Informe provisional - Informe núm. 353, Marzo 2009

Caso núm. 2596 (Perú) - Fecha de presentación de la queja:: 10-SEP-07 - Cerrado

Allegations: the complainant alleges that: (1) the Manuel Polo Jiménez FAP school applied for the dissolution of the Manuel Polo Jiménez FAP School Single Union of Workers (SINPOL); refuses to engage in collective bargaining with the union or operate the payroll check-off facility; and dismissed the union’s general secretary, Ms Nelly Palomino Pacchioni; (2) the La Pampilla SA oil refinery (RELAPASA) dismissed Mr Pedro Germán Murgueytio Vásquez, former general secretary of the Refinería La Pampilla SA Single Union of Workers and current general secretary of the Single National Federation of Petroleum, Energy and Allied Workers of Peru (FENUPETROL); (3) the BBVA Banco Continental bank dismissed the external secretary of the BBVA Banco Continental Federated Union of Employees, Mr Luis Afocx Romo, and a union member, Mr Rafael Saavedra Marina; (4) the Agroindustrias San Jacinto SA company dismissed the social assistance secretary of the Agroindustrias San Jacinto SA Single Union of Workers

1. 1143. The complaint is contained in communications from the General Confederation of Workers of Peru (CGTP) dated 10 September and 5 and 13 November 2007.
2. 1144. The Government sent its observations in communications dated 26 and 30 May and 10 September 2008.
3. 1145. 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. 1146. In its communications dated 10 September and 5 and 13 November 2007, the CGTP states that the Manuel Polo Jiménez FAP school was founded in Lima in 1968 by Ministerial Decision No. 0895-68 as one of the educational establishments run by the Peruvian Air Force (FAP). Act No. 23384 (General Education Act) establishes two regimes for the running of educational institutions: a state regime and a non-state regime.
2. 1147. Ministerial Decision No. 1650-91-ED establishes the non-state (private) regime for educational institutions run by the FAP and the rules which apply to the employer are governed by Directorate Decision No. 003-04-DIACE. In accordance with that decision, teachers and administrative workers at these educational institutions were previously affiliated to the employment regime established by Act No. 4916 (Private Employees Act) and are now covered by the private employment regime, which is governed by Legislative Decree No. 728 (Labour Productivity and Competitiveness Act).
3. 1148. Furthermore, both the judicial authority (by means of ruling No. 130 2001-7.JTL of 13 July 2001 and ruling No. 33-2005-25.JL of 27 April 2005) and the administrative labour authority (by means of Subdirectorate Order No. 044-2006-MTPE/2/12.3 of 2 February 2006 and Subdirectorate Order No. 019-2007-MTPE/2/12.210 of 4 May 2007) ruled that the Manuel Polo Jiménez FAP school, which is sponsored by the FAP, comes under the private employment regime as the employer.
4. 1149. Moreover, the FAP itself, by means of document No. 3, included in judicial authority file No. 183426-2003-582, indicated its position with regard to the workers’ employment situation by requesting to be removed from the judicial proceedings against the Manuel Polo Jiménez FAP school, using the following argument: “Firstly: … that the Manuel Polo Jiménez FAP school, by means of Ministerial Decision No. 1650-91-ED … has legal personality under national law and also administrative, technical and financial autonomy. Secondly: that the educational centres run by the FAP are under the non-state management regime and therefore the workers at those centres, whether teachers or administrative employees, who previously came within the scope of Act No. 4916 (Private Employees Act), now come within the scope of Legislative Decree No. 728.”
5. 1150. The CGTP alleges that the Manuel Polo Jiménez FAP School Single Union of Workers (SINPOL) was founded on 12 November 2005 and entered in the register of trade unions on 5 January 2006. However, the employer refuses to apply the payroll check-off facility – a legal obligation for the employer – thereby adversely affecting the union’s organizational capacity, since it has thus been deprived of its main source of funding.
6. 1151. Consequently, the union filed a complaint with the Ministry of Labour and Employment Promotion (MTPE) (Inspection Order No. 005930-2007-MTPE/2/12.3), and this resulted in the relevant labour inspections. These established that the employer had failed to meet the said obligation and was hence liable to be sanctioned, as was recorded in the report of 14 June 2007 drawn up by the labour inspector, which contained the following conclusion: “Further to evaluation of the documentation received, a breach of section 24(10)
   • of D.S. 019-2006-TR (General Inspection Regulations) has been established,
   • i.e. non-compliance with the provisions relating to the check-off facility for union dues.”
