Informe provisional - Informe núm. 353, Marzo 2009

1. 1054. The Committee last examined this case at its meeting in June 2008 and on that
   • occasion submitted an interim report to the Governing Body [see 350th Report,
   • paras 1452–1493, approved by the Governing Body at its 302nd Session]. In its communications dated 13 June 2008 and 22 August 2008, the Federation of Fishing Industry Workers of Peru (FETRAPEP) sent new allegations.
2. 1055. The Government sent its observations in communications dated 26, 28 and 30 May, 10 September and 22 October 2008, and 20 January 2009.
3. 1056. 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. Previous examination of the case

1. 1057. When it examined this case in June 2008, the Committee made the following recommendations [see 350th Report, para. 1493]:
   • (a) The Committee expects that the administrative authority will launch without delay the evaluation which it announces in relation to the allegations concerning Pesquera San Fermín SA (dismissal of the last two general secretaries of FETRAPEP, Mr Eugenio Caritas and Mr Wilmert Medina Campos, and of member Mr Richard Veliz Santa Cruz, and pre-dismissal letters sent to Mr Juan Martínez Dulanti records and archives secretary, Mr Ronald Díaz Chilca, discipline, culture and sport secretary, and Mr Freddy Medina Soto, member), Tecnológica de Alimentos SA Grupo SIPESA (after putting pressure on the workers, all workers at all plants were dismissed on 25 July 2006) and Alexandra SAC (non-recognition of the union and harassment of its members), and requests the Government to send its observations in this respect.
   • (b) The Committee urges the Government to send its observations without delay regarding the allegations concerning: (1) Pesquera Diamante SA (the alleged dismissal of 37 unionized workers who refused to sign a six-month contract and the alleged forcible detention of all unionized workers until they signed a new contract; at present, the workers have signed a contract for one year with the proviso that the union remains inactive for one year); and (2) CFG Investment SAC (the alleged dismissal of 16 workers who were members of the union including eight members of the executive committee and the members of the board negotiating the list of claims for non-completion of the negotiations for the 2006–07 period). The Committee also requests the Government to obtain and transmit the comments of the enterprises on these allegations, through the employers' organizations concerned.
   • (c) The Committee requests the Government to keep it informed without delay of the outcome of the investigations undertaken by the National Labour Inspection Directorate at the Southern Peru Copper Corporation to verify whether any actions had been committed by the enterprise during the collective bargaining with three unions (minority unions, in the complainant's view) which had affected the freedom of association of the workers or trade unions.
   • (d) …
   • (e) With regard to the allegations of anti-union dismissals of the workers of the Single Union of Workers of Textiles San Sebastián SAC including the officials mentioned by the complainant the Committee requests the Government, if the allegations already verified by the administrative authority are confirmed, to take all the necessary measures to reinstate the dismissed trade union leaders and members as a primary remedy; if the judicial authority determines that reinstatement of trade union members is not possible for objective and compelling reasons, adequate compensation should be awarded to remedy all damages suffered and prevent any repetition of such acts in the future, so as to constitute a sufficiently dissuasive sanction against acts of anti-union discrimination. The Committee also urges the Government to take the necessary steps to ensure that the enterprise recognizes the trade union, remedies the anti-union measures taken against it and refrains from adopting any such measures in the future, and also to promote collective bargaining between the parties. The Committee requests the Government to keep it informed in this respect.
   • (f) As regards the allegation that Pesca Perú Huarmey SA requested judicial revocation of the registration of the trade union on the grounds that the latter no longer had the requisite minimum number of members, the Committee, while observing that the revocation was effected through judicial channels, requests the Government to confirm that the judicial authority did not find that the reduction in the minimum number of workers which gave rise to the revocation of the union registration occurred as a result of anti-union persecution.

B. New allegations

1. 1058. In its communications dated 13 June and 22 August 2008, the FETRAPEP alleges, with regard to the dismissal in September 2007 by CFG Investment SAC of 16 workers who were members of the Union of Workers of CFG Investment SAC at the Chancay plant (including all members of the executive committee and of the board negotiating the list of claims for the 2006–07 period), invoking section 46, paragraph (b), of Supreme Decree No. 003-97-TR, without following the procedure provided for under section 48 of that decree, that the union has submitted an application for (amparo) protection of constitutional rights to the judicial authority of Chancay, which issued an interim injunction (Decision No. 01) ordering the temporary reinstatement of 15 of the 16 affected workers.
