Interim Report - Report No 356, March 2010

Case No 2533 (Peru) - Complaint date: 06-NOV-06 - Closed

Allegations: The complainant organizations allege dismissals and suspensions of trade union officials and members, and also obstruction of collective bargaining in fishing industry enterprises; collective bargaining with minority unions in a mining enterprise; and violations of trade union rights in a textile enterprise

1. 1050. The Committee last examined this case at its meeting in March 2009 and on that occasion submitted an interim report to the Governing Body [see 353rd Report, paras 1054–1090, approved by the Governing Body at its 304th Session]. In a communication dated 13 April 2009, the Federation of Fishing Industry Workers of Peru (FETRAPEP) sent new allegations.
2. 1051. The Government sent its observations in communications dated 25 February, 28 April and 3 November 2009.
3. 1052. 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. Previous examination of the case

1. 1053. When it examined this case at its meeting in March 2009, the Committee made the following recommendations [see 353rd Report, para. 1090]:
   • (a) With regard to the allegations concerning Pesquera San Fermín SA in relation to the dismissal of the last general secretaries of FETRAPEP, Mr Eugenio Caritas and Mr Wilmert Medina Campos, and of member Mr Richard Veliz Santa Cruz, and the predismissal letters sent to Mr Juan Martínez Dulanto, records and archives secretary, Mr Ronald Díaz Chilca, discipline, culture and sport secretary, and Mr Freddy Medina Soto, member, the Committee notes with regret that the information provided by the Government only refers to Mr Richard Veliz Santa Cruz, and urges the Government to carry out an in-depth investigation at the company to obtain information on the dismissals of and pre-dismissal letters sent to the union officials and members, and the reasons for them.
   • (b) With regard to the allegations relating to Tecnológica de Alimentos SA Grupo SIPESA (after pressure was put on the workers, all workers at all the plants were dismissed on 25 July 2006) and Alexandra SAC (non-recognition of the union and harassment of its members), the Committee urges the Government to inform it whether those inspection visits have already been carried out and, if so, what the outcome was.
   • (c) With regard to the allegations concerning Pesquera Diamante SA relating to the dismissal of 37 unionized workers who refused to sign a six-month contract, and the forcible detention of all unionized workers until they signed a new contract containing a clause requiring the union to remain inactive for one year, which they eventually signed, the Committee requests the Government to send copies of the contravention notices drawn up during the inspections and the records relating to any fines imposed, in order to determine whether the fines were imposed for violations of trade union rights or for other violations of labour legislation that were covered by the inspection.
   • (d) With regard to the allegations concerning CFG Investment SAC (dismissal of 16 workers who were members of the Union of Workers of CFG Investment SAC at the Chancay plant, including eight members of the executive committee and the members of the committee negotiating the list of claims; the sanction imposed on the enterprise for these anti-union acts; the reinstatement of the officials and members following a petition for protection of constitutional rights (amparo) and their subsequent transfer to a plant in a different region; and, finally, the dismissal of the union’s General Secretary, Mr Abel Rojas Villagaray, and two other workers), the Committee requests the Government to carry out an in-depth investigation without delay into the new allegations and, if it is confirmed that new anti-union acts are taking place, to take appropriate measures to impose further sanctions on the enterprise that are sufficiently dissuasive to ensure that, in the future, it refrains from anti-union acts against trade union officials, reinstates the official, and revokes the transfers. With regard to the other dismissed workers, the Committee requests the Government, if the allegations of anti union dismissal are proven true, to have them reinstated or where this is not possible for objective and compelling reasons, to ensure that they are adequately compensated so as to constitute sufficiently dissuasive sanctions. The Committee requests the Government to keep it informed in that regard, as well as of the outcome of the appeal lodged by the enterprise against the sanction imposed previously.
   • (e) With regard to the new allegations presented by FETRAPEP regarding the revocation of the registration of the national executive committee for the period 2008–10, the amendments to the union’s by-laws, and its official records through Directive
2. No. 118-2008-MTPE/2/12.2 issued by the Department for Conflict Prevention and Resolution, the Committee requests the Government to indicate any ongoing judicial actions concerning this matter.
   • (f) With regard to the allegations presented by the FNTMMSP that the Southern Peru Copper Corporation is seeking to impose a six-year period of validity on collective bargaining, by using five minority unions representing 350 out of a total of 2,500 workers, the Committee requests the Government to provide information as to whether the fine of 103,500 nuevos soles proposed by the National Labour Inspection Directorate has already been imposed.
   • (g) With regard to the allegations presented by the CGTP (non-recognition of the Single Union of Workers of Textiles San Sebastián SAC, refusal to apply the check-off facility for the collection of union dues, refusal to provide a noticeboard, refusal to bargain collectively, outsourcing of production with a view to restricting the exercise of freedom of association, transfer of unionized workers, and dismissal of the union’s General Secretary, secretary for workers’ rights and another member), the Committee, while taking note of the fine of 103,500 nuevos soles (US$36,315.79) imposed on the enterprise, and taking into account the fact that the veracity of the allegations has been confirmed by the administrative authority, once again requests the Government, in addition to implementing the sanction imposed, to take the necessary measures without delay to ensure that the enterprise reinstates the dismissed officials and workers with the payment of wage arrears, recognizes the union, rectifies the anti-union measures taken against it, and refrains from adopting any such measures in the future. The Committee further requests the Government to promote collective bargaining between the parties and to keep it informed of developments.
   • (h) With regard to the judicial revocation of the registration of the Pesca Perú Huarmey SA Trade Union, requested by the enterprise, for falling below the legal minimum membership, the Committee again asks the Government to confirm whether the judicial authority was able to determine that the reduction in the union’s membership to a level below the legal minimum membership was not the result of dismissals or anti-union pressure exerted on union members.

