union. It maintains that, with the aim of impeding the normal functioning of SITESAV, by means of letters dated 10 and 21 June 2016, enterprise A informed the Regional Labour Office for the Regional Government of La Libertad, of the existence of “irregularities” during the SITESAV general assembly held on 3 June 2016. It also indicates that enterprise A filed criminal complaints against trade union leaders of SITESAV for alleged fraud concerning the signatures of members who participated in the assembly.
4. 678. The complainant organization alleges that enterprise A took advantage of the temporary contracts signed with its workers, and used the concept of “temporary leave” to interrupt the employment relationship of the workers who are part of the executive board of SITESAV, and that of 28 workers who participated in the general assembly of 3 June 2016. It indicates that, under section 64 of the Productivity and Labour Competitiveness Act, which provides for temporary contracts for intermittent work, agricultural workers hired on this basis can be suspended at the mere will of the enterprises, which is often done in retaliation for participation in trade union activities.
5. 679. Lastly, the complainant organization states that the anti-union acts carried out by enterprise A were penalized by the Administrative Labour Authority. However, it maintains that the penalty imposed was not enforced and that the violation of the fundamental rights of workers belonging to SITESAV persists.
6. 680. The complainant organization alleges that enterprise B failed to comply with the collective agreements signed with the Union of Workers of the Camposol SA Enterprise (SITECASA), in particular regarding the provision of uniforms and shoes for workers, as indicated in non-compliance report No. 260 2014 PS SDIT/TRU of the Subdirectorate for Labour Inspection of the Region of La Libertad. It also states that enterprise B was penalized by the Administrative Labour Authority for failing to deduct the union dues corresponding to the workers affiliated to SITECASA, in violation of the right to freedom of association.
7. 681. The complainant organization alleges that, for several years enterprise C has used various means to discourage its workers from joining the Union of Workers of Espino Industries SA, and therefore weaken the trade union. In this regard, it states that, following the conclusion of each collective agreement with the trade union (which is a minority trade union), enterprise C extends the benefits of the agreement to all its workers, regardless of their affiliation. It adds that, in addition to these benefits, non-affiliated workers receive a supplementary wage increase.
8. 682. The complainant organization indicates that, in 2016, the Labour Inspectorate observed the existence of wage discrimination against unionized workers from enterprise C, as a wage increase was granted to workers who relinquished their membership and, consequently, the enterprise was penalized (infringement report No. 002-2016-OZTPEAH-T-SM). The complainant organization adds that, despite the imposition of this penalty, the situation has not changed.

B. The Government’s reply

1. 683. In its communication of 17 June 2017, the Government forwards its observations, and the replies from the National Confederation of Private Employers’ Institutions (CONFIEP) and the enterprises concerned. In subsequent communications, the Government provided additional information, including reports from the National Labour Inspection Authority (SUNAFIL) and the Attorney-General’s Office.
2. 684. CONFIEP, representing enterprise A, indicates that enterprise A does not have a legal connection with the complainant organization (FENTAGRO) and that, in terms of collective labour relations, it only has a link with SITESAV. It maintains that SITESAV informed enterprise A and the Regional Labour Office for the Regional Government of La Libertad that it had left FENTAGRO in 2015 and that, for this reason, FENTAGRO does not represent SITESAV.
3. 685. CONFIEP states that, since its establishment, SITESAV has been exercising its trade union rights and activities in a normal and uninterrupted manner, and therefore, it is therefore not possible to speak of the re-establishment of the trade union. Enterprise A indicates that it was informed by SITESAV of the election of the new executive board at the general assembly of 3 June 2016. However, on 7 June 2016, it received a communication from four workers alleging that: (i) the participation of some workers in the assembly was false; (ii) they were forced to sign the minutes of the assembly; (iii) workers who were not part of SITESAV were elected as members of the executive board; and (iv) the members of the executive board had been removed. Consequently, enterprise A informed the Regional Labour Office and the Subdirectorate for Collective Bargaining and General Records of the Regional Government of La Libertad of these facts.
