Report in which the committee requests to be kept informed of development - Report No 357, June 2010

1. 986. The complaint is contained in a communication dated 20 February 2008 from the General Confederation of Workers of Peru (CGTP). The CGTP sent new allegations in a communication dated December 2008.
2. 987. The Government submitted its observations in communications dated 12 November 2009 and 25 May 2010.
3. 988. 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. 989. In its communication of 20 February 2009, the CGTP alleges the anti-union dismissal in Hogar Clínica San Juan de Dios of the board of the Union of Workers of Hogar Clínica San Juan de Dios , namely:
   • Sergio Ruiz Taipe, General Secretary
   • Lamberto O. Babetón Venancio, Organization Secretary
   • Ángel T. Tarazona Rodríguez, Legal Defence Secretary
   • Lucio Cuya Pullo , Press and Media Secretary
   • Miguel L. Jaimes Salinas, Treasurer
   • Teófanes P. Eulogio Espinoza , Discipline Secretary
   • Héctor D. Rojas Machuca , Records and Archives Secretary
   • Emiliano Sulca Cerda , Social Welfare Secretary
   • Mónica Elisa Meneses La Riva , Technology and Statistics Secretary
   • Enrique Thomas Vargas Deudor, External Relations Secretary
   • Dionisio Lajos Zambrano, Steward
2. 990. The CGTP indicates that Hogar Clínica San Juan de Dios is a medical establishment that has been providing all kinds of orthopaedic, traumatology and rehabilitation services to adults and children since 1952. The clinic has six facilities in Peru, and its headquarters in Lima employs a total of 210 workers, of which more than half are unionized. The complainant indicates that, on 17 November 2008, the management of Hogar Clínica San Juan de Dios sent notarized letters to workers’ homes, informing them that they would be subjected to a collective dismissal procedure, enclosing a list of the names of the workers who would be dismissed. The management of Hogar Clínica San Juan de Dios based its decision on the marked and lasting deterioration of its economic and financial situation, which has caused an ongoing deficit that is being offset through donations and the sale of part of its assets.
3. 991. The CGTP adds that, on 18 November 2008, the clinic filed a petition with the administrative labour authority for the initiation of a procedure for the collective termination of the employment contracts, for economic or structural reasons, of 103 workers – including 20 workers with disabilities – on the objective grounds of the ongoing deterioration of its economic and financial situation. According to the CGTP, on 19 November 2008, the administrative labour authority requested that Hogar Clínica San Juan de Dios include with its petition the following information: (a) the grounds for the termination; (b) proof of receipt by the affected workers of the relevant information from the employer, specifying the grounds for the termination and listing the names of the affected workers; (c) the clinic’s total number of employees; (d) the names and addresses of the affected workers, expressly indicating that they represent a minimum of 10 per cent of the clinic’s total workforce; (e) as many copies of the petition and supporting documentation as there are affected workers; (f) a sworn statement indicating that Hogar Clínica San Juan de Dios is affected by the objective grounds invoked, together with an expert report and a document proving that the meeting in which negotiations were directly or otherwise conducted, took place, with a notarized record of attendance; (g) an indication as to whether and which of the affected workers are unionized; and (h) proof of payment of the relevant fee, with proof of payment from Banco de la Nación.
4. 992. The CGTP adds that the administrative labour authority, through an unnumbered subdirectoral decision dated 12 December 2008, declared inadmissible the petition for the collective termination of employment contracts, filed on economic and structural grounds. Hogar Clínica San Juan de Dios lodged an appeal against this decision before a higher authority. The administrative appeal was settled by the Directorate for the Prevention and Settlement of Disputes through directoral decision No. 01-2009-MTPE/2/12.2 of 5 January which upholds the unnumbered subdirectoral decision of 12 December 2008. On 25 November 2008, the clinic’s management decided unilaterally to deny 103 workers access to the facilities, informing them that they had been dismissed for the reasons indicated in the notarized letters that had been sent to their homes between 17 and 22 November 2008. Among the 103 dismissed workers was the entire trade union board, which should have been protected by trade union immunity.
