Report in which the committee requests to be kept informed of development - Report No 324, March 2001

Case No 2076 (Peru) - Complaint date: 09-FEB-00 - Closed

Allegations: Anti-union dismissals

1. 862. The complaint is contained in a communication dated 9 February 2000 from the General Confederation of Workers of Peru (CGTP). The CGTP subsequently sent new allegations in a communications dated 17 May 2000. The Government sent observations in communications dated 9 May, 17 August, 3 November 2000 and 2 March 2001.
2. 863. 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. 864. In its communication of 9 February 2000, the General Confederation of Workers of Peru (CGTP) states that the Compañia Peruana de Radiodifusión S.A. is a private radio and television company which has 23 subsidiaries throughout Peru. The following workers of the company were elected to trade union office for the period 1998-2000, were recognized as trade union officials by the labour administration authorities and represented workers in the 1999 collective talks: Mr. Sixto M. Olivos León, National General Secretary; Mr. Heraldo Z. Torres Osnayo, National Organization Secretary; Mr. Juan D. Ayulo Petzoldt, National Economics Secretary; and Mr. Luis Santiago Puertas, National Legal Defence and Human Rights Secretary. Furthermore, these officials enjoyed protection under the terms of trade union privilege, which in accordance with Act No. 25593 respecting collective labour relations and its regulations D.S. 011-92-TR protected them against dismissal.
2. 865. The complainant alleges that on 31 December 1999, the Compañia Peruana de Radiodifusión S.A. sent letters of dismissal to the four trade union officials in question, alleging that they had committed serious misdemeanours by exercising their right of collective representation to complain about the withholding of trade union membership dues and failure to pay workers' wages for May and June 1999. The complainant reports that the dismissals in question have given rise to applications to the courts to revoke them on the grounds that the reasons given for them by the company are only a pretext, the real purpose being to eliminate the union's leadership and ultimately the union itself. The complainant states that the company's specific intention is to eliminate the trade union and establish in its place a system of arbitration which would circumvent collective bargaining involving the union.
3. 866. The CGTP states that: (1) in accordance with its fundamental obligation to ensure that the rule of law applies in labour relations, it sent a letter to the company requesting that it revoke the dismissals, but received no reply; and (2) in all cases, the workers with official trade union posts have applied to the courts to revoke the dismissals, reinstate them at work and pay their back wages. Although the applications have been ruled to be admissible and the cases should soon be at the stage of presentation of evidence before rulings are given, there is a danger in this case, as in so many others, that the proceedings will drag on for some time, without any guarantee that justice will be done swiftly, which would be prejudicial to the rights of the trade unions officials and their families.
4. 867. In its communication of 17 May 2000 the CGTP states that the company Schogang Hierro Perú is a private mining and metallurgy company, and that the employees Mr. Rey Fernández Patiño and Mr. Adriel Vargas Caritas - the General Secretary and Legal Defence Secretary, respectively, of the Mine Workers' Trade Union at the company - were elected to their union posts for the period 1999-2000, were recognized as union officials by the labour administration authority and represented workers in the 1999 collective talks. Furthermore, they enjoyed protection under the terms of trade union privilege, which in accordance with Act No. 25593 respecting collective labour relations and its regulations D.S. 011-92-TR protected them against dismissal.
5. 868. The complainant alleges that on 22 September 1999 the company sent out official letters of dismissal to the trade union officials alleging that they had committed serious misdemeanours by exercising their right of collective representation to complain about alleged abuses by the company against a section of the union (orders had allegedly been given to guards to break into workers' private lockers, an action which gave rise to a formal complaint to the prosecution authorities). This complaint was filed about seven months later without any further action being taken. The company took advantage of this outcome to dismiss the trade union officials. The latter appealed to the courts to revoke the dismissals on the grounds that the reasons given by the company were only a pretext, the real reason being to punish them for their persistence in defending collective bargaining in accordance with the mandate given to them by their members as trade union officials. The CGTP alleges that the company was motivated by the desire to impose collective talks which would not address the real needs of the workers, and the dismissals are particularly serious given that the dismissed trade union officials were members of the negotiating committee responsible for holding talks on the union's latest set of claims; the company's intention was to curtail the union's activities and foment psychological unease among the workforce in order to impose terms which would be based solely on the wishes of management, without any genuine collective bargaining. The CGTP states that in accordance with its fundamental obligation to ensure that the rule of law applies in labour relations, it sent a letter to the company Schogang Hierro Perú S.A. requesting that the dismissals be revoked, but this met with no response whatsoever, which was a clear snub to the union.

