Interim Report - Report No 326, November 2001

Case No 2111 (Peru) - Complaint date: 27-NOV-00 - Closed

Allegations: Dismissals of trade union officers and members

and delays in collective bargaining

1. 451. The complaints are contained in communications from the General Confederation of Workers of Peru (CGTP) dated 27 November and 1 December 2000 and in a communication of the Federation of Peruvian Light and Power Workers (FTLFP) dated 9 May 2001. The Government sent its observations in communications dated 31 May and 16 August 2001.
2. 452. 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. 453. In its communications dated 27 November and 1 December 2000, the General Confederation of Workers of Peru (CGTP) explains that Telefónica del Perú SAA, a private enterprise operating in the telecommunications sector in Peru, is the main enterprise in this branch, with plants and installations virtually throughout the national territory, and that the membership of the Single Trade Union of Workers of Telefónica del Perú and the Trade Union of Workers of Telefónica del Perú (SITENTEL) covers a large number of Telefónica del Perú SAA employees.
2. 454. The CGTP alleges that since May 2000 these trade union organizations have initiated a number of proceedings seeking protection from the judicial authorities and the suspension of a redundancy plan affecting a large number of workers, put forward by the human resources department of Telefónica del Perú SAA, especially in view of the fact that no definitive decision had yet been handed down by the public law tribunals of the Lima Judicial District. Despite the proceedings that had been initiated, Telefónica del Perú SAA introduced a gradual redundancy plan beginning in August 2000, which in the first stage affected approximately 800 workers, especially trade union members, many of whom were rehired with lower pay and working conditions and threatened with dismissal again if they renewed their membership in the abovementioned trade unions. These actions occurred in the context of a systematic policy of lay-offs initiated by the enterprise in the 1990s, when over 8,000 workers were retrenched nationwide over a period of six years, representing over 70 per cent of the original workforce, through compulsory redundancy programmes (programas conminativos) and retirement.
3. 455. In order to implement this policy, Telefónica del Perú SAA has embarked on a process of subdivision, outsourcing and restructuring by establishing subsidiaries and contracting work to external enterprises.
4. 456. Faced with a new wave of dismissals, the trade unions initially exhausted various procedures and made overtures with the aim of achieving mutually acceptable agreements and even appealed to the authorities, but no agreement was reached.
5. 457. In addition, the CGTP alleges that, in the midst of this adverse climate, the trade unions and the enterprise were engaged in a process of collective bargaining for 2000-01 (which lasted over 12 months without any results), without any substantial results to date, principally owing to the fact that negotiations have been delayed by the wave of dismissals carried out by the employer, undermining the effectiveness of this natural forum for negotiation.
6. 458. In this context, the members of both trade unions decided to hold an open-ended general strike beginning on 15 November 2000 in order to demand an immediate stop to the wave of dismissals, the reinstatement of the workers already dismissed and the settlement of their demands; this strike is still continuing against direct opposition from the Ministry of Labour and Social Welfare. Instead of attempting to seek an agreement, the management of Telefónica del Perú SAA responded by carrying out various measures which escalated the labour dispute. Specifically, they ordered the dismissal of numerous trade union officers, including members of strike pickets, on various charges and/or accusing them of misconduct; moreover, the administrative authorities have issued a number of resolutions declaring the strike inadmissible and illegal despite the fact that a subsequent directorate decision, No. 083-2000-DRTPSL-DPSC of 27 November 2000, annulled the decision taken in the administrative proceedings concerning the exercise of the right to strike. Repressive measures were also taken against the strikers by the police and security personnel of the enterprise.
7. 459. In addition, in its communication dated 9 May 2001, the Federation of Peruvian Light and Power Workers (FTLFP) alleges that the regional electricity utility enterprise Electronorte Medio SA dismissed trade union officer Mr. José Castañeda Espejo, general secretary of the Trujillo Single Trade Union of Light and Power and Allied Workers, on 11 April 2000, despite the fact that he was covered by trade union immunity. The enterprise denied Mr. Castañeda access to the workplace and accused him of unjustified failure to carry out his duties, improper use of the employer’s property for his own profit and providing false information to the employer. However, the FTLFP states that Mr. Castañeda demonstrated that he was not guilty of the serious misconduct of which he was accused. According to the FTLFP the enterprise witness gave evidence before the judicial authority in favour of Mr. Castañeda but later changed that testimony in a subsequent hearing.
8. 460. The complaint adds that on 30 November 2000 the judicial authority declared the dismissal null but fears that the court of second instance, the Trujillo Labour Court, whose composition is not independent, will rule against the trade union officer.

