Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 408, Octubre 2024

Caso núm. 3402 (Perú) - Fecha de presentación de la queja:: 11-NOV-20 - En seguimiento

Allegations: The complainant organizations allege a series of anti-union acts by an enterprise in the financial sector, an excessive delay in the resolution of ongoing legal proceedings and the obstruction and criminalization of the rights of assembly and demonstration

1. 521. The complaint is contained in a communication dated 11 November 2020, presented by the Autonomous Workers’ Confederation of Peru (CGTP), the Federation of Banking and Allied Workers of Peru (FETBAN) and the National Union of Employees of Crediscotia (SINECREDISCOTIA). The latter trade union organization sent additional information in a communication dated 25 March 2021.
2. 522. The Government sent its observations in communications dated 6, 7 and 12 May, 15 and 21 June and 28 September 2021, as well as 9 August 2024.
3. 523. 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. 524. In their different communications, the complainant organizations allege that the enterprise Crediscotia Financiera S. A. (hereinafter, the enterprise) carried out various anti-union practices against the national trade union of employees of the aforementioned enterprise (hereinafter, the trade union) and its members. Such practices allegedly included: the imposition of disciplinary sanctions on leaders and other members of the trade union in retaliation for the exercise of their trade union rights; the refusal by the enterprise to allow the display of trade union noticeboards and the use of email for trade union and labour purposes; the mass dismissal of the trade union’s executive committee and over half its members; and the reassignment of posts for, inter alia, members of the trade union with a downgrading of functions and working conditions. The complainant organizations also allege an excessive delay in the final resolution of the legal proceedings initiated with regard to the aforementioned practices.
2. 525. The complainant organizations further allege that the Government has impeded the exercise of freedom of association of the trade union as a consequence of the obstruction and criminalization of the rights of assembly and demonstration of the trade union and its members.
3. Allegations concerning anti-union practices by the enterprise
4. 526. The complainant organizations allege the existence of a business strategy targeting the trade union with the aim of weakening and dismantling it, in the framework of which, between 2015 and 2021, the enterprise carried out the acts described below.
5. (a) Imposition of disciplinary sanctions on leaders and other members of the trade union. Refusal to allow the display of trade union noticeboards and the use of email for trade union and labour purposes
6. 527. The complainant organizations allege that, in 2015, two leaders of the trade union (the general secretary and the defence secretary) were penalized by the enterprise (with written warnings and suspensions without remuneration for up to two days), in retaliation for the exercise of their trade union functions and with the aim of avoiding a successful settlement of the list of claims filed that year. Furthermore, the complainant organizations allege that, in 2018, the enterprise sent intimidating communications to 34 unionized workers, highlighting their participation, between February and March, in various protests and marches against the enterprise, and urging them not to stop their work again or use their working time for non-work activities, which would constitute a restriction of the rights of assembly and public demonstration of the trade union and its members.
7. 528. Furthermore, the complainant organizations allege that the enterprise refuses to allow the trade union to use email for the dissemination of union and labour-related information and prevents the display of a wall newspaper at the premises of the enterprise (at the national level) where members of the trade union work, thereby disregarding the repeated requests from the trade union and restricting its freedom of expression. The complainant organizations allege that the enterprise prevents workers from receiving information and views from the trade union on matters in their interest, and from knowing their rights. The complainant organizations indicate that, in 2019, the labour inspectorate proposed that the enterprise be sanctioned, with a fine, for refusing to allow the trade union to display a wall newspaper, but that the enforcement of the fine has been suspended until the resolution of the legal proceedings initiated in 2020 by the enterprise against the labour inspectorate (Case File No. 5767-2020-0-1801-JR-LA-73).