B. The complainants’ new allegations

1. 1054. In its communication dated 13 April 2009, FETRAPEP refers to the dismissals of the unionized workers of the enterprise CFG Investment SAC (16 workers who were members of the Union of Workers of CFG Investment-Chancay-SITRACICH, including all the members of the executive committee and of the committee negotiating the list of claims for the 2006–07 period), 15 of whom were reinstated in light of a temporary reinstatement order within the framework of an application for amparo (protection of constitutional rights), and reports that, in August 2008, as the proceedings relating to the amparo action continued, the Judicial Authority of Chancay issued a ruling in favour of the workers, ordering the enterprise to reinstate the affected workers in their posts. The enterprise appealed against the ruling and the case went before the Civil Chamber of the Judicial Authority of Huaura, based in the city of Huacho. In December, the Civil Chamber issued a final ruling upholding the ruling issued by the Judicial Authority of Chancay. Following delays on the part of the enterprise, which lodged a series of appeals before the court in Chancay, on 26 March 2009 the reinstatement order was implemented by the court secretary, but to the surprise of the workers, on the following day (27 March) the 11 reinstated workers received pre-dismissal letters informing them of their imminent dismissal on Friday, 3 April 2009.

C. The Government’s response

1. 1055. In its communication dated 25 February 2009, the Government states that, with regard to the steps taken by the Ministry of Labour and Employment Promotion concerning the FETRAPEP complaint involving alleged violations of trade union rights in Peru, it should also be pointed out that through circular No. 069-2008-MTPE/2/11.4 the Ministry’s National Labour Inspection Directorate requested information from the various Regional Directorates of Labour and Employment Promotion throughout the country. In particular, the Government states that:
   • – The enterprise Pesquera Diamante SA. The following information was verified as a result of the inspection activities undertaken: (1) the enterprise Pesquera Diamante SA merged with the enterprises: Consorcio Malla SA, Pesquera Polar SA, Pesquera Atlántico SRL, Icapesca SA, and Pesquera Leirici SA, as stated in the document detailing the merger; (2) as a result of this merger, the enterprise Pesquera Diamante SA stated that it would assume, on a universal basis and as a single block, the entire equity of the absorbed enterprises, which would become legally extinguished. Thus, the enterprise Pesquera Diamante SA would increase its equity; (3) the enterprise Pesquera Diamante SA signed new contracts with all the workers of the extinguished enterprise Pesquera Polar SA despite the fact that when the latter merged with the inspected enterprise, those workers on fixed-term contracts should have been on indefinite contracts and the initial dates of entry of the previously signed contracts respected. The inspection activities revealed that: the inspected enterprise credits wage payments to all the current workers, including 40 former Pesquera Polar SA workers; on assuming the assets and liabilities of the absorbed enterprises the inspected enterprise was obliged to honour the commitments made to the workers of those enterprises, something it failed to do in the case of the former Pesquera Polar SA workers. Furthermore, the inspected enterprise signed new contracts with the former Pesquera Polar SA workers on 1 November 2007, disregarding the dates of entry of the abovementioned workers, most of whom had completed more than five years’ service and had had their contracts repeatedly renewed, meaning that they should have been on indefinite rather than fixed-term contracts. Section two of point IV (contravention classification) of a contravention notice arising from inspection order No. 033-2007-TR dated 31 August 2007 (naming Pesquera Polar SA) refers to an extremely serious contravention – “non-compliance with the provisions relating to indefinite contracts, irrespective of what the contracts are called and their fraudulent use …”, sanctioned with a fine of 34,500 nuevos soles (PEN) for non-compliance with the provisions relating to modal contracts. This sanction applies in the case of 81 workers, including the 40 former workers of the abovementioned enterprise on the payroll of the enterprise Pesquera Diamante SA, in light of the fact that that enterprise, having assumed the assets and liabilities of the enterprise Pesquera Polar SA is also now responsible for the former Pesquera Polar SA workers and the abovementioned fine. Given that the latter enterprise is extinguished, the fine is not, however, doubled as a result of this approach.
   • – The enterprise CFG Investment SAC. The following was noted with regard to inspection order No. 069-2007-DNIT and the inspection activities undertaken: the employer reports that it employs 36 workers belonging to the Union of Workers of CFG Investment SAC at the Chancay plant. The enterprise carries out acts of discrimination regarding wage increases which are only granted to workers not belonging to the trade union organization. The enterprise brought negotiations concerning a list of claims to a standstill when it dismissed 16 members of the trade union organization, including members of the negotiating committee. Finally, investigations revealed non-compliance by the employer with the social and labour laws currently in force regarding constitutional rights concerning freedom of association and discrimination. This non-compliance affected the 36 workers belonging to the Union of Workers of CFG Investment SAC at the Chancay plant, with the corresponding contravention notice being issued as a result.
