Rapport intérimaire - Rapport No. 360, Juin 2011

1. 1011. The complaint is contained in a communication from the Single Union of Workers and Employees of Tubos y Perfiles Metálicos SA TUPEMESA (SINUTOE–TUPEMESA) dated 31 May 2010. The complainant organization sent new allegations in a communication dated 15 October 2010.
2. 1012. The Government sent its observations in a communication dated 7 February 2011.
3. 1013. 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. 1014. In its communication of 31 May 2010, SINUTOE–TUPEMESA states that it was established on 14 February 2010 and that it requested to be registered with the Ministry of Labour and Employment Promotion on 16 February of the same year. The registration certificate was obtained on the same date.
2. 1015. The complainant organization alleges that, on 16 February, it tried to notify the company of the establishment of the trade union, but the company refused to accept it. According to the complainant organization, on the same day the company’s Head of Human Resources summoned the workers belonging to the union, instructed them to withdraw from membership of the union and threatened them with dismissal. The complainant organization alleges that he subsequently moved them to a place behind his offices, blackmailed them with insults and threats and forced them to sign blank pieces of paper, stating that they would be used as a guarantee that they would resign from the union.
3. 1016. The complainant organization states that it requested the Labour Inspection to intervene and that, when this intervention took place, the company presented documents with forged signatures of the trade union members stating that they had signed the winding up of their social security benefits. The complainant alleges that on 17 February, without justification and without a formal notice being issued, the company security staff refused entry to three trade union members, Messrs Roberto Pablo Mendiola Chacón, Héctor Paul Roque Romero and Juan Manuel Atoche Silva (Social Assistance and Welfare Secretary), claiming that general management’s instruction was to not allow them entry to work because they had established a trade union.
4. 1017. The complainant organization states that, on 22 February 2010, it tried again, without success, to inform the company of the establishment of the trade union. On the same day, Mr Santos Miguel Ventura Cobeñas, Secretary-General, was refused entry, and security staff told him that this was because he was guilty of having encouraged the other workers to form a trade union. On 23 February, the police statement about this dismissal was made.
5. 1018. The complainant organization alleges that subsequently the company refused entry to Mr Jhoan Luis Vigil Quispe, Occupational Health and Safety Secretary, on 2 March; Mr Antonio César García Manta, Press, Information and Public Relations Secretary, on 3 March; Messrs Gregory Santos Huamán, Defence Secretary, Julio Enrique Lujan Muñoa, Economics Secretary, and Marco Antonio Bolívar Flores on 7 April; and Mr Jhonny Henry Damiano Laupa on 20 April 2010 (according to the complainant, the company had undertaken not to dismiss him in front of the Labour Inspection).
6. 1019. The complainant organization emphasizes that hearings were held in the offices of the Ministry of Labour (on 8, 16 and 23 April) with representatives of the company and the trade union, but that the company neither justified the dismissals nor denied having violated freedom of association. The complainant organization states that, on 23 April 2010, the labour administrative authority ordered the company to reinstate all of the dismissed workers and, by way of confirmation of this requirement, it summoned the parties again on 30 April 2010.
7. 1020. In its communication dated 15 October 2010, the complainant organization states that on 30 April 2010, the Ministry of Labour and Employment Promotion provided it the final report relating to violation report No. 928-2010-MTPE/2/12.3, produced as a result of inspection order No. 5712-2010. According to the complainant organization, it is evident from the text of the report that the company has violated the trade union’s constitutional rights to freedom of association. The complainant organization adds that, under the amparo judicial proceedings instituted by the ten dismissed officials and workers, in contesting the appeal the company stated that the appellants were dismissed unilaterally by the company. The complainant organization states that, on 12 October 2010, the Second Mixed Court specialized in Constitutional Matters found the appeal of the ten dismissed workers to be well founded and ordered their reinstatement, but that to date they have not been reinstated.
8. 1021. The complainant organization also alleges that, in pursuing its policy of annihilating the trade union, on 16 July 2010, it dismissed four more unionized workers (Messrs Martín Tuesta Oliveira, Luis Alberto Luyo Manco, Luis Alberto Agapito Hernández and Ronald Edgar Camac Inga). According to the complainant organization, these dismissals are part of a manoeuvre to prevent the trade union from continuing (which needs a minimum of 20 workers to exist, as stipulated in legislation).

