Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 334, Juin 2004

Cas no 2211 (Pérou) - Date de la plainte: 02-JUIL.-02 - Clos

Allegations: Mass dismissals of workers from Telefónica del Perú as part of a restructuring process, alleged by the Peruvian General Confederation of Workers (CGTP) and the Peruvian Unitary Confederation of Workers (CUT); violent repression including the arrest of many trade unionists and the dismissal of 41 workers as a result of a strike which took place from 2 July to 11 September 2002, alleged by the International Confederation of Free Trade Unions (ICFTU)

1. 661. The complaint is contained in a communication dated 2 July 2002 presented by the Peruvian General Confederation of Workers (CGTP) and the Peruvian Unitary Confederation of Workers (CUT).
2. 662. In its communication dated 16 August 2002, the International Confederation of Free Trade Unions (ICFTU) joined the present complaint and submitted new allegations. In its communications dated 12 September and 29 October 2002, the ICFTU presented additional information.
3. 663. The Government sent its observations in communications dated 30 December 2002 and 15 December 2003.
4. 664. 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 complainants’ allegations

1. 665. In its communication dated 2 July 2002, the Peruvian General Confederation of Workers (CGTP) and the Peruvian Unitary Confederation of Workers (CUT) observe that Telefónica del Perú, a subsidiary of Telefónica de España, gained ownership of the fixed line and satellite telephone network for the whole of Peru during the process of privatization. Consequently, the company became a highly profitable monopoly.
2. 666. The complainants allege that at the same time that the company acquired majority share control of Peruvian national telephony services, it embarked upon a human resources restructuring programme which, in practice, was nothing but a mass dismissal. The complainants observe that from the time of privatization until 2001, the company dismissed or terminated the contracts of 9,000 workers. In addition, at the end of June 2002, the company unduly dismissed 480 trade unionist workers throughout the country. According to the complainant organizations, the aim of these dismissals was to punish trade unionists (90 per cent of the total number of workers dismissed were union members), to weaken trade union organizations and to outsource services. The complainants point out that the latter was possible due to recent legislation in the "services" law permitting outsourcing, which was hitherto prohibited.
3. 667. The complainant organizations stress that many trade union delegates were against Telefónica’s policy of staff cuts from the outset. According to the complainant organizations, this policy violates collective agreements and a joint agreement between the company and the unions, stipulating that any cuts in the workforce should be made by means of voluntary programmes. The company did not respect this condition. In addition, the complainants observe that the company is in violation of international agreements signed between the Spanish multinational and Union Network International (UNI).
4. 668. The complainants add that they have lodged an appeal for the protection of constitutional rights to the judicial authority in order for the mass dismissal to be reversed and workers returned to their posts. However, at the same time, they express their lack of trust in the Peruvian justice system.
5. 669. In its communications dated 16 August, 12 September and 29 October 2002, the International Confederation of Free Trade Unions (ICFTU) observes that during a strike lasting from July to September 2002, police acted with undue force in the following manner:
   • - On 7 August, there was an attack on the headquarters of the Single Trade Union of Workers of Telefónica of Peru. Three workers were injured: Mr. Roberto Amaya Loo Kung, Mr. Herculeano Caballero and the secretary of the organization, Mr. Roberto Cuadros Timorán. Material damage was caused, and another office of the Trade Union of Telefónica del Perú was also attacked.
   • - On 9 August, Mr Gílmer Vásquez, Mr. Joel Mendo and Mr. Jorge Herrero were arrested when not present at strike-related meetings. They were released the following day.
   • - On 3 September, whilst taking part in a peaceful demonstration, workers belonging to Telefónica del Perú unions were violently repressed by national police as they called for 574 dismissed workers to be returned to their posts. Mr. Rubén González, Mr. Roberto Arroyo, Mr. Carlos Mendoza and Mr. Gaudencio Escobar were arrested and Mr. Johnny Chavez was injured.
   • - On 5 September, at another peaceful demonstration, 18 trade unionists were forcefully repressed and arrested. On the basis of false accusations of attacks on private property, criminal files were opened on them. The detainees were released the following day.
   • - Forty-one unionized workers were dismissed for participating and supporting the telephone workers’ strike that took place from 2 July to 11 September 2002. This was despite the fact that the strike was terminated following a ruling by the Constitutional Court of the Republic of Peru stipulating that the 574 dismissed workers should be reinstated.