4. 686. Regarding the allegation of the criminal complaint brought against some of the workers who participated in the SITESAV general assembly on 3 June 2016, enterprise A states that, on 8 July 2016, it requested the Provincial Criminal Prosecutor's Office for Corporate Affairs in Trujillo to initiate a preliminary investigation into the alleged use of fraudulent documents in relation to the above-mentioned assembly. In this regard, it states that, on 29 November 2016, the First Provincial Criminal Prosecutor's Office for Corporate Affairs in Trujillo ordered the formalization and continuation of the preliminary investigation against four workers for alleged procedural fraud and use of a false private document, indicating that there is sufficient evidence of the alleged offences.
5. 687. Regarding the application of temporary leave for unionized workers, enterprise A maintains that it concludes employment contracts on an intermittent basis in accordance with section 7 of the Act to approve standards for the promotion of the agricultural sector (Act No. 27360) and section 19 of the Regulations to this Act, which is contained in Decree No. 049 2002-AG. According to enterprise A, this type of employment contract is used for discontinuous agricultural activities and the implementation of temporary leave is in response to the suspension of such activities, with the possibility to resume the employment relationship in accordance with the requirements of the enterprise. Between 7 June and 29 September 2016, 912 workers were affected by the temporary leave measure; between 30 September 2016 and 31 December 2016, 376 workers were affected by the temporary leave measure, and on 30 September 2016 the contracts of 427 workers expired; according to enterprise A, all of this was due to the intermittent nature of the agricultural activities carried out by the enterprise, and is in conformity with section 7 of the Act approving the standards for the promotion of the agricultural sector, section 19 of the Regulations to this Act, and section 16(c) of the single consolidated text of Legislative Decree No. 728 (Productivity and Labour Competitiveness Act). Enterprise A further highlights that temporary leave and the termination of contracts on an intermittent basis are legal, are provided for in the contracts, and are objective, reasonable and fair measures that are applied equally to all.
6. 688. The Government goes on to provide its own observations regarding enterprise A’s allegations. In its communication of 17 July 2017, the Government indicates that the conclusion of intermittent contracts between enterprise A and its workers, and the application of temporary leave is in accordance with the law. In its communication of 28 December 2017, the Government forwards the report from SUNAFIL of 20 November 2017. In this report, SUNAFIL indicates that, although an infringement notice was issued on the basis of the inspections initially conducted, which proposed that enterprise A be issued with a penalty for serious offences in relation to freedom of association and anti-union discrimination, the Regional Government Office of La Libertad subsequently issued a decision that revoked the penalty imposed, and determined that the provision of compulsory leave for the workers of enterprise A affected not only the members of the new executive board of SITESAV, but also all the workers who were dismissed under this measure. The decision therefore established that enterprise A cannot be held liable for anti-union discrimination if only the above-mentioned fact is taken into account. It also determined that, although there may be overlaps between the temporary suspensions and the election of the new executive board, the full range of investigation mechanisms was not implemented to prove that the suspensions of the members of SITESAV’s new executive board were due to their participation in trade union activities.
7. 689. Lastly, in its communication of 1 July 2019, the Government refers the report of SUNAFIL of 6 May 2019, in which it indicates that, in accordance with the inspections carried out by the Regional Government Office of La Libertad, enterprise A complied with the obligation to grant trade union leave, and that there is no evidence of violation of freedom of association (inspection order No. 1609-2018-SUNAFIL/IRE-LIB).
8. 690. Concerning the criminal action brought by enterprise A, the Government refers, in its communication of 1 February 2021, to official letter No. 021-2021-MP-1FPPC-T-MKGZ (case No. 4192 2016) issued by the First Provincial Criminal Prosecutor's Office for Corporate Affairs on 26 January 2021, which indicates that the Public Prosecutor’s Office submitted a requests for charges against four individuals involved in the alleged commission of the offences of procedural fraud and the use of a false private document against the State and enterprise A, and that the court hearing will take place before the Fourth Single Criminal Court of Trujillo. Subsequently, in its communication of 24 January 2022, the Government forwards official letter No. 10 2022 MP 1FPPC T MKGZ, of 14 January 2022, issued by the Public Prosecutor’s Office, which indicates that the above-mentioned criminal proceedings are ongoing.
