Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 356, Mars 2010

1. 1092. The complaint is contained in a communication from the General Confederation of Workers of Peru (CGTP) dated 29 December 2008. The Government sent its observations in communications dated 2 September 2009 and 2 March 2010.
2. 1093. 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. 1094. In its communication dated 29 December 2008, the CGTP alleges that the district council of La Victoria municipality, as a result of a work stoppage held in protest by the La Victoria District Council Workers’ Union (SOCODIVIC) on 2 October 2008, calling for the payment of wages for September, gave notice of dismissal to union leaders Mr Mauro Chipana Huayhuas, Mr Eustaquio Falcón Morales, Mr Luis Alberto Moya Castro and Mr Teófilo Machaca Mamani, and also to union member Mr Luis Huanza Apaza, giving them six days to present their defence against a charge of serious misconduct involving alleged acts of violence in connection with the attempted illegal occupation of the premises. The trade unionists were prevented from entering their workplace as from 6 November 2008.
2. 1095. However, the complainant organization also claims that the labour authority did not establish the existence of any violent act (it merely declared the work stoppage to be illegal).
3. 1096. As a result of a complaint from the trade unionists, the labour authority intervened and the mayor ordered the reinstatement of all the trade unionists except Mr Mauro Chipana Huayhuas, who was barred from entering the premises.
4. 1097. The complainant organization further alleges that on 11 September 2008, a few weeks before the events described above, a vote was held from the list headed by Mr Mauro Chipana Huayhuas and resulted in the adoption of certain changes to the membership of the union executive committee. The Ministry of Labour and Promotion of Employment (Ministry of Labour) registered the executive committee on 21 October 2008, recognizing Mr Mauro Chipana Huayhuas as General Secretary. The municipality subsequently adopted an aggressive policy of anti-union intimidation resulting in the five letters giving notice of dismissal referred to above. However, former union General Secretary Mr Marcelino Muñoz Rodríguez (who had been expelled from the union and therefore had no representative capacity) filed an application to overturn the registration of the union executive committee, and the Trade Union Registration Office at the Ministry of Labour issued a decision on 19 November 2008 declaring the registration of the executive committee headed by General Secretary Mr Mauro Chipana Huayhuas to be null and void, without giving him an opportunity to defend himself. The complainant organization considers that there is clear interference in the union’s autonomy by the Ministry of Labour, probably in collaboration with the mayor and other municipal officials.
5. 1098. Finally, the complainant organization alleges that on 16 November 2008, officials from the mayor’s office boarded up and sealed off, without any reason, one of the main entrances to the union premises, supposedly on the mayor’s orders, in order to obstruct union activities.