B. The Government’s reply

1. 670. In its communications dated 30 December 2002 and 15 December 2003, the Government refers to information supplied by Telefónica del Perú.
2. 671. The company observes that in all actions taken, it has complied with the law and Constitution in an attempt to minimize negative effects upon workers. It adds that there is no absolute job security in Peru, although there is a legal safety net in the form of compensation for unjustified dismissal. This is equivalent to one and a half months’ salary for each year of service, up to a limit of 12 months. The company observes that it exceeded this requirement.
3. 672. The company also maintains that in accordance with agreements dated 7 December 2000 and 16 April 2001, both parties agreed that reductions in workforce numbers would be voluntary in nature, and that workers who volunteered would be offered the possibility of immediate redeployment via subcontractors. The company observes that it did not, at any time, agree to set up joint mechanisms for all cases of termination of employment and denies the alleged anti-unionist nature of the dismissals. It also observes that although the Constitutional Court has declared article 34 of Supreme Decree No. 003-97 TR to be incompatible with the Constitution, this does not mean that the company has acted unlawfully.
4. 673. Lastly, with regard to the allegations arising from the dismissal of 41 workers who participated or supported the strike of July to September 2002, the company observes that only 13 of the 41 workers were directly employed by the company. Of those 13, 11 were dismissed for unauthorized use of company vehicles and two for other misdemeanours (a falsified medical certificate in one case and acts of violence in the other). The remaining 28 employees dismissed worked for the subcontractor Telefónica de Gestión de Servicios Compartidos S.A.C. TGSC. Of these, 26 were dismissed for abandoning their duties and two were dismissed before the start of the strike. The company adds that on 17 March 2003, Telefónica del Perú and TGSC signed an extraordinary agreement with trade unionist organizations, by means of which 31 of the 41 workers were reinstated. Of these, ten were employed by Telefónica and 21 by TGSC.
5. 674. The Government points out that the workers dismissed have the right to seek legal remedy in order to ascertain the legality of the dismissals.

C. The Committee’s conclusions

1. 675. The Committee observes that this case regards mass dismissal of workers at Telefónica del Perú, in the framework of privatization and restructuring, and violent repression including the arrest of many unionists and the dismissal of 41 workers in connection with a strike that took place from 2 July to 11 September 2002.
2. 676. The Committee points out that the Government refers to Telefónica del Perú’s general declarations on the dismissals, particularly those relating to the dismissal of 41 workers for taking part in the strike that took place from July to September 2002. According to these declaration: (1) the mass dismissals took place within a legal framework and in the context of a process of privatization and restructuring; (2) the company and trade union organizations signed a collective agreement on 7 December 2000 and an agreement on 16 April 2001, where both parties agreed that workforce cuts would be voluntary in nature and that workers who volunteered would be offered the possibility of immediate deployment by means of subcontractors; (3) at no time did the company undertake to extend the joint mechanism to cover other types of dismissal; (4) with regard to the dismissal of 41 workers for participating or supporting the strike that took place from July to September 2002, only 13 workers belonged to the company, the remaining being employed by a subcontractor; (5) the dismissals resulted from non-strike related causes (unauthorized use of company vehicles, use of falsified certificates and acts of violence); and (6) on 17 March 2003, Telefónica del Perú and TGSC signed an extraordinary agreement with union organizations by which 31 of the 41 workers were returned to their posts. Of these, ten were employed by Telefónica and 21 by TGSC.
3. 677. The Committee notes the Constitutional Court of the Republic of Peru’s ruling ordering the reinstatement of the 574 telephone sector workers whose dismissal sparked the strike of July-September 2002.
4. 678. The Committee observes, however, that 26 of the 28 dismissed workers employed by the subcontractor Telefónica de Gestión de Servicios Compartidos S.A. TGSC were dismissed because they had abandoned their duties to participate in the strike that took place from July to September 2002. The Committee notes with interest that according to information received, the company has reinstated 21 of the 26 workers dismissed. The Committee understands that these workers are part of the 574 whose reinstatement was, according to ICFTU, demanded by a court ruling. The Committee recalls that the dismissal of workers because of a strike, which is a legitimate trade union activity, constitutes serious discrimination in employment and is contrary to Convention No. 98 [see Digest of decisions and principles of the Committee of Freedom of Association, 4th edition, 1996, para. 591] and consequently calls upon the Government to intercede with the parties concerned with a view to reinstating the five remaining workers. The Committee requests the Government to confirm the reinstatement of the 574 workers in question, including the five workers of the subcontractor Telefónica de Gestión de Servicios Compartidos S.A. TGSC, according to the court ruling. The Committee requests the Government to keep it informed in this respect.
5. 679. The Committee regrets to note that the Government has not submitted its comments on the allegations presented by ICFTU regarding police repression in the framework of the strike that took place from July to September 2002 and in which many unionists were arrested and many others injured and material damage was caused to trade union headquarters. The Committee expresses its deep concern regarding the gravity of these allegations. It requests the Government to carry out an independent investigation without delay into the allegations and, if proven to be guilty, to punish the guilty parties and ensure that such interference does not occur in the future. The Committee requests the Government to keep it informed in this respect.

The Committee's recommendations

1. 680. 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 confirm the reinstatement of the 574 workers of the telecommunications sector who were dismissed, including the five workers of the subcontractor, Telefónica de Gestión de Servicios Compartidos S.A. TGSC, according to the court ruling. The Committee requests the Government to keep it informed in this respect.
   • (b) Regarding the allegations presented by the ICFTU concerning police repression in the framework of the strike that took place from July to September 2002 and in which many unionists were arrested and many others injured and two union headquarters damaged, the Committee expresses its concern at the gravity of the allegations. It requests the Government to carry out an independent investigation without delay into the allegations and if proven to be guilty, to punish the guilty parties and ensure that such interference does not occur in the future. The Committee requests the Government to keep it informed in this respect.