Informe provisional - Informe núm. 330, Marzo 2003

Caso núm. 2111 (Perú) - Fecha de presentación de la queja:: 27-NOV-00 - Cerrado

Allegations: Dismissals of trade union officers and members from Telefónica del Perú S.A.A. as a result of a strike in protest at mass dismissals in the context of restructuring, pressure on rehired workers to resign from trade unions; dismissal of union officers from the mining company Iscaycruz, pressure on union members to resign and requests from the company to dissolve the union; refusal by the authorities to register the FTLFP; dismissal of a union officer from the Compañía de Minas Buenaventura S.A., and criminal proceedings against officers of the Toquepala Workers’ Union for defamation.

1. 989. The Committee examined this case at its meeting in November 2001 and presented an interim report to the Governing Body [326th Report, paras. 451-477, approved by the Governing Body at its 282nd Session (November 2001)]. New allegations have recently been presented by the Federation of Peruvian Light and Power Workers (FTLFP) (29 January 2002), the General Confederation of Workers of Peru (CGTP) (2 July 2002) and the National Federation of Miners, Metalworkers and Steelworkers of Peru (FNTMMS) (5 September and 1 October 2002). The Government sent new observations in communications dated 11 January, 7 March, 6 and 16 September and 14 November 2002.
2. 990. 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. 991. When the case was last examined, in November 2001, certain matters were left pending. They relate to: (1) dismissals of union members at Telefónica del Perú S.A.A. as a result of a strike against mass dismissals in the context of restructuring of the company; (2) alleged pressure on the company’s workers to resign from their unions; and (3) the dismissal of union officer Mr. José Castañeda Espejo from the regional electricity utility enterprise Electronorte Medio S.A. The Committee drew up the following recommendations on these matters [see the 326th Report, para. 477]:
   • – The Committee requests the Government to inform it whether the collective dispute in the Telefónica del Perú S.A.A. 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 [the Government had reported the signing of a collective agreement and the reinstatement of 75 workers]. [...] – Concerning the dismissal of the trade union officer Mr. José Castañeda Espejo (from the regional electricity utility enterprise Electronorte Medio S.A.), the Committee requests the Government to send it a copy of the final ruling of the judicial authority. – The Committee requests the Government to send its observations on the alleged pressure brought to bear on the workers of Telefónica del Perú S.A.A. who were rehired to prevent them from joining trade unions.

B. New allegations

1. 992. In its communication of 29 January 2002, the Federation of Peruvian Light and Power Workers (FTLFP) alleges that, despite having been constituted in 1963, it has been unable to obtain legal recognition and registration from the various administrative authorities, in particular the Lima Public Registrations Office, thus preventing the FTLFP from registering ownership of its building, which is also claimed by the transnational EDELNOR. The FTLFP points out that, for some years, staff in the Lima Public Registrations Office have been systematically inventing new requirements and objections to prevent legal registration of the complainant.
2. 993. In its communication of 2 July 2002, the General Confederation of Workers of Peru (CGTP), alleges that for the third time since 1987, the Compañía de Minas Buenaventura S.A. has dismissed the union officer, Victor Taype Zúñiga, for his union activities. On previous occasions, the judicial authority had ordered the officer’s reinstatement in his post. In the case of the third dismissal, the judicial authority originally ruled in favour of reinstating him, but the company continues to adopt delaying tactics, alleging errors of procedure (the judicial appeals authority has twice revoked the initial ruling on these grounds).
3. 994. Furthermore, in a communication dated 1 August 2002, the CGTP alleges irregularities in the processing of a complaint by the Southern Peru Copper Corporation against the Toquepala Workers’ Union and others (without specifically naming the alleged authors), alleging aggravated defamation merely on the basis of an unsigned pamphlet accusing the company of irregularities (12-hour working days and up to 60-hour weeks from 10 April 2002 onwards). The company has acted in this manner in order to be able to dismiss the union officers later. The CGTP claims that the unsigned pamphlet could even have been fabricated by the company.
4. 995. The National Federation of Miners, Metalworkers and Steelworkers of Peru (FNTMMSP) alleges, in communications dated 5 September and 1 October 2002, that Mr. Tomás Castro and Mr. Edwin Espinoza Martínez, officers of the Single Trade Union of Mineworkers and Metalworkers of Iscaycruz, were dismissed on 11 June 2001 (the union having been founded on 24 April 2001), and that the company is conducting a campaign to make workers resign from their unions, threatening dismissal and giving them union resignation letters to sign. Of 126 original members the union had only 36 at the date of complaint (September 2001). On 13 August 2001 the company requested the Ministry of Labour to dissolve the union for not having the legal minimum number of members. On 31 August 2001 the company dismissed union officer Mr. Jesús Vázquez Ampuero, Mr. Rafael Prado Velarde (who had led a union gathering that month), union member Nicolás Cano Richard Arturo and three other union members. The complainant fears for the jobs of the remaining union members.

