Allegations: Declaration by the administrative authority of the illegality of a
strike, dismissal of six trade union leaders and obstruction by the enterprise of the
payment of union dues for three months
- 744. The complaint is contained in a communication of the Single Trade
Union of Workers of Casa Grande and Allied Enterprises (SUTCGA) dated 6 March 2013. The
complainant organization submitted new allegations in a communication dated 27 August
2013. The Federation of Workers of the Peruvian Revolution (CTRP) supported the
complaint in communications dated 25 April and 7 May 2013.
- 745. The Government provided its observations in communications dated 20
September and 27 November 2013.
- 746. 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
A. The complainant’s allegations- 747. In its communications of 6 March and 27 August 2013, the SUTCGA
alleges that, following the approval on 9 January 2013 by the extraordinary assembly of
delegates of the decision to call a strike on 23 January 2013, in compliance with all
the legal requirements (including those relating to the notification of the employer and
the authorities within the statutory period of five days prior to the strike, that is,
up to 16 January), in pursuance of a series of work-related claims and an end to the
violation of the law by the enterprise, the administrative labour authority decided on
18 January to declare the strike notification invalid, adding that the number of members
had not been reported and that the communication notifying the employer of the strike
and the list of workers engaged in essential services had not been provided (however,
the complainant union states that the enterprise had not supplied the list of workers
considered indispensable in the event of a strike at the beginning of the year, as
required by law). Finally, on 28 January 2013, following an appeal by the union, the
administrative authorities once again declared the work stoppage of 23 January 2013
invalid and illegal.
- 748. The complainant also alleges the arbitrary dismissal by the
enterprise, on 3 May 2013, of six trade union leaders for their trade union activities
during the period 2012–13, and particularly the strikes of 23 January and March 2013. It
adds that the six union leaders filed a judicial appeal against the enterprise in the
First Labour Court of Ascope and that, up to now, they have obtained an interim order
for their reinstatement, the execution of which was however delayed by over a
month.
- 749. The complainant further alleges that the enterprise did not transfer
the union dues for May, June and July 2013.
B. The Government’s reply
B. The Government’s reply- 750. In its communications dated 20 September and 27 November 2013, the
Government indicates that the strike of 23 January 2013, to which the complainant union
refers was called in the middle of the collective bargaining process (the Government
provides a very extensive list of meetings between the enterprise and the union,
indicating the documents signed during the negotiation process), and states that the
enterprise did not take any disciplinary measures against the workers who participated
in the strike.
- 751. With regard to the alleged dismissal of Armengol Saucedo Castillo,
Jorge Luis Gil Verde, Olegario Rodríguez Reaño, Mauro Lezcano Pajares, Víctor Rubio
Olvida and Jaime Noriega Sánchez, the Government observes that, in their capacity as
trade union leaders, they convened and presided over the extraordinary assembly of union
delegates held on 5 March 2013, as indicated in the report of the extraordinary
assembly. The specific agenda of the assembly was the “decision to call a 48-hour strike
on 14 and 15 March 2013 in view of alleged labour violations by the enterprise”, which
was unanimously approved, on the understanding that the decision needed to be confirmed
by the base, that is the majority of workers who were members of the union. Accordingly,
on 6 March 2013 (the day after the extraordinary assembly), the former leaders
communicated to both the enterprise and the Regional Administration for Labour and
Employment Promotion of La Libertad the notification of the 48-hour strike, which was
held on 14 and 15 March 2013. The following documents were attached to the
notification:
- – the list of members of the union;
- – order No. 145,
issued by a sub-directorate of the regional labour administration, confirming
receipt of the list of members of the executive board of the union;
- – the
legally certified copy of the report of the extraordinary assembly of
delegates;
- – a copy of the record of the ballot;
- – the report of the
approval of the decision adopted by the extraordinary assembly of delegates,
containing the list of names of the members of the SUTCGA who approved the decision
by the assembly of delegates to call a 48-hour strike, including their names,
signatures and national identity document numbers;
- – the sworn statements by
the members of the executive board, in which they stated under oath that the
decision to call the 48-hour strike was adopted in compliance with the requirements
set out in law, with the indication “I assume the corresponding responsibility for
any failure to be truthful”;
- – a copy of the minutes of the direct
negotiations between the union and the enterprise; and
- – a copy of the
request made to the regional labour administration asking for information concerning
the notification of essential services by the enterprise.
- 752. When these documents had been reviewed, report No. 003-2013-SRH was
issued recording irregularities, as the list of names of the members of the union who
allegedly signed and approved the decision taken by the assembly of delegates to call
the 48-hour strike, including their names, signatures and national identity document
numbers, contained the following inaccurate information:
- – the workers Constante
Sagástegui Álvarez, Walter Correa Quiroz y Erasmo Wilmar Obando Sevillano, although
members of the union, testified that they did not sign a document in the month of
March 2013 approving a strike on 14 and 15 March 2013;
- – a group of persons
were recorded as having signed the decision who at the time of its alleged approval
(6 March 2013) were not working for the enterprise, as their employment had ended;
and
- – the list contained the name of Carlos Alberto Llanos Salazar, who was
sadly no longer a member as he had died on 18 July 2012.
- 753. Accordingly, the dismissal of the former union leaders was not based
on anti-union grounds, but because they committed the serious fault of: failure to
comply with labour-related requirements, resulting in a breakdown of good faith; failure
to comply with the internal work rules; and the provision of false information to the
employer with the intention of causing prejudice or obtaining an advantage. According to
the information provided by the enterprise, the former leaders were identified as being
responsible for these acts. It should be emphasized that this breach not only concerned
the submission of the document containing false information, but also its use to comply
with a legal requirement, on the basis of which the strike was also held.