2. 1059. Despite that, the enterprise sent a notarized letter to the 15 workers informing them that, from Tuesday, 22 April 2008 onwards, they would be transferred to the La Planchada plant, in Ocoña district, Camaná province, department of Arequipa.
3. 1060. The complainant organization also alleges that Mr Abel Rojas Villagaray, the union’s General Secretary, and Mr Richard Limo Llontop, have been dismissed, and that Mr  Roberto Gargate Arellán has been sent notice of dismissal.
4. 1061. Finally, the complainant organization alleges that Directive No. 118-2008-MTPE/2/12.2 of the Department for Conflict Prevention and Resolution revoked the automatic registration of the changes to the union’s by-laws and the union’s official records made by the union’s national executive committee for the period 2008–10.

C. The Government’s reply

1. 1062. In its communications dated 26, 28 and 30 May, 10 September and 22 October 2008, and 20 January 2009, the Government sent the following observations.
2. 1063. With regard to the allegations relating to the fishing industry, the Government states that the National Labour Inspection Directorate has been requested to carry out an inspection visit to the following employers:
   • – Pesquera San Fermín SA (in relation to the dismissal of Mr Eugenio Ccaritas, Mr Wilmert Medina Campos and Mr Richard Veliz Santa Cruz, and the pre-dismissal letters sent to Mr Juan Martínez Dulanto, Mr Ronald Díaz Chilca and Mr Freddy Medina Soto);
   • – Tecnológica de Alimentos SA Grupo SIPESA (regarding the dismissal of all workers at all the company’s plants on 25 July 2006);
   • – Alexandra SAC (with regard to the non-recognition of the trade union and the harassment of its members).
3. 1064. With regard to Pesquera San Fermín SA, the Government states that, under Inspection Order No. 15430-2007-MTPE/2/12.3, the commissioned labour inspector found that the union did not exist at the enterprise’s administrative offices, and, with regard to the case of Mr Richard Veliz Santa Cruz, the dismissed trade union official, a representative of the enterprise stated that the complainant was hired as a mechanic under a temporary contract to cover an increase in activity.
4. 1065. With regard to CFG Investment SAC, the Government states that, on 2 November 2006, the union submitted its list of claims for the period 2006–07 to the administrative labour authority, which initiated the direct negotiation stage. On 16 February and 26 March 2007, the union indicated that there had been changes in the membership of the negotiating committee. On 26 June 2007, the union declared the direct negotiating stage to be concluded and requested that the conciliation stage begin. As a result, the administrative labour authority summoned the parties to conciliation meetings on 4 July, 3, 10 and 24 August and 7 September 2007; it should be noted that no union representatives attended the last meeting. On 19 September 2007, the union again indicated that there had been changes in the membership of the negotiating committee. On 11 February 2008, the enterprise requested that the process be abandoned, a request which was rejected by the Area Office for Labour and Employment Promotion on 14 February 2008. On 13 May 2008, the union requested that the collective bargaining process be reinitiated with a call to all the parties to attend a conciliation meeting on 5 June 2008.
5. 1066. With regard to the disciplinary proceedings at CFG Investment SAC (File
6. No. 035-2006-PS-MTPE/2/12.621), the Government states that, through Communication No. 188-2008-MTPE/2/12.621 dated 8 April 2008, the Area Office for Labour and Employment Promotion referred the file to the Labour Inspection Directorate because an appeal had been lodged against area office resolution No. 027-2008-MTPE/2/12.621 dated 30 January 2008, which imposed a fine of 12,144 nuevos soles.
7. 1067. The Government adds that, with regard to the collective bargaining process between the Union of Workers of CFG Investment SAC in Chancay and the enterprise (File
8. No. 005-2006-NC-MTPE/2/12.621), it will forward the relevant information once it is received.
9. 1068. With regard to the allegations relating to the enterprise Pesquera Diamante SA, the Government states that, after ordering the inspection, a contravention notice was issued and the enterprise was fined 6,900 nuevos soles. It was also confirmed that the enterprise had merged with several enterprises in the industry, taking over their assets and liabilities, and that the 40 former Pesquera Polar SA employees had been included on its payroll. The enterprise also authorized the hiring of the staff affected by the suspension of work under intermittent contracts and the payment of their wages. The administrative labour authority fined Pesquera Diamante SA for disregarding the terms of the contracts, without prejudice to the right of the workers concerned to resort to appropriate legal action.
