Informe provisional - Informe núm. 351, Noviembre 2008

Caso núm. 2594 (Perú) - Fecha de presentación de la queja:: 17-SEP-07 - Cerrado

Allegations: The complainant organization alleges dismissals, threats of dismissal and other acts of intimidation following the establishment of a trade union at Panamericana Televisión SA (now called Panam Contenidos SA)

1. 1162. The complaint is contained in a communication from the Latin American Central of Workers (CLAT) dated 17 September 2007.
2. 1163. The Government sent its observations in a communication dated 3 March 2008.
3. 1164. 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. 1165. In its communication dated 17 September 2007, the CLAT states that it is submitting a complaint because Convention No. 87, which has been ratified by Peru, has been violated by Panamericana Televisión SA (now called Panam Contenidos SA). Specifically, it states that, since the appointment of the receiver of Panamericana Televisión SA (which has now adopted the corporate name Panam Contenidos SA) in February 2003, labour standards and laws have been violated: workers’ wages are not being paid and summary dismissals are being carried out. The complainant alleges that since the arrival of the new management an anti-labour policy has been applied and trade unionists have been harassed. This has led to delays in paying wages: the majority of staff have not been paid for an average of five-and-a-half months, six bonuses prior to 2005, as well as unused leave in 2006, overtime, and pay for special assignments, such as elections and independence day were not paid. Furthermore, the management stopped paying social security and pension fund contributions, even though it continued to deduct these from workers’ wages, and never provided workers with payslips; they were made to sign only a simple receipt which remained in the hands of the management. According to the complainant, the company verbally acknowledged its debt, offering to pay it off with products, appliances and services, or loans in urgent cases, which, however, did not materialize.
2. 1166. The complainant indicates that, in 2005, the workers, confronted with so many labour problems, decided to establish a new trade union, and asked Ms María Vilca Peralta, Ms Ana María Sihuay and Ms Carmen Mora to assume the leadership of the project. The complainant alleges that having the workers organized in a trade union did not suit the company and led to the dismissal of those who had taken on the challenge of setting up the trade union. The complainant states that, on 27 April 2006, the workers in question appealed to the Ministry of Labour and Employment Promotion, which ordered an inspection. The Deputy Director of Guidance and the inspectors, far from protecting the workers’ rights, questioned their statements and consistently showed a passive and complacent attitude towards the company. In July 2006, another inspection of Panamericana Televisión SA was carried out. According to the workers, they were threatened on that occasion with dismissal by the company’s lawyers if they reported irregularities. Some of them, through fear of being dismissed, kept quiet about what was really happening in the company. Time passed and nothing happened. More than a year has now passed and nothing is known of the assessment carried out by the Ministry of Labour and Employment Promotion. No authority from the Ministry has commented on the matter.
3. 1167. The complainant indicates that the workers initiated judicial proceedings, requesting payment of the various arrears owed to them. According to the complainant, the legal representative of Panamericana Televisión S.A, in order to avoid making any payments, signed an agreement with Panam Contenidos SA to transfer control of the finances of both companies to the latter; the arrears owed to the workers of Panamericana Televisión SA thus cannot be paid because Panam Contenidos SA controls the accounts. By creating new accounts in the banking system, Panamericana Televisión SA left itself without funds.
4. 1168. The complainant alleges that on Friday, 23 December 2005, the workers held a peaceful protest in Arequipa Avenue. In response, the TV channel’s management tried to identify the organizers of the protest, started monitoring electronic mails and telephone conversations, and began questioning people at work. The failure to pay continued and, on 26 April 2006, the press workers carried out another peaceful protest outside the channel’s headquarters. In response, the company accused 16 employees, more than half of whom were on the payroll, of being the instigators and organizers of the complaints against the company and leaders of the attempt to set up a trade union. The following day, in retaliation, the company decided to scare the workers by forcing them to take leave. They never returned to normality at work; they were verbally abused by the head of human resources, who described them as “terrorists and unionists” and threatened to refer the complaints to the Cono Norte court. All this occurred in the presence of the police.
5. 1169. The complainant adds that the Press Director prohibited the workers in question from entering the building on Arequipa Avenue. He also forbade the press staff to talk to any of the workers on pain of suspension without pay (which he enforced in one case). Finally, he removed their names from the payroll at a time when the company was continuing to give assurances that they were only on leave. Although they were owed arrears of wages, no one from that moment on assumed responsibility for paying them what they were owed because they were not listed on any payroll, having been dismissed illegally without any compensation.
6. 1170. The complainant alleges that, on 5 June 2006, the company, without any explanation, summarily dismissed María Vilca Peralta (producer of “Buenos Días Perú”), Fanny Quino (editor of “24 Horas”), Liliana Sierra (web page editor), Guillermo Noriega (coordinator of “Buenos Días Perú”), Eveling Kahn (news presenter) and Laura Chahud (news service reporter). Likewise, Carmen Mora (producer of “24 Horas Mediodía”), Ana María Sihuay (editor of “24 Horas Mediodía”), Enrique Canturin (microwave technician), Carlos Mego (news cameraman) and Rafael Saavedra (archives chief) were redeployed to posts unrelated to their professions, which constitutes psychological and moral abuse.
7. 1171. The complainant adds that, in the hope of finding a solution faced with such egregiously bad management, the workers who had taken on the leadership of the trade union sent a letter, dated 31 January 2007, to the presiding judge of the High Court of Lima Norte, requesting that he demand a detailed report into how the complaints against Panamericana Televisión SA were being handled, and an investigation into the dozens of complaints from all over the country of summary dismissal under the present management. Letters were also sent on 20 February 2007, through the Presidential Office, to the president of the Congress, the chairpersons of the congressional Labour and Human Rights Committees, among others. No reply has been received to date.
8. 1172. Finally, the complainant states that, faced with various ploys, the workers once again had to resort to direct action to get their wages paid. This time they carried out a strike and, as a result, the most important news programmes, “24 Horas” and “Buenos Días Perú”, did not go on the air. This happened on Thursday 23 August 2007, exactly one year and four months after the summary dismissal on 26 April 2006. On this last occasion, the press director of Canal 5 accepted that the workers had not been paid and stated that it was understandable and fair that the workers should ask to be paid what they are owed.