7. 1152. The CGTP states that the employer filed an application with Lima Labour Court No. 18 for the dissolution of the trade union, claiming that “the workers are civilian employees of the FAP, their employer is the FAP and they come under the public employment regime”. However, the Manuel Polo Jiménez FAP school applies the terms of Legislative Decree No. 728 when it issues memoranda showing the existing link and subordination to the employer.
8. 1153. On 12 April 2006, the union sent a letter to the Manuel Polo Jiménez FAP school clearly stating that the right to organize does not depend on the whim of the employer but on the collective wishes of the workers. Hence, in a document dated 16 June 2006, the union presented the Ministry of Labour with its list of demands for 2006 (on 24 June 2006 the Ministry ordered the parties to begin collective bargaining – file No. 118885-2006-MTPE/2/12.210). But the employer refused to begin collective bargaining and filed an appeal against the Ministry of Labour, stating that it was not the employer of workers belonging to SINPOL or of any other worker. The appeal was declared inadmissible by Subdirectorate Order No. 019-2007-MTPE/2/12.210 of 4 May 2007, confirmed by Directorate Order No. 056-2007-MTPE/2/12.2 of 1 August 2007, which required the employer to convene the negotiation board for collective bargaining with respect to the list of demands.
9. 1154. According to the complainant, despite all the above, the Manuel Polo Jiménez FAP school authorities refused to engage in collective bargaining, recognize the workers’ rights or comply with the labour provisions, ignoring the complaints made to date and failing to reply to them.
10. 1155. The CGTP adds that since March 2004 the employer has been changing the format of the workers’ payslips, omitting to include the previous indication that they are covered by Legislative Decree No. 728 relating to the private employment regime. Moreover, payrolls have changed in format, showing them as workers of the Ministry of Defence (MINDEF), despite the fact that they are not part of it. This is designed to maintain the argument that the workers are civilian employees of the FAP and come under the public employment regime. On 31 October 2006, a complaint was filed against the Ministry of Defence for these irregularities but to date no reply has been received, the Ministry’s lack of interest pointing to its complicity with the employer. Moreover, a strategy has been devised aimed at inducing the staff to resign and change regime, and also at the gradual dismissal of staff covered by Legislative Decree No. 728 (an average of 100 people per year). Accordingly, the employer, with the aim of persuading staff to resign or change regime and refrain from exercising their freedom of association, has failed repeatedly to respect the rights of the workers who are governed by the private employment regime, including:
    • - the payment of ordinary bonuses in July and December each year, established by Act No. 27735 regulating bonuses for workers in the private employment regime for the national holidays and Christmas and its regulations (Supreme Decree No. 0052002TR);
    • - the payment of family benefit, regulated by Act No. 25129 (Family Benefit Act) and its regulations (Supreme Decree No. 035-90-TR);
    • - the deposit in a private bank of compensation payments for length of service, in accordance with the consolidated text of the Act on compensation for length of service, approved by Supreme Decree No. 001-97-TR.
11. 1156. In view of these breaches of the regulations, a number of workers at the Manuel Polo Jiménez FAP school have taken legal action. The Government states that the various Lima High Court Labour Divisions (First – files Nos 5758-2006 and 4030-059; Second – files Nos 4241-2005, 4667-05 and 6404-05; Third – file No. 4317-2006) have issued uniform rulings declaring the workers’ complaints to be well founded and recognizing them as workers subject to the private employment regime.
12. 1157. The administrative labour authority has established (in various inspections) the lack of compliance with the legal provisions in force, which has led the Ministry of Labour to impose a fine of 99,000 nuevos soles, by means of Subdirectorate Decision No. 185-06-MTPE/2/12.320 of 1 June 2006, confirmed by Directorate Decision No. 507-2006-MTPE/2/12.3 of 5 December 2006.
13. 1158. The CGTP adds that on 26 October 2007, SINPOL general secretary Ms Nelly Palomino Pacchioni received dismissal notice NC-40_PEAL No. 6529 on grounds of alleged serious misconduct, namely: undue failure to meet her employment obligations and consequently a breach of good faith; inappropriate conduct towards the employer’s representative in the workplace; and passing false information to the employer with the intention of causing detriment to the employer or obtaining an advantage.