8. 529. The complainant organizations also indicate that, in addition to the proceeding mentioned above, a final decision remains pending for three other legal proceedings filed between 2016 and 2018 with the aim of contesting the sanctions imposed by the enterprise on the aforementioned two trade union leaders (Case File Nos 14890-2016-0-1801-JR-LA-12 and 14891-2016-0-1801-JR-LA-06) and challenging the letters (warnings) sent by the enterprise to the aforementioned 34 trade union members, and the refusal of the enterprise to allow the trade union to display noticeboards (Case File No. 11485-2018-0-1801-JR-CI-01). The trade union organizations question the fact that, at the time when the complaint was filed in 2020, the judicial authorities still had not definitively resolved the aforementioned legal proceedings.
10. 530. The complainant organizations state that, in 2020, the enterprise unexpectedly requested the Administrative Labour Authority to initiate an administrative collective dismissal procedure on objective grounds (structural reasons). These proceedings involved around 350 workers in the microenterprise division at the national level, including all members of the trade union’s executive committee (12 trade union leaders) and over half its members (around 106 of the 190 members). The complainant organizations allege that, while the enterprise invited the trade union to participate in meetings on the collective dismissal, it did so without any genuine intention of negotiating a less burdensome measure, and that the procedure was aimed at weakening the trade union.
11. 531. The complainant organizations indicate that the collective dismissal procedure was rejected, at final instance, by the Administrative Labour Authority as the enterprise had not complied with the legal requirement of providing certain relevant information prior to the negotiations meetings held with the workers concerned by the measure. The complainant organizations consider that this situation demonstrates that the enterprise acted in bad faith and illegally by initiating the collective dismissal procedure.
12. 532. The complainant organizations state that, in 2020, the labour inspectorate considered that the enterprise had violated the freedom of association of the trade union as the inclusion of its entire executive committee in the collective dismissal procedure weakened its existence and undermined the representation and defence of its members’ interests. On that basis, according to the indications of the complainant organizations, the labour inspectorate proposed that the enterprise be issued with a fine (Notice of Violation No. 407-2020-SUNAFIL/ILM).
13. 533. Furthermore, the complainant organizations allege that, in the context of the collective dismissal procedure, the enterprise threatened, pressured and coerced various workers, in individual meetings, to leave the trade union. As a result, three workers have allegedly already decided to leave the trade union and 12 other members have resigned from the enterprise after the payment of financial incentives, which were offered only to the trade union members and not to all workers.
15. 534. The complainant organizations allege that, after the rejection of the collective dismissal procedure by the Administrative Labour Authority, it took the enterprise several months to reinstate the workers from the microenterprise division who were affected by the collective dismissal, including members of the trade union, and that their work continued to be suspended for several months.
16. 535. The complainant organizations also allege that, eventually, the enterprise created administrative posts and an ad hoc remuneration structure in order to employ the aforementioned workers, which were not related to the business purpose of the enterprise, did not correspond to the qualifications or experience of the workers, and involved a downgrading of their functions and working conditions. According to the allegations of the complainant organizations, the enterprise imposed disciplinary sanctions (written warnings) on workers who refused to return to the enterprise and occupy the new posts, and disregarded the representation granted by the workers to the trade union in the context of the reinstatement process.
17. Allegations concerning actions by state bodies
18. 536. The complainant organizations allege that the Government obstructed and criminalized the right of the trade union and its members to assemble and demonstrate peacefully. They indicate that, in 2018, the Ministry of the Interior issued decisions that arbitrarily changed the routes to be followed by various marches and protests called by the trade union, and that the Ministry fined the trade union for not observing the routes. The complainant organizations consider that this amounts, in practice, to granting prior authorization for the exercise of the rights of assembly and public demonstration, and furthermore allege that the Ministry acted in coordination with the enterprise with the aim of preventing the trade union’s protests. The complainant organizations indicate that, in 2018, an amparo proceeding (remedy for the protection of constitutional rights) was filed in order to challenge the actions of the Ministry (Case File No. 11483-2018-0-1801-JR-CI-01), the resolution of which also remains pending.