B. The Government’s reply

1. 461. In its communication dated 31 May 2001, the Government refers to the information provided by the Telefónica del Perú enterprise.
2. 462. The enterprise maintains that its relationship with its trade union organizations is one of respect and ongoing coordination; it also respects the workers’ decision to continue carrying out their duties in the enterprise. As regards the lay-offs that occurred since August 2000, the enterprise states that it has been carrying out a number of restructuring processes, which have had a certain impact on its human resources; however, these have been minimized with attractive retirement plans including substantial economic benefits and assistance.
3. 463. The legal basis of the above is contained in section 47 of the consolidated text of Legislative Decree No. 728, the Training and Employment Promotion Act, approved by Presidential Decree No. 002-97-TR, which provides that enterprises and their workers, within the framework of collective bargaining or by individual agreement with the workers, may establish incentive programmes or assistance promoting the establishment of new enterprises by workers who voluntarily choose to terminate their employment relationship.
4. 464. With regard to the alleged rehiring of workers with lower pay and working conditions referred to by the complainant in its allegations, the enterprise states that, after the persons concerned have accepted their benefits, they have the possibility of being hired by the enterprises providing services to Telefónica del Perú, which does not mean that they are rehired by the latter. It also explains that the employment relationship of these persons is with the enterprise providing services on an outsourcing basis and not with Telefónica del Perú.
5. 465. Moreover, the enterprise maintains that the Trade Union of Workers of Telefónica del Perú and the Single Trade Union of Workers of Telefónica del Perú declared an open-ended general strike beginning on 15 November 2000, which was declared inadmissible by the administrative labour authority, in the course of which acts of violence were committed against the enterprise and some officials and fellow workers. Hence the enterprise resorted to the application of a number of sanctions against those who perpetrated the abovementioned acts.
6. 466. The strike was declared inadmissible by Subdirectorate Order No. 043?2000?DRTPSL?DPSC of 3 November 2000, given that collective bargaining was at the stage of direct negotiation, resulting in the application of section 75 of the Collective Labour Relations Act, Decree No. 25593, which provides that the exercise of the right to strike is conditional upon having exhausted the procedure of direct negotiation between the parties concerning the matter at issue. This decision was confirmed in the same terms by Directorate Order No. 077?2000?DRTPSL of 13 November 2000.
7. 467. Following an inspection to verify the existence of the strike, Subdirectorate Order No. 045?2000?DRTPSL?DPSC of 16 November 2000 declared the general strike held by the abovementioned trade unions illegal under the provisions of section 84(a) of the Collective Labour Relations Act, Legislative Decree No. 25593, which states that a strike shall be declared illegal if it is held despite having been declared inadmissible. Nonetheless, by Directorate Order No. 83-2000-DRTPSL, the administrative labour authority decided to annul the abovementioned inspection record as it was drawn up without meeting the formal requirements laid down by the law; it also declared Subdirectorate Order No. 045?2000?DRTPSL?DPSC null, and ordered a new inspection to verify the existence of the strike.
8. 468. In this respect, the allegation put forward by the CGTP in its complaint to the effect that the administrative labour authority had annulled the order declaring the strike inadmissible was incorrect, given that Directorate Order No. 83?2000?DRTPSL only annulled the decision as to the illegality of the strike.
9. 469. It is important to point out that after the inspection was carried out it was confirmed that the strike called by the two trade unions had in fact taken place and hence, under section 84(a) of the Collective Labour Relations Act, Legislative Decree No. 25593, which provides that a strike shall be declared illegal if it is held despite the fact that it has been declared inadmissible, the strike was declared illegal by Subdirectorate Order No. 049?2000?DRTPSL?DPSC, which was upheld by Directorate Order No. 085?2000?DRTPSL, and the proceedings which gave rise to the abovementioned trade unions’ request were accordingly closed. Lastly, the enterprise maintains that, with the signing of the collective agreement for 1999?2003, a tripartite commission was established comprising a representative of the enterprise, one from each trade union and an outside mediator as chairperson, in order to evaluate the employment situation of the workers subjected to sanctions as a result of the acts committed during the strike. The enterprise states that 75 of these workers have been reinstated.
10. 470. The Government points out for its part that, while the Telefónica del Perú SAA enterprise has carried out a restructuring process and as a result has implemented incentive programmes, these are in accordance with labour legislation. Moreover, the procedure through which the strike held by the Trade Union of Workers of Telefónica del Perú and the Single Trade Union of Workers of Telefónica del Perú was declared inadmissible and illegal by the administrative labour authority was carried out in strict compliance with the provisions of the Collective Labour Relations Act, Act No. 25593. Lastly, if the Trade Union of Workers of Telefónica del Perú or the Single Trade Union of Workers of Telefónica del Perú finds that Telefónica del Perú SAA is carrying out dismissals that are unjustified or liable to annulment, they may assert their rights by availing themselves of domestic judicial remedies.
11. 471. In its communication dated 16 August 2001, the Government indicates that regarding the dismissal of the trade union officer Mr. José Castañeda Espejo, the ultimate ruling of the judicial authority was not favourable to his reinstatement.