14. 1159. The CGTP states that after this complaint was presented on 14 September 2007, the assistant administrative director of the FAP educational centres convened a staff meeting in which he insulted and slandered Ms Nelly Palomino Pacchioni, claiming that she and SINPOL were acting maliciously and confusing the workers by saying that their employer was the Manuel Polo Jiménez FAP school and not the FAP itself, and that therefore SINPOL was an illegal organization.
15. 1160. The complainant emphasizes that the dismissal of the general secretary is based on the Labour Productivity and Competitiveness Act governing the private employment regime, whereby the employer tacitly accepts that Ms Palomino Pacchioni and the other employees form part of the Manuel Polo Jiménez FAP school and not of the FAP itself and that therefore SINPOL is a legitimate and legal trade union, recognized by the Ministry of Labour. The employer should not therefore refuse to recognize the union or to engage in collective bargaining.
16. 1161. In another communication of 5 November 2007, the CGTP alleges that on 6 July 2006 the La Pampilla SA oil refinery (RELAPASA) dismissed Mr Pedro Germán Murgueytio Vásquez, who had completed 32 years of service at the company and was employed as a laboratory technician. Mr Murgueytio Vásquez is a member of the Refinería La Pampilla SA Single Union of Workers, having formerly been its general secretary. He is currently the general secretary of the Single National Federation of Petroleum, Energy and Allied Workers of Peru (FENUPETROL). The company alleges serious misconduct by the worker, namely undue failure to meet his employment obligations and consequently a breach of good faith. According to the complainant, RELAPASA bases its arguments on the claim that the worker failed to meet his employment obligations by giving his identification card to third parties working for a RELAPASA contractor so that they could gain entry to the works canteen. The complainant emphasizes that ever since the company was informed of the worker’s election as general secretary of FENUPETROL, he has been the subject of various acts of harassment such as suspension without pay for seven working days for an unproven fault and a second suspension, arising from the first, from 28 to 30 November 2005. The above situation involves a clear act of reprisal against union official Mr Murgueytio, and this constitutes a violation of freedom of association (the complainant describes the facts in detail).
17. 1162. In a third communication, also dated 5 November 2007, the CGTP alleges that the BBVA Banco Continental bank dismissed the external secretary of the BBVA Banco Continental Federated Union of Employees, Mr Luis Afocx Romo, who had been employed by the company since 8 August 1988 and was working as a services adviser at the time of his dismissal, and union member Mr Rafael Saavedra Marina, who had been employed by the company since 1 July 1981 and was working as a services adviser at the time of his dismissal. Both were working at the branch of the bank in Pucallpa, a city in eastern Peru. An error made in a banking operation, for which Mr Afocx was penalized by the bank at the time, was cited by the bank as the grounds for the workers’ dismissal. The CGTP explains that the BBVA Banco Continental Federated Union of Employees, through its members at the Pucallpa branch, especially union official Mr Luis Afocx, who was also the union delegate at the branch, carried out checks at the Pucallpa branch to ensure that the workers were not subjected to abusive practices. For example, at the union leader’s request, the Ministry of Labour conducted a number of inspections at the bank, resulting in the imposition of two fines: one on 4 November 2005 (16,500 nuevos soles) for obstruction of an inspection, the other on 2 November 2006 (10,200 nuevos soles) for failure to produce the workers’ attendance register. The above situation involves a clear act of reprisal against union leader Mr Luis Afocx and union member Mr Rafael Saavedra Marina, and this constitutes a violation of freedom of association.
18. 1163. In its communication dated 13 November 2007, the CGTP alleges that the social assistance secretary of the Agroindustrias San Jacinto SA Single Union of Workers was dismissed by the Agroindustrias San Jacinto SA company on a charge of serious misconduct which was not proven. In view of this violation, the worker appealed to the judicial authority on 25 January 2006, applying to the El Santa High Court Labour Division (file No. 2006-241-0-2501-JR-LA-6) to have the dismissal overturned and to be reinstated in his post. Decision No. 22 of 28 September 2007 finally declared the application to be well founded and ordered the respondent to reinstate the worker in his regular post and pay his outstanding wages. The company appealed against the Labour Division ruling and consequently the worker has not yet been reinstated.