19. 537. The complainant organizations allege that, on 30 October 2020, the National Police, acting as private security for the enterprise, violently arrested the trade union’s defence secretary while he was engaged in a peaceful public demonstration, in front of the enterprise headquarters, against the collective dismissal procedure initiated by the enterprise, and was complying with the protocols relating to the COVID-19 pandemic. They indicate that, while the trade union leader was released after almost 24 hours, criminal proceedings were planned against him for resistance and disobedience to authority.

B. The Government’s reply

1. 538. In its various communications, the Government supplies information in relation to the complaint provided by the Ministry of the Interior, forwards information communicated by the enterprise, and provides information on the outcome of the ongoing legal proceedings.
2. Allegations concerning anti-union practices by the enterprise
4. 539. With regard to the sanctions imposed on two leaders of the trade union and the warnings sent to 34 of its members in alleged retaliation for the exercise of their trade union rights, the Government forwards information from the enterprise according to which it indicates that these disciplinary measures were based on the exercise of its managerial power as an employer and on the legislation in force, and were implemented on the grounds of labour misconducts arising from non-compliance with the work obligations of those leaders (failure to complete job training, failure to attend work and use of offensive language against the managers of the enterprise) and of the 34 trade union members (stoppage of work to participate in trade union protests and marches). The enterprise denies that the imposition of these sanctions was related to the trade union membership of the workers or that it intended to undermine their trade union rights, intimidate them or threaten them.
5. 540. Concerning the refusal to allow the display of trade union noticeboards, in the information forwarded by the Government, the enterprise indicates that, while the labour inspectorate decided to fine it in 2019 for this refusal, the decision contradicted a previous ruling on the same matter. The enterprise indicates that, in 2017, the labour inspectorate decided that the enterprise was not obliged to provide a display panel for the trade union, after considering that there was no specific legal rule in that respect, that the parties concerned had agreed to forego the provision of such panels during the collective bargaining negotiations held in 2016 and 2017, and that it was unreasonable to place display panels in workplaces where only one worker was a member of the trade union.
6. 541. Regarding the refusal to allow the use of email for the dissemination of information of interest to workers and the trade union, the Government forwarded the enterprise views which reject the allegation that it denied, restricted or hindered the use of this channel of communication by the trade union, and indicates that, since 2016, the trade union has been making effective use of its institutional email to coordinate with its members or with the enterprise. The Government forwarded copies of a series of emails sent by unionized workers and by the trade union to the enterprise, between 2016 and 2021, using the account [e-mail] provided by the enterprise.
7. 542. With regard to the ongoing legal proceedings, the information provided by both the Government and the enterprise indicates that: (i) in 2018, it was decided, at final instance, to annul the disciplinary sanction imposed in 2015 on the trade union’s defence secretary, ordering the enterprise to rescind the sanction and remove it from his employment records, and that the enforcement of this decision is under way (Case File No. 14890-2016-0-1801-JR-LA-12); (ii) the disciplinary sanction imposed in 2015 on the general secretary of the trade union has been annulled, pending the notification by the enterprise that it has complied with the legal decision (Case File No. 14891-2016-0-1801-JR-LA-06); (iii) a decision dated 22 April 2024 upheld the ruling annulling the letters sent to 34 members of the trade union and ordering the enterprise to cease the violation of the right to freedom of association through any kind of intimidatory acts and the use of institutional email for the dissemination of trade union views and information (Case File No. 11485-2018-0-1801-JR-CI-01); and (iv) the ruling declaring unfounded the legal action brought by the enterprise in 2020 against the fine imposed by the labour inspectorate for its refusal to allow the display of trade union noticeboards, was upheld (Case File No. 5767-2020-0-1801-JR-LA-73).
9. 543. According to the information forwarded by the Government, the enterprise indicates that its request to initiate an administrative collective dismissal procedure was not intended to undermine the trade union or its members. The enterprise states that its request was due to the severe crisis in its microenterprise division (which had accumulated a substantial operating loss resulting in an irreversible deficit situation), which therefore involved all unionized and non-unionized workers employed in that division, including the members of the executive committee of the trade union and other unionized workers. The enterprise indicates that, while the Administrative Labour Authority eventually rejected its request for a collective dismissal, it did so for formal reasons (with which the enterprise disagrees) and that at no point did it consider that the enterprise had acted in bad faith or illegally, as alleged by the complainant organizations.
