Rapport intérimaire - Rapport No. 338, Novembre 2005

1187. This complaint is contained in communications dated 28 January and 19 August 2003, 25 June, 2 July, 25 August and 21 December 2004, 28 May and 5 September 2005 from the General Confederation of Workers of Peru (CGTP).

1. 1188. The Government sent its observations on 25 November 2003, 19 October 2004 and 7 February, 3 March, 27 April, 26 July, 4 and 8 August 2005.
2. 1189. 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. 1190. In its communications dated 28 January and 19 August 2003, 25 June, 2 July, 25 August and 21 December 2004, 28 May and 5 September 2005, the General Confederation of Workers of Peru (CGTP) presents the following allegations:
2. (a) On 1 December 2002, workers from Petrotech Peruana S.A. formed the company trade union and proceeded to appoint the Executive Committee. On 2 December a request was lodged before the Regional Labour and Employment Promotion Directorate in Talara for union registration, which was granted on 4 December. According to the complainant, from 4 December, the company sent a series of letters of dismissal to various members of the Executive Committee, in contravention of trade union immunity (fuero sindical). Indeed, a notice of dismissal was sent by the company to the General Secretary, Mr. Leónidas Campos Barranzuela, which took effect on 10 December; on 9 December the company requested the annulment of union registration and sent letters of dismissal to further workers; and on 27 December it sent a letter of dismissal to the Deputy General Secretary, Mr. Julio Purizaca Cornejo. According to the complainant, the trade union currently has only 24 members and, without the minimum necessary membership, is now barely viable.
3. (b) Incidents of harassment of Mr. Víctor Alejandro Valdivia Castilla, the Press and Propaganda Secretary of the Trade Union of Ancash Regional Government Workers, by the President of the Ancash region, who lodged a complaint of alleged aggravated defamation against Mr. Valdivia Castilla for having made public statements concerning irregularities in the regional administration.
4. (c) At the Santa Luisa Mining Company S.A., the withholding of union leave established in the collective agreement for attendance at events organized by the higher level body or federation concerned with a particular branch of activity, as well as the leave granted by the negotiating committee responsible for holding talks on the union’s list of requests and the anti-union transfer of trade union leaders from their main productive work to camp cleaning duties. Legal proceedings have been brought by the trade union leaders against this transfer.
5. (d) At Corporación Aceras Arequipa S.A., more than 300 members of permanent staff have been dismissed since 1990 and replaced by contract workers who do not enjoy the same benefits, with the aim of cutting back the numbers of workers who are members of the trade union.
6. (e) At Embotelladora Latinoamericana S.A., recently acquired by Corporación Lindley S.A., 132 trade union members, including six union leaders, have been collectively dismissed with the aim, according to the complainant, of undermining the trade union.
7. (f) At the Southern Peru Copper Corporation, Mr. Ricardo José Quispe Caso, Toquepala area delegate for the Instrumentation, Electricity and Water Systems Section of the Toquepala Mineworkers’ Union at the Southern Peru Copper Corporation, was dismissed and the company is trying to expel him from his residence following allegations that he had been involved in an assault on a worker who did not take part in a strike held on 9 September 2004. In addition, the complainant alleges the widespread use of contract personnel with fewer benefits than permanent employees and without the right to form trade unions or engage in collective bargaining.
8. B. The Government’s reply
9. 1191. In its communications dated 25 November 2003, 19 October 2004 and 7 February, 3 March, 27 April, 26 July, 4 and 8 August 2005, the Government sends the following observations.
10. 1192. With regard to the allegation concerning the dismissal of various members of the Executive Committee of the Petrotech Peruana S.A. trade union as a result of the formation of the union, the Government states that Peruvian law recognizes the right of workers to form trade unions in section 1 of article 28 of the Political Constitution. At the same time, this article recognizes workers’ right to trade union immunity (fuero sindical). Article 4 of the Constitution states that “The State, the employers and representatives of either shall refrain from any actions tending in any way to constrain, restrict or diminish the right of workers to form unions.” The Government states that in this case, having been dismissed, the union leaders and trade union members have the right to bring legal proceedings before the courts and demand to be reinstated in accordance with the provisions of subsection a) of article 29 of Supreme Decree No. 003-97-TR, which stipulates that any dismissal is null and void if carried out for reasons of trade union membership or involvement in trade union activities. Under such circumstances, the worker has the right to be reinstated unless he or she opts for compensation, as also stipulated in the Decree, equivalent to one-and-a-half time’s normal pay for every complete year of service. In this regard, the Government concludes that, given that the current legal framework establishes the necessary guarantees of protection of collective rights, workers are able to bring their cases before the courts, with the result that Peru has not violated international labour Conventions.