9. 691. In its communication of 17 July 2017, the Government forwards the observations of enterprise B. Regarding the allegation of failure to comply with the collective agreements concluded between enterprise B and SITECASA, enterprise B states that the parties agreed to waive certain obligations under these agreements, and expressly stated that none of the parties would be liable for non-compliance, as the obligations were unenforceable for reasons external to the will of the parties, as recorded in the minutes of the round table of 22 July 2015, and the extra-procedural minutes at the Ministry of Labour and Employment Promotion, dated 3 August 2015, both of which were signed by enterprise B and SITECASA.
10. 692. As regards the alleged failure to deduct the union dues corresponding to the workers affiliated to SITECASA, enterprise B indicates that the non-compliance report referred to by the complainant organization in support of its claim, concerns facts other than those alleged.
11. 693. In its communication of 1 July 2019, the Government provides a copy of SUNAFIL’s report of 6 May 2019, according to which the Regional Governor of La Libertad observed that enterprise B complies with the obligation to grant trade union leave, and to deduct and pay trade union dues, and that there is no evidence of the infringement of freedom of association (inspection order No. 1610 2018 SUNAFIL/IRE LIB).
12. 694. In its communication of 17 June 2017, the Government forwards the observations of enterprise C. Enterprise C states that the trade union of workers from the enterprise was created in 1997, and that it currently represents 15 per cent of its payroll, which reflects the respect the enterprise C has for freedom of association. It also highlights that it has always concluded collective agreements with the trade union through direct discussion, and that no arbitration process has ever taken place.
13. 695. In response to the allegations on the extension of benefits to non-unionized workers, enterprise C states that the remuneration of its workers is established through collective bargaining with members of the trade union, and through its remuneration policy for non-unionized workers, which is not linked to the trade union membership of its workers. It points out that enterprise C experiences major challenges in recruiting and retaining technical and professional staff, due to the fact that they operate in the jungle and, for this reason, it applies a clear remuneration policy that avoids any kind of interpretation contrary to freedom of association. Enterprise C states that (i) these procedures are governed by Peruvian labour law, and that both the labour authority and the trade union of enterprise C are familiar with its application; (ii) the company has not faced administrative penalties for wage discrimination; and (iii) the incentives policy cannot be restricted by whether or not a worker belongs to a trade union. It also considers that obliging workers to belong to a trade union to receive a wage increase, and limiting wage increases exclusively to workers belonging to the trade union could restrict freedom of association.
14. 696. In its communication of 1 February 2021, the Government indicates, based on the information provided by SUNAFIL on 26 January 2021, that enterprise C was the subject of an inspection procedure conducted by the Regional Government Office of San Martín in August 2019, in which it was determined that the action carried out by enterprise C to increase the renumeration solely of non-unionized workers without objective and reasonable reasons, with the only element differentiating between workers in order to receive this increase being their membership or non-membership of a trade union, constitutes pay discrimination on the grounds of trade union membership, and is in violation of freedom of association (infringement report No. 153 2019 SUNAFIL/IRS-SMA). The Regional Government Office specifically observed that unionized workers had received the wage increase stipulated in the collective agreements, and were discriminated against from the wage increases granted through a remuneration policy that the enterprise applied only to non-unionized staff, and therefore, the enterprise had to provide for the reimbursement of unionized workers to ensure that they received the same benefits as non-unionized staff.

C. The Committee’s conclusions

1. 697. The Committee observes that, in the present case, the complainant organization reports violations of freedom of association in three enterprises in the agro-industrial sector. The Committee also notes the replies of the enterprises concerned which were sent through CONFIEP, and which indicate that they have complied with legislation and have respected freedom of association, as well as the provision by the Government of a series actions and reports from the Labour Inspectorate and the Attorney-General’s Office.
