Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 360, Juin 2011

Cas no 2533 (Pérou) - Date de la plainte: 06-NOV. -06 - Clos

Allegations: The complainant organizations allege dismissals and suspensions of trade union officials and members, as well as obstruction of collective bargaining in fishing industry enterprises; collective bargaining with minority unions in a mining enterprise; and violations of trade union rights in a textile company

1. 921. The Committee last examined this case at its meeting in March 2010 and on that occasion submitted an interim report to the Governing Body [see 356th Report, paras 1050–1074, approved by the Governing Body at its 307th Session].
2. 922. The Government sent new observations in communications dated 26 February 2010 and
3. 7 February 2011.
4. 923. 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. 924. When it examined this case at its meeting in March 2010, the Committee made the following recommendations [see 356th Report, para. 1074]:
   • (a) As to the allegations regarding the enterprise Pesquera San Fermín SA concerning the dismissals of the last general secretaries of FETRAPEP, Mr Eugenio Caritas and Mr Wilmert Medina Campos, and of member Mr Richard Veliz Santa Cruz and the pre-dismissal letters sent to Mr Juan Martínez Dulanto, records and archives secretary, Mr Ronald Díaz Chilca, discipline, culture and sport secretary, and Mr Freddy Medina Soto, member, the Committee hopes that the inspection of the enterprise referred to by the Government will be carried out without delay and that it will cover all the pending allegations. The Committee requests the Government to keep it informed in this regard.
   • (b) The Committee yet again urges the Government to inform it of the outcome of the inspection visits to the enterprise Alexandra SAC regarding the allegations of nonrecognition of the union and harassment of its members.
   • (c) The Committee requests the Government to: (1) take the necessary steps, as ordered by the judicial authority, to reinstate all those workers belonging to the Union of Workers of CFG Investment SAC at the Chancay plant dismissed for anti-union reasons – including eight members of the executive committee and the members of the committee negotiating the list of claims and the 11 union members who were reinstated only to be yet again dismissed; (2) put an end to the acts of anti-union discrimination involving wage increases granted exclusively to non-unionized workers; (3) reinitiate negotiations concerning the list of claims, should the trade union organization so wish; and (4) report on the enforcement of the fine imposed on the enterprise for anti-union acts. The Committee requests the Government to keep it informed regarding any steps taken in this regard.
   • (d) The Committee expresses the hope that the process of registering the amendments to FETRAPEP’s by-laws and its official records will be completed as quickly as possible, and requests the Government to keep it informed in this regard.
   • (e) With regard to the allegations presented by the CGTP (non-recognition of the Single Union of Workers of Textiles San Sebastián SAC, refusal to apply the check-off facility for the collection of union dues, refusal to provide a notice board, refusal to bargain collectively, outsourcing of production with a view to restricting the exercise of freedom of association, transfer of unionized workers, and dismissal of the union’s General Secretary, secretary for workers’ rights and another member), the Committee notes that fines have been imposed on the enterprise due to the challenges filed, and instructions have been issued regarding their collection. The Committee once again urges the Government to take the necessary measures without delay to ensure that the enterprise reinstates the dismissed officials and workers with the payment of wage arrears, recognizes the union, rectifies the anti-union measures taken against it, and refrains from adopting any such measures in the future. The Committee requests the Government to keep it informed of developments.