   • – The enterprise Tecnológica de Alimentos SA. Under inspection order No. 0301-2008 of 20 February 2008, inspection activities were undertaken to check payrolls and payslips, employment contracts, labour intermediation and freedom of association. According to the final inspection report, it has been established that the inspected enterprise employs 98 workers at the premises visited in Calle A, No. 193, Callao district, Callao constitutional province, of whom 79 are obreros (generally carrying out manual tasks and paid on a weekly basis) and 19 are empleados (generally carrying out non-manual tasks and paid on a monthly basis). The enterprise’s 98 workers have been listed on the payroll since their dates of entry. Furthermore, the enterprise has proof of wage payments dating back to November 2007 for those workers entitled to such treatment owing to their dates of entry, as well as proof that it signed intermittent contracts with 29 of its workers. It maintains indefinite contracts with the rest of its workers with more than five years’ service. It was verified that the enterprise signed contracts subcontracting services to: the enterprise Eulen del Perú Servicios Complementarios SA, with the latter undertaking to provide staff to perform complementary activities in the form of cleaning services; the enterprise SGF Servicios Generales SA, also for complementary activities in the form of cleaning services, and with the enterprise Protección Personal SA, for complementary activities in the form of private security and surveillance services. It was also verified that the inspected enterprise signed a contract subcontracting services to the enterprise Eulen del Perú Servicios Generales SA for the provision of fish selection services, under article 4 of Supreme Decree No. 003-2002-TR. The abovementioned enterprise has 516 workers working on the premises visited. However, it was noted that during the three visits carried out to the premises of the inspected enterprise the area where fish selection is carried out was empty of workers. It was explained that no fish had been received for selection on those days, therefore it was not possible to check on site whether the workers provided by Eulen del Perú de Servicios Generales SA exclusively carried out fish selection work. Finally, with regard to verification of freedom of association, the inspectors (inspection order No. 0301-2008) concluded that, based on the facts and the inspection activities carried out, there was no non-compliance on the part of the enterprise inspected.
   • – The enterprise Pesquera Diamante SA. An inspection visit to the workplace identified (located in Quebrada Agua Lima, Carretera Matarani Kilometre 6.5, Mollendo District, Islay Province, Department of Arequipa) was requested by the National Labour Inspection Directorate of the Ministry of Labour and Employment Promotion and ordered by the Arequipa Regional Office for Labour and Employment Promotion through inspection order No. 017-2008-DDT-MOLL-ARE. Among other things, the inspection established the following: with regard to freedom of association, the workers admitted that they had not been threatened with non-renewal of their contracts by the enterprise Pesquera Diamante SA should they attempt to form a trade union organization. The date of entry of each worker was established and it was found that the 55 workers at the plant had signed and registered intermittent contracts. The enterprise provided proof of the intermittent contracts, these being presented for registration by the Administrative Labour Authority.
   • – The enterprise Textiles San Sebastián SAC. With regard to the enterprise’s refusal to recognize the right of its workers to unionize, its refusal to bargain collectively, and the outsourcing of production with a view to restricting the exercise of freedom of association, among other things, the Government states that given that the Administrative Labour Authority confirmed the veracity of the allegations made by the complainant organization, it imposed a fine of PEN103,500. As yet no up to date information has been provided regarding the enforcement of the abovementioned fine. A request was made for information (through official letter No. 127-2009-MTPE/9.1 (355/389)) regarding any steps recently taken by the administrative authority in relation to this case, in particular as to whether the sanction imposed through directorial decision No. 130-2008-MTPE/2/12320 of 7 February 2008 had been implemented. The response to our request will be taken into account as soon as it has been received.
   • – The enterprise Southern Peru Copper Corporation. The Government states that in accordance with the information provided by the National Labour Inspection Directorate in its official letter No. 964-2008-MTPE/2/11.4, dated 27 May 2008, the relevant inspections were carried out under inspection order No. 052.2007-DNIT. As a result of these inspections it was established that violations of the social and labour laws had occurred with regard to: the failure to credit wage payments to 190 workers; anti-union practices affecting 2,446 trade union members and failure to comply with the inspection requirement in a timely manner (a contravention notice being issued with this aim on 5 November 2007) with the inspectors concerned declaring that a fine of PEN103,500 should be imposed. No information has to date been provided regarding the implementation of sanctions for anti-union practices. A request has therefore been made for the information, the results of which will be communicated in due course.
   • – The enterprise Southern Peru Copper Corporation. The Government states that the allegations (imposition of a six-year period of validity on collective bargaining by using minority unions) are without basis in fact or in law given that a bargaining process was actually carried out and a final agreement reached during an informal meeting on 9 October 2007, at which the parties agreed to sign a final agreement regarding the 2007 draft collective labour agreement. As a result of the arbitration requested by the parties a ruling was issued on 26 October 2007 aimed at resolving the four points on which the parties had until then failed to reach an agreement, the points being: (i) a general increase and adjustment in pay; (ii) closure bonus; (iii) working hours; and (iv) annual adjustment of benefits. The ruling was issued in accordance with point 2 of article 28 of the Political Constitution of Peru and article 60 of the single consolidated text of the Industrial Relations Act, regulations which allow the parties to have recourse to a valid means of labour dispute resolution, be the dispute collective or individual.
   • – The enterprise Pesquera San Fermín SA. As to the alleged dismissal of the last general secretaries of FETRAPEP, Mr Eugenio Ccaritas and Mr Wilmert Medina Campos, and of member Mr Richard Veliz Santa Cruz, and pre-dismissal letters sent to Mr Juan Martínez Dulanto, records and archives secretary, Mr Ronald Díaz Chilca, discipline, culture and sport secretary, and Mr Freddy Medina Soto, the Government states that it has learnt that the enterprise Pesquera San Fermín SA merged with and was absorbed by the enterprise Corporación Pesquera Inca SA (COPEINCA) in the first quarter of 2008. In light of this development, the Administrative Labour Authority was requested to carry out an inspection visit in order that the abovementioned enterprise might clarify the situation regarding the charges levelled against Pesquera San Fermín SA concerning alleged anti-union practices.