10. 544. In the information forwarded by the Government, the enterprise states that, while in 2020, the labour inspectorate proposed to sanction (with a fine) the enterprise for allegedly having violated freedom of association by including the executive committee of the trade union in the aforementioned collective dismissal procedure, it should be noted that the proposal is not a final sanctioning decision and that the sanctioning administrative procedure remains ongoing, pending a pronouncement on the basis of this proposal and the statements provided by the enterprise in its defence.
11. 545. Concerning the alleged offering of financial incentives for the withdrawal of membership from the trade union and resignation of workers, in the information provided by the Government, the enterprise states that, within the framework of the collective dismissal procedure and insofar as permitted by the legislation in force, it made available a financial termination package to unionized and non-unionized workers in the microenterprise division in order to reach a severance agreement as an alternative to collective dismissal. In view of the fact that the aforementioned procedure only concerned staff from the microenterprise division, the financial proposal could not be applied to other workers of the enterprise or be offered publicly as alleged by the complainant organizations. The enterprise also considers unfounded and unsubstantiated the allegations that it threatened, coerced and pressured workers to accept the financial package.
13. 546. According to the information forwarded by the Government, the enterprise indicates that the microenterprise division was closed in order to avoid compromising the sustainability, efficiency and competitivity of the enterprise in the financial market and that, subsequently, and with the assistance of a specialized and impartial university institution, it began to plan the reinstatement of the workers previously employed in that division. The enterprise states that, during that period, the workers benefited from paid leave (suspension of employment contract).
14. 547. The enterprise indicates that, on 1 March 2021, it initiated the process of reinstating the aforementioned workers, which involved their reassignment to new posts in the integral solutions division, which were created at the national level, taking into consideration the activities and needs of the enterprise. The enterprise indicates that, when determining the posts to which the workers would be reassigned, it took into account their profiles and experience, and respected their category and level of remuneration. The enterprise also indicates that, in accordance with the legislation in force and its managerial power, it decided to impose disciplinary sanctions on workers who did not fulfil their employment obligation to return to work and comply with the aforementioned reassignment of posts.
15. 548. Furthermore, the enterprise states that it informed, in a timely manner, the leaders of the trade union (even earlier than its members) of the general outline of the reinstatement and job reassignment process, and that it respected the representation that the workers granted to the trade union in the context of the process. However, the enterprise states that certain aspects of the process required the direct participation of the workers concerned (training, evaluations, choices based on their preferences, and other activities necessary for the posts to be filled effectively), which needed to be coordinated with those workers and not only with the trade union.
16. Allegations concerning actions by state bodies
17. 549. Regarding the alleged restrictions on the rights of assembly and demonstration of the trade union and its members, the Government indicates that: (i) the Ministry of the Interior does not grant authorization for the organization of public rallies or demonstrations, but rather it ensures the respect of public order when such events take place; (ii) in this context and within the framework of its competences, the Ministry of the Interior issued several decisions that changed (only minimally) the route established by the trade union for several marches and protests that it called in 2018; (iii) the aforementioned changes were intended to safeguard the freedom of association of the trade union and, at the same time, ensure the safety and integrity of those who were participating in the protests and preserve the peace and tranquillity necessary for the conduct of public and private activities by those who were not participating in the marches but were in the area where they were taking place; and (iv) while initially it was proposed that the trade union be fined on the grounds that it had failed to observe the indicated routes, the proposal was rejected and shelved in 2018 by means of Executive Decision No. 3429-2018-IN-VOI-DGIN-DAEG. The Government denies that the aforementioned body coordinated with the enterprise for the purpose of repressing the trade union’s protests, as alleged by the complainant organizations.
