Rapport définitif - Rapport No. 400, Octobre 2022

Cas no 3306 (Pérou) - Date de la plainte: 08-SEPT.-17 - Clos

Allegations: The complainant organization alleges the violation of the right to collective bargaining of a workers’ union in the informal economy, as well as anti-union acts by an enterprise in the fishing sector. It also denounces the arrest of union leaders and their sentencing to prison terms following a protest

1. 593. The complaint is contained in communications dated 8 September 2017 and 19 February 2018 from the Autonomous Confederation of Workers of Peru.
2. 594. The Government sent its observations on the allegations in communications dated 23 August, 2 October and 22 November 2018, as well as 22 January and 5 April 2019.
3. 595. 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. 596. In its communication dated 8 September 2017, the complainant indicates that, in November 2013, dockworkers in the informal economy sector of the Villa María del Triunfo market formed the Union of Dockworkers, Hydrobiological Product Vendors and Associated Activities of Villa María del Triunfo – Lima (hereinafter “the union”) in order to improve their precarious employment situation. The complainant reports that the union was recognized and registered by the Ministry of Labour and Employment Promotion (hereinafter “the MTPE”) through a certificate of automatic registration on 13 January 2014.
2. 597. The complainant states that the enterprise Servicios Industriales Pesqueros S.A. (hereinafter “the enterprise”), which owns the aforementioned market where several vehicle owners operate as wholesalers and retailers of hydrobiological products, refused to recognize the union, arguing that all requests were dealt with on an individual basis.
3. 598. The complainant indicates that in July 2014, the union submitted a list of demands to the enterprise that: (i) essentially referred to conditions of work connected to the functioning of the market (for example, the management of emergencies occurring within the market, the development of internal regulations on implementing adequate signage for pedestrians in the market, a suitable plan for the parking of trucks so that they do not block access to and from the market, and toilet facilities maintained in good condition), in order to ensure compliance with the minimum standards established by the Health and Safety at Work Act (No. 29783); and (ii) requested that workers have access to the market without having to pay a daily fee.
4. 599. The complainant states that: (i) in September 2014, the enterprise filed an appeal of opposition to the processing of the above-mentioned list of demands before the MTPE; (ii) despite this, the union entered into direct negotiations with the owners of the enterprise; and (iii) on 1 October 2014, upon failure to reach an agreement and in view of the enterprise’s refusal to submit a counter-proposal, the union sent a notarized letter to the enterprise, stating that if it did not receive its proposals within 72 hours, it would request conciliation before the MTPE.
5. 600. The complainant maintains that the enterprise, instead of seeking a solution through dialogue, started to engage in anti-union practices. It claims that the enterprise pressured the vehicle owners (who contract stevedoring services directly) to dismiss the union leaders, and refers to the case of Mr Anthony Ilasaca Zuasnabar, Assistant General Secretary of the union, who reported this pressure to the MTPE and to the Villa María del Triunfo police station. The complainant further claims that the enterprise refused to allow the truck owners to enter the market to unload and sell their hydrobiological products, resulting in the union’s board of directors having to intervene and insist that they finally be granted access. According to the complainant, these acts were aimed at preventing union members from working and intimidating not only the workers but also the owners of the product, thereby neutralizing any attempt to organize.
6. 601. The complainant reports that the union held an information meeting on 14 October 2014 on the actions to be taken to prevent abusive practices by the enterprise, which led to a public and peaceful protest on 15 October 2014. It states that this protest triggered a work stoppage for approximately three hours.
7. 602. The complainant submits that, as a result of this protest, the enterprise filed a complaint with the Public Prosecutor’s Office against the seven union leaders (Mr Ilasaca Zuasnabar, as well as Messrs Carlos López Ramírez, Carlos López Castillo, Hilmer López Pajares, Daniel Flores Ruesta, Carlos Minaya Panamá and John Zavala Panduro), accusing them of multiple offences (vandalism, violations of personal freedom, damage to property, disorder, etc.). According to the complainant, these allegations are part of a criminal strategy by the enterprise to discourage union membership through fear and to remove the union leaders.
8. 603. The complainant maintains that, with unusual speed, the Public Prosecutor’s Office maliciously determined that the case was complex and referred it to the First Criminal Prosecutor’s Office of Villa María del Triunfo. The complainant maintains further that, without prior notification delivered to his home, Mr Ilasaca Zuasnabar was arrested and taken handcuffed to a cell to have his statement taken.
9. 604. The complainant reports that on 13 March 2017, the First Specialized Criminal Court of Villa María del Triunfo imposed sentences of six years’ imprisonment on the union leaders for offences against public order and peace, and for disorder to the detriment of the enterprise. It states that the union leaders had to go into hiding to avoid serving these unjust sentences.
10. 605. The complainant further states that in a decision dated 26 December 2014 (Executive Decision No. 524-2014-MTPE/1/20.2), the MTPE declared the enterprise’s appeal of opposition to the processing of the list of demands submitted by the union to be founded and ordered its draft collective agreement to be shelved.
11. 606. The complainant underlines that there are rules in domestic legislation to regulate the work and protect the rights of longshore dockworkers. It points out that Act No. 25047 and its implementing regulations (Supreme Decree No. 010-2011-TR), which grant these workers certain benefits, establish a relationship between them and the enterprises managing the markets, land terminals or similar establishments where they work, in order to facilitate their application.
12. 607. According to the complainant, the Peruvian State has failed to take appropriate measures to ensure compliance with its collective bargaining obligations, in particular in the informal economy sector, and that the Government has not implemented the measures suggested in this regard by the Transition from the Informal to the Formal Economy Recommendation, 2015 (No. 204).
13. 608. In its communication dated 19 February 2018, the complainant reports that on 18 September 2017, an appeal lodged by the trade union leaders against the ruling dated 13 March 2017 was declared founded by the High Court of Justice of South Lima. The complainant indicates that, following this decision, Mr Minaya Panamá, who had been imprisoned, was released. However, it claims that the enterprise is using the aforementioned criminal proceedings as an excuse to deny the trade union leaders entry to the market.