B. The Government's reply

1. 869. In its communications of 9 May, 17 August 2000 and 2 March 2001, the Government states the following with regard to the judicial proceedings initiated by the trade union officials Sixto M. Olivos León, Heraldo Z. Torres Osnayo, Juan D. Ayulo Petzoldt and Luis Santiago Puertas:
   • - Regarding the court proceedings initiated by Juan D. Ayulo Petzoldt to revoke his dismissal: as indicated in Decision No. 183412-2000-00023-0 of 28 January this year, the Twelfth Labour Court of Lima gave a ruling, No. 01, according to which the application is admissible and a copy of the application was sent to the other party. Subsequently, on 11 April, a hearing took place but failed to achieve any agreement between the parties, and the matter of revoking the dismissal was established as the matter in dispute.
   • - As regards the judicial proceedings initiated by Luis Santiago Puertas: according to Decision No. 183410-2000-00020-0 of 23 February this year, the application was ruled to be admissible. Subsequently a hearing was arranged for 6 June.
   • - As regards the court proceedings initiated by Sixto M. Olivos León: according to Decision No. 183404-2000-00014-0 of 24 January this year, the application was ruled to be admissible and a copy of the application sent to the other party. Subsequently a hearing was arranged for 26 April. No agreement was reached between the parties and the matter of revoking the dismissal was established as the matter in dispute.
   • - As regards the proceedings initiated by Heraldo Z. Torres Osnayo, Decision No. 183408-2000-00019-0 indicates that once the application was allowed to proceed, a hearing took place. No agreement was reached between the parties and the revocation of the dismissal was established as the matter in dispute.
2. 870. The Government adds that under Peruvian law, the right of association is guaranteed (article 28 of the Constitution) and that Act No. 25593 provides for trade union privilege under the terms of which certain workers cannot be dismissed or transferred within a company without a good reason or without their consent. At the same time, labour legislation safeguards the rights of trade union officials by providing appropriate mechanisms: article 29 of Legislative Decree No. 728 (Act respecting labour productivity and competitiveness) invalidates any dismissal motivated by a worker's trade union membership or activities. Furthermore, a worker who initiates judicial proceedings and obtains a favourable ruling is entitled to reinstatement in his or her post, or alternatively can choose to accept the compensation available in cases of arbitrary dismissal. The Government adds that Peruvian labour legislation safeguards the workers' rights cited by the complainant which has referred to certain specific legislative provisions. Indeed, following the alleged infringements of trade union rights, the allegedly wronged parties initiated judicial proceedings to enforce their rights. The Government also states that while it was not possible in any of the cases in question to achieve conciliation between the parties, the matter of possible revocation of the dismissals will be examined during the judicial proceedings in question; it is too early to submit a complaint as long as applications to revoke the dismissals are still before the courts, particularly given that the workers concerned have themselves chosen this course of action. It must also be noted that under the terms of article 139 of Peru's Constitution, the judiciary is completely independent and the Ministry of Labour has no power to intervene. Lastly, the Government states that it must be clearly understood that national legislation provides mechanisms for enforcing workers' rights; this is clear from the fact that the aggrieved parties have applied for revocation of the dismissals and have themselves chosen to seek a resolution to the dispute by applying to the courts whose independence is guaranteed under the Constitution. The Government indicates that it has approached the judicial authorities so as to be able to inform the Committee on the status of the judicial proceedings.
3. 871. In its communication of 3 November 2000, the Government indicates the Civil Superior Court held that the dismissals of Messrs. Rey Fernández Patiño and Adriel Vargas Caritas were null and void, and ordered that these trade union leaders be reinstated and fully compensated as regards back pay, legal interests and court costs (the Government annexes the texts of the judgement).