- 754. According to the information provided by the enterprise Casa Grande,
the latter complied with and offered the former leaders all the guarantees of due
process, namely: (i) they were sent a letter giving them notice of dismissal in writing,
duly supported by the respective documents informing them of the serious fault
attributed to them; (ii) they were granted a period of not less than six calendar days
to defend themselves in writing against the charges levelled against them; (iii) they
were sent another notarized communication to clarify aspects which the former leaders in
their replies had raised as not being accurate; (iv) replies to the second notarized
communication; (v) further analysis and assessment of the charges and the replies sent
by the former leaders; and (vi) once the respective evaluation and analysis had been
completed, they were sent letters of dismissal on 3 May 2013, in which they were
informed of the specific reasons for their dismissal and the date of termination.
- 755. This demonstrates that, when the former leaders were dismissed, all
the guarantees of due process were observed, such as the right of defence and the
principles of immediacy and reasonableness, as required by law when initiating a
termination procedure.
- 756. The Government also confirms that a case is currently before the
courts challenging the dismissal of the six trade union leaders. It is being heard by
the First Labour Court of Ascope, which is ultimately competent to decide whether or not
the dismissals were valid. It adds that the enterprise complied with the interim
reinstatement order.
- 757. With reference to the allegation concerning the failure to pay the
union dues, the Government indicates that, according to the enterprise, it did indeed
make the payment of the last three union dues referred to in the allegations, although
through the judicial assignment of the funds. It opted for that procedure for the
following reasons:
- – the person who had been receiving the cheque for the union
dues every month was Mauro Lezcano Pajares (former financial secretary), whose
employment at the enterprise Casa Grande ended on 3 May 2013, for which reason the
enterprise, in accordance with the statutes of the union, sent a notarized
communication to Segundo Saúl Cabrera Urbina, deputy secretary, who was responsible
for assuming that function. However, he replied to the communication indicating that
he was no longer the deputy secretary, as he had resigned from that position with
full effect. In light of the above, and for reasons of legal security, the
enterprise proceeded to the judicial assignment of the union dues so that a duly
accredited union representative appearing before the court could take receipt of the
payment;
- – in accordance with order No. 145-2001-GR-LL-GG/GRTPE-DPSC-SDNCRG,
issued on 22 July 2011 by the Sub-Directorate for Collective Bargaining and General
Records, the representative status of the executive board elected for the period
2011–13 expired on 21 July 2013; and
- – the enterprise Casa Grande was
appraised of the conflicts that existed within the union, that are fully known to
the Regional Administration for Labour and Employment Promotion of La Libertad, and
which resulted in the establishment of two electoral committees, which in turn
recognized two executive boards, and it was therefore for the purpose of
safeguarding the funds resulting from the contributions of all the unionized workers
that it proceeded to the judicial assignment of the union dues at the court of Paz
Letrado de Chocope, so that legitimacy to represent the union and receive the
payment of the union dues could be confirmed by the courts.
- 758. In light of the above, the Government requests the Committee to set
aside the present complaint and to declare the case closed.
C. The Committee’s conclusions
C. The Committee’s conclusions- 759. The Committee observes that in the present case the complainant
alleges that a strike (on 23 January 2013) was declared invalid and illegal by the
administrative authorities, even though all the legal requirements had been met. It also
alleges the anti-union dismissal on 3 May 2013 of six union leaders by the enterprise
Casa Grande y Anexos in reprisal for their union activities, and that the enterprise did
not transfer the trade union dues for May, June and July 2013.
- 760. With regard to the dismissal of the six union leaders, according to
the allegations, for engaging in union activities, including the strikes called in
January and March 2013, the Committee notes that the enterprise denies any anti-union
motivation and indicates that it found that documents had been falsified and that there
were irregularities in the list of workers who called the strike in 2013 (irregularities
that are described in detail in the Government’s reply).
- 761. In view of the divergence between the versions given by the
complainant and the Government concerning the reasons for the dismissals, and taking
into account the fact that the six union leaders have taken legal action against their
dismissal and that the courts have issued an interim order for their reinstatement,
which has been given effect by the enterprise, the Committee requests the Government to
keep it informed of the outcome of the legal proceedings.
- 762. With reference to the allegation that the strike on 23 January 2013
was declared invalid and illegal by the administrative labour authorities, the Committee
observes that the Government, although it indicates that no disciplinary measures were
taken against the workers who participated in the strike on 23 January 2013, has not
denied that it was the administrative authorities which declared the strike invalid and
unlawful (even though that decision was based on the documents attached by the
complainants).
- 763. The Committee wishes to recall in this respect, as it has on other
occasions when the Peruvian authorities have declared strikes illegal, 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, fifth (revised)
edition, 2006, para. 628]. The Committee once again requests the Government, as it has
done on previous occasions, to take measures to amend the legislation to take this
principle into account.
- 764. Finally, the Committee notes the reasons given by the enterprise
(and particularly the internal conflict which resulted in the existence of two executive
boards) to justify the judicial assignment of the trade union dues for May, June and
July 2013, which were to be paid to the union. The Committee recalls that it is not
competent to make recommendations on internal dissentions within a trade union
organization, so long as the government does not intervene in a manner which might
affect the exercise of trade union rights and the normal functioning of an organization
[see Digest, op. cit., para. 1114].
The Committee’s recommendation
The Committee’s recommendation- 765. In the light of its foregoing conclusions, the Committee invites the
Governing Body to approve the following recommendation:
- The Committee requests
the Government to keep it informed of the outcome of the trial concerning the
dismissal of the six leaders of the complainant union.