B. The Government’s reply

1. 1173. In its communication dated 3 March 2008, the Government states that according to information provided by the Regional Labour Directorate of the Ministry of Labour and Employment Promotion, a total of 69 inspection visits have been planned for the company, which now operates under the name of Panam Contenidos SA. Those inspections have been hindered by the employer and the authorities have been forced to request the support of the police in accordance with legislation.
2. 1174. The Government adds that under the terms of section 46 of Supreme Decree
3. No. 019-2006-TR (the regulations of the Labour Inspection Act), any unfounded refusal to allow inspections, or attempts to prevent inspection supervisors, labour inspectors, assistant inspectors or officially appointed experts or technicians responsible for carrying out an inspection, from entering into or remaining in a place of work or specific areas thereof, are serious offences. Fines have accordingly been imposed on the company Panam Contenidos SA. Furthermore, the enforcement department of the Regional Labour Directorate has brought eight separate actions against the company for failing to pay fines.

C. The Committee’s conclusions

1. 1175. The Committee observes that, in the present case, the complainant states that since the appointment of the receiver of Panam Contenidos SA (formerly Panamericana Televisión SA) in February 2003, an anti-labour and anti-union policy has been applied; confronted with so many labour problems, the workers decided to establish a trade union in 2005 and asked Ms María Vilca Peralta, Ms Ana María Sihuay and Ms Carmen Mora to assume the leadership of the trade union. The complainant alleges that: (1) in December 2005 and April 2006, the workers held peaceful protests in Arequipa Avenue and outside the channel’s headquarters; the company’s management tried to identify the organizers of the protests and, to that end, monitored electronic mail and telephone conversations; finally, 16 workers were identified as the instigators and it was decided to scare them using various methods; (2) because they had organized a trade union, the company dismissed María Vilca Peralta, Fanny Quino, Liliana Sierra, Laura Chahud and Guillermo Noriega, and transferred the following employees to posts unrelated to their professions: Carmen Mora, Ana María Sihuay, Enrique Canturin, Carlos Mego and Rafael Saavedra; and (3) as a result of a request from the workers to the Ministry of Labour and Employment Promotion, an inspection of the company was carried out, but the inspectors showed a passive and complacent attitude towards the company and, prior to an inspection in July 2006, the company threatened with dismissal any workers who reported irregularities.
2. 1176. The Committee notes the Government’s statements to the effect that: (1) the Regional Labour Directorate of the Ministry of Labour and Employment Promotion provided information that, to date, a total of 69 inspection visits have been planned for the company in question, as those inspections have been hindered by the employer, the National Inspections Directorate has been forced to request the support of the police in accordance with the legislation; (2) according to section 46 of Supreme Decree No. 019-2006-TR (the regulations of the Labour Inspection Act), any unfounded refusal to allow inspections, and any attempts to prevent inspection supervisors, labour inspectors, assistant inspectors, or officially appointed experts or technicians responsible for carrying out an inspection, from entering or remaining in a place of work or specific areas thereof, are serious offences, and Panam Contenidos SA has accordingly been fined; and (3) the enforcement department of the Regional Labour Directorate has brought eight separate actions against the company for failing to pay the fines.
3. 1177. In this respect, the Committee observes that the Government has not sent its observations in relation to the alleged anti-union dismissals and transfers following the establishment of a trade union in Panam Contenidos SA. Instead it has limited itself to providing information on the difficulties encountered in carrying out inspections of the company. The Committee recalls that anti-union discrimination is one of the most serious violations of freedom of association, as it may jeopardize the very existence of trade unions, and that no person should be dismissed or prejudiced in employment by reason of trade union membership or legitimate trade union activities, and it is important to forbid and penalize in practice all acts of anti-union discrimination in respect of employment [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, paras 769 and 771].
4. 1178. The Committee regrets the time that has passed since the alleged dismissals and transfers took place, apparently without any possibility of investigating whether the allegations are true or adopting measures to redress the situation, if necessary. The Committee further regrets the uncooperative attitude of the company, which, according to the Government, has prevented labour inspections from being carried out. In these circumstances, the Committee urges the Government to take measures, without delay, so that an investigation takes place at the enterprise with regard to the alleged dismissals, transfers and other anti-union acts that have reportedly been carried out since the establishment of the trade union, and to inform it of the outcome of that investigation. Furthermore, the Committee requests the Government, if the allegations in question are shown to be valid, to take the necessary measures needed to ensure that the workers who were dismissed and redeployed for anti-union reasons are reinstated in their posts and paid the wages and other benefits owed to them.

The Committee's recommendations

1. 1179. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendation:
   • The Committee urges the Government to take measures without delay so that an investigation takes place at Panam Contenidos SA with regard to the alleged dismissals, transfers and other anti-union acts that have reportedly been carried out since the establishment of the trade union, and to inform it of the outcome of that investigation. Furthermore, the Committee requests the Government, if the allegations in question are shown to be valid, to take the necessary measures to ensure that the workers who were dismissed and redeployed for anti-union reasons are reinstated in their posts and paid the wages and other benefits owed to them.