Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 370, Octobre 2013

Cas no 2966 (Pérou) - Date de la plainte: 01-JUIN -12 - Clos

Allegations: The complainant alleges acts of anti-union discrimination and persecution in the National Public Records Office (SUNARP)

1. 629. The complaint is contained in a communication from the Autonomous Confederation of Peruvian Workers (CATP) dated 1 June 2012.
2. 630. The Government sent its observations in communications dated 17 August and 22 and 26 October 2012.
3. 631. 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. 632. In its communication dated 1 June 2012, the CATP states that an in-depth analysis of the trade union situation shows that since the change of Government in July 2011, the National Public Records Office (SUNARP) has systematically adopted a hostile and discriminatory attitude against trade union officers, section delegates or members who claim workers’ rights or call for compliance with arbitration awards (in particular, those in the central office, in Registry Zone XI of Ica, in Registry Zone V of Trujillo, in Registry Zone IV of Iquitos and in Registry Zone XIII, Tacna office). Specifically, the CATP states more concretely that: (1) since the beginning of the trade union action taken by the General Secretary of the Trade Union of Workers of SUNARP (SITRASUNARP) in the central office, together with the union officers of Registry Zone IX, in protest against the employer’s labour policy and calling for labour inspections to verify compliance with the collective agreement, a climate of anti-union discrimination and harassment began to prevail, to the detriment of the General Secretary of SITRASUNARP, Mr Jorge Aliaga Montoya, who ultimately received a reprimand in the form of Decision No. 119-2012-SUNARP/SN of 16 May; (2) Mr Agustín Mendoza Champion, Culture and Training Secretary of the Trade Union of Registry Zone IX, Ica Zone, received a disciplinary penalty for failing to obey the order to cease his trade union activities (in particular, organizing courses on freedom of association and preparing comments on the application of Conventions Nos 135, 151 and 154); (3) in an attempt at intimidation, administrative disciplinary proceedings were instituted against Mr Carlos Holguín Nacarino, General Secretary of the Trade Union of Registry Zone V of Trujillo, who had started submitting complaints against the dismissal of a union member; (4) Mr Rolando Valdivia Cornejo, Organization Secretary of the Trade Union of Workers of Registry Zone XIII, Tacna office, was transferred from his post, preventing him from carrying out his trade union activities; and (5) Mr Elvis Félix Zavala Guerra, Social Affairs Secretary of the National Federation of Workers of the Public Registry System (FETRASINARP), was suspended for having submitted a complaint regarding the situation of workers who had been subjected to penalties. The union officer was subsequently dismissed on 14 May 2012.
2. 633. Lastly, the complainant states that in view of this situation, the President of the Republic and the National Public Records Superintendent were informed of the ongoing violations of freedom of association and requested to issue an order for the acts of discrimination being committed at national level in the SUNARP to be stopped, but no reply was received. The complainant considers that in the light of the foregoing, it appears that there is clearly systematic persecution of union officers, who are penalized for complying with the law, and are being subjected to penalties or dismissed on the pretext of disciplinary offences, disloyalty, inefficiency, inability or failure to perform their assigned duties, for the sole purpose of causing panic among members, dismantling the trade union organization and preventing it from operating.