B. The Government’s reply

1. 609. In its communication dated 23 August 2018, the Government first provides the enterprise’s observations concerning the allegations in the present case. The enterprise states that it is the owner of the wholesale market Terminal Pesquero de Villa María del Triunfo, a place where hydrobiological products are traded every day, with the participation of wholesale and retail traders.
2. 610. The enterprise indicates that in August 2014, the union requested that collective bargaining begin and that, in September 2014, the Collective Bargaining Subdirectorate of the MTPE ordered a file to be opened and notified the parties to initiate collective bargaining. The enterprise states that it opposed the processing of the union’s list of demands, pointing out that for collective bargaining to take place, there must be a link between the trade union organization and the enterprise.
3. 611. The enterprise indicates that on 26 December 2014, the MTPE, through Executive Decision No. 524-2014-MTPE/1/20.2: (i) resolved to declare its opposition appeal founded, given that none of the enterprise’s workers were members of the union; (ii) pointed out that union members paid on a daily-fee basis to work at the terminal; and (iii) maintained the right of the parties to seek other mutually beneficial resolution mechanisms.
4. 612. The enterprise also emphasizes that: (i) the union has not lodged any appeal against the aforementioned ruling; (ii) according to the General Executive Decision No. 007-2012-MTPE/2/14 of the MTPE, trade union organizations of branch of activity must prove that they have sufficient representation to establish collective bargaining at the enterprise level; and (iii) it is inferred from article 41 of the Collective Labour Relations Act that in order to engage in collective bargaining, the trade union organization must have legitimate status.
5. 613. As regards the alleged anti-union practices, the enterprise rejects the allegation that it pressured the vehicle owners to dismiss the union leaders and points out that the complainant has not provided any evidence in this regard. It also rejects the allegation that it did not allow the truck owners to enter the market. The enterprise claims that, given that none of its workers are members of the union, there is no reason or justification for any anti-union conduct or practice.
6. 614. With regard to the arrest and sentencing of the union leaders, the enterprise denies having planned a criminal strategy to discourage union membership and remove the leaders. It maintains that it only denounced two union leaders (Mr Ilasaca Zuasnabar and Mr López Pajares) in relation to the events of 15 October 2014 and that this action is a legitimate exercise of its right to bring to the attention of the Public Prosecutor’s Office the commission of a criminal offence.
7. 615. In communications dated 23 August, 2 October and 22 November 2018, and 22 January and 5 April 2019, the Government provides its own observations on the complaint. With regard to the list of demands submitted by the union, the Government confirms that Executive Decision No. 524-2014-MTPE/1/20.02 dated 26 December 2014 declared the opposition formulated by the enterprise against the processing of the list of demands in question to be founded, as it was noticed that the union did not have the legitimate status to request collective bargaining. The Government indicates that the aforementioned executive decision is a final administrative act, since the union has not challenged it before the judiciary. Consequently, the corresponding collective bargaining project has been shelved.
8. 616. With regard to the allegations concerning the criminal proceedings arising from the enterprise’s complaint, the Government confirms that on 13 March 2017, the First Specialized Criminal Court of Villa María del Triunfo sentenced the trade union leaders to effective prison terms for offences against public order, offences against public peace, and disorder to the detriment of the enterprise, and that, on 18 September 2017, this ruling was overturned by the High Court of Justice of South Lima.
9. 617. Furthermore, the Government informs that an appeal for annulment filed by the enterprise against the ruling dated 18 September 2017 was declared inadmissible in a resolution dated 17 October 2017, and that an exceptional complaint filed by the enterprise against the aforementioned resolution was declared unfounded by the Supreme Court of the Republic on 2 October 2018. The Government therefore requests the Committee, if it deems it appropriate to do so, to declare the present case definitively closed, as there has been no violation of the union’s rights.