   • – The enterprise Pesca Perú Huarmey SA. The Government reiterates with regard to the alleged judicial revocation of the registration of the enterprise’s trade union that the legal ruling was based on the provisions of article 20 of the single consolidated text of the Industrial Relations Act – Supreme Decree No. 010-2003-TR, according to which if it is found that one of the legal requirements for a union’s existence is no longer met (in this case, the minimum legal membership), the judicial authority must issue the appropriate ruling. Finally, having verified that the union no longer had 20 members from the enterprise, the judicial authority therefore upheld the company’s application (a ruling that still stands as no appeal has been submitted by the trade union organization) and the labour authority, pursuant to the court ruling, revoked the trade union registration of the workers in question. Nevertheless, it should be pointed out that the Administrative Labour Authority stated that the inspection activities carried out did not uncover any anti-union practices linked to the abovementioned ruling.
2. 1056. With regard to the new allegations presented by FETRAPEP regarding the revocation of the registration of the national executive committee for the period 2008–10, the Government states that through report No. 03-2009-MTPE/9120 (254/254), of 20 January 2009 a decision was issued on this subject concluding that for reasons of legal certainty the public administration is obliged to establish mechanisms and parameters that make it possible to determine with regard to an ongoing administrative procedure whether the public interest has been infringed, a circumstance which could constitute grounds for invalidating an administrative act in the course of the procedure. Within the framework of the abovementioned supposition, the Administrative Labour Authority, while in the process of recognizing amendments to the by-laws of FETRAPEP, detected signs of infringement of the public interest and in light of the provisions of National Directive No. 002-2005-MTPE/DVMT/DNRT, and in application of the provisions of article 202 of Act No. 27444 – the General Administrative Procedure Act – it was decided to carry out the necessary administrative proceedings in order to be sure of the facts highlighted in the aforementioned administrative process. The status of this process will be reported on in due course. Given that there are no objectively demonstrable legal grounds for the acts of interference in the internal affairs of FETRAPEP attributed to the Administrative Labour Authority in light of Directorate Decision No. 118-2008-MTPE/2/12.2 of 30 July 2008, it would be very difficult to argue that violations of national and international law had occurred and even more so relating to freedom of association.
3. 1057. The Government states that its response takes account of the active participation of the Administrative Labour Authority in the process of dealing with the issue raised by the complainants and adds that various inspection activities were carried out, the results of which (contained in the present report) demonstrate that when the enterprises concerned have violated social and labour laws they have been sanctioned, it being recommended that the corresponding fines be imposed (the Government will report on the implementation of the fines as soon as it has received the information it has requested in this regard from the corresponding departments). The Government states that, in light of the results of the various inspection actions carried out, it is clear that, in most cases, the fines were imposed not for violations of trade union rights but rather for other violations of labour law which were verified. As to the cases involving alleged arbitrary dismissals currently before the courts, it should be pointed out that, under the consolidated text of the Organic Act on the Judiciary, the Administrative Labour Authority shall refrain from issuing an opinion on the matter as to do otherwise would mean that any officials who did not comply with this provision might be held liable, in accordance with paragraph 2 of article 139 of the Political Constitution of Peru, which is based on respect for the independence of the judiciary. The Government will therefore request the judiciary to report on the result of all the legal proceedings relating to the complaint presented and this information will be duly communicated to the ILO.
4. 1058. In its communication dated 28 April 2009, the Government states that with regard to the additional information sent by FETRAPEP regarding the enterprise Textiles San Sebastián SAC, it has already transmitted the corresponding observations. It adds that in accordance with report No. 24-2009-MTPE/9.120 of 26 February 2009, the Regional Directorate of Labour and Employment Promotion of Lima-Callao was requested through official letter No. 127-2009-MTPE/9.1 (355/389) of 19 February 2009, to provide information on any recent steps taken by the Administrative Labour Authority regarding this case, in particular with regard to whether the sanction imposed on the enterprise Textiles San Sebastián SAC through subdirectoral Resolution No. 130-2008-MTPE/2/12.320, dated 7 February 2008, arising from inspection order No. 9532-2007-MTPE/2/12.3, imposing a fine of PEN103,500 on the said enterprise, had been implemented. The Government states that the Regional Directorate of Labour and Employment Promotion of Lima-Callao states in official letter No. 450-009-MTPE/2/12.1 of 12 March 2009 that it submitted a copy of the proceedings to the Office for the Administration of Fines for enforcement of said fine, thus concluding that procedure No. 1756-2007 had been completed and was closed.
5. 1059. In its communication of 3 November 2009, the Government states the following:
   • – Allegations concerning the enterprises Pesquera San Fermín SA and Alexandra SAC. With regard to the allegations concerning Pesquera San Fermín SA in relation to the dismissal of the last general secretaries of FETRAPEP, Mr Eugenio Caritas and Mr Wilmert Medina Campos, and of member Mr Richard Veliz Santa Cruz, and the pre-dismissal letters sent to Mr Juan Martínez Dulanto, Mr Ronald Díaz Chilca and Mr Freddy Medina Soto, and with regard to the allegations concerning the nonrecognition of the union and the harassment of its members by the enterprise Alexandra SAC, it should be noted that the Regional Directorate of Labour and Employment Promotion of Lima-Callao was requested through official letter No. 962-2009-MTPE/9.1 to provide up to date information regarding this case, which will be reported in due course.