10. 1069. With regard to the reasons for the judicial decision ordering the dissolution and deregistration of the union at Pesca Perú Huarmey SA, the Government states that this measure is supported by section 20 of the Collective Labour Relations Act (Supreme decree No. 010-2003-TR), according to which if it is found that one of the legal requirements for a union’s existence is no longer met (in this case, the minimum legal membership), the judicial authority must issue the appropriate ruling. Having verified that the union no longer had the minimum of 20 members from the enterprise, the court therefore upheld the company’s application (a ruling that still stands as no appeal has been submitted) and the labour authority, pursuant to the court ruling, revoked the trade union registration of the workers in question.
11. 1070. The Government emphasizes that the administrative labour authority has actively participated in efforts to resolve the issues raised by the workers through the Regional Directorate of Labour and Employment Promotion of Lima–Callao, by carrying out the relevant inspection visits. The enterprises that have violated social and labour standards have been fined.
12. 1071. With regard to the alleged obstruction of collective bargaining in some enterprises in the fishing industry, the Government states that this was duly reported and additional information has been requested to clarify the current state of affairs.
13. 1072. With regard to the allegations relating to the mining industry, and in particular the Southern Peru Copper Corporation, the Government states that, in communication No. 2970-2007-MTPE/2/11.1 dated 15 November 2007, the National Labour Relations Directorate of the Ministry of Labour and Employment Promotion refers to the collective bargaining process of 2007, which was referred to during the previous examination of the case and in the context of which the anti-union acts are alleged to have occurred. In that regard, the Government states that the National Labour Relations Directorate, through communication No. 2320-2007-MTPE/2/11.1 dated 18 September 2007, requested the National Labour Inspection Directorate to carry out an investigation to verify whether the enterprise had committed any actions that had affected the freedom of association of the workers or trade unions concerned.
14. 1073. The Government states that, in communication No. 964-2008-MTPE/2/11.4, the National Labour Inspection Directorate declared that anti-union practices had occurred, affecting 2,446 trade union members, and, as the inspection requirement had not been complied with in a timely manner, proposed that the company should be fined 103,500 nuevos soles.
15. 1074. With regard to the allegations relating to Textiles San Sebastián SAC, the Government reiterates the information submitted in the previous examination of the case, according to which the administrative authority had confirmed the occurrence of anti-union acts. The examination of the facts and the inspections undertaken revealed the enterprise's unwillingness to recognize the union and its refusal to engage in dialogue with it. At the same time, acts of anti-union persecution against union members were reported: assigning them tasks to which they were not accustomed and transferring them to various workplaces without assigning them specific tasks and leaving them virtually without work. This anti-union practice culminated in the dismissal of 73 workers. It has been shown that, in the outsourcing process undertaken by Textiles San Sebastián SAC, the workers of that enterprise were assigned to other enterprises with different company names but still linked to Textiles San Sebastián SAC, giving rise to a situation in which workers are not sure which enterprise they work for. The other enterprises in question were set up at the same notary’s office and the machinery is still owned by Textiles San Sebastián SAC.
16. 1075. The Government has sent a transcript of the final report and the contravention notices. As a result of the proven infringements, administrative disciplinary proceedings were initiated against Textiles San Sebastián SAC under contravention notice No. 3294-2007 which arose from inspection order No. 9532-2007-MTPE/2/12.3, the current status of which is as follows: subdirectorate Decision No. 130-2008-MTPE/2/12.320 dated 7 February 2008 imposed a fine of 103,500 nuevos soles, or the equivalent of US$36,315.79, on the enterprise, which was notified on 2 April 2008 and, as it did not appeal, the decision was upheld and enforced through a ruling of 11 April 2008.
17. 1076. With respect to the new allegations of the FETRAPEP concerning Directive No. 1182008MTPE/2/12.2 of the Department for Conflict Prevention and Resolution, which revoked the automatic registration of the changes to the union’s by-laws made by the national executive committee for the period 2008–10 as well as the union’s official records, the Government indicates that according to the Regional Department of Labour and Employment Promotion of LimaCallao, this revocation was due to the fact that the trade union had failed to comply with clauses 13, 14, 15 and 21 of its bylaws, even though the administrative authority had suggested that it respect these clauses within ten days – a requisite condition provided for in article 10, paragraph (a), of the law on labour relations, which was not complied with.

D. The Committee’s conclusions

1. 1077. The Committee takes note of the new allegations presented by the FETRAPEP and the Government’s observations on the recommendations that remain pending.