C. The Committee’s conclusions

1. 618. The Committee notes that, in the present case, the complainant alleges that the right to collective bargaining of a dockworkers’ union in the informal economy was violated and that the enterprise that owns the hydrobiological products market in the city in question committed anti-union acts in order to obtain the dismissal of the union’s leaders. It notes that the complainant also denounces the arrest of union leaders and the prison sentences imposed on them as a result of a criminal complaint filed by the above-mentioned enterprise following a protest by the union. The Committee notes that the enterprise denies these allegations and that the Government claims that there has been no violation of the trade union’s rights.
2. 619. The Committee takes note of the chronology of events provided by the complainant, the Government and the enterprise, namely: (i) in November 2013, dockworkers in the informal economy sector of the Villa María del Triunfo market founded the trade union; (ii) on 13 January 2014, the trade union was recognized and registered by the MTPE; (iii) in July 2014, the trade union submitted a list of demands to the enterprise; (iv) in August 2014, the union requested the MTPE to initiate collective bargaining between the parties; (v) in September 2014, the enterprise filed an appeal of opposition to the processing of the list of demands before the MTPE, despite which the parties entered into direct negotiations; (vi) on 1 October 2014, following the failure of the negotiations, the union informed the enterprise of its intention to request conciliation before the MTPE; (vii) on 14 October 2014, the union held an information meeting on the actions to be taken to prevent abusive practices by the enterprise; (viii) on 15 October 2014, following an information meeting held the previous day, the union staged a protest which triggered a work stoppage of approximately three hours; (ix) following this protest, the enterprise filed a criminal complaint with the Public Prosecutor’s Office against the seven union leaders; (x) on 26 December 2014, the MTPE declared the appeal of opposition to the processing of the list of demands that had been filed by the enterprise to be founded (Executive Decision No. 524-2014-MTPE/1/20.2); (xi) on 13 March 2017, the First Specialized Criminal Court of Villa María del Triunfo sentenced the union leaders to six years’ imprisonment for offences against public order, offences against public peace, and disorder to the detriment of the enterprise; (xii) on 18 September 2017, a ruling of the High Court of Justice of South Lima overturned this ruling; and (xiii) on 17 October 2017, an appeal for annulment filed by the enterprise against the aforementioned ruling was declared inadmissible by resolution and, on 2 October 2018, an exceptional complaint filed by the enterprise against that resolution was declared unfounded by the Supreme Court.
3. 620. With regard to the alleged violation of the trade union’s right to collective bargaining, the Committee notes that in Executive Decision No. 524-2014-MTPE/1/20.2, copies of which were provided by the complainant and the Government, the MTPE: (i) declared the enterprise’s appeal of opposition to the processing of the list of demands founded, on the grounds, inter alia, of the enterprise’s assertions that it has no stevedoring jobs and that none of its workers are members of the union, as well as the fact that union members pay on a daily-fee basis to work at the terminal; and (ii) maintained the right of the parties to seek other mutually beneficial resolution mechanisms. On the other hand, the Committee understands that the union considered the enterprise to be its interlocutor for collective bargaining, given that: (i) the list of demands dealt mainly with conditions of work relating to the functioning of the market, which is owned by the enterprise, and requested the removal of the daily fee for access to the market; and (ii) Act No. 25047 and its implementing regulations, which grant certain benefits to dockworkers, establish a relationship between these workers and the enterprises managing the markets. The Committee notes that dockworkers are directly employed by the vehicle owners operating in the above-mentioned market. The Committee recalls that it has requested a Government to take the necessary measures to ensure that workers who are self-employed could fully enjoy trade union rights for the purpose of furthering and defending their interest, including by the means of collective bargaining; and to identify, in consultation with the social partners concerned, the particularities of self-employed workers that have a bearing on collective bargaining so as to develop specific collective bargaining mechanisms relevant to self-employed workers, if appropriate [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 1285]. In light of the above, the Committee requests the Government to create an enabling environment for workers in the informal economy, including dockworkers in the Villa María del Triunfo market, to exercise their rights to organize and bargain collectively, as well as to participate in social dialogue in the context of the transition to the formal economy. The Committee invites the Government to avail itself of the technical assistance of the Office in this regard.
