Rapport intérimaire - Rapport No. 374, Mars 2015

Cas no 3069 (Pérou) - Date de la plainte: 14-MARS -14 - En suivi

Allegations: Dismissal of 35 founding members of the complainant trade union and acts of anti union interference by the mining company ANTAPACCAY (SITRAMINA)

1. 833. The complaint is contained in a communication from the Union of Worker Officials of the Mining Company ANTAPACCAY (SITRAMINA) of March 2014. This organization submitted additional information and further allegations in communications dated 10 October 2014 and 9 January 2015.
2. 834. The Government sent its observations in communications dated 12 August and 17 September 2014.
3. 835. Peru has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98) and the Labour Relations (Public Service) Convention, 1978 (No. 151).

A. The complainant’s allegations

1. 836. In its communications of March and 10 October 2014, SITRAMINA alleges that, after the union had been set up on 23 November 2013 by 35 workers from the mining company ANTAPACCAY SA and granted legal registration on 27 November 2013 when it was registered with the Ministry of Labour, the company sent notarized dismissal letters to those 35 workers between 29 November and 3 December 2013.
2. 837. At the same time, the mining company contacted the workers who were members of the union and offered to reinstate them in their posts, on condition that beforehand they gave up their union membership. As a result of this interference on the part of the company, 28 workers submitted individual letters withdrawing from the trade union; all the letters had the same content and were directed to the Regional Directorate of Labour of Cusco. Likewise, two workers agreed to receive compensation. Five workers who resisted the pressure exerted by the company were not reinstated: Joel Humberto Hernández Tejada, Ángel Gilbert Aparicio Arispe, David Antero Tito Flóres, Walter Gusmaldo Chirinos Herrera and Cosme Bayona Carazas.
3. 838. In addition, the complainant union also states that the company continues to interfere in the union’s operations via the workers who have been reinstated in their posts and who continue to insist on the illegal annulment of the union’s registration.
4. 839. The complainant organization states that the company is in violation of the law and claims that the dismissals are in accordance with the law since the workers in question are in positions of trust, thereby allowing them to be dismissed at any time. This situation is not true since the five dismissed workers and the persons with whom the union was originally set up have worked for the company for more than 15 years, without a break; in fact, the workers are not in confidential positions, but are career workers who performed cataloguing, technical and/or analytical duties, and do not handle any kind of confidential information.
5. 840. The complainant union notes that on 27 December 2013 the five workers who have not been reinstated filed a claim for protection (amparo) with the Constitutional Dispute Court of Cusco, requesting to be reinstated and to have their union rights recognized.
6. 841. In its communication of 9 January 2015, the complainant union sent rulings of the Constitutional and Administrative Dispute Court of Cusco, which ordered, as a precautionary measure, the reinstatement in their posts of the five workers who were founding members of the union and who had been dismissed. As regards the proceedings before the labour administration, the Ministry of Labour approved, in the first instance, the infringement ruling (of 3 May 2014) of the labour inspectorate for the violation of freedom of association, which was, however, challenged by the company and declared null and void on 11 December 2014 (the company claimed that the evidence in its defence had not been taken into account). For that reason, the Ministry must take a further decision on the matter as the authority of first instance.