   • – Allegations regarding the anti-union acts against the Union of Workers of CFG Investment SAC at the Chancay plant. In procedure No. 035-2007-PS-MTPE/2/12.621 concerning the contravention notice of 23 November 2007 issued to CFG Investment SAC, pursuant to the provisions of the General Labour Inspection Act No. 28806 and its regulations approved by Decree No. 019-2006-TR, the Huacho administrative authority issued on 1 July 2009 area resolution No. 046-2009-MTPE/2/12.621, establishing that the enterprise had committed three serious contraventions and imposing the respective fine of up to PEN18,216. It is established that the enterprise carried out acts of hostility against the Union of Workers of CFG Investment SAC at the Chancay plant, preventing it from exercising its constitutional rights relating to freedom of association, by having dismissed the members of the negotiating committee without justification on objective grounds. This measure also coincided with the establishment of the trade union organization and the collective bargaining process it initiated; as a result, the rights of 36 workers have been affected. It is also established that the enterprise in question demonstrated wage discrimination against the members of the Union of Workers of CFG Investment SAC at the Chancay plant by granting wage increases exclusively to nonunionized workers, without any objective justification, thereby committing acts that have led to the withdrawal of members from the union in question and have also affected 36 workers who are members of the union. Lastly, the enterprise is considered to have committed a third, extremely serious contravention in relation to labour inspection, because it did not comply with the order to adopt measures to ensure compliance with the current social and labour legislation concerning the reinstatement of the workers who were affected by the staff cuts, thereby affecting 16 workers. As a result of these contraventions, an overall fine of PEN18,216 was imposed, which has been the subject of an appeal (file No. 3629 of 30 July 2009) by CFG Investment SAC; a decision is still pending to date. With regard to the adoption of measures to reinstate all those workers belonging to the Union of Workers of CFG Investment SAC at the Chancay plant who were dismissed for anti-union reasons, including eight members of the executive committee and the members of the committee negotiating the list of claims and the 11 union members who were reinstated only to be dismissed again, as the mentioned inspection did not cover these issues and as an order was issued at that time, official letter No. 963-2009-MTPE/9 has been sent to the National Labour Inspectorate so that appropriate measures can be taken with regard to the verification of the facts in question.
   • – Allegation relating to the recognition of the FETRAPEP national executive committee: with regard to recognition of the amendments to the by-laws of FETRAPEP, through report No. 255-2009-MTPE/2/12.1 dated 12 May 2009, the Regional Directorate of Labour and Employment Promotion of Lima-Callao provides information on the status of file No. 101-974-915310 on recognition of the amendments to the by-laws of FETRAPEP, in which it is indicated that, on that date, according to the certificate of automatic registration of 20 February 2009, the organization in question has an executive board led by Mr Wilmert Medina Campos in his capacity as general secretary for the period 19 February 2008 to 18 February 2010. Notwithstanding the above, by official letter No. 946-2009-MTPE/9.1 dated 23 October 2009, a request has been made for up to date information on the status of the file on the recognition of amendments to the by-laws of FETRAPEP, which will be reported in due course.
   • – Allegations concerning the enterprise Southern Peru Copper. In relation to the allegations made by the complainant in this case, the Government indicates that under the procedure for imposing sanctions (file No. 003-2008-SDILSST-RG/DRTPE.MOQ and report No. 021-2009-SDILSST-RG/DRTPE.MOQ dated 18 May 2009), the party at fault has paid the financial penalty that was imposed.
   • – Allegation concerning the enterprise Textiles San Sebastián SAC. With regard to the claim by FETRAPEP concerning the enterprise’s refusal to recognize the right of its workers to unionize, its refusal to bargain collectively and the outsourcing of production with a view to restricting the exercise of freedom of association, among other things, it should be noted that the Administrative Labour Authority, having confirmed that the allegations made by the complainant organization were wellfounded, imposed a sanction in the form of an overall fine amounting to PEN103,500. As yet no up to date information has been provided regarding the enforcement of this measure, and a request to this effect has been made through official letter No. 963-2009-MTPE/9.1 for information regarding any recent steps taken by the Administrative Labour Authority in relation to this case, in particular with regard to whether the sanction imposed through directorial decision No. 130-2008-MTPE/2/12.320 of 7 February 2008 had been enforced, as well as with regard to the enterprise’s refusal to apply the check-off facility for the collection of union dues, its refusal to bargain collectively, the transfer of unionized workers and the dismissal of the union’s general secretary and the secretary for workers’ rights. The outcome of these inspections will be reported in due course.
   • – Allegations relating to the workplace Tecnológica de Alimentos SA: with regard to the allegations made by the complainant in this case, the Government refers to the final inspection report arising from inspection order No. 9517-2009-MTPE/2/12.3 presented to the workplace known as Tecnológica de Alimentos SA, as according to the events under investigation, this enterprise is responsible for dismissing the workers at all its plants on 25 July 2006. The investigations have made it possible to determine: first, that the enterprise produced payrolls for May 2009 and also for June, July and August 2006; second, that the payroll for May 2009 shows that the enterprise concerned has 4,139 employees and 32 branches nationwide; third, that payrolls, employment contracts, letters of resignation, agreements for termination by mutual consent and social benefits settlements demonstrate that over the months of June, July and August 2006, 211 workers were dismissed from the enterprise Grupo Sindicato Pesquero del Perú SA (Grupo-SIPESA); fourth, with regard to the validity of authority relating to the merger by absorption of Grupo-SIPESA with the enterprise Tecnológica de Alimentos SA on 1 January 2007, it was noted that the enterprise known as Grupo Sindicato Pesquero del Perú SA took over the enterprise Tecnológica de Alimentos SA and that the acquiring enterprise subsequently changed its name to Tecnológica de Alimentos SA and acquired a new Single Register of Taxpayers (RUC) number; fifth, according to the statements by the enterprise in its letter dated 19 June 2009, sent by the enterprise to the Ministry of Labour and Employment Promotion, and by legal representatives in the hearing conducted on 10 July 2009, of the 211 workers who were dismissed, only 12 were union members and 199 did not belong to any union. It was also noted that the following unions are currently still in existence: the Union of Workers of the Tecnológica de Alimentos SA Enterprise, the Committee of Fishing Workers of Ático Port (CODEPTA), the Committee of Non-manual and Manual Workers of Tecnológica de Alimentos SA (Shipyard); and the Committee of Day Labourers at Tecnológica de Alimentos SA (Chimbote Norte); it is established that no acts have been carried out with the aim of undermining the freedom of association of the workers who belong to these unions and that all the enterprise’s workers have not been dismissed. It can be concluded from the inspections carried out by the Labour Inspectorate that there have been no detected contraventions of the standards identified in the inspection order and which were the subject of the inspection. It should be added that the final inspection report, issued on 7 April 2008 by the subdirectorate of labour inspection of the Ministry of Labour and Employment Promotion of Libertad, as set out in administrative file no. 312-08-SDILSST/TRU, contains a ruling that no acts of hostility have been used as a means to undermine freedom of association and that there had been no violations of social and labour standards.

