Suites données aux recommandations du comité et du Conseil d’administration - Rapport No. 353, Mars 2009

Effect given to the recommendations of the Committee and the Governing Body

1. 194. The Committee last examined this case at its March 2008 meeting [see 349th Report, paras 216–222] when it requested the Government to take the necessary measures to promote collective bargaining between The Unified Trade Union of Electricity Workers of Lima and Callao (SUTREL) and the Compañia Americana Multiservicios Peru (CAMPERU SRL). Similarly, the Committee noted the Government’s statement that arrangements had been made for inspection activities with regard to: ensuring that CAMPERU SRL was deducting trade union dues as ordered by the judicial authority; the failure by EDELNOR SAA to deduct trade union dues and the payment of a bonus to workers who withdrew from SUTREL; and the alleged threats by EDELNOR SAA to restrict the activity of the trade union branch of SUTREL with regard to the distribution of its newspaper. The Committee requested the Government to continue keeping it informed of the outcome of the investigations conducted into these allegations.
2. 195. In its communications dated 3 March and 11 September 2008, the Government states that inspection activities were carried out both in the EDELNOR SAA company and in the CAM-PERU SRL company, pursuant to Inspection Orders No. 5555 in the case of the EDELNOR SAA enterprise and No. 5557 in the case of the CAM-PERU SRL company. In the first case, concerning the inspection activities in the EDELNOR SAA company, the labour inspectors in charge of the case allegedly stated that the enterprise in question had not complied with the social and labour standards in force, because it had committed acts of hostility and had infringed constitutional rights such as the freedom of expression, bound up with freedom of association, against SUTREL. They had also found that the EDELNOR SAA enterprise had allegedly failed to take steps to comply adequately with the social and labour standards in force; consequently, the Finding of Violation
3. No. 1530-2007 was submitted to the Second Sub-directorate of the Labour Inspectorate. Given the violations committed by EDELNOR SAA, defined as very serious with respect to labour relations and the obstacles put in the way of labour inspections, the labour inspectors in charge of the case proposed that EDELNOR SAA should pay a fine of 7,969.50 new soles for having committed acts of hostility against the trade union. It also proposed another fine of 7,969.50 new soles for having failed to comply in time with the injunction issued, making a total fine of 15,939 new soles.
4. 196. However, the Second Sub-directorate of the Labour Inspectorate, after examining the documentary evidence submitted by the enterprise and analyzing the Finding of Violation, ruled that, according to its analysis and interpretation of the social and labour standards in force, the alleged violations committed by EDELNOR SAA determined by the labour inspectors in charge, should not be identified as such and, consequently, did not justify penalties on the part of the labour administrative authority.
5. 197. Pursuant to Inspection Order No. 5557-2007, labour inspectors in charge of the case had carried out the necessary inspection visits which gave rise to the Finding of Violation No. 1734-2007; as a result of these visits, they ruled that the CAM-PERU SRL enterprise had neither complied with the social and labour standards in force nor respected rights connected with freedom of association and freedom of discrimination, because they had effectively failed to deduct the trade union dues of members of SUTREL and had not granted trade union licenses to the trade union officials; it had further committed acts of discrimination by only granting wage increases and further bonuses to workers not belonging to the trade union branch of SUTREL. Furthermore, the enterprise CAM-PERU SRL had not adequately fulfilled the requirements to adopt measures to comply with the social and labour standards in force, which resulted in the respective Finding of Violation No 1734-2007 being submitted to the Third Sub-directorate of the Labour Inspectorate. Given the violations committed by CAM-PERU SRL, found to be extremely serious, with respect to labour relations and labour inspections, the labour inspectors in charge of the case proposed fining the enterprise 3,312 new soles for not having deducted the trade union dues of workers belonging to SUTREL; it proposed another fine of 3,312 new soles for not granting trade union licenses, another fine of 6,072 new soles for discriminating against members belonging to SUTREL with respect to pay, and a further fine of 6,072 new soles for not having complied in time with the injunction issued, making a total of 24,840 new soles.
6. 198. The Government adds that the Third Sub-directorate of the Labour Inspectorate started administrative disciplinary proceedings in accordance with section 45 of Act No. 28806 and notified the enterprise that had been inspected of the abovementioned Finding of Violation, granting it a period of 15 working days in which to submit evidence it considered relevant. In these proceedings, The Third Sub-directorate of the Labour Inspectorate ruled, on the basis of its analysis and interpretation of the social and labour standards in force, that the labour inspectors had not written down the full names of the workers who had been victims of each breach of social and labour standards; consequently, the Sub-directorate could not be sure as to their real identity and was therefore unable to hand down the corresponding ruling in accordance with section 48, paragraph 481, of Act No. 28806. Furthermore, given that the enterprise inspected did not have the names of the workers concerned, their right to defence would have been infringed, which was tantamount to a breach of due process. The Sub-directorate could not therefore comply with section 40 of Act No. 28806 because the Finding of Violation in question was null and void. As regards the proceedings of the Sub-directorate on Collective Bargaining in which both EDELNOR SAA and CAM-PERU SRL were involved, the Government points out that it has requested updated information on these cases, which it will communicate as soon as it has received this.
7. 199. With regard to the proceedings under way before the Collective Bargaining Sub-directorate in which both the EDELNOR SAA and the CAM-PERU SRL companies are involved, the Government indicates that it has requested updated information which it will forward as soon as it is obtained.
8. 200. The Committee takes note of this information. The Committee requests the Government to inform it whether the decisions of the Second Sub-directorate of the Labour Inspectorate mentioned above, which considered that there were no grounds for the penalties proposed by the labour inspectorate against EDELNOR SAA and CAM-PERU SRL for violations of trade union rights, had been challenged with an appeal by the trade union SUTREL. If no such appeal has been lodged, the Committee also requests the Government to indicate whether, in view of the fact that some violations had not been penalized on procedural grounds, it is possible to carry out a new inspection on the alleged violations of trade union rights. Furthermore, the Committee requests the Government once again to inform it of the measures taken to promote collective bargaining between SUTREL and CAM-PERU SRL