2. 698. The Committee notes the complainant organization’s allegations that enterprise A challenged the legality of the general assembly held by SITESAV on 3 June 2016, during which SITESAV decided to re-establish the trade union and elected a new executive board, thus interfering with the freedom of association of the trade union. According to the complainant organization, enterprise A informed the labour authority of “irregularities” in the election of SITESAV’s executive board, and filed a criminal complaint against several leaders for alleged fraud regarding the signatures of workers who participated in the above-mentioned assembly. The Committee notes the complainant organization’s further allegations that enterprise A implemented “compulsory leave” for workers on SITESAV’s executive board, and for those who attended the assembly held on 3 June 2016, who had temporary employment contracts. The Committee notes the complainant organization’s consideration that the implementation of temporary leave for these workers was a means of retaliation against the exercise of freedom of association.
3. 699. The Committee notes that, according to CONFIEP and enterprise A, on 7 June 2016, the enterprise received a communication from four workers alleging that the participation of some workers in the SITESAV assembly of 3 June 2016 was false, and that workers who were not part of the trade union were elected as members of the executive board. Consequently, enterprise A informed the labour authority of these facts and requested the Public Prosecutor’s Office to initiate a preliminary investigation into the alleged use of fraudulent documents in relation to the above-mentioned assembly. The Committee also notes the Government’s indication that the First Provincial Criminal Prosecutor's Office for Corporate Affairs in Trujillo filed a request for charges against four individuals involved in the alleged commission of the offences of procedural fraud and use of a false private document, against the State and enterprise A, and that they have been called to a court hearing.
4. 700. Regarding the implementation of “temporary leave” for trade union leaders and workers who participated in the SITESAV general assembly , the Committee observes that enterprise A maintains that the above-mentioned temporary leave was implemented in response to the suspension of agricultural activities, is stipulated in the contracts, and is applied equally to all workers, thus providing workers with the opportunity to resume their work in accordance with the requirements of the enterprise. The Committee notes that, according to the Government’s indications, enterprise A received a penalty at first instance from the Labour Inspectorate for serious offences concerning freedom of association, and that, subsequently, the Regional Government Office of La Libertad determined that the implementation of temporary leave not only affected members of the SITESAV executive board, but also all workers on temporary contracts, and could therefore not hold enterprise A liable for anti-union discrimination; and that it could not be proven that the suspensions of members of SITESAV’s executive board were due to their participation in trade union activities.
5. 701. The Committee firstly observes that the facts described by the complainant organization, enterprise A and the Government in this case, indicate the existence of an intra-union dispute within SITESAV in relation to the establishment of its new executive board following a self-convened general assembly held by the trade union on 3 June 2016. The Committee specifically observes that, according to enterprise A’s indications, after being informed by several workers of alleged irregularities during the assembly held by the trade union, the enterprise approached both the labour administration and the Attorney-General’s Office to report this information. In this regard, the Committee recalls that respect for the principles of freedom of association requires that employers exercise great restraint in relation to intervention in the internal affairs of trade unions [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 1192]. It furthermore underscored the importance for challenges of election results to be examined by the judicial authorities, in order to ensure an impartial and objective procedure [see Compilation, para. 648]. In this regard, the Committee trusts that the complaints concerning alleged irregularities during SITESAV’s general assembly and in the establishment of its executive board will be resolved as soon as possible by the judicial authorities, and requests the Government to ensure that SITESAV’s activities can be carried out without interference. The Committee requests the Government to keep it informed of any new developments in this regard.
6. 702. Regarding the alleged implementation of compulsory leave for SITESAV union leaders and members in retaliation for their participation in the general assembly of 3 June 2016, the Committee notes the elements provided by the complainant organization and the Government concerning the action taken by the Labour Inspectorate (SUNAFIL) regarding the facts reported. In this regard, the Committee observes that, following a decision issued by the Labour Inspectorate, which penalized the enterprise for the anti-union nature of the temporary suspension of the SITESAV members’ labour contracts, SUNAFIL considered, at second instance, that these suspensions had been implemented for a large number of workers from the enterprise, and that it was therefore not possible to prove that the suspensions of the members of SITESAV’s new executive board were due to their participation in trade union activities. The Committee duly notes these elements.