18. 550. Lastly, with regard to the arrest of the trade union’s defence secretary, the Government indicates that: (i) the trade union leader in question was released the day after his arrest and that he was detained due to his unwillingness to end a demonstration against the enterprise which was attended by around 100 persons at a time when the Government had imposed restrictions on the freedom of assembly and on the presence of crowds, within the framework of the state of emergency declared as a result of the COVID-19 pandemic; (ii) prior to the arrest of the trade union leader, police officers spoke with him and tried to persuade him to end the demonstration, but as a result of his refusal and hostility, he was detained in the presence of the deputy provincial prosecutor and a defence lawyer; and (iii) in 2021, the complaint filed against the trade union leader for the alleged offence of resistance and disobedience to authority was definitively shelved.

C. The Committee’s conclusions

1. 551. The Committee observes that this case concerns allegations of various anti-union acts carried out by an enterprise in the financial sector against the national trade union of employees of that enterprise (the trade union) and its members and an excessive delay in the resolution of ongoing legal proceedings. The alleged acts include: the imposition of disciplinary sanctions on leaders and other members of the trade union in retaliation for the exercise of their trade union rights; the refusal by the enterprise to allow the display of trade union noticeboards and the use of email for trade union and labour purposes; the mass dismissal of the trade union’s executive committee and over half its members; and the reassignment of posts, including for unionized staff, with a downgrading of functions and working conditions. The complainant organizations also allege, the obstruction and criminalization by the State of the right of the trade union and its members to assemble and demonstrate. The Committee observes that the Government has shared the enterprise’s denial of having committed any acts against freedom of association, and that the Government denies having arbitrarily restricted the rights of assembly of the aforementioned organization and provides information on a series of legal proceedings related to the facts alleged by the complainant organizations.
2. Allegations concerning anti-union practices by the enterprise
3. 552. The Committee notes that the complainant organizations allege the existence of a business strategy aimed at weakening and dismantling the trade union, in the framework of which, between 2015 and 2021, the enterprise allegedly conducted a series of anti-union acts.
5. 553. The Committee notes the complainant organizations’ allegations that: (i) in 2015 and 2018, the enterprise imposed disciplinary sanctions (other than dismissal) on two leaders of the trade union (the general secretary and the defence secretary) and sent intimidatory letters (warnings) to 34 members of the trade union in retaliation for, respectively, the exercise of their trade union functions in the context of collective bargaining and their participation in protests and marches against the enterprise; and (ii) the enterprise refused to allow the display of union noticeboards at the premises (at the national level) where trade union members worked, despite having been fined for such action in 2019 by the labour inspectorate, and also refused to allow the use of email by the trade union for the dissemination of information of interest to workers and the trade union.
6. 554. In this respect, the Committee notes that, according to the information forwarded by the Government, the enterprise states that: (i) the sanctions imposed on the two trade union leaders and the warnings sent to 34 trade union members were the result of labour misconducts arising from non-compliance with their work obligations (failure to complete job training, failure to attend work and use of offensive language against the managers of the enterprise, and stoppage of work to participate in marches in the case of the other trade unionists), and were not intended to undermine their trade union rights, intimidate them or threaten them; (ii) it has contested the sanction (fine) imposed on it in 2019 by the labour inspectorate for not allowing the display of trade union noticeboards, as the decision contradicts another issued by the labour inspectorate in 2017, which indicated that there was no legal obligation to provide a trade union display panel, that the parties had agreed to forego the provision of such panels during previous collective bargaining negotiations, and that it was unreasonable to place display panels in workplaces where only one worker was a member of the trade union; and (iii) since 2016, the trade union has been making effective use of its institutional email to disseminate information of interest to workers and the trade union, which demonstrates that there was no need for any authorization from the enterprise and that the enterprise did not restrict or hinder the use of this channel of communication.