5. 993. The CGTP notes that, on 28 November 2008, the trade union, represented by its board, filed a petition for amparo (the protection of constitutional rights) before the 27th Civil Court of Lima against Hogar Clínica San Juan de Dios in connection with the collective dismissal, resulting from the alleged termination of working relations on objective grounds: economic and structural reasons. The petition was declared admissible and has been communicated to the defendant. Also, on 15 December 2008, a petition for a preventive measure was filed before the 27th Civil Court of Lima, requesting the workers’ reinstatement. The petition was granted through decision No. 4 of 6 January 2009, but has yet to be enforced owing to actions which have delayed the proceedings and implementation. The CGTP alleges that the aim of the employer, through its collective dismissal of the 103 workers – including 86 trade union members and the entire union board – is to eliminate the trade union.

B. The Government’s reply

1. 994. In its communications of 12 November 2009 and 25 May 2010, the Government notes that the rights to the freedom of association and collective bargaining are set out under article 28 of the Political Constitution of Peru. Furthermore, as the State of Peru has ratified ILO Conventions Nos 87 and 98, the provisions of these international instruments are binding throughout the national territory.
2. 995. In relation to the complaint, the Government notes that Hogar Clínica San Juan de Dios has indicated that it carried out the procedure for collective dismissal on economic and structural grounds, in strict application of the law, without hidden reasons relating to the elimination of any trade union. In this connection, it presented its defence, indicating the following:
   • – According to the conclusions of the expert report of 30 June 2008 prepared by Hogar Clínica San Juan de Dios in connection with the collective termination of employment contracts on just grounds: “... Hogar Clínica has not achieved a level of self-sufficiency enabling it to use its revenue from donations and reserve funds to enhance its capacity for providing care, improve its equipment, etc., but on the contrary, has used those resources to finance its current expenses, principally through the payment of its caregiving staff ... Hogar Clínica must reduce its staff expenditure by approximately 50 per cent in order to bring its operational deficit down to manageable levels ... staff cuts, in general, should mainly be applied in the administration, clinical and orthopaedic units. In accordance with our expert report, we believe that there are objective, structural grounds for the collective termination of some of the employment contracts of workers active in the aforementioned areas of activity, in line with the provisions under the single consolidated text of Legislative Decree No. 728, approved by Supreme Decree No. 003-97-TR ...”.
   • – If trade union leaders were included in this collective dismissal on economic and structural grounds, it is only because the restructuring process affects their areas of work, which will be eliminated. The four union board members with trade union immunity who were included in the list of dismissals worked in the areas set out below: Mr Sergio Ruiz Taipe, Mr Lamberto Babetón Venancio and Mr Ángel Tarazona Rodríguez: the orthopaedic unit; and Ms Mónica Meneses La Riva: the post-operative unit.
   • – None of the remaining workers included in the complaint benefited from trade union immunity in accordance with section 12(b) of Supreme Decree No. 11-92-TR, the Regulations implementing the Collective Labour Relations Act, insofar as in the case of a primary-level trade union, as in the present case, such immunity covers three trade union leaders for the first 50 workers represented, plus one leader for every additional 50 workers, up to a maximum limit of 12 leaders. Since the trade union represents 105 workers, only four leaders are covered by trade union immunity.
   • – With regard to the board members of the complainant trade union: Mr Miguel Luis Jaime Salinas, Mr Teófanes Pedro Eulogio Espinoza, Mr Emiliano Sulca Rojas and Mr Dionisio Lajo Zambrano have concluded conciliation agreements; Mr Sergio Ruiz Taipe, Mr Héctor Darío Rojas Machuca and Mr Enrique Thomas Vargas Deudor have been reinstated; and the proceedings in connection with Mr Lamberto Óscar Babetón Venancio, Mr Lucio Cuya Pullo, Ms Mónica Elisa Meneses La Riva and Mr Ángel Teófilo Tarazona Rodríguez are still under way.