11. 1193. With regard to the allegations concerning the Santa Luisa Mining Company S.A. regarding the refusal to allow union leave and the anti-union transfer of union leaders, the Government states that, in the light of the information obtained by the company, the National Labour Relations Directorate issued Report No. 017-2005-MTPE/OAL-OAI, dated 7 February 2005. According to this report, there is a complete lack of agreement between the company and the trade union on the question of union leave to attend higher level events. The company confirms this information. With regard to the transfer of trade union leaders Oscar Falcón Mora (General Secretary) and Hernández Ñaupari Leyva (Legal Defence Secretary) of the Mining Workers’ Union of the Santa Luisa Mining Company of Hunzalá, this is, according to the report, part of a new programme of job rotation applicable to all personnel in order to raise working, safety and health standards at the mine without affecting pay or necessitating relocation to other company premises; the company denies that they are carrying out cleaning duties. The Government states furthermore that the new work rotation regime does not affect the ability to exercise trade union functions and it does not imply, according to the company, any negative effect from an economic or labour conditions point of view. With regard to the legal proceedings brought by the trade union leaders, the Government states that, according to Supreme Court, Case No. 183402-2004-00314 is currently being considered, having already been heard on 8 February 2005. According to the report, two other cases brought by the trade union against the company are also being considered. The Government states that no complaint concerning the allegations of transfer was brought before the Labour Inspector.
12. 1194. With regard to the allegations made concerning Embotelladora Latinoamericana S.A., the Government states that, on 28 May 2004, the company requested the collective termination on structural grounds of the employment contracts of 233 workers in order to move towards a decentralized trading model. The Ministry of Labour and Employment Promotion (MTPE) held a series of independent meetings in order to settle the dispute but failed to reach an agreement with respect to 68 workers. The MTPE, through the Directorate for Dispute Prevention and Resolution, therefore issued Directorial Resolution No. 096-2004-DRTPELC-DPSC, dated 2 September 2004, whereby it ruled against the company’s request for collective layoffs of workers on structural grounds, considering such a measure to be unjustified. This decision was confirmed by the Regional Labour Directorate through Directorial Resolution No. 015-2004-MTPE/DVMT/DRTPELC, dated 24 September 2004, and by the National Labour Relations Directorate on 14 October 2004.
13. 1195. The Government emphasizes that, although the collective redundancy initially covered 233 workers, 133 took retirement and 32 were relocated between 25 May and 12 July 2004, with only 68 surplus personnel members remaining. The Government adds that included among those employees made redundant were three union workers covered by trade union immunity whose posts had been eliminated as a result of decentralization. The posts in question were two service lift operators and one door-to-door salesperson.
14. 1196. With regard to the dismissal of Mr. Ricardo José Quispe Caso, Toquepala area delegate for the Instrumentation, Electricity and Water Systems Section of the Toquepala Mineworkers’ Union at the Southern Peru Copper Corporation, as a result of his involvement in an assault on a worker who did not participate in a strike held between 31 August and 9 September 2004, the Government states that, on 31 August, members of the Toquepala Mineworkers’ Union began an indefinite strike, declared illegal by the Tacna Administrative Authorities by Directorial Order No. 010-2004-DPSCI-TAC, dated 9 September 2004. The Government adds that the company informed Mr. Quispe Caso by letter of the initiation of investigative procedures against him, in accordance with article 49 of the company’s Internal Labour Regulations, as a result of the complaint lodged on 9 September 2004 with the Peruvian National Police in Toquepala by Julio Washington Ticona Nieto following the physical and verbal assault he suffered at the hands of Mr. Quispe Caso, who also caused damage to Southern Peru property. The Government adds that Mr. Quispe Caso duly prepared his defence and that on 11 October 2004, the company proceeded to dismiss him for gross misconduct, acts of violence, insult and offence. On 3 November, Mr Quispe Caso lodged a demand with Labour Tribunal No. 19 of the Superior Court in Lima for the dismissal to be declared null and void, alleging that it stemmed from his trade union activities. This case is currently at the stage of presenting evidence.
15. 1197. Regarding the allegations concerning the widespread use of contract personnel with fewer benefits than permanent employees, and without the right to form trade unions or engage in collective bargaining, the Government states that employment intermediation or subcontracting of the workforce (whereby the company receiving the workforce has no link with the workers) can only be used for short-term, complementary and specialist services. Short-term services involve the supply of staff to meet various intermittent needs connected with the activities of the workplace or to temporarily replace a permanent company employee. Complementary services are those involving the supply of personnel to engage in auxiliary, secondary services unconnected with the main activities of the user enterprise, and specialized services involve any activities that require a high degree of scientific or technical knowledge, or qualifications. As stipulated by the law, employment intermediation or subcontracting is not appropriate for permanent work in the company’s main sphere of activity.