D. The Committee’s conclusions

1. 1060. The Committee recalls that the present case, last examined in March 2009 [see 353rd Report, paras 1054–1090] refers to allegations regarding: (1) dismissals and suspensions of trade union officials and members, and also obstruction of collective bargaining in fishing industry enterprises; (2) collective bargaining with minority unions in a mining enterprise; and (3) violations of trade union rights in a textile enterprise.
   • Clause (a) of the recommendations
2. 1061. As to the allegations regarding the enterprise Pesquera San Fermín SA concerning the dismissals of the last general secretaries of FETRAPEP, Mr Eugenio Caritas and Mr Wilmert Medina Campos, and of member Mr Richard Veliz Santa Cruz and the predismissal letters sent to Mr Juan Martínez Dulanto, records and archives secretary, Mr Ronald Díaz Chilca, discipline, culture and sport secretary, and Mr Freddy Medina Soto, member, the Committee urged the Government to carry out an in-depth investigation at the company to obtain information on the dismissals of and pre-dismissal letters sent to the union officials and members, and the reasons for them. The Committee notes that the Government reports that it has learnt that the enterprise in question merged with and was absorbed by the enterprise COPEINCA in the first trimester of 2008 and in light of this the Administrative Labour Authority was requested to carry out an inspection visit in order that the enterprise might clarify the situation regarding the allegations made against the enterprise Pesquera San Fermín SA concerning alleged anti-union practices and that the Regional Directorate of Labour and Employment Promotion of Lima-Callao was requested to provide up to date information regarding this allegation. In these circumstances, the Committee hopes that the inspection of the enterprise referred to by the Government will be carried out without delay and that it will cover all the pending allegations. The Committee requests the Government to keep it informed in this regard.
   • Clause (b) of the recommendations
3. 1062. With regard to the allegations relating to the enterprise Tecnológica de Alimentos SA – Grupo SIPESA (according to the complainants, after pressure was put on the workers, all workers at all the plants were dismissed on 25 July 2006) and the enterprise Alexandra SAC (non-recognition of the union and harassment of its members), the Committee urged the Government to inform it whether the inspection visits that the National Labour Inspection Directorate had been requested to undertake had already been carried out and, if so, what the outcome was. In this regard, the Committee notes that the Government states: (1) with regard to the allegations relating to the enterprise Tecnológica de Alimentos SA – Grupo SIPESA, that inspection activities were carried out in various areas (payroll and payslips, employment contracts, labour intermediation and freedom of association) and that with regard to verification of freedom of association, the inspection authority that carried out the activities in question noted the existence of a trade union and four workers’ committees, that no acts of hostility have been used as a means to undermine freedom of association and that there have been no violations of social and labour standards and (2) with regard to the Alexandra SAC enterprise, the Regional Directorate of Labour and Employment Promotion of Lima-Callao was requested to provide up to date information. The Committee yet again urges the Government to inform it of the outcome of the inspection visits to the enterprise Alexandra SAC regarding the allegations of nonrecognition of the union and harassment of its members.
   • Clause (c) of the recommendations
4. 1063. With regard to the allegations concerning the enterprise Pesquera Diamante SA, relating to the dismissal of 37 unionized workers who refused to sign a six-month contract, and the forcible detention of all unionized workers until they signed a new contract containing a clause requiring the union to remain inactive for one year, which they eventually signed, the Committee requested the Government to send copies of the contravention notices drawn up during the inspections and the records relating to any fines imposed, in order to determine whether the fines were imposed for violations of trade union rights or for other violations of labour legislation that were covered by the inspection. In this regard, the Committee notes that the Government reports that: (1) under inspection order dated 31 August 2007, it was determined that an extremely serious contravention had been committed involving non-compliance with the provisions relating to indefinite contracts and a sanction was imposed in this regard, and (2) under inspection order No. 017-2008 an inspection visit was carried out as a result of which it was established that with regard to freedom of association, the workers admitted that they had not been threatened with non-renewal of their contracts by the enterprise Pesquera Diamante SA should they attempt to form a trade union organization.
   • Clause (d) of the recommendations
5. 1064. With regard to the allegations concerning the enterprise CFG Investment SAC (dismissal of 16 workers who were members of the Union of Workers of CFG Investment SAC at the Chancay plant, including eight members of the executive committee and the members of the committee negotiating the list of claims; the sanction imposed on the enterprise for these anti-union acts; the prior reinstatement of the officials and members following a petition for amparo and their subsequent transfer to a plant in a different region; and, finally, the dismissal of the union’s General Secretary, Mr Abel Rojas Villagaray, and two other workers), the Committee requested the Government to carry out an in-depth investigation without delay into the new allegations and, if it was confirmed that new antiunion acts were taking place, to take appropriate measures to impose further sanctions on the enterprise that were sufficiently dissuasive to ensure that, in the future, it refrained from anti-union acts against trade union officials, reinstated the trade union official Mr Abel Rojas, and revoked the transfers. With regard to the other dismissed workers, the Committee requested the Government, if the allegations of anti-union dismissal were proven true, to have them reinstated or, where this was not possible for objective and compelling reasons, to ensure that they were adequately compensated so as to constitute sufficiently dissuasive sanctions.