3. 996. The Government draws attention to the procedure for collective dismissal, and domestic legislation on the matter. In particular, it notes that the single consolidated text under Legislative Decree No. 728, the Labour Productivity and Competitiveness Act, approved by Supreme Decree No. 003-97-TR, is the legal provision covering the labour relations of workers subject to the labour regulations governing private activity. In this respect, section 46(b) of the Act sets out that economic, technological, structural or similar reasons are among the objective grounds for the collective termination of employment contracts. Likewise, section 48 sets out that the termination of employment contracts on the objective grounds covered under section 46(b) can only be carried out in cases where a minimum of 10 per cent of the total workforce of the enterprise is involved, subject to the following:
   • (a) The enterprise should furnish the trade union, or if there is none, the workers or their authorized representatives, with the relevant information stating the precise reasons for dismissal and list the names of the affected workers. This will enable the administrative labour authority to institute proceedings.
   • (b) The enterprise, together with the trade union, or if there is none, with the affected workers or their representatives, shall enter into negotiations to reach agreement on the conditions of termination of employment contracts or other measures to avoid or limit the termination of employment. Such measures might include the temporary suspension of activities, either partially or in full; a reduction in working shifts, days or hours; a change in working conditions; a revision of the collective conditions in force; and any other measure that may foster continuity of the enterprise’s economic activities. This agreement shall be binding.
   • (c) At the same time, or at a later date, the employer shall submit to the administrative labour authority a sworn statement indicating that it is affected by the objective grounds invoked, and enclose an expert report certifying the merits thereof; this report must be prepared by an auditor authorized by the Office of the Controller General of the Republic. Also, the employer may petition for a complete suspension of activities for the duration of the proceedings, which shall be deemed to be approved upon receipt of said communication, without prejudice to subsequent verification by the labour inspectorate. The administrative labour authority shall notify the trade union, or if there is none, the workers or their representatives, of the expert report within 48 hours of receipt; the workers may then submit additional expert reports within the following 15 working days.
   • (d) Past that time frame, the administrative labour authority has 24 hours to convoke conciliation meetings with the worker and employer representatives, which must be held within the three working days that follow.
   • (e) Past those time frames, the administrative labour authority must hand down a decision within five working days, at the end of which, if no decision has been made, the petition shall be considered to be approved.
   • (f) Any appeal against the express or implied decision must be lodged within three working days, and the matter must be resolved within five working days. If no decision has been handed down within that time frame, the challenged decision shall be upheld.
4. 997. The Government adds that, similarly, under section 50 of the Act, for cases covered under section 46(b), the employer shall notify the affected workers of the authorization for dismissal and provide them with social benefits as required by law. In this connection, the procedure for the collective dismissal on economic and structural grounds, instituted by Hogar Clínica San Juan de Dios, falls to the Subdirectorate for Collective Negotiations, under Cases Nos 276098-2008-MTPE/2/12.210 and 21308-2009-MTPE/2/12.210.
5. 998. According to Case No. 276098-2008-MTPE/2/12.210:
   • – Hogar Clínica San Juan de Dios submitted its petition for collective dismissal on 18 November 2008, invoking economic and structural grounds. To facilitate consideration of this request, the petitioner was asked to submit documentation as required under administrative procedure No. 5(b) of the Compendium of Administrative Procedures (TUPA) within ten days. The petitioner was later informed that the deadline had expired.
   • – The petitioner sent the requested information to the administrative labour authority, but as it was incomplete, its petition for collective termination was declared inadmissible by an unnumbered subdirectoral decision of 12 December 2008, and the case was shelved.