C. The Committee’s conclusions

1. 472. The Committee notes that in this case the complainants have alleged the following: (1) mass lay-offs in the Telefónica del Perú enterprise in the context of a restructuring process, giving rise to an open-ended general strike beginning on 15 November 2000, which was declared illegal, resulting in the dismissal of numerous trade union officers and members and repressive measures by the police and security personnel of the enterprise; (2) the delay, after 12 months, in the process of collective negotiation of the workers’ demands, despite initiatives taken by the trade unions to reach mutually acceptable agreements; (3) pressure on workers who had been rehired by the enterprise not to join trade unions; and (4) the dismissal in another enterprise of trade union officer Mr. José Castañeda Espejo.
2. 473. The Committee observes that the Government refers to the statements of the Telefónica del Perú enterprise to the effect that: (1) the mass lay-offs were carried out in accordance with the legislation as part of restructuring processes and were accompanied by attractive retirement plans with substantial economic benefits and assistance; (2) some of the persons who accepted the retirement plans were rehired, not by the Telefónica del Perú enterprise but by other enterprises providing services to it on an outsourcing basis; (3) the open-ended general strike called by the trade unions was declared inadmissible, as the stage of direct negotiation had not been exhausted, and illegal, and in the course of the strike acts of violence were committed against the enterprise and some officials and fellow workers; (4) a collective agreement was signed (1999-2003) providing for the establishment of a tripartite commission to evaluate the situation of the workers who had been penalized for acts committed during the strike, and 75 of these workers were reinstated.
3. 474. The Committee notes with interest the reinstatement of 75 workers who had been dismissed for acts related to the exercise of the strike, as well as the signing of the new collective agreement (1999-2003). Nonetheless, it deplores the acts of violence, both those reported by the complainant and those mentioned by the enterprise. The Committee requests the Government to inform it whether the collective dispute referred to in this case has been completely settled or whether aspects still remain to be settled, in particular with regard to dismissals connected with the strike. In any event, the Committee observes that in this case the administrative authority, in accordance with the legislation in force, declared the strike inadmissible and illegal, and that this was confirmed by the Government. In this respect, irrespective of the grounds for this declaration, the Committee would like to emphasize – as it has already done in other cases relating to Peru (see, for example, 325th Report, Case No. 2049, paragraph 520) – the importance it attaches to the principle that “responsibility for declaring a strike illegal should not lie with the Government, but with an independent body which has the confidence of the parties involved” [see Digest of decisions and principles of the Freedom of Association Committee, 1996, para. 522] and requests the Government once again to take immediate steps to ensure that in future the determination of the legality of strikes is carried out by an independent body which has the confidence of the parties involved and not by the administrative authority.
4. 475. Concerning the dismissal of the trade union officer Mr. José Castañeda Espejo, the Committee requests the Government to send it a copy of the last ruling of the judicial authority which was not in his favour.
5. 476. Lastly, the Committee requests the Government to send its observations on the pressure brought to bear on the workers of Telefónica del Perú SAA who were rehired to prevent them from joining trade unions.

The Committee's recommendations

1. 477. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government to inform it whether the collective dispute in the Telefónica del Perú SAA enterprise referred to in this case has been completely settled or whether aspects still remain to be settled, in particular with regard to dismissals connected with the strike.
   • (b) The Committee requests the Government to take immediate steps to ensure that the determination of the legality of strikes is carried out by an independent body which has the confidence of the parties involved and not by the administrative authority.
   • (c) Concerning the dismissal of the trade union officer Mr. José Castañeda Espejo, (from the regional electricity utility enterprise Electronarte Medio SA), the Committee requests the Government to send it a copy of the final ruling of the judicial authority.
   • (d) The Committee requests the Government to send its observations on the alleged pressure brought to bear on the workers of Telefónica del Perú SAA who were rehired to prevent them from joining trade unions.