B. The Government’s reply

1. 634. In its communications dated 17 August and 22 October 2012, the Government states that the allegations relate to workers who were or had been officers of different trade unions of SUNARP at the national level. It adds that the measures adopted and implemented by SUNARP through its various areas and officials were in strict compliance with the labour and administrative regulations in force, objectively applied to cases of non-compliance with such regulations. As regards the allegations relating to five cases of union officers referred to by the complainants, the Government states the following:
   • – concerning Mr Jorge Aliaga Montoya, it was found in the context of administrative disciplinary proceedings that, in his capacity as personnel specialist, he had failed to report the accumulation of unused leave of an important group of workers – resulting in SUNARP being fined by the Ministry of Labour and Employment Promotion – and was thus issued with a written reprimand. The Government adds that the same penalty for the same offence was applied to other staff who are not union members, such as, for example, the Director of Human Resources. Mr Aliaga Montoya is currently working as a personnel specialist in human resources and as a trade union official. He has been provided with facilities to carry out his union activities without violation of his rights and is also covered by trade union immunity;
   • – concerning Mr Agustín Hermes Mendoza Champion, Public Registrar in Registry Zone IX, two administrative proceedings were instituted against him for conduct contrary to the agency’s internal regulations, and he was suspended for 30 and 60 days by Decisions Nos 259-2010/ZRN and 201-2011/ZRN of 8 November 2010 and 17 June 2011. He lodged appeals against the decisions with the Civil Service Tribunal, and filed amparo (protection of constitutional rights) proceedings with the Second Civil Court of Ica, which are currently pending. As regards the appeals filed against the decisions with the Civil Service Tribunal, the Government adds that one of them was rejected as the offence with which he was accused was confirmed, while the other is still pending. The penalties imposed on the official were a consequence of his conduct in the performance of his duties, and he is currently still employed as public registrar in the Ica office;
   • – concerning Mr Carlos Holguín Nacarino, an administrative investigation was ordered for inappropriate use of email and it was found that he had not committed a disciplinary offence. In addition, by Decision No. 224-2012 of 22 May 2012, administrative proceedings were instituted upon finding that he had approved a decision allowing payment of benefits to workers who were not covered by the collective agreement, to the financial detriment of the agency, and a penalty was ordered by Decision No. 393-2012. An appeal was lodged against this decision with the Civil Service Tribunal. Lastly, administrative disciplinary proceedings were also instituted against Mr Holguín Nacarino, who is employed as an asset and stock control specialist in Registry Zone V, in view of indications that he is not performing his professional duties, such as managing and controlling the agency’s assets. The proceedings are at the stage of evaluation by the employer. Mr Holguín Nacarino is performing his duties without his trade union rights being violated;
   • – concerning Mr Rolando Valdivia Cornejo, his transfer from the Llo office to the Moquegua office took place with his consent, on justified grounds based on the need to ensure a temporary improvement in the work atmosphere in the Llo office. In addition, he was granted an increment of 1,000 nuevos soles (PEN) in addition to his monthly salary. There is no discrimination against him, and the transfer was for six months;
   • – concerning Mr Elvis Félix Zavala Guerra, he was transferred with his express consent, based on the requirements of the service, without any reduction in grade or salary, within the same jurisdiction and region on family grounds. He was also paid a supplement for accommodation costs. He filed criminal proceedings against the Director of the Iquitos Zone, which were rejected. He was dismissed for serious misconduct after accusing the employer of a criminal offense, an accusation found to be false by the Public Prosecutor’s Office.
2. 635. Lastly, the Government states that no worker has been subjected to prejudicial measures in employment on account of trade union membership, nor has there been or will there be any discrimination against them. Disciplinary penalties and action were carried out against the workers referred to in the complaint for having failed to comply with the labour and administrative regulations in force, and due process was observed.