   • – An appeal was lodged against the unnumbered subdirectoral decision, which was upheld by directoral decision No. 001-2009-MTPE/2/12.2 of 5 January 2009, handed down by the Directorate for the Prevention and Settlement of Disputes, once again ordering that the case be shelved.
   • – Subsequently, an application for the judicial review of directoral decision No. 0012009-MTPE/2/12.2 was submitted and declared inadmissible by the Regional Directorate of Lima and Callao, through an unnumbered directoral decision of 5 February 2009, thus ordering that the case be shelved.
6. 999. According to Case No. 21308-2009-MTPE/2/12.210:
   • – Hogar Clínica San Juan de Dios submitted its petition for collective dismissal on economic and structural grounds on 12 February 2009, a measure which affected 86 workers. To facilitate consideration of the petition, Hogar Clínica was asked to bring its petition into line with the provisions under 5(b) of the TUPA within ten days.
   • – Once this was done, the Subdirectorate for Collective Negotiations ordered the hearing of the case on the procedure for the collective termination of employment contracts for economic, technological, structural and similar reasons, instituted by Hogar Clínica San Juan de Dios , notifying the affected workers of the expert report.
   • – On 30 April 2009, Hogar Clínica San Juan de Dios was ordered to provide the addresses of three workers (Ms Rosa Emperatriz Mariñas de la Peña, Mr Luis Alberto Flores Ruiz and Ms Miriam Reyes la Chira) within five working days, who would otherwise be excluded from the case being heard; this requirement was met on 13 May 2009.
   • – The Subdirectorate for Collective Negotiations, through an order dated 26 June 2009, invited the parties to hold conciliation meetings on 9, 10 and 13 July 2009; in spite of due notification, the representatives of the trade union organization did not attend the meetings.
   • – The Directorate for the Prevention and Settlement of Disputes, through directoral decision No. 157-2009-MTPE/2/12.2 of 17 July 2009, rejected the petition for the termination of employment contracts on the grounds that Hogar Clínica San Juan de Dios had failed, in the expert report of 12 November 2008, to duly and adequately substantiate the alleged grounds for the termination.
   • – At the appeal stage, the Regional Labour and Employment Promotion Directorate of Lima-Callao, through directoral decision No. 035-2009-MTPE/2/12.1 of 14 August 2009, declared the appeal to be inadmissible and confirmed the decision that had been issued at the lower-level review.
   • – In the final administrative proceedings, the National Labour Relations Directorate, through directoral decision No. 031-2009-MTPE/2/11.1 of 23 September 2009, excluded from the proceedings 17 workers who, at that time, had no labour relationship with the appellant, and upheld the decisions issued by the Regional Labour and Employment Promotion Directorate of Lima-Callao and the Directorate for the Prevention and Settlement of Disputes.
   • – Hogar Clínica San Juan de Dios, in a written document dated 13 October 2009, and in line with the administrative labour authority’s orders, informed the Subdirectorate for Collective Negotiations that, of the 86 workers included in the procedure for collective termination, 37 had been reinstated, 48 had concluded a termination agreement, dissolving their labour relationship, and one person had died during the proceedings. This is the most recent update on the case.
7. 1000. With reference to the amparo proceedings filed by the trade union on 28 November 2008 before the 27th Civil Court of Lima against Hogar Clínica San Juan de Dios for the collective termination and the preventive measure filed before the same court on 15 December 2008 (which was approved on 6 January 2009), the Government notes that the judiciary has provided the following information: with regard to the main amparo proceedings, through decision No. 21 of 24 March 2009, the 26th Special Civil Court of Lima partially upheld the petition and, consequently, ordered that the defendant reinstate the leaders of the Union of Workers of Hogar Clínica San Juan de Dios. This ruling was appealed through decision No. 25 of 6 April 2009 and brought before the higher level court competent to consider the appeal: the First Civil Division of the Supreme Court of Justice of Lima, under Case No. 01191-2009. Through decision No. 4 of 30 July 2009, said First Civil Division reversed decision No. 21 of 24 March 2009 and, by a new decision, declared the petition to be inadmissible. Decision of 11 September 2009 granted leave to file an appeal with the Constitutional Court (recurso de agravio constitucional) against the judgement of 30 July 2009, thus bringing the case before the Constitutional Court, where the relevant legal proceedings are still under way.