7. 555. The Committee notes that, according to the information provided by the complainant organizations and the Government, the parties initiated four legal proceedings in the context of which the judicial authorities are examining the allegations of anti-union acts made by the complainant organizations in this complaint. The Committee also notes that the complainant organizations question the fact that, at the time when the complaint was filed in 2020, the judicial authorities still had not definitively resolved the aforementioned legal proceedings. On the basis of the information provided, the Committee observes that: (i) the courts have annulled the sanction imposed on the trade union’s defence secretary, and that the enforcement of this decision is under way (Case File No. 14890-2016-0-1801-JR-LA-12); (ii) the disciplinary sanction imposed on the trade union’s general secretary has been annulled, with the enterprise required to confirm that it has complied with the legal decision(Case File No. 14891-2016-0-1801-JR-LA-06); (iii) a decision dated 22 April 2024 upheld the ruling that annulled the letters (warnings) sent to 34 members of the trade union and ordered the enterprise to cease the violation of the right to freedom of association through any type of intimidatory acts and the use of the institutional email for the dissemination of trade union views and information (Case File No. 11485-2018-0-1801-JR-CI-01); and (iv) the penalty imposed on the enterprise by the labour inspectorate for not allowing the display of trade union noticeboards was upheld, after the claim filed by the enterprise against the sanction was declared unfounded (Case File No. 5767-2020-0-1801-JR-LA-73). While it duly notes the protection of freedom of association provided by the aforementioned rulings, the Committee observes with regret the excessive delay – up to eight years in some cases – in the handling of the legal proceedings initiated in relation to the facts alleged by the complainant organizations. The Committee recalls that justice delayed is justice denied and that cases concerning anti-union discrimination should be examined rapidly, so that the necessary remedies can be really effective; an excessive delay in processing such cases constitutes a serious attack on the trade union rights of those concerned [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, paras 170 and 1139].
9. 556. The Committee notes that the complainant organizations refer to the administrative collective dismissal procedure initiated by the enterprise in 2020 upon the closure of its microenterprise division. In this respect, the complainant organizations: (i) question the fact that this process involved all members of the trade union’s executive committee (12 trade union leaders) and over half its members (around 106 of its 190 members), alleging that the process was intended to weaken the trade union; and (ii) state that the enterprise acted in bad faith and illegally as it had no genuine intention to negotiate a measure less burdensome than mass dismissal with the trade union and that it failed to comply with the legal requirement of providing relevant information prior to the negotiations held with the workers concerned by the measure, which was the reason for which the Administrative Labour Authority eventually rejected the enterprise’s request for a collective dismissal.
10. 557. In this respect, the Committee notes that the enterprise: (i) denies that the collective dismissal procedure in 2020 was intended to undermine the trade union or its members; (ii) states that this procedure was initiated due to the severe crisis in its microenterprise division (an irreversible deficit situation resulting from a substantial cumulative operating loss) and that it therefore applied to all workers employed in the division, including the members of the trade union’s executive committee and other unionized and non-unionized workers; and (iii) indicates that the Administrative Labour Authority eventually rejected the request for a collective dismissal for formal reasons (with which the enterprise disagrees) but that at no point did it consider that the enterprise had acted in bad faith or illegally.
11. 558. The Committee notes that, according to the information provided by the complainant organizations and the Government, while in 2020, the labour inspectorate proposed, pursuant to Notice of Violation No. 407-2020-SUNAFIL/ILM, that the enterprise be sanctioned, with a fine, on the grounds that it had violated the freedom of association of the trade union by including its entire executive committee in the collective dismissal procedure, a final administrative decision is pending on the basis of the proposed fine and the statements provided by the enterprise in its defence. While it notes that the aforementioned sanctioning procedure appears to be ongoing, the Committee observes that, in the above-mentioned notice of violation, the competent labour inspector considered that, while the inclusion of the trade union members in the request for a collective dismissal is not in itself an anti-union act, the fact that the collective dismissal included the general secretary and the defence secretary of the trade union, and that the employment contracts of the members of the executive committee were suspended during the processing of the aforementioned request, constitutes a violation of freedom of association and trade union representation as it weakens the aforementioned trade union organization and deprives workers of representation and the defence of their rights through their leaders. The Committee notes the diverging views of the trade union and the enterprise on the alleged anti-union nature of the aforementioned restructuring process. The Committee recalls that, in a case concerning staff restructuring, it stressed the importance of maintaining sound labour relations that would ensure that workers are not deprived of their fundamental rights and means of furthering and defending interests [Compilation, para. 1558]. The Committee requests the complainant organizations and the Government to keep it informed of the final decision of the labour inspectorate concerning the aforementioned proposed fine.
