Suites données aux recommandations du comité et du Conseil d’administration - Rapport No. 405, Mars 2024

Cas no 3170 (Pérou) - Date de la plainte: 10-SEPT.-15 - Clos

Effect given to the recommendations of the committee and the Governing Body

1. 53. The Committee last examined this case, which concerns allegations of obstruction of collective bargaining by branch of activity in the textile sector and violations of freedom of association in several enterprises in the same sector, at its meeting in October 2018 [see 387th Report, paras 576–598]. On that occasion, the Committee requested the Government to inform it of: (a) the consultations held with the most representative workers’ and employers’ organizations on the possibility of establishing a mechanism to settle disputes relating to the level at which collective bargaining should take place and on the amendments to the first paragraph of article 45 of the TUO of the Collective Labour Relations Act (hereinafter “the LRCT”), approved by supreme decree No. 010-2003-TR, that are required to ensure that the level of collective bargaining is freely determined by the parties concerned; (b) developments with regard to the granting of trade union leave to the General Secretary of the complainant organization in textile company 1, including the outcome of the ongoing judicial proceedings on this matter; (c) investigations carried out and the outcome of administrative and judicial proceedings, in relation to the allegations of anti-union discrimination (dismissals, threats of dismissal and attempts to persuade members to resign from the trade union) and denial of trade union leave in textile company 2, having invited the complainant organization to provide information on these matters; and (d) the outcome of the ongoing judicial proceedings concerning the allegations of anti-union dismissals, the misuse for anti-union proposes of fixed-term contracting under the law on the promotion of non-traditional exports (hereinafter “LPENT”), as well as the failure to pay the agreed snacks and refreshment allowance by textile company 3.
2. 54. The Committee takes note of the observations provided by the Government by means of communications dated 11 December 2018, 30 January 2019, 27 January 2020 and 23 April 2023.
3. 55. With regard to recommendation (a) concerning the determination of the level of collective bargaining by the parties concerned, the Government indicates in its communication of 30 January 2019 that the Constitutional Court considers that the first paragraph of article 45 of the LRCT, in the part that states that, in the absence of agreement, the first collective bargaining shall be conducted at the enterprise level, is unconstitutional as it contravenes the freedom of decision of the parties and infringes the right to collective bargaining, since no law can imperatively fix the level of bargaining (ground 28 of the judgment in file No. 3561-2009-PA/TC).
4. 56. With regard to recommendation (b) concerning the granting of trade union leave to the General Secretary of the complainant organization, Mr Vicente Castro Yacila, by textile company 1, the Government informs, in its communications dated 30 January 2019 and 23 April 2023, that: (i) the complaint filed in this regard was also declared founded at second instance in 2018, recognizing the right of the aforementioned General Secretary to be granted paid trade union leave of up to 200 days per year of mandate by the company concerned and ordering it to pay the remuneration and social benefits foregone for unpaid trade union leave granted during the years 2014 to 2018; and (ii) after the competent labour court, by resolution No. 17 of 2021, requested textile company 1 to report on the execution of the mandate, the company reported, also in 2021, that it had complied with it.
5. 57. With regard to recommendation (c) on investigations and proceedings concerning allegations of anti-union discrimination and denial of leave at textile company 2, by its communications dated 11 December 2018 and 30 January 2019, the Government: (i) submits a communication from the above-mentioned company in which, in relation to the alleged dismissal of trade unionists, it specifies that the administrative labour authority, in the framework of the corresponding proceeding, ultimately approved in 2017 the collective dismissal of 75 workers (and not 185 workers as initially requested), excluding the members of the executive committee of the company’s trade union after reaching an agreement in this regard; (ii) provides report No. 007-2019/SUNAFIL/INII in which the National Superintendence of Labour Inspection (hereinafter SUNAFIL) states that no labour inspections on freedom of association or discrimination on trade union grounds have been carried out in textile company 2 and that only one infraction report was issued against it following an inspection on collective agreements, without providing further information in this regard; and (iii) notes that the complainant organization has not provided additional information in relation to this recommendation of the Committee.