6. 1065. Furthermore, the Committee notes that in its new allegations FETRAPEP states that: (1) within the framework of the amparo action initiated regarding the alleged dismissals in August 2008, the Judicial Authority of Chancay issued a ruling in favour of the workers ordering the enterprise to reinstate the affected workers in their posts; (2) the enterprise appealed against the ruling issued by the Judicial Authority of Chancay, which was upheld by the Civil Chamber of the Judicial Authority of Huaura in December 2008; and (3) on 26 March 2009 the reinstatement order was implemented in the enterprise, but on 27 March, 11 of the reinstated workers received pre-dismissal letters.
7. 1066. With regard to inspection order No. 069-2007-DNIT and the inspection activities undertaken, the Committee notes that the Government reports that: (1) in accordance with the information provided by the employer, the enterprise employs 36 workers belonging to the Union of Workers of CFG Investment SAC at the Chancay plant; (2) the enterprise carries out acts of discrimination regarding wage increases, which are only granted to workers not belonging to the trade union organization; (3) the enterprise brought negotiations concerning a list of claims to a standstill when it dismissed 16 workers who were members of the trade union organization, including members of the bargaining committee; (4) the employer failed to comply with the social and labour laws currently in force regarding constitutional rights linked to freedom of association and discrimination, affecting the 36 workers belonging to the Union of Workers of CFG Investment SAC at the Chancay plant, with the corresponding contravention notice being issued as a result; (5) on 1 July 2009, the Huacho administrative authority issued a resolution establishing that the enterprise had committed three serious contraventions (acts of hostility against the union, dismissal of members of the negotiating committee and wage discrimination against unionized workers, and it had failed to comply with the order to reinstate 16 dismissed workers), imposing a fine of PEN18,216, a sanction that was the subject of an appeal by the enterprise on 30 July 2009; and (6) with regard to the requested reinstatement of all dismissed workers, including the eight members of the executive committee of the negotiating committee and 11 union members, the National Labour Inspection Directorate was asked to take measures to verify the facts.
8. 1067. Taking into account all the information, in particular the fact that the Government confirms the allegations of anti-union discrimination on the part of the enterprise affecting members of the union, the Committee requests the Government to: (1) take the necessary steps, as ordered by the judicial authority, to reinstate all those workers belonging to the Union of Workers of CFG Investment SAC at the Chancay plant dismissed for anti-union reasons – including eight members of the executive committee and the members of the committee negotiating the list of claims and the 11 union members who were reinstated only to be yet again dismissed; (2) put an end to the acts of anti-union discrimination involving wage increases granted exclusively to non-unionized workers; (3) reinitiate negotiations concerning the list of claims, should the trade union organization so wish; and (4) report on the enforcement of the fine imposed on the enterprise for anti-union acts. The Committee requests the Government to keep it informed regarding any steps taken in this regard.
   • Clause (e) of the recommendations
9. 1068. With regard to the allegations presented by FETRAPEP regarding the revocation of the registration of the national executive committee for the period 2008–10, the amendments to the union’s by-laws, and its official records through Directive No. 118-2008-MTPE/2/12.2 issued by the Department for Conflict Prevention and Resolution, the Committee requests the Government to indicate any ongoing judicial actions initiated by the trade union concerning this matter. The Committee notes that the Government states that: (1) for reasons of legal certainty the public administration is obliged to establish mechanisms and parameters that make it possible to determine with regard to an ongoing administrative procedure whether the public interest has been infringed, a circumstance which could constitute grounds for invalidating an administrative act in the course of the procedure; (2) within the framework of the abovementioned supposition, the Administrative Labour Authority, while in the process of recognizing amendments to the by-laws of FETRAPEP, detected signs of infringement of the public interest and in light of the provisions of National Directive No. 002-2005-MTPE/DVMT/DNRT, and in application of the provisions of section 202 of Act No. 27444 – the General Administrative Procedure Act, it was decided to carry out the necessary administrative proceedings in order to be sure of the facts highlighted in the aforementioned administrative process. The status of this process will be reported on in due course; (3) given that there are no objectively demonstrable legal grounds for the acts of interference in the internal affairs of FETRAPEP attributed to the Administrative Labour Authority in light of Directorate Decision No. 118-2008-MTPE/2/12.2 of 30 July 2008, it would be very difficult to argue that violations of national and international law had occurred and even more so relating to freedom of association; (4) on 12 May 2009, the Regional Directorate of Labour and Employment Promotion of Lima-Callao indicates that FETRAPEP has an executive board led by Mr Wilmert Medina Campos in his capacity as general secretary for the period 19 February 2008 to 18 February 2010; and (5) on 23 October 2009, a request was made for up to date information on the status of the file on the recognition of amendments to the by-laws of FETRAPEP, which will be reported in due course.
10. 1069. In these circumstances, the Committee takes due note of the fact that a solution has been found regarding the registration of the FETRAPEP national executive committee for the period 2008–10, expresses the hope that the process of registering the amendments to the union’s by-laws and its official records will be completed as quickly as possible and requests the Government to keep it informed in this regard.