B. The Government’s reply

1. 1022. In its communication of 7 February 2011, the Government reports on actions taken by Peru in relation to the case. As regards the labour sector, the First Subdirectorate of Labour Inspection of the Ministry of Labour and Employment Promotion, in subdirectoral resolution No. 602-2010-MTPE/1/20.41, dated 13 September 2010, imposed on the company TUPEMESA a fine of 13,428 nuevos soles (PEN) for non-compliance in the following areas: (a) acts directed at hindering and restricting the right to organize, and interfering in the establishment and maintenance of the complainant trade union organization (serious offence); (b) dismissals of trade union officials and union members (serious offence); and (c) failure to display a permanent attendance register to monitor staff entry and exit (minor offence). The Government adds that the notice to pay was issued in procedural decision dated 8 November 2010 to the company being penalized so that it could pay the fine imposed, after approval of the Court of First Instance’s ruling.
2. 1023. As regards the judiciary, in letter No. 14-2010AA JM-VES-CSJLS/OTT, the Mixed Court of Villa El Salvador issued a copy of the amparo proceedings relating to freedom of association brought by Messrs Santos Miguel Ventura Cobeñas, Juan Manuel Atoche Silva, Antonio César García Manta, Jhoan Luis Vigil Quispe, Roberto Pablo Mendiola Chacón, Héctor Paul Roque Romero, Gregory Santos Huamán, Julio Enrique Lujan Muñoa, Marco Antonio Bolívar Flores and Jhonny Henry Damiano Laupa, stating the following: (a) on 12 October 2010, the Mixed Court of Villa El Salvador handed down a judgment finding the appeal lodged to be founded and ruling that the defendant should reinstate the workers involved in their posts, in the same position and at the same pay level that they occupied and enjoyed at the time of their dismissal; and (b) on 25 October 2010, TUPEMESA appealed against the judgment, the application was approved in decision No. 07, of 7 November 2010, and the case was referred to the relevant Labour Chamber. This is the current state of proceedings.
3. 1024. The Government states that, as the case is currently going through the courts, in accordance with section 4 of the Organization Act on the Judiciary, as approved in Supreme Decree No. 017-93-JUS, concerning the binding nature of court decisions and principles of justice administration, the administrative authority cannot attend to cases awaiting decision by the judiciary. Notwithstanding the above, the Government will inform the Committee in due course on developments in these proceedings.

C. The Committee’s conclusions

1. 1025. The Committee notes that the complainant organization alleges that between February and April 2010, after attempting without success to notify the company Tubos y Perfiles Metálicos SA (TUPEMESA) of the establishment of the trade union, ten officials and members of the trade union were dismissed (mentioned by name) and that, in pursuing its policy of annihilating the trade union, on 16 July 2010, the company dismissed four more members (also mentioned by name).
2. 1026. In this regard, the Committee notes that the Government states that: (1) the First Subdirectorate of Labour Inspection of the Ministry of Labour and Employment Promotion imposed on the company the fine of PEN13,428 for non-compliance in the following areas: (a) acts directed at hindering and restricting the right to organize, and interfering in the establishment and maintenance of the complainant trade union organization (serious offence); (b) dismissals of trade union officials and union members (serious offence); and (c) failure to display a permanent attendance register to monitor staff entry and exit (minor offence); (2) the Mixed Court of Villa El Salvador handed down a judgment finding the appeal lodged by the ten dismissed trade union officials and union members under the amparo proceedings relating to freedom of association to be founded and, on 12 October 2010, ordered the defendant to reinstate the workers involved in their posts in the same position and at the same pay level that they occupied and enjoyed at the time of their dismissal; (3) on 25 October 2010, the company appealed against the judgment and the case was referred to the relevant Labour Chamber; and (4) the case is currently going through the courts and the administrative authority cannot attend to cases awaiting decision by the judiciary.
3. 1027. Deeply regretting the acts of anti-trade union discrimination reported by the Labour Inspection and by the judicial authority in the Court of First Instance, the Committee requests the Government to: (1) inform it as to whether the company has paid the fine imposed by the administrative authority; (2) in the event that the judicial authority of the Court of Second Instance confirms the judgment ordering the reinstatement of the ten dismissed officials and members in their posts, take steps to ensure that the company complies with this judgment immediately; and (3) take the necessary steps without delay to ensure that the company recognizes SINUTOE–TUPEMESA immediately. The Committee requests the Government to keep it informed in this regard.
4. 1028. The Committee also regrets that the Government has not sent its observations in relation to the allegation that, in pursuing its policy of annihilating the trade union, the company has allegedly dismissed four more union members on 16 July 2010. In these circumstances, the Committee requests the Government to institute an inquiry without delay into these allegations and to keep it informed of developments in this regard and, if it is confirmed that the dismissals were anti-trade union in nature – as happened with regard to the dismissals referred to in the previous paragraph – to take all steps at its disposal to ensure the reinstatement of the workers in question and to penalize the company in relation to these offences.