B. The Government’s reply

1. 1099. In its communication dated 2 September 2009, the Government refers to the allegations made by SOCODIVIC regarding unfair dismissal and anti-union actions against its union leaders and states that article 28 of the political Constitution of Peru establishes the right to organize and the right to collective bargaining. The provisions contained in international instruments, such as ILO Conventions Nos 87 and 98, are binding on national territory.
2. 1100. The Government attaches the observations of La Victoria municipality regarding the complaint, to the effect that:
   • – Mr Mauro Chipana Huayhuas has no authority to act or representative capacity as General Secretary of SOCODIVIC since an executive committee represented by Mr Marcelino Muñoz Rodríguez was elected to serve from 1 October 2007 to 30 September 2009;
   • – the dismissal of worker Mr Mauro Chipana Huayhuas had nothing to do with any political orientation or an attack on trade union rights but was concerned with proven and documented serious misconduct arising from the orchestration and conduct of an unscheduled work stoppage declared illegal by the Ministry of Labour which involved taking control of the main entrance to the district council building with flags and signs obstructing the entry of the staff and the provision of services by the municipality, with banners and flags containing abusive and denigratory messages directed at the mayor and other municipal officials;
   • – the municipality stated that Mr Chipana lodged an appeal against dismissal through legal channels on 16 December 2008. The 25th Labour Court is currently the competent judicial authority for ruling on the case (No. 597-2008);
   • – furthermore, as regards the boarding up of the entrance to the union premises, the municipality indicated that, under a ruling from the Sixth Specialist Chamber for Criminal Proceedings (Case No. 961-08) concerning the charge of aggravated usurpation, the higher prosecutor issued a writ dismissing any possible investigative proceedings against the mayor for the offence of aggravated usurpation. Considering the writ to be confirmed, the municipality believed that this aspect of the complaint should therefore also be dismissed.
3. 1101. The Government emphasizes that Supreme Decree No. 003-97-TR, adopting the single consolidated text of the Labour Productivity and Competitiveness Act (Legislative Decree No. 728), states that it is essential that good grounds as prescribed by law are proven with respect to the dismissal of a worker employed on a private sector contract. Good grounds may relate to the worker’s capacity or conduct, and it is up to the employer to demonstrate the existence of those grounds in the context of any judicial proceedings instituted by the worker to challenge his dismissal. Section 24 of the above Act states that good grounds for dismissal are: (a) serious misconduct; (b) criminal conviction for international criminal acts; or (c) disqualification of the worker.
4. 1102. Section 25 adds that serious misconduct is the violation by the worker of the essential duties arising from the contract of employment in such a way as to make any continuation of the employment relationship unreasonable. Section 25(a)–(f) defines serious misconduct as:
   • (i) failure to meet work obligations resulting in the loss of good faith in the working relationship, the repeated resistance to orders issued with regard to the work concerned, the repeated unscheduled stoppage of work and the failure to observe internal workplace rules or occupational safety and health rules. This must be duly verified with the support of the administrative labour authority, or otherwise by the police or prosecutor’s office, which are obliged to provide the necessary assistance for ascertaining the facts, with the identification of the workers guilty of misconduct in the record in question;
   • (ii) acts of violence, serious indiscipline, verbal or written insults or abuse against the employer or his representatives, the worker’s superiors or other workers, whether inside or outside the workplace, when such acts are directly connected with the employment relationship.
5. 1103. The Government explains that the law stipulates that such serious misconduct is established by being objectively proven in labour proceedings, regardless of any criminal or civil aspects of the facts in question.
6. 1104. Furthermore, section 22 of the Collective Labour Relations Act provides that the powers of the general assembly include electing the executive committee and amending the union rules. Moreover, section 23 establishes that the executive committee is the legal representative of the union and shall be constituted in the form and with the powers determined by union rules.
7. 1105. Section 22 of the Act also states that the registration of trade unions shall be effected automatically merely on presentation of the application in the form of a sworn statement. Section 25 states that any decisions of the labour authority which refuse union registration, provide for the cancellation thereof or any other similar measure can be appealed against during the three days following notification.
8. 1106. The Government explains that in the case in question the administrative labour authority exercised its competence through the Labour Inspection Directorate and the General Records Subdirectorate. On 21 October 2008 the certificate of automatic registration was issued, recording the changes in the membership of the executive committee of the La Victoria municipality workers’ union, at the request of Mr Mauro Chipana Huayhuas as new General Secretary due to serve until 30 September 2009. However, that action was challenged by Mr Marcelino Emilio Muñoz Rodríguez, who claimed that the union rules had not been observed. The Trade Union Registration Division verified the union’s file and declared the automatic registration certificate issued on 21 October 2008 to be null and void for non-compliance with the terms of section 25 of the single consolidated text of the Administrative Proceedings of the Ministry of Labour, in accordance with section 10(c) of the single consolidated text of the Collective Labour Relations Act and section 10(3) of the General Administrative Proceedings Act.
9. 1107. For this reason the file was referred to the next hierarchical level, the General Records Subdirectorate, which analysed the documentation relating to writs and stated that administrator Mr Mauro Chipana Huayhuas failed to attach the certified copy of the record of the general assembly, at which the members of the electoral committee are elected, for the purpose of verifying whether the regulatory quorum was observed. The copy of the record of the extraordinary general assembly dated 14 August 2008 legalized by a Peruvian notary shows that the appointment in question was made without the regulatory quorum, thereby failing to comply with the terms of sections 21 and 56 of the union rules. For any assembly to be valid the requisite quorum for the first or second convocation, as the case may be, must be achieved, otherwise the union’s own rules and Article 8(1) of ILO Convention No. 87 are breached. Accordingly, the position of the Trade Union Registration Division having been corroborated, the labour administrative authority declared the automatic registration certificate of 21 October 2008 recording the changes to the membership of the union executive committee null and void, thereby invalidating the representative capacity of General Secretary Mr Mauro Chipana Huayhuas (who headed one of the lists). Moreover, by means of inspection order No. 15885-2008-MTPE/2/12.3, it was verified that 217 workers of La Victoria municipality on private sector employment contracts did not work on 2 October 2008. Hence, by means of sub-directorate order No. 205-2008-MTPE/2/12.350, it was decided to declare the work stoppage of 2 October 2008 involving these workers illegal since, under the terms of section 81 of the single consolidated text of the Collective Labour Relations Act, an unscheduled work stoppage constitutes an irregularity not protected by that law.
10. 1108. Furthermore, by means of inspection order No. 13517-2008-MTPE/2/12.3, the labour administrative authority established that the serious misconduct, of which Mr Mauro Chipana Huayhuas was accused by the municipality for committing violent acts during the work stoppage on 2 October 2008, was not substantiated or proven, and, after detecting non-compliance with the socio-labour legislation concerning freedom of association, instructed on 4 December 2008 the party concerned to take the necessary steps within two working days to ensure that the non-compliance ceased. However, no action was taken by expiry of the deadline to rectify the non-compliance and consequently the following penalty was imposed: (a) a fine of 81 per cent of 11 UIT (tax units) for discrimination towards a worker due to the free exercise of his trade union activity (an offence defined by law as very serious), since the party concerned had dismissed Mr Mauro Chipana Huayhuas in his capacity as a member of SOCODIVIC, the fine amounting to 31,185 Peruvian nuevos soles (PEN); and (b) a fine of 81 per cent of 11 UIT for failing to adopt the necessary measures in time (an offence defined by law as very serious), as indicated in the instruction of 4 December 2008 to ensure compliance with the labour regulations, the fine amounting to PEN31,185.
11. 1109. Subsequently, by means of subdirectorate decision No. 118-2009-MTPE/2/12.320 of 11 March 2009, the labour administrative authority decided – in view of the fact that the application to overturn the dismissal in the 25th Labour Court of Lima was admitted, that it was shown that the matters elucidated in the legal dispute include the facts on the basis of which the acting inspectors determined the existence of a labour offence with regard to the discrimination shown towards the worker Mr Mauro Chipana Huayhuas, and that the provisions of article 139(2) of the Constitution apply, whereby no authority may address cases pending before the judicial authority or interfere in the exercise of its functions – to refrain from any pronouncement, in accordance with the provisions of the Constitution (otherwise criminal liability would be incurred on the part of the officials concerned), thereby leaving intact the evidentiary value of the established facts.
12. 1110. The Government concludes by stating that it requested the judicial authority to advise it of the outcome of the legal proceedings connected with the complaint lodged and that this will be communicated to the ILO in due course in order to ensure observance by the State, in its judicial activity, of the national and international labour legislation in force. In its communication of 2 March 2010, the Government indicates that it had once again requested the Secretariat general of the judicial authority to provide information on the situation with regard to judicial procedures by means of a magistrate appointed by the Supreme Court of Lima as coordinator for judicial questions concerning complaints before the ILO.