2. 1078. With regard to paragraph (a) of the recommendations, the Committee recalls that it had requested the Government to launch the evaluation in relation to the allegations concerning: Pesquera San Fermín SA (dismissal of the last two general secretaries of FETRAPEP, Mr Eugenio Ccaritas and Mr Wilmert Medina Campos, and of union member Mr Richard Veliz Santa Cruz, and pre-dismissal letters sent to Mr Juan Martínez Dulanto, records and archives secretary, Mr Ronald Díaz Chilca, discipline, culture and sport secretary, and Mr Freddy Medina Soto, member); Tecnológica de Alimentos SA Grupo SIPESA (after pressure was put on the workers, all workers at all plants were dismissed on 25 July 2006); and Alexandra SAC (non-recognition of the union and harassment of its members).
3. 1079. With regard to Pesquera San Fermín SA, the Committee takes note of the Government’s information, according to which the National Labour Inspection Directorate was requested to carry out an inspection to determine whether the alleged acts took place. The Committee notes that, according to the Government’s observations, the inspection found that the union did not exist and information was received from the enterprise’s representative indicating that Mr Richard Veliz Santa Cruz, a dismissed trade union leader, had been hired under a temporary contract to cover an increase in activity. The Committee notes with regret, however, that the Government has not sent any information regarding the dismissal of Mr Wilmert Medina Campos and Mr Eugenio Ccaritas, general secretaries of FETRAPEP, or with regard to the pre-dismissal letters sent to Mr Juan Martínez Dulanto, records and archives secretary, Mr Ronald Díaz Chilca, discipline, culture and sport secretary, and Mr Freddy Medina Soto, member.
4. 1080. Under these circumstances, the Committee once again urges the Government to carry out an in-depth investigation at Pesquera San Fermín SA to obtain information on the dismissals of and pre-dismissal letters sent to the aforementioned officials and members, and the reasons for them. The Committee requests the Government to keep it informed in that regard.
5. 1081. With regard to Tecnológica de Alimentos SA Grupo SIPESA and Alexandra SAC, the Committee notes that, according to the Government, the National Labour Inspection Directorate was requested to carry out inspection visits at those enterprises; the Committee also notes, however, that the Government has not provided information on the outcome of those visits. The Committee therefore urges the Government to inform it whether those inspection visits have already been carried out and, if so, what the outcome was.
6. 1082. With regard to paragraph (b) of the recommendations, in particular in relation to the allegations concerning Pesquera Diamante SA, the Committee recalls that those allegations concerned the dismissal of 37 unionized workers who had refused to sign a six-month contract, and the forcible detention of all unionized workers until they signed a new contract containing a clause requiring the union to remain inactive for one year, which they eventually signed. In that regard, the Committee notes that the administrative authority carried out a labour inspection on the basis of which a contravention notice was issued, fining the enterprise 6,900 nuevos soles for distorting contracts, leaving the workers the option of resorting to legal action. Under these circumstances, the Committee requests the Government to send copies of the relevant inspection reports, the contravention notices and details of the fines imposed, since, from the information provided by the Government, it is not possible to tell whether the fines were imposed for violations of trade union rights or for other violations of labour legislation that were covered by the inspection.
7. 1083. With regard to paragraph (b) of the recommendations concerning the allegations against CFG Investment SAC (dismissal of 16 workers who were members of the Union of Workers of CFG Investment SAC at the Chancay plant, including eight members of the executive committee and the members of the committee negotiating the list of claims), the Committee notes that, according to the Government, the administrative authority on 8 April 2008 imposed a fine of 12,144 nuevos soles, the enterprise appealed, and collective bargaining between the union and the enterprise is under way. Nevertheless, the Committee emphasizes that the Government also pointed out that the registration of the union executive committee was cancelled by administrative decision as will be seen below.
8. 1084. The Committee notes that, according to the new allegations presented by FETRAPEP, following the aforementioned dismissal of trade union officials and members, a petition for protection of constitutional rights (amparo) was filed, which led to the order to reinstate the workers. The day after they were reinstated, the workers were transferred to a plant in a different region, and the union’s General Secretary, Mr Abel Rojas Villagaray, and two other workers were dismissed.