16. 1198. The Government adds that, in the case of the subcontracting of services, one company engages another company, the latter using its own resources and organizational structure to provide an integrated service forming part of the production process of the former. According to the Government, the law does not regulate or prohibit outsourcing of services, being restricted to regulating the conditions for legal employment intermediation. The Labour Regulations incorporate the term “outsourcing” as a means of keeping it outside the scope of application of the law. Hence, in accordance with article 4 of the Regulations, external outsourcing does not meet the conditions for employment intermediation if the intention is for a third party to assume responsibility for an integral part of a company’s production process, as is also the case for services provided by contractors and subcontractors, provided that they take sole risk and responsibility for the tasks contracted to them, that they have at their disposal their own financial, technical and material resources, and that their workers are answerable exclusively to them. The Government states that any incidence of outsourcing with the principal aim of supplying personnel fulfils the conditions for disguised employment intermediation, which is considered illegal.

C. The Committee’s conclusions

1. 1199. The Committee observes that this case concerns: (a) the dismissal of several members of the Executive Committee of the Petrotech Peruana S.A. trade union immediately following the formation of the union; (b) harassment of Mr. Víctor Alejandro Valdivia Castilla, leader of the Trade Union of Ancash Regional Government Workers, following accusations made by him of irregularities in the regional administration; (c) the refusal to allow union leave, and transfer of trade union leaders at the Santa Luisa Mining Company; (d) the dismissal of more than 300 members of the permanent workforce of Corporación Aceros Arequipa S.A. and their replacement with contract workers enjoying fewer benefits, with the intention of undermining the trade union; (e) the dismissal of 132 trade union members and the use of contract workers enjoying fewer benefits than the permanent workforce at Embotelladora Lationamericana S.A.; (f) the dismissal of Mr. Ricardo José Quispe Caso, a member of the Toquepala Mineworkers’ Union, as a result of his alleged involvement in an assault on another worker and the use of contract workers without the right to form trade unions or engage in collective bargaining.
2. 1200. With regard to the allegations concerning the dismissal of several members of the Executive Committee of the Petrotech Peruana S.A. trade union immediately following the formation of the trade union, the Committee notes that, according to the complainant organization, the dismissal of several members of the Executive Committee meant that the union membership was reduced to 24, leaving it barely viable. The Committee notes the Government’s statement to the effect that Peruvian legislation guarantees the protection of workers against precisely this type of scenario, with those affected given the opportunity to bring the appropriate legal proceedings, and that for this reason, Peru cannot be considered to have committed any violation of the Conventions on freedom of association. The Committee recalls that “the necessary measures should be taken so that trade unionists who have been dismissed for activities related to the establishment of a union are reinstated in their functions if they so wish” [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, para. 703]. Thus, the Committee, observing that the Government does not deny that the alleged facts could constitute violation by the company of the right to freedom of association, requests it to take steps to conduct an investigation and, if it is established that the dismissals occurred as a result of the formation of the trade union, immediately to reinstate the dismissed union leaders with payment of any wages owed to them and, if reinstatement is not possible, to pay them adequate compensation taking account of the damage caused and the need to avoid the repetition of such acts in the future. The Committee considers that it would be appropriate that the Government obtain from the company, through the employers’ organization concerned, their comments with regard to this point, in particular, whether they were informed that those dismissed were trade union leaders and members.
3. 1201. With regard to the allegations concerning the withholding of union leave established in the collective agreement for attendance at events organized by the higher level body or federation concerned with a particular branch of activity, as well as the leave granted by the committee responsible for holding talks on the union’s list of claims at the Santa Luisa Mining Company S.A., the Committee takes note of the Government’s statement that the National Labour Relations Directorate issued Report No. 017-2005-MTPE/OAJ-OAI, dated 7 February 2005, on the basis of the information provided by the company, and that according to the report, there is a complete lack of agreement between the company and the trade union on the question of union leave to attend higher level events; the company confirms this information.
4. 1202. With regard to the anti-union transfer of the union leaders Falcón Mora and Hernández Ñaupari Leyva from their main productive work to company camp cleaning duties, the Committee notes that, according to the complainant organization, the transferred workers brought legal proceedings against this measure. At the same time, the Committee notes that according to the Government, the report produced by the Ministry of Labour and Employment Promotion shows that the transfer was carried out as a result of a new programme of job rotation applicable to all personnel in order to raise working, safety and health standards at the mine without affecting pay, the exercising of trade union functions or necessitating relocation to other premises, and that, according to the Supreme Court of Justice report, the legal proceedings brought by the union leaders are currently being considered. In addition, the new work rotation regime has not given rise to complaints before the labour inspectorate and, according to the company, it is not sure that the workers are assigned to cleaning duties, nor that this regime negatively affected their economic and labour conditions. The Committee requests the Government to keep it informed of the outcome of these proceedings.