C. The Committee’s conclusions

1. 636. The Committee observes that in this case the CATP alleges acts of anti-union persecution and discrimination in different offices of the SUNARP. Specifically, the Committee observes that the CATP alleges that in the context of anti-union persecution the SUNARP authorities: (1) issued a reprimand against the General Secretary of SITRASUNARP, Mr Jorge Aliaga Montoya; (2) applied a penalty to Mr Agustín Mendoza Champion, Culture and Training Secretary of Registry Zone IX, Ica Zone; (3) instituted administrative disciplinary proceedings against Mr Carlos Holguín Nacarino, General Secretary of the Trade Union of Registry Zone V of Trujillo; (4) transferred Mr Rolando Valdivia Cornejo, Organization Secretary of the Trade Union of Workers of Registry Zone XIII, Tacna office; and (5) dismissed Mr Elvis Félix Zavala Guerra, Social Affairs Secretary of the FETRASINARP.
2. 637. As regards the allegations concerning the reprimand issued against the General Secretary of SITRASUNARP, Mr Jorge Aliaga Montoya, the Committee notes the Government’s statements to the effect that: (1) it was found in the context of an administrative disciplinary proceeding that, in his capacity as personnel specialist, he had failed to report the accumulation of unused leave of an important group of workers – resulting in SUNARP being fined by the Ministry of Labour and Employment Promotion – and was thus issued with a written reprimand; (2) the same penalty for the same offence was applied to other staff who are not union members, such as the Director of Human Resources; and (3) Mr Aliaga Montoya is currently working as a personnel specialist in human resources and, as a trade union officer, has been provided with facilities to carry out his union activities without violation of his rights, and is covered by trade union immunity. In the light of this information, the Committee will not pursue its examination of these allegations.
3. 638. As regards the allegation that Mr Agustín Mendoza Champion, Culture and Training Secretary of the Trade Union of Registry Zone IX, Ica Zone, received a disciplinary penalty for failing to obey the order to cease his trade union activities, the Committee notes the Government’s statements to the effect that: (1) two administrative proceedings were instituted against him for conduct contrary to the agency’s internal regulations, and he was suspended for 30 and 60 days by Decisions Nos 259-2010/ZRN and 201-2011/ZRN of 8 November 2010 and 17 June 2011; (2) he lodged appeals against the decisions with the Civil Service Tribunal (one of them was rejected, while the other is still pending), and filed amparo proceedings with the Second Civil Court of Ica, which are currently pending; and (3) the penalties imposed on the official were a consequence of his conduct in the performance of his duties, and he is currently employed as public registrar in the Ica office. The Committee takes note of this information, observes that the Government does not give details of the acts constituting infringements of the agency’s internal regulations and requests the Government to keep it informed of the outcome of the appeal proceedings filed by the union officer against the suspensions ordered against him.
4. 639. As regards the allegation that, in an attempt to intimidate Mr Carlos Holguín Nacarino, General Secretary of the Trade Union of Registry Zone V of Trujillo, administrative disciplinary proceedings were brought against him, the Committee notes the Government’s statement to the effect that: (1) an administrative investigation was ordered against him for inappropriate use of e-mail and it was found that he had not committed a disciplinary offence; (2) by Decision No. 224-2012 of 22 May 2012, administrative proceedings were instituted upon finding that he had approved a decision allowing payment of benefits to workers who were not covered by the collective agreement, to the financial detriment of the agency, and a penalty was ordered by Decision No. 393-2012 (an appeal was lodged against this decision with the Civil Service Tribunal); (3) an administrative disciplinary proceeding was also instituted against Mr Holguín Nacarino, who is employed as an asset and stock control specialist in Registry Zone V, in view of indications that he is not performing his professional duties, such as managing and controlling the agency’s assets (these proceedings are at the stage of evaluation by the employer); and (4) Mr Holguín Nacarino is performing his duties without his trade union rights being violated. The Committee takes note of this information and requests the Government to keep it informed of the outcome of the appeal proceedings filed by Mr Holguín Nacarino against the administrative decision penalizing him, and of the outcome of the pending administrative disciplinary proceedings against him. Moreover, in view of the numerous administrative proceedings initiated against this union officer, the Committee requests the Government to ensure that these proceedings were not aimed at harassing the worker on account of his trade union activities.
5. 640. As regards the alleged transfer of Mr Rolando Valdivia Cornejo, Organization Secretary of the Trade Union of Workers of Registry Zone XIII, Tacna office, preventing him from carrying out his trade union activities, the Committee notes the Government’s statement to the effect that: (1) his transfer from the Llo office to the Moquegua office took place with his consent, on justified grounds based on the need to ensure a temporary improvement in the work atmosphere in the Llo office; (2) he was granted a salary increment of PEN1,000 per month; and (3) there is no discrimination against him, and the transfer was for six months. In the light of this information, and noting that the transfer was temporary and carried out with the union officer’s consent, the Committee will not pursue its examination of these allegations.
6. 641. As regards the allegation concerning the suspension and subsequent dismissal of Mr Elvis Félix Zavala Guerra, Social Affairs Secretary of the FETRASINARP, for having submitted a complaint regarding the situation of workers who had been subjected to penalties, the Committee notes the Government’s statement to the effect that: (1) the union officer was transferred with his express consent, based on the requirements of the service, without any reduction in grade or salary, within the same jurisdiction and region on family grounds; (2) he was paid a supplement for accommodation costs; (3) he filed criminal proceedings against the director of Iquitos Zone, which were rejected; and (4) he was dismissed for serious misconduct for having brought a criminal action against his employer, accusing him of abuse of authority (it appears from the documentation sent by the Government that the Public Prosecutor’s Office set aside the investigation definitively and declared that the complaint filed by Mr Elvis Félix Zavala Guerra was unfounded). In the light of this information, the Committee will not pursue its examination of these allegations.

The Committee’s recommendation

1. 642. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
   • The Committee requests the Government to keep it informed of the outcome: (1) of the appeals filed by trade union officer Mr Agustín Mendoza Champion, Culture and Training Secretary of the Trade Union of Registry Zone IX, Ica Zone, against the penalties of suspension imposed on him; and (2) of the appeal filed by Mr Holguín Nacarino, General Secretary of the Trade Union of Registry Zone V of Trujillo, against the administrative decision penalizing him, as well as on the outcome of the pending administrative disciplinary proceedings against him.