B. The Government’s replies

1. 925. In its communication of 26 February 2010, the Government recalls that in its previous reply it had explained the action undertaken by the administrative labour authority, involving inspections which revealed that the companies concerned by the complaint had contravened social and labour standards as a result of which they had been the subject of proceedings which had resulted in fines which in a number of cases had been paid.
2. 926. The Government refers, first, to the allegations regarding the company Pesquera San Fermín SA concerning the dismissals of the last general secretaries of the FETRAPEP, Mr Eugenio Caritas and Mr Wilmert Medina Campos, and of union member Mr Richard Veliz Santa Cruz, and pre-dismissal letters sent to Mr Juan Martínez Dulanto, records and archives secretary, Mr Ronald Díaz Chilca, discipline, culture and sport secretary, and Mr Freddy Medina Soto, member, and to the inspection visits at the company Alexandra SAC to investigate allegations of non-recognition of the union and harassment of its members. In this regard the Government indicates that the labour inspectorate carried out an inspection visit and found that Pesquera San Fermín SA was no longer operating at the premises visited, and for that reason it was proposed that the inspection order should be set aside, given that the company COPEINCA SA was now operating at that location and one of the company’s workers, who did not identify himself, indicated that the company Pesquera San Fermín SA had been closed down. The Government points out that according to the labour inspection directorate, no inspection orders were issued for the company Alexandra SAC.
3. 927. The Government refers to the recommendation by the Committee requesting that the Government take the necessary steps, as ordered by the judicial authority, to reinstate all those workers belonging to the Union of Workers of CFG Investment SAC at the Chancay plant (SITRACICH) dismissed for anti-union reasons, including eight members of the executive committee and the members of the committee negotiating the list of claims and the 11 union members who were reinstated only to be yet again dismissed; put an end to the acts of anti-union discrimination involving wage increases granted exclusively to nonunionized workers; reinitiate negotiations concerning the list of claims, should the trade union organization so wish; and report on the enforcement of the fine imposed on the enterprise for anti-union acts. The Committee requested the Government to keep it informed of any steps taken in that regard. In this regard, the Government indicates that following an inspection on 1 July 2009, the company was fined a total of 18,216 Peru nuevos soles (PEN). The company lodged an appeal, and as a result the labour inspection directorate decided to partially revoke the aforementioned ruling since the labour inspectors had not demanded to put an end to discriminatory practices and to adjust the wages of unionized workers in line with those of their non-unionized fellow workers. The fine was reduced to PEN12,144, but the other points were confirmed.
4. 928. As regards the other previous labour inspection in 2008, the penalty procedure with regard to one specific point was set aside in view of the fact that the delivery of payslips of 17 workers by the company concerned was conformed.
5. 929. In the labour inspection of 2009, as regards the alleged non-recognition of the trade unions, it was found that in fact there were two recognized unions at the company: the SITRACICH, to which the complaint before the Committee refers; and the Union of Workers of Pesquería CFG Investment SAC PISCO; both of these have been duly registered. The labour inspection confirmed that union dues had been deducted from pay and credited to SITRACICH, and a collective agreement had been signed with the union in question for the period 2006–10.
6. 930. It has also been confirmed that to date, workers Orlando Ojeda Cañamero, Marcelino Flores Sánchez, Juan Carlos Duque Centi and Marcos Rosas Cáceres have been reinstated in their position by court order. As regards the dismissals of trade union officials and members, it is on record that judicial proceedings to annul the dismissals were initiated by a group of workers, but there is as yet no information on the status of those proceedings, and information on this will be provided as soon as it is received.
7. 931. As regards the Committee’s recommendation expressing the hope that the process of registering the amendments to the by-laws and the registration of the official records of the executive committee of the trade union of the CFG Investment of the Planta Chancay would be concluded in the near future, the Government indicates that the Union Registration Division on 20 February 2009 approved the amendments to the by-laws and issued the automatic registration record of the executive committee membership headed by its General Secretary Wilmert Medina Campos, for the period 19 February 2009 to 18 February 2010.
8. 932. As regards the measures adopted to verify the allegation regarding non-recognition of the Single Union of Workers of Textiles San Sebastián SAC, and the refusal by that company to apply the check-off facility, refusal to bargain collectively, the transfer of unionized workers and dismissals of union officials, including the general secretary and the secretary for defence, among others, the Government indicates that an inspection visit at the company gave rise to a contravention notice with a proposed fine of PEN5,325.
9. 933. The Government concludes that it is clear from the above that when companies have infringed social and labour standards, they have been subjected to penalty proceedings and appropriate fines have been recommended. As regards the issue of alleged arbitrary dismissals that are now the subject of judicial proceedings. The Government indicates that it should be noted that accordingly to section 4 of the unified text of the Organic Law respecting the Judiciary, the administrative labour authority must refrain from giving any ruling on the issue and failure to adhere to this would mean criminal liability for the officials concerned. Nevertheless, the judicial authority will be requested to report on the outcome of all proceedings linked to the complaint that has been made and this will be communicated to the ILO.
10. 934. In its communication dated 7 February 2011, the Government states that the enterprise Pesquera San Fermín SA has been taken over by Corporación Pesquera Inca, which maintains an employment relationship with three of the trade union officials and trade unionists mentioned in the complaint; two trade unionists went to work for other enterprises and the remaining one (Mr Wilmert Medina) has initiated legal action for wrongful dismissal, which is currently being processed. The Government also indicates that the enterprise Alexandra SAC has merged with the enterprise CFG Investment SAC, where a number of labour inspections have been carried out, which found that trade union leave was regularly granted, salary increases were no longer given for anti-union motives and trade union dues were still being deducted; according to the last labour inspectorate report there are no longer any anti-union practices at the enterprise. Lastly, with respect to the enterprise Textiles San Sebastián SAC, the Government states that it has ordered a further investigation into the CGTP’s allegations in order to provide the ILO with the necessary information.