C. The Committee’s conclusions

1. 1111. As regards the allegations concerning notice of dismissal given to five members of SOCODIVIC as a result of certain changes in its executive committee and a work stoppage held in protest on 2 October 2008 calling for the payment of wages for September, with the municipal authorities accusing them of acts of violence and the illegal occupation of premises, the Committee notes that four of the five workers who were given notice of dismissal were not dismissed in the end and the remaining worker, Mr Mauro Chipana Huayhuas, who had been elected General Secretary of the union, reported the situation to the Ministry of Labour, according to the Government. The labour administrative authorities then established that there was no proof of any acts of violence committed by Mr Mauro Chipana but that the municipality had failed to comply with the legislation on freedom of association. The Committee notes the Government’s statement to the effect that the labour administrative authority therefore instructed the municipality to stop its non-compliance with the regulations regarding the dismissal of trade unionists, and that since the municipality failed to obey the instruction, two fines were imposed on it for serious misconduct.
2. 1112. The Committee notes the Government’s emphasis that, according to the legislation, it is up to the employer to demonstrate the existence of good grounds for dismissal in the context of the judicial proceedings and that Mr Mauro Chipana Huayhuas lodged an appeal to overturn his dismissal. The Committee requests the Government to keep it informed of the outcome of the appeal and to send the text of the ruling as soon as it is available.
3. 1113. Concerning the allegation that on 16 November 2008 officials from the mayor’s office boarded up and sealed off, without any reason, one of the main entrances to the union premises, supposedly on the mayor’s orders, in order to obstruct union activities, the Committee notes the Government’s reference to the municipality’s indication that the higher prosecutor issued a writ dismissing any possible investigation against the mayor for the offence of aggravated usurpation. The Committee also observes that the complainant organization has not sent any new communication indicating disagreement with the decision of the prosecutor’s office and it will therefore not proceed with an examination of this allegation.
4. 1114. Finally, as regards the allegations that the Ministry of Labour initially registered the changes to the executive committee membership (with the appointment of Mr Mauro Chipana as General Secretary) but, when the registration was subsequently challenged by another worker (the former union General Secretary whose name appeared on a different list from that of Mr Mauro Chipana and who, according to the complainant, had been expelled from the union) claiming that the union rules had not been observed, the labour administrative authority analysed the documentation and concluded that the appointment of certain members of the executive committee (from the list headed by Mr Mauro Chipana) had been undertaken without observing the quorum required by the union rules, and that the registration of the changes to the executive committee membership was therefore cancelled, the Committee concludes that the situation described includes, firstly, elements of an internal dispute within the union, as confirmed by various appendices sent by the Government and, secondly, according to the Government’s statement, elements of non-compliance with the union rules governing the procedure to change the membership of the executive committee, since the requisite quorum had not been achieved. The Committee observes that the complainant organization has not furnished proof of the existence of the quorum. The Committee recalls the principle according to which it is not competent to make recommendations on internal dissentions within a trade union organization, so long as the government does not intervene in a manner which might affect the exercise of trade union rights and the normal functioning of an organization [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 1114], and also that, when internal disputes arise in a trade union organization, they should be resolved by the persons concerned (for example, by a vote), by appointing an independent mediator with the agreement of the parties concerned, or by intervention of the judicial authorities [see Digest, op. cit., para. 1122].
5. 1115. The Committee further notes that the complainant organization has given no indication that it submitted this matter to the judicial authority despite the existence of legal channels of appeal, or at least has provided no information in this respect. The Committee therefore considers that no further examination of this allegation of internal disputes is necessary.