5. 1203. With regard to the allegations concerning the collective dismissal of 132 trade union members, including six union leaders, at Embotelladora Lationamericana, recently acquired by Corporación Lindley S.A., with the aim of undermining the trade union, the Committee takes note of the Government’s statement to the effect that, on 28 May 2004, the company requested the collective termination of the employment contracts of 233 workers in order to modify its business structure, and that the Ministry of Labour and Employment Promotion (MTPE), through the Directorate for Dispute Prevention and Resolution, issued Directorial Resolution No. 096-2004-DRTPELC-DPSC, dated 2 September 2004, whereby it rejected the company’s request for collective layoffs on structural grounds, considering such a measure as unjustified, a decision that was confirmed by the Regional Labour Directorate through Directorial Resolution No. 015-2004-MTPE/DVMT/
6. DRTPELC, dated 24 September 2004, and by the National Labour Relations Directorate on 14 October 2004. The Committee notes that the Government emphasizes that, although the collective redundancy initially covered 233 workers, a total of 133 took retirement and 32 were relocated and continued working for the company between 25 May and 12 July 2004, with only 68 surplus personnel members remaining, three of whom were union workers covered by trade union immunity, whose posts had, according to the Government, been eliminated as a result of decentralization.
7. 1204. The Committee observes that discrepancies exist with regard to the number of trade union members affected. The Committee concludes from the allegations and the Government’s observations that, of the 233 workers whose collective redundancy was not authorized by the MTPE, 133 opted for voluntary retirement according to the Government, whilst, according to the allegations, there were in fact 132 redundancies, including six trade union members. According to the Government, of the remaining workers, 32 were relocated, with 68, including three trade union leaders, considered surplus to requirements.
8. 1205. The Committee requests the Government to provide clarification on the scope of the term “surplus” and on whether, despite the ruling against the request for collective redundancy by the Ministry for Labour and Employment Promotion on the grounds that it was unjustified, the company proceeded to impose redundancies. The Committee also requests clarification on the total number of workers opting for voluntary retirement, the total number of workers affected by collective redundancy, including trade union leaders, and in the case of these leaders, clarification as to whether a request for the lifting of trade union immunity was lodged prior to dismissal.
9. 1206. With regard to the allegations concerning the dismissal of Mr. Ricardo José Quispe Caso, Toquepala area delegate for the Instrumentation, Electricity and Water Systems Section of the Toquepala Mineworkers’ Union at the Southern Peru Copper Corporation, on the grounds that he was involved in an assault on a worker who did not take part in a strike held between 31 August and 9 September 2004 (on the basis of a complaint made by the worker in question not the company), the Committee notes that, according to the Government, the legal proceedings brought by Mr. Quispe Caso seeking to have the dismissal declared null and void are currently at the stage of presentation of evidence. The Committee requests the Government to keep it informed of the legal decision that is handed down.
10. 1207. With regard to the allegations concerning widespread use of contract personnel with fewer benefits than permanent employees and without the right to form trade unions or engage in collective bargaining, the Committee takes note of the explanation provided by the Government concerning subcontracting of labour and services. The Committee notes that subcontracting of labour is not appropriate for the company’s main activity, since this is illegal, and that when it comes to the subcontracting of services, service providers must take responsibility for all questions relating to protection and risk-management of the workers under their supervision. Under those circumstances, the Committee requests the Government to take steps to conduct an investigation in order to establish whether the legislation is being complied with at Southern Peru Copper Corporation, at the same time ensuring that the principles of freedom of association are being fully applied at the company.
11. 1208. Concerning the dismissal of more than 300 members of the permanent workforce of Corporación Aceros Arequipa S.A. and their replacement by contract workers enjoying fewer benefits, with the intention of undermining the trade union, the Committee notes the statement of the company to the effect that it would duly respect the percentage of recruitment through employment agencies as provided by legislation and the Government’s indication that it will visit the company in its quality as employment agent. The Committee requests the Government to communicate the results of this visit by the authorities and to provide its observations on the alleged dismissal of over 300 workers.
12. 1209. The Committee notes with regret that the Government does not supply observations relating to the allegations of harassment of Mr. Víctor Alejandro Valdivia Castilla, the Press and Propaganda Secretary of the Trade Union of Ancash Regional Government Workers by the President of the Ancash region and requests it to send its observations in this respect.