C. Further replies of the Government

1. 996. In its communication dated 11 January 2002, the Government reports that it has asked the judicial authority for a ruling in the case of the dismissal of union officer Mr. José Castañeda Espejo (which, as the Government had already told the Committee, had originally been unfavourable towards the said officer).
2. 997. With regard to the allegations of pressure on workers rehired by Telefónica del Perú S.A.A. not to join a union, the Government states that this fact has not been substantiated in any way and so, without the information necessary to make a judgement, it is unable to comment; however, national legislation provides for mechanisms to ensure unconditional respect for workers’ rights.
3. 998. In its communication dated 7 March 2002, the Government refers to information from Telefónica del Perú S.A.A. on the results of the activities of the tripartite committee established by a collective agreement dated 7 December 2000 to examine the cases of the workers affected. The company reports that, apart from the 75 workers whose reinstatement had already been communicated to the Committee following a statement of intent dated 6 March 2000, the remaining 50 workers who had been dismissed for serious offences were reinstated with full social benefits. Together with the previous 75 workers, this covers all the individual cases examined by the tripartite committee.
4. 999. In its communication dated 6 September 2002, the Government states, in relation to the dismissal of union officer Mr. Victor Taype Zúñiga for a breach of the conditions of union immunity, that when Mr. Taype’s case came before the judicial authority it was found to fall beyond the jurisdiction of the public administration owing to the principle of separation of powers. Under legislation, dismissals for union membership or participation in union activities are null and void.
5. 1000. In its communication dated 16 September 2002, the Government states that on 31 May 2002 the Federation of Peruvian Light and Power Workers was entered in the Register of Associations, once it had complied with all legal requirements.
6. 1001. With regard to the allegations of harassment by the Southern Peru Copper Corporation against the officers of the Toquepala Mineworkers’ Union by bringing criminal charges against them for alleged defamation, in its communication dated 14 November 2002, the Government states that, in the case of harassment of workers, a legal action can be brought to end the harassment and impose sanctions within 30 days of the end of the time given to the employee to prepare his defence. The Government also states that legislation prohibits any action which might in any way curtail the right to organize. The company has emphasized the following points: the defamation for which it has brought charges prejudices the image of the company and the people who represent it; despite the union’s denial of having produced the defamatory pamphlets, the investigation carried out by the judicial police has found evidence that the pamphlets were produced both in the mining town of Toquepala and the city of Tacna, and they have statements from people asked to distribute them by various union officers; the criminal charges brought by the company are not against the trade union but against people who represent it; the company has not infringed any international labour standard and has acted in accordance with Peruvian law, as a legal entity with rights as well as obligations.