C. The Committee’s conclusions

1. 935. As regards the allegations concerning Pesquera San Fermín SA (dismissal of the two last general secretaries of FETRAPEP and one member, and pre-dismissal letters sent to other union officials and a union member), the Committee notes that in accordance with its recommendations, the Government ordered an inspection visit at the company’s premises and found that it was no longer operating at the location in question; the enterprise in question had been taken over by Corporación Pesquera Inca, which maintains an employment relationship with three of the trade unionists and trade union officials; two trade unionists went to work for other enterprises and the remaining one (Mr Wilmert Medina) has initiated legal action for wrongful dismissal, which is currently being processed. In these circumstances, the Committee requests the Government to keep it informed of the outcome of the action for wrongful dismissal initiated by the trade union official Mr Wilmert Medina.
2. 936. As regards the alleged non-recognition by the company Alexandra SAC of the trade union, the Committee notes the Government’s statement to the effect that this enterprise was transferred to the enterprise CFG Investment SAC. This matter will be addressed in the following paragraph, which provides information about the signing of a collective agreement.
3. 937. As regards the allegations concerning CFG Investment SAC at the Chancay plant, the Committee notes with interest that according to the Government the labour inspectorate has found that the union mentioned in the complaint (SITRACICH) and another union have been duly registered and recognized, that SITRACICH benefits from the check-off of trade union membership dues, and has concluded a collective agreement for the period 2006–10. The Committee notes that following a labour inspection which found that anti-union practices had taken place, the company was fined PEN12,144 (US$3,886) and ordered to end all discriminatory acts, and to adjust the pay of unionized workers in line with that of other workers (as the Committee had requested). The Committee notes that between December 2009 and January 2010 the labour inspectorate found that trade union leave was regularly granted, salary increases were not given for anti-union motives and trade union dues were still being deducted, concluding that no anti-union practices were taking place.
4. 938. As regards the alleged dismissal of eight members of the executive committee, the members of the committee negotiating the list of claims and 11 union members who were reinstated and then dismissed again, the Committee notes that the Government reports the reinstatement of four trade unionists and the fact that the others have initiated judicial proceedings, of which the Committee will be kept informed, and that the administrative authority must refrain from giving any ruling on such dismissals which are the subject of judicial proceedings, and by doing so an official would make himself liable to criminal proceedings. Under these circumstances, the Committee requests the Government to keep it informed of the outcome of the judicial proceedings initiated following the dismissal of trade union officials and members working at the company CFG Investment SAC, and expects that the judicial authority will give a ruling on these dismissals without delay.
5. 939. Moreover, the Committee notes with interest the fact that, as it had requested, the Trade Union Registration Division approved the amendments to the by-laws of the trade union of the CFG Investment of the Planta de Chancay, and the union’s executive committee has been registered.
6. 940. Lastly, as regards the allegations concerning the enterprise Textiles San Sebastián SAC, the Committee wishes to reiterate its previous conclusions on the allegations in question: [see 356th Report, paras 1071 and 1072]:
   • With regard to the allegations presented by the General Confederation of Workers of Peru (CGTP) (non-recognition of the Single Union of Workers of Textiles San Sebastián SAC, refusal to apply the check-off facility for the collection of union dues, refusal to provide a notice board, refusal to bargain collectively, outsourcing of production with a view to restricting the exercise of freedom of association, transfer of unionized workers, and dismissal of the union’s General Secretary, secretary for workers’ rights and another member), the Committee, while taking note of the fine of PEN103,500 (US$36,315.79) imposed on the enterprise, and taking into account the fact that the veracity of the allegations has been confirmed by the administrative authority, once again requested the Government, in addition to implementing the sanction imposed, to take the necessary measures without delay to ensure that the enterprise reinstates the dismissed officials and workers with the payment of wage arrears, recognizes the union, rectifies the anti-union measures taken against it, and refrains from adopting any such measures in the future. The Committee further requested the Government to promote collective bargaining between the parties and to keep it informed of developments. In this regard, the Committee notes that the Government states that: (1) the Regional Directorate of Labour and Employment Promotion of Lima-Callao states in official letter No. 450-009-MTPE/2/12.1 of 12 March 2009 that it submitted a copy of the proceedings to the Office for the Administration of Fines for enforcement of said fine, thus concluding that procedure No. 1756-2007 had been completed and was closed; and (2) its response takes account of the active participation of the Administrative Labour Authority in the process of dealing with the issue raised by FETRAPEP and the CGTP, referring to various inspection activities that were carried out, the results of which demonstrate that when the enterprises concerned have violated social and labour laws they have been sanctioned, it being recommended that the corresponding fines be imposed, with the corresponding enforcement processes currently ongoing.
   • In these circumstances, while noting that instructions have been issued regarding the collection of the fines imposed, the Committee once again requests the Government to take the necessary measures without delay to ensure that the enterprise reinstates the dismissed officials and workers with the payment of wage arrears, recognizes the union, rectifies the anti-union measures taken against it, refrains from adopting any such measures in the future and promotes collective bargaining between the parties. The Committee requests the Government to keep it informed of developments in this regard.
7. 941. The Committee notes that the Government in its most recent reply reiterates that the last labour inspection visit to the company in December 2009 gave rise to a contravention notice (failure of a company representative to appear, despite having been invited), with a fine of PEN5,325 (US$1,704). The Committee regrets that the company has obstructed the work of the labour inspectorate. The Committee also expresses its concern that, according to the annexes provided by the Government, a visit by the labour inspectorate to the company’s premises on 13 January 2010 found no activity at all at those premises. The Committee notes that the Government has ordered a further inspection of the enterprise in order to verify the CGTP’s allegations and provide the ILO with the necessary information. In these circumstances, and pending further information from the Government, the Committee reiterates its previous recommendation, as follows:
   • With regard to the allegations presented by the CGTP (non-recognition of the Single Union of Workers of Textiles San Sebastián SAC, refusal to apply the check-off facility for the collection of union dues, refusal to provide a notice board, refusal to bargain collectively, outsourcing of production with a view to restricting the exercise of freedom of association, transfer of unionized workers, and dismissal of the union’s General Secretary, secretary for workers’ rights and another member), the Committee notes that fines have been imposed on the enterprise due to the challenges filed, and instructions have been issued regarding their collection. The Committee once again urges the Government to take the necessary measures without delay to ensure that the enterprise reinstates the dismissed officials and workers with the payment of wage arrears, recognizes the union, rectifies the anti-union measures taken against it, and refrains from adopting any such measures in the future. The Committee requests the Government to keep it informed of developments. [See 356th Report,
   • para. 1074(e).]
8. 942. The Committee further requests the Government to establish whether the company in question still exists.