9. 1085. In that regard, the Committee requests the Government to carry out an in-depth investigation, without delay, into the new allegations and, if it is confirmed that new antiunion acts are taking place, to take appropriate measures to impose further sanctions on the enterprise that are sufficiently dissuasive to ensure that, in the future, it refrains from anti-union acts against trade union officials and members, reinstates the official dismissed, and revokes the transfers. With regard to the other dismissed workers, the Committee requests the Government, if the allegations of antiunion dismissal are proven true, to have them reinstated or, where this is not possible for objective and compelling reasons, to ensure that they are adequately compensated so as to constitute sufficiently dissuasive sanctions. The Committee requests the Government to keep it informed in that regard, as well as of the outcome of the appeal lodged by the enterprise against the sanction imposed previously.
10. 1086. With regard to the new allegations of the FETRAPEP concerning Directive No. 1182008MTPE/2/12.2 of the Department for Conflict Prevention and Resolution, which revoked the automatic registration of the changes to the union’s by-laws made by the national executive committee for the period 2008–10 as well as the union’s official records, the Committee notes that, according to the Government, the union had failed to comply with clauses 13, 14, 15 and 21 of its bylaws. As a consequence, the executive committee’s registration was annulled. The Committee notes that on the basis of article 10, paragraph (a), of the law on labour relations the organization was requested to comply with the requisite conditions within ten days, and did not. The Committee requests the Government to indicate any ongoing judicial actions concerning this matter.
11. 1087. With regard to paragraph (c) of the recommendations, the Committee recalls that that paragraph refers to the allegations presented by the National Federation of Mine, Metal and Steel Workers of Peru (FNTMMSP), according to which the Southern Peru Copper Corporation is seeking to impose a six-year period of validity on collective bargaining, by using five minority unions which represent 350 out of a total of 2,500 workers. The Committee further recalls that the Government had stated, in the previous examination of the case [see 350th Report, para. 1491], that the National Labour Inspection Directorate had been requested to carry out an investigation to verify whether the enterprise had committed anti-union acts against the workers or trade union organizations. In that regard, the Committee notes that the National Labour Inspection Directorate informed the Government, in a preliminary report, that anti-union practices had occurred, affecting 2,446 trade union members, and, for failure to comply with the inspection requirements, it proposed that the company should be fined 103,500 nuevos soles. The Committee requests the Government to provide information as to whether that measure had been carried out.
12. 1088. With regard to paragraph (e) of the recommendations concerning the allegations presented by the General Confederation of Workers of Peru (CGTP) (non-recognition of the Single Union of Workers of Textiles San Sebastián SAC, refusal to apply the check-off facility for the collection of union dues, refusal to provide a noticeboard, refusal to bargain collectively, outsourcing of production with a view to restricting the exercise of freedom of association, the transfer of unionized workers, and the dismissal of the General Secretary, the secretary for workers' rights and another member), the Committee recalls that in its previous examination of the case it had noted that the administrative authority had confirmed the anti-union nature of the measures including non-recognition of the union, harassment of union members, transfer of workers to other centres where no work was assigned to them and, finally, dismissal of 73 workers. The Committee notes that the Government again refers to these circumstances by stating that the administrative authority initiated disciplinary proceedings against the enterprise and that it issued subdirectorate Decision No. 130-2008-MTPE/2/12.320 dated 7 February 2008, imposing a fine of 103,500 nuevos soles (US$36,315.79), which has been upheld. In that respect, taking into account that the veracity of the allegations has been confirmed by the administrative authority, the Committee again requests the Government, in addition to implementing the sanction imposed, to take the necessary measures without delay to ensure that the enterprise reinstates the dismissed officials and workers with the payment of wage arrears, recognizes the union, rectifies the anti-union measures taken against it, and refrains from adopting any such measures in the future. The Committee further requests the Government to promote collective bargaining between the parties and to keep it informed of developments.
13. 1089. With regard to paragraph (f) of the recommendations regarding the judicial revocation of the trade union registration of the Pesca Perú Huarmey SA Trade Union, requested by the enterprise, because the union fell below the requisite minimum membership, the Committee recalls that it had requested the Government to confirm whether the judicial authority had found that the fall in the union’s membership was not the result of anti-union persecution. The Committee notes that the Government states once again that, having verified that the union no longer had 20 members, in accordance with section 20 of the Collective Labour Relations Act (Supreme Decree No. 010-2003-TR), the enterprise’s request was upheld and the union’s registration was revoked. In that regard, the Committee once again asks the Government to confirm whether the judicial authority was able to determine that the reduction in the union’s membership to a level below the legal minimum membership was not the result of dismissals or anti-union pressure exerted on union members.