B. The Government’s reply

1. 1164. In its communications of 26 and 30 May and 10 September 2008, the Government states that, with regard to the allegations relating to the SINPOL, the employer and the most representative employers’ organizations were notified in order to obtain their comments.
2. 1165. The Government states that the following replies have been received:
   • - by means of a communication dated 9 January 2008, the administrative director of the FAP educational centres states that all workers employed at FAP educational institutions have been recruited by the Peruvian Air Force as civilian employees and not by the FAP educational institutions in which they work, so the Ministry of Defence should be asked for its comments with regard to the present complaint
   • - by a communication dated 7 January 2008 the general manager of the National Association of Industry states that he has no knowledge of the administrative or judicial situation of the Manuel Polo Jiménez FAP school since the school does not form part of Peruvian private industry.
3. 1166. Nevertheless, the Government states that the Labour Inspection Directorate carried out inspections at the Manuel Polo Jiménez FAP school and, by means of report
4. No. 120-2007-MTPE/2/12.350 corresponding to Inspection Order No. 7602-2007-MTPE/2/12.3, concluded in accordance with the principle of the precedence of actual conditions that the workers of the SINPOL come under the private employment regime governed by the consolidated text of Legislative Decree No. 728 (Labour Productivity and Competitiveness Act) inasmuch as the said educational institution is the employer and not the Peruvian Air Force. It was also established that authorization of the employment records of the inspected school was requested by the Ministry of Defence, FAP headquarters, and that until March 2004 the employer issued payslips to the workers with an indication of their affiliation to the private employment scheme but subsequently omitted this information without any explanation.
5. 1167. The Government adds that as a result of these irregularities the Collective Bargaining Subdirectorate issued Subdirectorate Order No. 066-2007-MTPE/2/12.210 on 26 November 2007, confirmed by the Dispute Prevention and Settlement Directorate via Directorate Order No. 021-2008-MTPE/2/12.2 of 14 February 2008, imposing a fine of 2,587.50 nuevos soles, which has currently been referred to the Fines Control Unit for enforcement of the payment.
6. 1168. The Government states that, owing to the inspected educational institution’s failure to issue payslips as required, to effect the due payments for May 2002 to May 2007 with the corresponding payment records, to pay bonuses from July 2002 to December 2006 and to allow the full exercise of trade union rights, the labour authority issued certificate of infringement No. 2675-2007 for a total fine of 26,220 nuevos soles.
7. 1169. With regard to the registration of SINPOL, the Manuel Polo Jiménez FAP school stated, by means of document No. 279498-2007, that judicial proceedings concerning the validity of the registration of the union were in progress in Labour Court No. 18.