The Committee's recommendations

1. 943. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government to keep it informed of the outcome of the action for wrongful dismissal initiated by the trade union official
     • Mr Wilmert Medina against the enterprise San Fermín SA (subsequently taken over by another enterprise).
   • (b) As regards the alleged dismissal by the company CFG Investment SAC of eight members of the executive committee, the members of the committee negotiating the list of claims, and 11 union members who had been reinstated and then dismissed again, the Committee notes that according to the Government, four union members have been reinstated and the others have initiated judicial proceedings. The Committee requests the Government to keep it informed of the outcome of the judicial proceedings initiated following the dismissal of union officials and members working at the company, and expects that the judicial authority will give a ruling on those dismissals without delay.
   • (c) Lastly, with regard to the allegations presented by the CGTP
     • (non-recognition of the Single Union of Workers of Textiles San Sebastián SAC, refusal to apply the check-off facility for the collection of union dues, refusal to provide a notice board, refusal to bargain collectively, outsourcing of production with a view to restricting the exercise of freedom of association, transfer of unionized workers, and dismissal of the union’s General Secretary, secretary for workers’ rights, and another member), the Committee notes that fines have been imposed on the enterprise as a result of the complaints that have been lodged, and instructions have been issued regarding their collection (including a recent fine for obstructing the activity of the labour inspectorate), but expresses its concern that according to the Government’s annexes, a labour inspection visit at the company’s premises on 13 January 2010 found that there was no activity at the premises in question. The Committee, as it did in its previous examination of the case, once again urges the Government to establish whether the company in question still exists and, if so, to take the necessary measures without delay to ensure that the enterprise reinstates the dismissed officials and workers with the payment of wage arrears, recognizes the union, rectifies the antiunion measures taken against it, refrains from adopting any such measures in the future, and encourages collective bargaining between the parties. The Committee requests the Government to keep it informed of any measures adopted in that regard.