8. 1001. With regard to the preventive measure, the Union of Workers of Hogar Clínica San Juan de Dios, after its petition was admitted at the first level, requested that the preventive measure consist of the suspension of the action in violation of trade union immunity and order the defendant to reinstate the affected leaders, which was granted by a decision of 6 January 2009. After a series of steps taken to carry out the order, and in the light of the elapsed time, the defendant was issued a fine equivalent to two procedural reference units and was subsequently fined one additional reference unit.
9. 1002. The Government notes that Peruvian labour law governing freedom of association is in line with ILO standards and principles; thus, in relation to ILO Convention No. 98, its legislation protects the right to organize and the free and voluntary affiliation to a trade union and stipulates that the employer should refrain from any activity intended to limit, restrict or otherwise undermine workers’ rights to the freedom of association. The employer, against which the Union of Workers of Hogar Clínica de San Juan de Dios filed a complaint in connection with its fraudulent dismissal of the trade union board, presented its answer to the charges; it noted that the relevant workers were included in the procedure for collective termination, not on the basis of their status as trade union leaders, but strictly on the basis of their areas of work, which needed to be eliminated or restructured in line with the technical reports presented in the complaint, which state: “... Hogar Clínica must reduce its staff expenditure by approximately 50 per cent in order to bring its operational deficit down to manageable levels ... staff cuts, in general, should mainly be applied in the administration, clinical and orthopaedic units. In accordance with our expert report, we believe that there are objective, structural grounds for the collective termination of some of the employment contracts of workers active in the aforementioned areas of activity, in line with the provisions under the single consolidated text of Legislative Decree No. 728, approved by Supreme Decree No. 003-97-TR ...”.
10. 1003. The Government notes in this regard that Hogar Clínica San Juan de Dios has submitted the documentation substantiating the mutual termination agreement of Mr Miguel Luis Jaime Salinas, Mr Teófanes Pedro Eulogio Espinoza, Mr Emiliano Sulca Rojas and Mr Dionisio Lajo Zambrano, as well as the documentation for the reinstatement of Mr Sergio Ruiz Taipe, Mr Héctor Darío Rojas Machuca and Mr Enrique Thomas Vargas Deudor, all board members of the trade union which formulated the complaint. It should be noted that the signing of a mutual termination agreement is a wilful decision of both the workers and the employer to terminate labour relations, whereby the employer undertakes to pay compensation to the workers and the workers refrain from engaging in legal proceedings, or from instituting new ones.
11. 1004. In this connection, the Government notes that the four remaining board members of the complainant trade union, Mr Lamberto Óscar Babetón Venancio, Mr Lucio Cuya Pullo, Ms Mónica Elisa Meneses La Riva and Mr Ángel Teófilo Tarazona Rodríguez, are involved in the aforementioned amparo proceedings, on which a final decision has yet to be made by the Constitutional Court. Also, it should be noted that Hogar Clínica San Juan de Dios has deposited with the competent legal body the social benefits for the union leaders who have instituted the aforementioned amparo proceedings. The administrative labour authority shall therefore refrain from issuing an opinion on this matter, as to do otherwise would mean that any officials who did not comply with the relevant rule under the single consolidated text of the Judiciary Organization Act might be held liable, in accordance with section 139(2) of the Political Constitution of Peru, which is based on respect for the independence of the judiciary, the fundamental pillar for safeguarding the rule of law in the country. Notwithstanding the foregoing, of the workers alleged to have been affected and who are included in the complaint, 11 are union leaders, and the remaining are workers. Of those 11 union leaders, three have been reinstated, four have concluded termination agreements and four others have filed amparo proceedings, currently being heard before the Constitutional Court.