4. 621. Regarding the allegations of anti-union practices, the Committee notes that the complainant alleges that: (i) following unsuccessful negotiations between the parties, the enterprise pressured the vehicle owners (who contract the stevedoring services) to dismiss the union leaders, which led Mr Ilasaca Zuasnabar to file complaints with the MTPE and the Villa María del Triunfo police station; and (ii) the enterprise denied access to the market to the vehicle owners who continued to hire the services of union members and the union’s board of directors had to intervene to resolve the situation. The Committee further notes the reply of the enterprise forwarded by the Government, in which the enterprise: (i) denies the allegations; (ii) points out that the union has failed to provide any evidence of the alleged pressure; and (iii) maintains that it has no reason to commit such acts, as none of its workers are members of the union. While taking due note of the diverging positions of the complainant organization and the enterprise on the events, the Committee recalls that no person should be prejudiced in employment by reason of legitimate trade union activities and cases of anti-union discrimination should be dealt with promptly and effectively by the competent institutions [see Compilation, para. 1077]. In light of the above, the Committee trusts that the Government has ensured that none of the union members have been affected in their access to employment because of their legitimate trade union activities and that the relevant investigations have been carried out into the complaints filed by Mr Ilasaca Zuasnabar with the MTPE and the Villa María del Triunfo police station.
5. 622. 622. As for the allegations concerning the arrest and sentencing of the trade union leaders, the Committee notes that the complainant states that: (i) the complaint filed by the enterprise following the union’s protest is part of a criminal strategy to discourage trade union membership and remove the trade union leaders; (ii) as a result of the ruling of 13 March 2017 of the First Specialized Criminal Court of Villa María del Triunfo, Mr Minaya Panamá was imprisoned and the other trade union leaders had to go into hiding to avoid serving their respective sentences; and (iii) following the overturning of the said ruling, the enterprise has used the criminal proceedings against the trade union leaders as an excuse to deny them access to the market. The Committee also notes that the enterprise maintains that it only denounced two union leaders in connection with the union’s protest, which is a legitimate exercise of its right to bring a criminal offence to the attention of the Public Prosecutor’s Office. The Committee observes that: (i) in the ruling of 13 March 2017, the trade union leaders were initially sentenced to six years’ imprisonment for “offences against public order”, “offences against public peace” and “disorder” to the detriment the enterprise; and (ii) the aforementioned ruling was overturned by the High Court of Justice of South Lima on the grounds that it had not been established that the workers had used violence against persons or public or private property by taking advantage of the formation of a tumultuous gathering. The Committee takes due note of this ruling and its confirmation by the Supreme Court. The Committee recalls in this respect that workers should enjoy the right to peaceful demonstration to defend their occupational interests [see Compilation, para. 208]. The Committee trusts that the Government has taken the necessary steps to ensure that the trade union leaders subject to the above-mentioned rulings have been able to return to their place of work. The Committee expects that the Government will be able to provide adequate compensation to the workers who had been imprisoned and who were released following the judgments of the Superior Court of Justice of Lima and the Supreme Court.

The Committee’s recommendations

1. 623. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government create an enabling environment for workers in the informal economy, including dockworkers in the Villa María del Triunfo market, to exercise their rights to organize and bargain collectively, as well as to participate in social dialogue in the context of the transition to the formal economy.
   • (b) The Committee invites the Government to avail itself of the technical assistance of the Office in this regard.
   • (c) The Committee expects that the Government will be able to provide adequate compensation to the workers who had been imprisoned and who were released following the judgments of the Superior Court of Justice of Lima and the Supreme Court.
   • (d) The Committee considers that this case is closed and does not call for further examination.