C. The Committee's conclusions

1. 872. The Committee notes that in the present case the complainant alleges the dismissals of four trade union officials (Sixto M. Olivos León, Heraldo Z. Torres Osnayo, Juan D. Ayulo Petzoldt and Luis Santiago Puertas) at the Compañia Peruana de Radiodifusión S.A. after they complained about the withholding of trade union dues by the company and its failure to pay the wages of the workforce for May and June 1999, and the dismissal of the General Secretary and Legal Defence Secretary (Rey Fernández Patiño and Adriel Vargas Caritas, respectively) of the Mine Workers' Trade Union at the company Schogang Hierro Perú S.A. after they complained that the company had given orders to break into workers' lockers.
2. 873. As regards the allegation concerning the dismissals on 31 December 1999 of the four trade union officials at the Compañia Peruana de Radiodifusión S.A. after they complained about the withholding by the company of trade union membership dues and its failure to pay the wages of the workforce for May and June 1999, the Committee notes the legislative provisions protecting trade union officials from acts of anti-union discrimination. The Committee notes the statements by the complainant and the Government to the effect that the trade union officials in question have initiated judicial proceedings which are currently under way. The Committee notes in this regard the Government's statement to the effect that a complaint is premature as long as applications to revoke the dismissals are still pending following voluntary applications by the officials concerned. The Committee recalls in this regard that the use of internal legal procedures, whatever the outcome, is undoubtedly a factor to be taken into consideration; however, the Committee has always considered that, in view of its responsibilities, its competence to examine allegations is not subject to the exhaustion of national procedures. The Committee expects that the judicial authorities will rapidly hand down their decisions and that these decisions will be in full conformity with the principles of freedom of association. The Committee urges the Government, if these decisions conclude that there have been acts of anti-union discrimination, to take the necessary measures to ensure that the trade union officials are reinstated in their posts, and requests the Government to keep it informed of the decision issued by the courts concerning the dismissals of these trade union officials (Sixto M. Olivos León, Heraldo Z. Torres Osnayo, Juan D. Ayulo Petzoldt and Luis Santiago Puertas).
3. 874. As regards the alleged dismissal on 22 September 1999 of the General Secretary and Legal Defence Secretary (Rey Fernández Patiño and Adriel Vargas Caritas, respectively) of the Mine Workers' Trade Union at the company Schogang Hierro Perú S.A. after they complained that the company had given orders to break into workers' private lockers, the Committee notes that the Civil Superior Court overturned these dismissals, and ordered that these two trade union leaders be reinstated with full compensation as regards back pay, legal interest and court costs. The Committee requests the Government to confirm whether these trade union leaders have in fact been reinstated with full compensation, as ordered by the Court.

The Committee's recommendations

1. 875. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) Concerning the dismissal of the trade union officials Sixto M. Olivos León, Heraldo Z. Torres Osnayo, Juan D. Ayulo Petzoldt and Luis Santiago Puertas at the Compañia Peruana de Radiodifusión S.A., the Committee expects that the judicial authorities will rapidly hand down their decisions and that these decisions will be in full conformity with the principles of freedom of association. The Committee urges the Government, if these decisions conclude that there have been acts of anti-union discrimination, to take the necessary measures to ensure that the trade union officials are reinstated in their posts. The Committee requests the Government to keep it informed of the judgements handed down in this respect.
   • (b) The Committee requests the Government to confirm whether the trade union leaders Mr. Rey Fernández Patiño and Adriel Vargas Caritas, have in fact been reinstated in their posts with full compensation, as ordered by the Court.