D. The Committee’s conclusions

1. 1002. With regard to the dismissals announced at Telefónica del Perú S.A.A. as a result of a strike against mass dismissals in the context of restructuring, the Committee notes with interest the reinstatement, as reported by the Government, of the remaining 50 workers who had been dismissed and whose cases had been examined by the tripartite commission established by a collective agreement dated 7 December 2002.
2. 1003. With regard to the allegations of pressure on workers rehired by Telefónica del Perú S.A.A. not to join a union, the Committee takes note of the Government’s statements that legislation provides for mechanisms protecting against such practices, and that the complainant has not substantiated its allegations in any way. Bearing in mind the general nature of the allegations, the Committee will not pursue its examination of this point, unless the complainants provide new information on their allegations.
3. 1004. With regard to the refusal to register the Federation of Peruvian Light and Power Workers, the Committee notes with interest that the organization was entered in the Register of Associations on 31 May 2002.
4. 1005. As regards the dismissal of union officer Mr. Victor Taype Zúñiga for his union activities, the CGTP has stated that the original ruling was in favour of his reinstatement but that, as a delaying tactic, the company has alleged procedural errors, and the judicial authority has twice so far set aside the original ruling. The Committee takes note of the Government’s statement to the effect that, when Mr. Taype’s case came before the judicial authority, it was found to fall beyond the jurisdiction of public administration owing to the principle of separation of powers. The Committee requests the Government to send it a copy of the final ruling in the case of the dismissal of Mr. Victor Taype Zúñiga, and hopes that the judicial authority will give a ruling on the matter without delay.
5. 1006. Regarding the allegations relating to the criminal case brought by the Southern Peru Copper Corporation against the Toquepala Mineworkers’ Union and others for alleged aggravated defamation, the Committee notes that according to the complainant, the charges have been brought on the basis of unsigned pamphlets in the hope of finding reasons to dismiss the union’s officers. The Committee takes note of the company’s statements to the effect that: (1) acts of defamation prejudice the image of the company and its representatives; (2) the pamphlets were produced in the mining town of Toquepala; and (3) statements have been taken from people asked to distribute them by various union officers. The Committee requests the Government to inform it of the judicial authority’s ruling.
6. 1007. With regard to the FNTMMSP’s allegations dated 5 September and 1 October 2002 (the dismissal in Iscaycruz of union officers Mr. Tomás Castro, Mr. Edwin Espinoza Martínez and Mr. Jesús Vázquez Ampuero, union members Mr. Rafael Pardo Velarde, Mr. Nicolás Cano Richard Arturo and three others; the reduction in the number of union members from 126 to 36 as a consequence of the company’s threats to make workers resign from the union; and the company’s request to the Ministry of Labour for the union to be dissolved for not having the legal minimum number of members), the Committee regrets that the Government has not sent its observations and requests it to carry out an investigation into these serious allegations and, should the alleged anti-union actions be proven, to take the necessary measures to rectify the situation. The Committee requests the Government to keep it informed in this respect.
7. 1008. Lastly, the Committee again requests the Government to send it a copy of the ruling on the dismissal of trade union officer Mr. José Castañeda Espejo.

The Committee's recommendations

1. 1009. 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 send it a copy of the final ruling in the case of the dismissal of union officer Mr. Victor Taype Zúñiga, and hopes that the judicial authority will give a ruling on the matter without delay.
   • (b) Regarding the allegations relating to the criminal case brought by the Southern Peru Copper Corporation against the Toquepala Mineworkers’ Union and others for alleged aggravated defamation, the Committee requests the Government to inform it of the judicial authority’s ruling.
   • (c) With regard to the FNTMMSP’s allegations dated 5 September and 1 October 2002 (the dismissal in Iscaycruz of union officers Mr. Tomás Castro, Mr. Edwin Espinoza Martínez and Mr. Jesús Vázquez Ampuero, union members Mr. Rafael Pardo Velarde, Mr. Nicolás Cano Richard Arturo and three others; the reduction in the number of union members from 126 to 36 as a consequence of the company’s threats to make workers resign from the union; and the company’s request to the Ministry of Labour for the union to be dissolved for not having the legal minimum number of members), the Committee regrets that the Government has not sent its observations and requests it to carry out an investigation into these serious allegations and, should the alleged anti-union actions be proven, to take the necessary measures to rectify the situation. The Committee requests the Government to keep it informed in this respect.
   • (d) Lastly, the Committee again requests the Government to send it a copy of the ruling on the dismissal of trade union officer Mr. José Castañeda Espejo.