Report in which the committee requests to be kept informed of development - Report No 407, June 2024

Case No 3392 (Peru) - Complaint date: 18-AUG-20 - Follow-up

Allegations: The complainant organization alleges the harassment and subsequent dismissal of the general secretary of a brewery workers’ union as a result of social media posts during the COVID-19 pandemic

1. 383. The complaint is contained in a communication dated 18 August 2020 from the General Confederation of Workers of Peru (CGTP). This organization sent additional information in communications dated 9 December 2020 and 13 August 2021.
2. 384. The Government sent its observations in communications dated 16 November, 4 and 16 December 2020, 7 May, 11 and 25 June, 28 September 2021, 9 August 2022 and 15 April 2024.
3. 385. 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. 386. In its various communications, the CGTP alleges that in 2020 the enterprise Backus and Johnston Peruvian Breweries Union SAA (hereinafter, the enterprise) harassed and subsequently dismissed the general secretary of the National Union of Workers of Backus and Johnston Peruvian Breweries Union SAA, Mr Luis Rolando Samán Cuenca, as a result of social media posts regarding the enterprise’s failure to comply with occupational safety and health measures during the COVID-19 pandemic. The complainant alleges that these statements were made by the general secretary while performing the tasks inherent to his role and that, therefore, the measures taken by the enterprise entailed a restriction on his freedom of expression, opinion and denunciation, which are essential to freedom of association.
2. 387. The complainant alleges that: (i) primarily between March and July 2020, there were social media (Facebook and Twitter) posts by the union and its general secretary stating that, during the pandemic, the enterprise had carried out production activities without the relevant authorization and in violation of the occupational safety and health measures issued by the Government, that there was an increase in the number of infected workers and that some of those workers died, and that the enterprise had pressured, intimidated and threatened unionized workers to sign special individual agreements regarding, inter alia, the granting of paid and compensatory leave; (ii) these posts initially prompted the enterprise to harass the union and its general secretary by sending them three successive letters (one dated 22 July 2020 addressed to the union and another two dated 1 and 3 August 2020 addressed to the general secretary) alleging that the posts contained false claims about the enterprise, while urging the union to provide evidence to substantiate the posts and the general secretary to rectify the false claims within a specified time frame; and (iii) the posts in question also subsequently led the enterprise to arbitrarily dismiss the general secretary in a letter dated 4 December 2020, having already sanctioned and charged the general secretary in 2018 for allegedly illegitimately exercising his freedom of expression. The complainant also states that, in Decision No. 13 of 21 July 2021, the competent criminal court acquitted the general secretary of the charges filed by the enterprise in 2020 for allegedly committing aggravated defamation through the posts in question.
3. 388. The complainant alleges that the measures taken by the enterprise are retaliation for statements that the general secretary made while legitimately exercising his freedom of association and his role of defending the rights and interests of workers, including their lives and health.
4. 389. The complainant also alleges that the issues described in the posts were accurate and of public interest in the context of the pandemic, and states that there are charges against the enterprise for violation of occupational safety and health conditions before the Emergency Criminal Prosecutor’s Office in Lima.
5. 390. Lastly, the complainant alleges that the enterprise’s anti-union conduct was also reflected by the fact that it sought to accuse the union and its general secretary of illegitimately exercising their freedom of expression while collective bargaining for 2020–21 was under way.

B. The Government’s reply

1. 391. In its communications, the Government sends the observations of the enterprise and of the Labour Inspection Authority (SUNAFIL) and forwards information on the ongoing legal proceedings.
2. 392. On the one hand, the enterprise: (i) indicates that the social media posts contain false claims and are offensive, insulting and harmful to its good name, image and its internal and external reputation, and thus an illegitimate exercise of freedom of expression; (ii) explains that it sent the letters to the union and the general secretary so that they could provide evidence to substantiate the content of the posts and rectify the false claims within a specified time frame; (iii) points out that it decided to dismiss the general secretary because the posts constituted a serious misconduct under national legislation (slander and libel in writing against the employer) and considering that the statements of defence sent by the general secretary did not include any proposed amendments or refute the misconduct and that, moreover, he already had a disciplinary record for similar conduct and had even unsuccessfully challenged the previous sanctions in legal proceedings; (iv) denies any alleged systematic persecution of the general secretary; (v) indicates that the general secretary was initially acquitted of aggravated defamation in first and second instance judgments in 2021, but that, in the cassation judgment of 28 February 2024, the Permanent Criminal Chamber of the Supreme Court of Justice declared those judgments null and void due to procedural flaws and ordered a new judgment to be handed down; (vi) reports that the general secretary filed a lawsuit against his dismissal in 2020 and that in first and second instance judgments in 2022 and 2023, respectively, the lawsuit was declared founded and his reinstatement in the enterprise was ordered, and the cassation appeal granted to the enterprise by the Permanent Labour Chamber of the Supreme Court of Justice in Decision No. 20 of 31 January 2024 is still pending; and (v) states that the enterprise has temporarily reinstated the general secretary while awaiting the resolution of the last instance proceeding on his dismissal.
3. 393. The enterprise points out that both the sending of the letters to the union and the general secretary and the dismissal of the general secretary were in line with the procedures provided for in the legislation (he was even invited to a discussion and investigation meeting with the enterprise, which he did not attend for health reasons) and that they did not have anti-union motives and were not intended to intimidate, harass or coerce the general secretary or undermine his right to freedom of association or deprive him of freedom of expression or defence.
4. 394. The enterprise also describes several measures taken during the pandemic to protect the safety and health of its workers and to comply with its corresponding legal obligations.
5. 395. The enterprise also denies that the measures taken as a result of the posts were related in any way to the ongoing collective bargaining.
6. 396. On the other hand, SUNAFIL reports that four labour inspections were carried out in 2020 at various facilities of the enterprise in the country to verify compliance with occupational safety and health regulations during the pandemic. In every case, the concerned labour inspectors found that the enterprise had failed to comply with certain occupational safety and health standards. Two inspections thus led to the issuance of violation notices and, in the other two, the enterprise was required to correct the violations found, which it did in a timely manner.