    • Clause (f) of the recommendations
11. 1070. With regard to the allegations presented by the FNTMMSP that the Southern Peru Copper Corporation is seeking to impose a six-year period of validity on collective bargaining, by using five minority unions representing 350 out of a total of 2,500 workers, the Committee requested the Government to provide information as to whether the fine of PEN103,500 proposed by the National Labour Inspection Directorate has already been imposed. In this regard, the Committee notes that, according to the Government, the enterprise in question has paid the fine that was imposed.
    • Clause (g) of the recommendations
12. 1071. With regard to the allegations presented by the General Confederation of Workers of Peru (CGTP) (non-recognition of the Single Union of Workers of Textiles San Sebastián SAC, refusal to apply the check-off facility for the collection of union dues, refusal to provide a noticeboard, refusal to bargain collectively, outsourcing of production with a view to restricting the exercise of freedom of association, transfer of unionized workers, and dismissal of the union’s General Secretary, secretary for workers’ rights and another member), the Committee, while taking note of the fine of PEN103,500 (US$36,315.79) imposed on the enterprise, and taking into account the fact that the veracity of the allegations has been confirmed by the administrative authority, once again requested the Government, in addition to implementing the sanction imposed, to take the necessary measures without delay to ensure that the enterprise reinstates the dismissed officials and workers with the payment of wage arrears, recognizes the union, rectifies the anti-union measures taken against it, and refrains from adopting any such measures in the future. The Committee further requested the Government to promote collective bargaining between the parties and to keep it informed of developments. In this regard, the Committee notes that the Government states that: (1) the Regional Directorate of Labour and Employment Promotion of Lima-Callao states in official letter No. 450-009-MTPE/2/12.1 of 12 March 2009 that it submitted a copy of the proceedings to the Office for the Administration of Fines for enforcement of said fine, thus concluding that procedure No. 1756-2007 had been completed and was closed; and (2) its response takes account of the active participation of the Administrative Labour Authority in the process of dealing with the issue raised by FETRAPEP and the CGTP, referring to various inspection activities that were carried out, the results of which demonstrate that when the enterprises concerned have violated social and labour laws they have been sanctioned, it being recommended that the corresponding fines be imposed, with the corresponding enforcement processes currently ongoing.
13. 1072. In these circumstances, while noting that instructions have been issued regarding the collection of the fines imposed, the Committee once again requests the Government to take the necessary measures without delay to ensure that the enterprise reinstates the dismissed officials and workers with the payment of wage arrears, recognizes the union, rectifies the anti-union measures taken against it, refrains from adopting any such measures in the future and promotes collective bargaining between the parties. The Committee requests the Government to keep it informed of developments in this regard.
    • Clause (h) of the recommendations
14. 1073. With regard to the judicial revocation of the registration of the Pesca Perú Huarmey SA Trade Union, requested by the enterprise, for falling below the legal minimum membership, the Committee requested the Government to confirm whether the judicial authority was able to determine that the reduction in the union’s membership to a level below the legal minimum membership was not the result of dismissals or anti-union pressure exerted on union members. In this regard, the Committee notes that the Government states that: (1) having verified that the union no longer had 20 members from the enterprise, the court upheld the company’s application; (2) the ruling still stands as no appeal has been submitted by the trade union organization; and (3) the Administrative Labour Authority stated that the inspection activities carried out did not uncover any antiunion practices.

The Committee's recommendations

1. 1074. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) As to the allegations regarding the enterprise Pesquera San Fermín SA concerning the dismissals of the last general secretaries of FETRAPEP, Mr Eugenio Caritas and Mr Wilmert Medina Campos, and of member Mr Richard Veliz Santa Cruz and the pre-dismissal letters sent to Mr Juan Martínez Dulanto, records and archives secretary, Mr Ronald Díaz Chilca, discipline, culture and sport secretary, and Mr Freddy Medina Soto, member, the Committee hopes that the inspection of the enterprise referred to by the Government will be carried out without delay and that it will cover all the pending allegations. The Committee requests the Government to keep it informed in this regard.
   • (b) The Committee yet again urges the Government to inform it of the outcome of the inspection visits to the enterprise Alexandra SAC regarding the allegations of non-recognition of the union and harassment of its members.
   • (c) The Committee requests the Government to: (1) take the necessary steps, as ordered by the judicial authority, to reinstate all those workers belonging to the Union of Workers of CFG Investment SAC at the Chancay plant dismissed for anti-union reasons – including eight members of the executive committee and the members of the committee negotiating the list of claims and the 11 union members who were reinstated only to be yet again dismissed; (2) put an end to the acts of anti-union discrimination involving wage increases granted exclusively to non-unionized workers; (3) reinitiate negotiations concerning the list of claims, should the trade union organization so wish; and (4) report on the enforcement of the fine imposed on the enterprise for anti-union acts. The Committee requests the Government to keep it informed regarding any steps taken in this regard.
   • (d) The Committee expresses the hope that the process of registering the amendments to FETRAPEP’s by-laws and its official records will be completed as quickly as possible, and requests the Government to keep it informed in this regard.
   • (e) With regard to the allegations presented by the CGTP (non-recognition of the Single Union of Workers of Textiles San Sebastián SAC, refusal to apply the check-off facility for the collection of union dues, refusal to provide a noticeboard, refusal to bargain collectively, outsourcing of production with a view to restricting the exercise of freedom of association, transfer of unionized workers, and dismissal of the union’s General Secretary, secretary for workers’ rights and another member), the Committee notes that fines have been imposed on the enterprise due to the challenges filed, and instructions have been issued regarding their collection. The Committee once again urges the Government to take the necessary measures without delay to ensure that the enterprise reinstates the dismissed officials and workers with the payment of wage arrears, recognizes the union, rectifies the anti-union measures taken against it, and refrains from adopting any such measures in the future. The Committee requests the Government to keep it informed of developments.