C. The Committee’s conclusions

1. 1170. The Committee observes that the present case refers to allegations presented by the General Confederation of Workers of Peru (CGTP), namely: (1) the Manuel Polo Jiménez FAP school applied for the dissolution of the SINPOL; refuses to engage in collective bargaining with the union or operate the payroll check-off facility for the union; and dismissed the union’s general secretary, Ms Nelly Palomino Pacchioni; (2) the RELAPASA dismissed Mr Pedro Germán Murgueytio Vásquez, former general secretary of the Refinería La Pampilla SA Single Union of Workers and current general secretary of the FENUPETROL; (3) the BBVA Banco Continental bank dismissed the external secretary of the BBVA Banco Continental Federated Union of Employees, Mr Luis Afocx Romo, and a union member, Mr Rafael Saavedra Marina; (4) the Agroindustrias San Jacinto SA company dismissed the social assistance secretary of the Agroindustrias San Jacinto SA Single Union of Workers and although the judicial authority ordered the worker’s reinstatement, the order was not implemented because of an appeal lodged by the company.
2. 1171. The Committee notes the following points from the CGTP’s allegations against the Manuel Polo Jiménez FAP school:
   • - The school considers that it is subject to the public employment regime and that its relationship with the employees is of a civilian nature. Consequently it refuses to recognize the union and does not comply with the obligation to apply the check-off facility for union dues.
   • - The union reported the situation to the Ministry of Labour and Employment Promotion, which confirmed the non-compliance in question.
   • - The employer filed an application for the dissolution of the union with Lima Labour Court No. 18.
   • - The union presented a list of demands in order to start the collective bargaining process but the employer refused to engage in collective bargaining and lodged an appeal with the Ministry of Labour. The appeal was declared inadmissible and the employer was instructed to convene the negotiation board. However, no bargaining process has been initiated to date.
   • - The SINPOL general secretary was dismissed on 26 October 2007 for alleged serious misconduct. In addition, the general secretary has been the subject of intimidation and slander by the authorities of the educational institution since her appointment as general secretary.
3. 1172. The Committee notes the Government’s statement in this regard that the employer and the most representative employers’ organizations were notified so that their views could be obtained and that according to them the Manuel Polo Jiménez FAP school does not form part of Peruvian private industry but comes under the Ministry of Defence.
4. 1173. The Committee notes that the Labour Inspection Directorate nevertheless conducted inspections at the Manuel Polo Jiménez FAP school and concluded that, according to the principle of the precedence of actual conditions, the workers are affiliated to the private employment regime, a circumstance which the employer indicated on the workers’ pay slips until March 2004 but subsequently omitted. It was also noted that the obligation to deposit union dues and pay certain benefits was not met and that the workers were prevented from fully exercising their union rights. Because of this non-compliance, the institution was fined 26,200 nuevos soles. In addition, the Collective Bargaining Subdirectorate imposed a fine of 2,587.50 nuevos soles. The Committee notes the Government’s additional statement that, as regards the registration of SINPOL, judicial proceedings are in progress in Labour Court No. 18.
5. 1174. The Committee observes that the Government has not sent its observations with respect to the acts of intimidation and slander against SINPOL general secretary Ms Nelly Palomino Pacchioni and her subsequent dismissal on 26 October 2007. The Committee expresses its concern at the judicial application for the dissolution of the union and at the dismissal of the union leader, which appears to be an act of reprisal further to the establishment of the union. The Committee requests the Government to launch an investigation into this dismissal without delay and, if the dismissal proves to have been on anti-union grounds, to take steps to ensure that the union leader is reinstated in her post without delay and her outstanding wages are paid. The Committee requests the Government to keep it informed in this regard and to inform it of the final outcome of the judicial application for the dissolution of SINPOL in progress in Labour Court No. 18.
6. 1175. The Committee observes that the Government has not sent its observations with respect to the other allegations contained in the present complaint. The Committee therefore requests the Government to send its observations without delay with regard to: (1) the dismissal of Mr Pedro Germán Murgueytio Vásquez, former general secretary of the Refinería La Pampilla SA Single Union of Workers and current general secretary of the FENUPETROL; (2) the dismissal of Mr Luis Afocx Romo, external secretary of the BBVA Banco Continental Federated Union of Employees, and Mr Rafael Saavedra Marina, a union member; (3) the dismissal of the social assistance secretary of the Agroindustrias San Jacinto SA Single Union of Workers in connection with which the judicial authority ordered the worker’s reinstatement but the order was not implemented because of an appeal lodged by the company.

The Committee's recommendations

1. 1176. 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 launch an investigation without delay into the dismissal of Ms Nelly Palomino Pacchioni, general secretary of the SINPOL, and, if the dismissal proves to have been on anti-union grounds, to take steps to ensure that the union leader is reinstated in her post without delay and her outstanding wages are paid. The Committee requests the Government to keep it informed in this regard and to inform it of the final outcome of the judicial application for the dissolution of SINPOL in progress in Labour Court No. 18.
   • (b) The Committee requests the Government to send its observations without delay with regard to: (1) the dismissal of Mr Pedro Germán Murgueytio Vásquez, former general secretary of the Refinería La Pampilla SA Single Union of Workers and current general secretary of the FENUPETROL; (2) the dismissal of Mr Luis Afocx Romo, external secretary of the BBVA Banco Continental Federated Union of Employees, and Mr Rafael Saavedra Marina, a union member; (3) the dismissal of the social assistance secretary of the Agroindustrias San Jacinto SA Single Union of Workers in connection with which the judicial authority ordered the worker’s reinstatement but the order was not implemented because of an appeal lodged by the company.