C. The Committee’s conclusions

1. 397. The Committee observes that the present case concerns alleged violations of freedom of association in a brewing enterprise due to the harassment and subsequent dismissal of the general secretary of a workers’ union as a result of social media posts regarding the enterprise during the COVID-19 pandemic.
2. 398. The Committee notes that the complainant alleges that: (i) in 2020, the enterprise harassed the union and its general secretary by sending successive letters and then dismissing the general secretary as a result of posts primarily on social media regarding the enterprise’s failure to comply with occupational safety and health standards during the pandemic; and (ii) the measures taken by the enterprise are retaliation for statements that the general secretary made while legitimately exercising his freedom of expression and his role of defending the rights and interests of workers, including their lives and health, which are essential to freedom of association.
3. 399. In this regard, the Committee notes that the communications sent by the Government show that according to the enterprise: (i) the social media posts contain false claims and damage its good name, image and internal and external reputation, and are thus an illegitimate exercise of freedom of expression; (ii) the purpose of the letters sent to the union and its general secretary was to request them to provide evidence to substantiate the content of the posts and to rectify the false claims; (iii) the general secretary was subsequently dismissed considering that the posts in question constituted a serious misconduct under national legislation, that his statements of defence did not include any amendments or refute the misconduct and that, moreover, he already had a disciplinary record for similar conduct (and had even unsuccessfully challenged the previous sanctions in court), and (iv) both the sending of the letters to the union and the general secretary and the dismissal of the general secretary were in line with the procedures provided for in the national legislation, were not a form of systematic persecution of the general secretary, did not have anti-union motives and were not intended to harass him or undermine his freedom of expression or his right to freedom of association.
4. 400. The Committee notes that while the complainant alleges that the descriptions in the social media posts about the enterprise were accurate and of public interest in the context of the pandemic, the enterprise describes several measures taken to protect the safety and health of its workers and to comply with its legal obligations during the pandemic. With regard to the above, the Committee notes that SUNAFIL reports that in 2020, four labour inspections on occupational safety and health were carried out at various facilities of the enterprise in the country and that in every case, the concerned labour inspectors found that the enterprise had failed to comply with certain occupational safety and health standards. Two inspections thus led to the issuance of violation notices and, in the other two, the enterprise was required to correct the violations found, which it did in a timely manner. The Committee also notes that, according to the complainant, there are charges against the enterprise for violation of occupational safety and health conditions before the Emergency Criminal Prosecutor’s Office in Lima.
5. 401. Furthermore, the Committee notes that, according to the information provided by the complainant, the enterprise and the Government, the posts in question, as well as the subsequent dismissal of the general secretary, led the enterprise to file charges against the general secretary for aggravated defamation in 2020, and to legal action against the enterprise to annul the dismissal of the general secretary and order his reinstatement. In this regard, the Committee notes that according to the information provided: (i) although the general secretary was acquitted of aggravated defamation in first and second instance judgments in 2021, the Permanent Criminal Chamber of the Supreme Court of Justice has declared those judgments null and void due to procedural flaws and ordered a new judgment to be handed down; and (ii) in first and second instance judgments in 2022 and 2023, respectively, the lawsuit filed against the dismissal of the general secretary was declared well-founded and his reinstatement in the enterprise was ordered, and the cassation appeal granted to the enterprise is still pending; and (iii) the enterprise has temporarily reinstated the general secretary while the above-mentioned cassation appeal is being resolved.
6. 402. While the Committee observes that the legal proceedings initiated by the parties involved in the complaint have been actively processed by the judicial authorities, it also recalls that cases concerning anti-union discrimination should be examined rapidly, so that the necessary remedies can be really effective, and that an excessive delay in processing such cases constitutes a serious attack on the trade union rights of those concerned [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 1139]. The Committee also recalls that the right of workers’ and employers’ organizations to express opinions through the press or otherwise is an essential aspect of trade union rights and that nevertheless, in expressing their opinions, these organizations should respect the limits of propriety and refrain from the use of insulting language [see Compilation, paras 239 and 236]. The Committee expects that the proceedings pending final judgment (on aggravated defamation and nullity of dismissal) will be resolved without delay, taking into account the above-mentioned criteria relating to the freedom of expression of trade union organizations and its scope, and requests the Government to keep it informed in this regard.
7. 403. Lastly, the Committee notes that the complainant alleges that the enterprise’s anti-union conduct was also reflected by the fact that it sought to accuse the union and its general secretary of illegitimately exercising their freedom of expression while collective bargaining for 2020–21 was under way. The Committee notes, in this regard, that the enterprise denies that the measures taken as a result of the social media posts were related to the ongoing collective bargaining. The Committee observes that, according to the information available on the union’s public social media accounts, the enterprise has allegedly decided to legally challenge the arbitration award that resolved collective bargaining for 2020–21 and that, nevertheless, the parties signed a new collective bargaining agreement with a three-year term in 2021. In this context, the Committee will not pursue its examination of these allegations.

The Committee’s recommendations

1. 404. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
   • The Committee expects that the proceedings pending final judgment (on aggravated defamation and nullity of dismissal) will be resolved without delay, taking into account the criteria set out in the conclusions of the present case in relation to the freedom of expression of trade union organizations and its scope, and requests the Government to keep it informed in this regard.