B. The Government’s reply

1. 842. In its communication dated 12 August 2014, the Government states that SITRAMINA submitted a complaint in December 2013, which led to a labour inspection during which the labour inspectors detected that the social and labour rules relating to freedom of association had been infringed, whereby a worker had been the victim of discrimination as a result of him carrying out his union activities. For that reason, it was proposed to impose a fine of 13,376 nuevo soles (PEN), through Inspection Infringement Report No. 022 2014. In accordance with General Directive No. 08-2011-MTPE/2/16, through Order No. 426-2014-MTPE/2/16.2 of 27 March 2014, the Directorate General of the Labour Inspectorate (DGIT) submitted the report on Inspection Order No. 024-2014-MPTE/2/16 and the aforementioned infringement report to the Regional Directorate of Labour and Employment Promotion of Cusco, in order to institute relevant sanctions proceedings; the ruling in question is in the process of being handed down.
2. 843. The Government points out that the mining company ANTAPACCAY SA has indicated firstly that it categorically rejects the idea that it has engaged in any kind of anti-union practice or act and that, by contrast, its policy has always been to show complete respect for the labour rights of its workers, and in particular for the fundamental right to freedom of association.
3. 844. In addition, it is noted that there are currently two union organizations with which it maintains a harmonious, sustainable and peaceful relationship: these are the Single Union of Workers of Xstrata Tintaya-Antapaccay, active since its establishment in 2006 with 238 workers who are currently union members; and the Unified Union of Workers of Xstrata Tintaya Antapaccay, which began operating in 2013 and to date has 338 workers who are registered as union members. It is also indicated that the good relationship between both union organizations is demonstrated by the fact that the lists of demands raised have always been settled harmoniously, which has led the company to conclude a large number of collective agreements, including those in force for the period 2013–16. The company regrets that the complaint omits an extremely important fact for understanding the context in which this case has been brought, that is, that during 2013 the company was forced to suspend, for a three-year period, the activities of its sulphur plant located in the Tintaya area, since supplies of the mineral had been exhausted, which was authorized by the Directorate General of Mining in Resolution No. 372-2013-MEM-DGMA/V. As a result of this situation, the sulphur plant operating staff had to be relocated to the operating premises in Antapaccay. Thus, many of the jobs being done at the Antapaccay premises began to be duplicated, thereby generating a significant number of excess staff. It was therefore necessary to alleviate a situation that generated excessive and unnecessary costs for the company and, in turn, led to workers not being able to do their jobs properly. In that context, it was agreed – with the payment of appropriate legal benefits – to lay off a considerable number of workers owing to a duplication of functions, including the five former workers mentioned in the complaint. In addition, it is clearly not appropriate to allege that anti-union attitudes were shown, given that the laying-off of the five workers – together with a significant number of other workers – was the result of the excess number of staff that the company had at that time. Further, the company also states that the Regional Directorate of Labour and Employment Promotion of Cusco informed it, only on 4 December 2013, that SITRAMINA had been set up and it only then became aware of the existence of this trade union organization.
4. 845. The company therefore emphasizes that, when the workers were laid off, it was completely unaware that they were members of a trade union, and so any allegation of the existence of an anti-union dismissal is unsustainable.
5. 846. The company states that the disputed facts contained in the present claim are being elucidated both through administrative and judicial channels, so that the competent State authorities may take a decision on whether there has actually been a violation of the freedom of association of the workers laid off, but that there is still no final ruling at the administrative or judicial level.
6. 847. In its communication of 17 September 2014, the Government states that, in relation to administrative procedures, the Regional Directorate of Labour and Employment Promotion of Cusco has reported that the National Federation of Mining, Metal and Iron and Steel Workers of Peru requested the Director of the National Directorate of Inspections of the Ministry of Labour and Employment Promotion to conduct an investigation inspection regarding the right to freedom of association, discrimination for union reasons and arbitrary dismissal of workers who were members of a trade union organization. This gave rise to Inspection Order No. 024-2014-MTPE/2/16, through which infringement Report No. 22-2014 was issued against the mining company ANTAPACCAY SA, and a fine of PEN13,376 was imposed for the performance of acts which hamper the free membership of a trade union organization and also discrimination against workers for freely exercising their right to engage in union activity. Decision No. 009-2014-GR-CUSCO/DRTPE-OZTPEPAA, of 8 July 2014, declared that the evidence presented by the mining company ANTAPACCAY SA was inappropriate, and confirmed the fine proposed in infringement Report No. 22-2014, which was appealed by the company in question.
7. 848. Finally, the Regional Directorate of Labour and Employment Promotion of the Regional Government of Cusco issued Directive No. 032-2014-GR-DRTPE-DPSCL-Cusco, dated 25 August 2014, through which it was decided to declare the above decision null and void, that a new first instance ruling should be issued and the evidence presented by the mining company ANTAPACCAY SA should be taken into consideration.

C. The Committee’s conclusions

1. 849. The Committee observes that, in the present case, the complainant union SITRAMINA alleges that a few days after it was established, on 23 November 2013, the 35 founding members were dismissed, and that following acts of interference by the employer, making the reinstatement of the workers in their posts conditional on renouncing union membership, 28 workers withdrew from the trade union and two accepted financial compensation, such that only five workers resisted the pressure exerted by the employer; meanwhile, the company urged the workers who were reinstated to insist on the trade union’s registration being annulled.
2. 850. The Committee notes the information provided by the mining company ANTAPACCAY SA on this case, forwarded by the Government, stating that: (1) it fully respects freedom of association, as evidenced by the existence of two trade unions, with 238 and 338 members respectively, which have concluded collective agreements; (2) the complaint omits an extremely important fact for understanding the context in which this case has been brought, that is, that during 2013 the company was forced to suspend, for a three year period, the activities of its sulphur plant located in the Tintaya area, since supplies of the mineral had been exhausted, which was authorized by the Directorate General of Mining in Resolution No. 372-2013-MEM-DGM/V; as a result of this situation, the sulphur plant operating staff had to be relocated to the operating premises in Antapaccay; thus many of the jobs done being done at the Antapaccay premises began to be duplicated, which led to a significant number of excess staff; (3) it was therefore necessary to alleviate a situation that generated excessive and unnecessary costs for the company; in that context, it was agreed – with the payment of appropriate legal benefits – to lay off a considerable number of workers owing to a duplication of functions, including the five former workers mentioned in the complaint; (4) it was not therefore appropriate to make allegations of an anti-union disposition, given that the company was unaware that the workers dismissed were trade union members and that the five workers laid off – together with a significant additional number (members of SITRAMINA) – was the result of the excess number of staff that the company had at that time; and (5) there is still no definitive administrative procedure or judicial ruling on this case.
3. 851. The Committee notes the information provided by the Government confirming that there is still no administrative pronouncement or judicial decision on this case, which began with a trade union complaint that led to an inspection and an infringement order imposing a fine of PEN13,376.00 for infringement of the right to freedom of association; the matter was then referred to a second instance authority by the company and that appeal led to a further examination of the case taking into account the evidence put forward by the company.
4. 852. The Committee observes that the complainant union states that the five union members dismissed have been reinstated on a precautionary basis, after filing a constitutional appeal for protection (amparo), which has been challenged by the company. That challenge is in process.
5. 853. In these circumstances, while noting that the complainant union and the company retain contradictory positions as regards the anti-union nature of the dismissals, the Committee requests the Government to inform it of any administrative or judicial decision issued in relation to this case, in order to examine, with all the relevant information, the allegations concerning the dismissal of the 35 founding members of the complainant union and acts of anti-union interference, including pressure to give up trade union membership.

The Committee’s recommendation

1. 854. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendation:
   • The Committee requests the Government to inform it of any administrative or judicial decision issued in relation to this case, in order to examine, with all the relevant information, the allegations concerning the dismissal of the 35 founding members of the complainant union and acts of anti-union interference, including pressure to give up trade union membership.