7. 703. The Committee also notes that it does not have information on the employment situation of the workers in question after the end of the above-mentioned period of temporary suspension of their contracts. The Committee also observes the public accessibility of the two rulings of the High Court of Justice of La Libertad (rulings of 1 and 11 September 2020, files Nos 01713 2018 0 1601 SP-LA-0 and 00681-2019-0-1601-SP-LA-02) in which the second-instance court, upholding the corresponding first-instance rulings, ordered the reinstatement of two workers from enterprise A who are members of SITESAV on the grounds of the violation of freedom of association in the context of the events of 2016 examined in this case. In the light of the foregoing, the Committee requests the Government and the complainant organization to specify whether the SITESAV union leaders and members who attended the general assembly of 3 June 2016 and for whom compulsory leave was applied as part of their intermittent contracts, were subsequently reinstated in their work.
8. 704. The Committee notes that the complainant organization: (i) reports the failure of enterprise B to comply with the collective agreements signed with SITECASA, particularly with respect to the provision of uniforms; and (ii) refers to a penalty imposed by the Administrative Labour Authority on enterprise B for failing to deduct the union dues corresponding to the workers affiliated to SITECASA. The Committee also notes that, according to enterprise B, the parties agreed to waive certain obligations arising from collective agreements, and expressly stated that the obligations were unenforceable for reasons external to the will of the parties, and that the non-compliance report referred to by the complainant organization regarding the deduction of union dues, concerns facts other than those referred to in its allegations. The Committee also observes that the Government provides a report dated 6 April 2019 from SUNAFIL, which indicates that no evidence of the violation of freedom association was found in enterprise B in general and that, in particular, enterprise B complies with the obligation to grant trade union leave, and to deduct and pay trade union dues. On the basis of these elements and having additionally noted that enterprise B and SITECASA signed a new collective agreement in June 2021, the Committee will not pursue its examination of these allegations.
9. 705. The Committee observes the complainant organization’s allegations that enterprise C: (i) has extended the benefits of the collective agreements signed with the enterprise trade union to all workers regardless of their trade union membership and the minority nature of the trade union; (ii) workers who relinquish their trade union membership receive a wage increase, according to the observations of the Labour Inspectorate in 2016, and (iii) the penalty imposed on that occasion has not put an end to the discrimination. The Committee notes enterprise C’s indications that the remuneration of its workers is established through collective bargaining with trade union members or through its remuneration policy for non-unionized workers, and that obliging workers to belong to a trade union in order to receive a wage increase could restrict freedom of association. Lastly, the Committee observes that, according to the information provided by the Government, the Regional Government Office of San Martín determined that a wage increase granted solely to non-unionized workers constituted discrimination on the grounds of trade union membership, and that unionized workers receive the same benefits as non-unionized staff.
10. 706. Regarding the application by the enterprise of the benefits established in collective agreements to its non-unionized workers, despite the minority nature of the trade union, the Committee recalls that, in a case in which some collective agreements applied only to the parties to the agreement and their members and not to all workers, the Committee considered that this is a legitimate option – just as the contrary would be – which does not appear to violate the principles of freedom of association, and one which is practised in many countries [see Compilation, para. 1287]. Underscoring once again that it is the responsibility of each system of collective labour relations to determine whether and under what conditions the benefits established in collective agreements apply to non-unionized workers, the Committee will not pursue its examination of these allegations.
11. 707. With regard to the alleged additional wage increase granted solely to non-unionized workers, the Committee duly notes the Government’s indications that the enterprise received a penalty for anti-union discrimination, and that it was requested to ensure that unionized workers receive the same benefits as non-unionized staff. Trusting that the Government will continue to ensure respect for freedom of association in enterprise C, the Committee will not pursue its examination of these allegations.

The Committee’s recommendations

1. 708. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee trusts that the complaints concerning the alleged irregularities during the general assembly of the SITESAV and in the establishment of its executive board will be resolved as soon as possible by the judicial authorities. The Committee also requests the Government to ensure that SITESAV’s activities can be carried out without interference. The Committee requests the Government to keep it informed in this regard.
   • (b) The Committee requests the Government and the complainant organization to specify whether the union leaders and members of SITESAV who attended the general assembly of 3 June 2016, and those for whom compulsory leave was applied as part of their intermittent contracts, were subsequently reinstated in their work.