C. The Committee’s conclusions

1. 1005. The Committee notes that, in this case, the complainant alleges that, notwithstanding that the administrative labour authority declared inadmissible the petition for the collective termination of employment contracts for economic and structural reasons, Hogar Clínica San Juan de Dios (hereafter “Hogar Clínica”) nevertheless dismissed 103 workers, including all 11 board members of the Union of Workers of Hogar Clínica San Juan de Dios, invoking the deterioration of its economic and financial situation.
2. 1006. The Committee notes that, according to the employer (Hogar Clínica): (1) the procedure for collective termination on economic and structural grounds was carried out in strict application of the law, without any hidden reasons in connection with the elimination of the trade union; (2) if trade union leaders were included in the procedure for collective termination, it is because they worked in the areas affected by the restructuring process; and (3) of the 11 board members mentioned in the complaint, three have been reinstated, four have concluded termination agreements and four have instituted legal proceedings which are still under way.
3. 1007. The Committee notes that the Government draws attention to the legal provisions in connection with the objective grounds – economic, technological, structural or similar reasons – for the collective termination of employment contracts, and also notes that: (1) on 18 November 2008, Hogar Clínica filed a petition before the administrative labour authority for collective dismissal on economic and structural grounds, which was declared inadmissible; and (2) on 12 February 2009, Hogar filed a new petition before the administrative labour authority, which included 86 workers (and not 103, as claimed by the complainant, since 17 of them did not have an employment relationship), which was also rejected. The Government states that, of these 86 workers, 48 concluded a mutual termination agreement, 37 were reinstated and one died in the course of the proceedings.
4. 1008. The Committee further notes that, according to the Government, the trade union organization in question instituted legal proceedings in connection with the dismissals and the judiciary noted that: (1) in connection with the main amparo proceedings, (i) through decision No. 21 of 24 March 2009, the 26th Special Civil Court of Lima partially upheld the petition and ordered the reinstatement of the trade union leaders; (ii) this judgement was appealed, and through decision No. 4 of 30 July 2009, the Civil Division of the Supreme Court of Justice of Lima reversed decision No. 21 of 24 March 2009 and declared the petition filed by the dismissed union leaders inadmissible; and (iii) through a decision of 11 September 2009, the dismissed trade union leaders were granted leave to file an appeal with the Constitutional Court (recurso de agravio constitucional) against the ruling of 30 July 2009, and the case was brought before the Constitutional Court, where proceedings are still under way; and (2) the preventive measure to suspend the action in violation of trade union immunity was granted by a decision of 6 January 2009. After a series of steps taken to carry out the order, and in the light of the time that had elapsed, Hogar was issued a fine equivalent to three procedural reference units (approximately US$370).
5. 1009. In this respect, the Committee recalls that one of the fundamental principles of freedom of association is that workers should enjoy adequate protection against all acts of anti-union discrimination in respect of their employment, such as dismissal, demotion, transfer or other prejudicial measures. This protection is particularly desirable in the case of trade union officials because, in order to be able to perform their trade union duties in full independence, they should have a guarantee that they will not be prejudiced on account of the mandate which they hold from their trade unions. The Committee has considered that the guarantee of such protection in the case of trade union officials is also necessary in order to ensure that effect is given to the fundamental principle that workers’ organizations shall have the right to elect their representatives in full freedom [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 799]. In these circumstances, while noting that four union leaders were granted, through a preventive measure, a temporary order for reinstatement, the Committee expects that the Constitutional Court will issue a final ruling in the very near future in connection with the dismissal of trade union leaders Mr Lamberto Óscar Babetón Venancio, Mr Lucio Cuya Pullo, Ms Mónica Elisa Meneses La Riva and M Ángel Teófilo Tarazona Rodríguez, and will take the aforementioned principle into account. The Committee requests the Government to keep it informed in this regard.