12. 559. Furthermore, the Committee notes the complainant organizations’ allegations that, in the context of the aforementioned collective dismissal procedure, the enterprise threatened, pressured and coerced several workers in the microenterprise division to leave the trade union, and as a result, some indeed decided to leave the trade union and others resigned from the enterprise following the payment of financial incentives. The Committee notes that, in this regard, the enterprise indicates that, insofar as permitted by the legislation in force, it made available a financial termination package to workers (unionized and non-unionized) from the aforementioned division in order to reach a severance agreement as an alternative to collective dismissal, and that it denies that there was any intimidation involved in the acceptance of that package. With regard to this allegation, the Committee observes that, in Notice of Violation No. 407-2020-SUNAFIL/ILM, the labour inspector in charge recorded that, while certain trade union members had signed agreements to terminate the employment relationship by mutual consent with the enterprise, it was not possible to verify whether the enterprise had threatened or pressured those members to leave the trade union or sign such agreements by mutual dissent, without prejudice to the trade union’s right to, with the appropriate evidence, assert its challenge through the corresponding legal channels. Observing that the complainant organizations have not provided information on the existence of legal action brought in relation to the alleged offering of financial incentives by the enterprise for workers to leave the trade union or resign from the enterprise, the Committee shall not pursue its examination of this question.
14. 560. The Committee notes the complainant organizations’ allegations that, after the rejection of the collective dismissal procedure by the Administrative Labour Authority, the enterprise: (i) took several months to reinstate the workers from the microenterprise division (including unionized staff) and also disregarded the representation granted by those workers to the trade union in order to address matters relating to their reinstatement; (ii) created new administrative posts and an ad hoc remuneration structure for the employment of the workers from the aforementioned division (including members of the trade union), which were not related to the business purpose of the enterprise, did not correspond to the qualifications or experience of the workers, and involved a downgrading of their functions and working conditions; and (iii) imposed disciplinary sanctions (other than dismissal) on workers who refused to return to the enterprise in the aforementioned context.
15. 561. The Committee notes that according to the information forwarded by the Government, the enterprise states that: (i) due to the closure of its microenterprise division and after the rejection of the collective dismissal procedure, it had to grant paid leave to the workers formerly employed in the division while it planned their reinstatement and their reassignment to other posts, with the assistance of an impartial and specialized university institution; (ii) the aforementioned workers were eventually reassigned to new posts created at the national level, taking into account the activities and needs of the enterprise; (iii) the reassignment of posts took into consideration the profiles and experience of the workers and respected their category and level of remuneration; (iv) it informed the trade union in advance of the general outline of the job reassignment process, and denies having disregarded the representation granted by the workers to the trade union in the context of the procedure and specifies that certain aspects of the procedure required the direct and individual participation of the workers and not only the trade union; and (v) it decided to impose disciplinary sanctions on workers who were reluctant to comply with their work obligation to return to the enterprise, perform the duties of their new posts and participate in the preliminary activities organized for this purpose (such as training and evaluations).
16. 562. The Committee duly notes the information provided by the Government and the complainant organizations. In the light of that information, it notes that, while the closure of the microenterprise division and the assignment of new posts to staff employed in that division (carried out in a context of financial difficulties) affected workers who were members of the trade union, it does not have the information that would enable it to comment on the alleged anti-union nature of the restructuring of the enterprise, which appears not to have been the subject of administrative and legal actions brought by the trade union. In this context, the Committee will not continue its examination of these allegations.
17. 563. In the light of the different elements examined above, the Committee invites the Government to promote freedom of association and the effective recognition of the right to collective bargaining among private enterprises.

1. Allegations concerning actions by state bodies
2. 564. The Committee notes the complainant organizations’ allegations that the Ministry of the Interior and the National Police violated freedom of association by obstructing and criminalizing the rights of assembly and demonstration of the trade union and its members.
3. 565. Regarding the alleged obstruction of the rights of assembly and demonstration during marches and protests carried out in 2018, the Committee notes that the complainant organizations: (i) allege that the competence of the Ministry of the Interior to change the routes of trade union marches amounts, in practice, to granting prior authorization for such marches to take place; (ii) indicate that the aforementioned body, in coordination with the enterprise, arbitrarily changed the routes to be followed by the various marches and protests called by the trade union and also fined it for failing to observe those routes; and (iii) state that the amparo proceeding (remedy for the protection of constitutional rights) initiated in 2018 against the actions of the aforementioned body is still pending. The Committee notes that, in this regard, the Government indicates that: (i) the Ministry of the Interior does not grant authorization for the organization of public rallies or demonstrations, but rather it provides the guarantees necessary for such events to take place; (ii) the changes to the routes of the marches and protests were minimal and were intended solely to safeguard both the freedom of association of the trade union and public order; (iii) the proposed fine for the trade union for the alleged failure to observe the indicated routes was eventually rejected and shelved; and (iv) the Ministry did not coordinate with the enterprise with the aim of repressing the trade union marches and protests. The Committee duly notes the information provided by the parties and recalls that the requirement of administrative permission to hold public meetings and demonstrations is not objectionable per se from the standpoint of the principles of freedom of association, and that, furthermore, the obligation on a procession to follow a predetermined itinerary does not constitute a violation of trade union rights [Compilation, paras 218 and 227]. In the light of the above, the Committee will not continue its examination of these allegations.
4. 566. Concerning the alleged criminalization of the rights of assembly and demonstration, the Committee notes the complainant organizations’ indication that, on 30 October 2020, the National Police, allegedly acting as private security for the enterprise, arrested the defence secretary of the trade union while he was protesting peacefully and was complying with the protocols relating to the COVID-19 pandemic, in front of the headquarters of the enterprise, and that, while the leader was released, criminal proceedings were planned against him for the alleged offence of resistance and disobedience to authority. In this respect, the Committee notes the Government’s indications that the temporary detention of the trade union leader was due to his unwillingness to comply with the repeated requests by the police authority to end a protest at a time when restrictions on freedom of assembly were in force owing to the COVID-19 pandemic, and that, in 2021, the criminal complaint against the leader was definitively closed.
5. 567. The Committee notes the information provided by the parties and observes that the arrest of the trade union leader for participating in a public demonstration took place amid restrictions on the holding of public meetings in the context of the state of emergency declared due to the COVID-19 pandemic. The Committee observes that the parties appear to have contradicting versions as to whether it was possible to carry out public demonstrations during the pandemic. While it is not for the Committee to evaluate the restrictions associated with the pandemic, the Committee recalls that workers should enjoy the right to peaceful demonstration to defend their occupational interests [Compilation, para. 208] The Committee trusts that, in the future, government responses to demonstrations relating to trade union rights will be consistent with freedom of association.

The Committee’s recommendations

1. 568. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the complainant organizations and the Government to keep it informed of the outcome of the administrative proceeding concerning the possible violation of freedom of association as a result of having included all members of the trade union’s executive committee in the collective dismissal procedure initiated by the enterprise in 2020.
   • (b) The Committee invites the Government to promote freedom of association and the effective recognition of the right to collective bargaining among private enterprises.
   • (c) The Committee trusts that, in the future, government responses to demonstrations relating to trade union rights will be consistent with freedom of association.