6. 58. With regard to recommendation (d), the Government provides information on the proceedings concerning the allegations of dismissal of two trade unionists, the use of fixed-term contracting under the LPENT for anti-union purposes, as well as the failure to pay the snacks and refreshment allowance by the textile company 3, by communications dated 20 September 2019 and 27 January 2020. According to the information submitted: (i) two union workers, Mr José Alfredo Bedia and Mr Emilio Albert Quiñones Zavala, filed in 2016 claims for denaturalization of their fixed-term employment contracts and for reinstatement in their posts; while the case of Mr Bedia was declared partially founded in the first and second instance in 2017 and 2019 respectively (recognizing that he had an indefinite-term relationship with textile company 3 and ordering his reinstatement), the case of Mr Emilio Albert Quiñones Zavala did not reach a conclusion because the withdrawal of the proceeding he had initiated was admitted; (ii) the judicial proceeding initiated by textile company 3 against SUNAFIL to declare the nullity of the administrative resolutions that sanctioned it for having entered into 629 temporary employment contracts without complying with the requirements of the LPENT is still pending; and, (iii) the complaint filed in 2016 by five trade union workers regarding the failure to pay the snacks and refreshment allowance agreed in several collective agreements, was rejected as unfounded by a first instance decision in 2019, establishing that they were not entitled to receive the increases in the allowance agreed during the periods sued in view of the fact that the agreements in question expired earlier. With regard to this last point, and taking into account the information available in the section on judicial files on the website of the Peruvian judiciary, the Committee notes that the aforementioned judgment was upheld by a second instance court in 2021 and that the cassation appeal lodged by the trade unionists against the latter judgment in the same year is currently pending.
7. 59. Regarding the determination of the level of collective bargaining by the parties concerned (recommendation (a)), the Committee notes with interest the information provided by the Government concerning the declaration of unconstitutionality of article 45 of the LRCT, which maintained a presumption in favour of collective bargaining at the enterprise level in the event of disagreement. The Committee also notes that, according to the findings of the Committee of Experts on the Application of Conventions and Recommendations in its 2022 observation concerning the application by Peru of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98): (i) the above-mentioned provision of the LRCT was amended by Act No. 31110 of 2022; (ii) its amended version provides that the parties shall decide, by mutual agreement, the level at which they will engage in collective bargaining and that, in the event of disagreement concerning the level of negotiation, the matter shall be resolved through the use of alternative dispute resolution machinery; and (iii) in this respect, article 33-A of the Regulations of the LRCT, incorporated by Presidential Decree No. 014-2022-TR, provides that the parties shall decide, by mutual agreement, the level at which they will engage in collective bargaining and that, in the event of disagreement on the level of collective bargaining, recourse may be had to conciliation, mediation or arbitration, while article 61-A(a) of the same Regulations (also amended by the above-mentioned decree) provides for the possibility for workers to have resource to optional arbitration (arbitraje potestativo) when, in the context of a first negotiation and in certain circumstances, the parties are unable to reach an agreement on the level of collective bargaining. The Committee expects that the application of these provisions will ensure the free determination of the level of bargaining by the parties concerned and refers the follow-up of this legislative aspect of the case to the CEACR.
8. 60. The Committee notes the information provided by the Government concerning the judicial proceeding relating to the granting of trade union leave to the General Secretary of the complainant organization by textile company 1 (recommendation (b)). The Committee notes with interest that, in the framework of this proceeding, his right to paid trade union leave of up to 200 days per year of mandate was recognized and that the textile company 2 reported in 2021 that it had complied with the payment of the remuneration and social benefits foregone for unpaid trade union leave granted in previous years.
9. 61. The Committee takes note of the documentation submitted with regard to investigations and proceedings concerning allegations of anti-union discrimination (dismissals, threats of dismissal and attempts to persuade members to resign from the trade union) and denial of trade union leave in textile company 2 (recommendation (c)). The Committee notes that, according to the enterprise concerned, in the context of an administrative procedure for collective dismissal, which has already been completed, the competent authority authorized the dismissal of a reduced number of workers and excluded the members of the executive committee of the company’s trade union after reaching an agreement to that effect. The Committee also notes that, as informed by SUNAFIL, no labour inspections for violations of freedom of association or discrimination on trade union grounds have been carried out in the textile company 2 but that an inspection concerning the application of collective agreements was carried out and led to the issuance of an infraction report. Finally, the Committee notes that, despite its invitation, the complainant organization has not provided additional information concerning any issues that may have remained outstanding in this respect.
10. 62. The Committee takes due note of the elements provided by the Government and of the information available on the website of the Peruvian judiciary concerning the proceedings relating to the denaturalization of fixed-term contracting of the two trade unionists mentioned above, the use of fixed-term contracting under the LPENT for anti-union purposes, as well as the non-payment of the snacks and refreshment allowance by textile company 3 (recommendation (d)). The Committee notes with interest that the reinstatement of one of the trade unionists was ordered and notes that the other trade unionist withdrew his claim. On the other hand, the Committee trusts that both the judicial proceeding initiated by the enterprise concerned in relation to the use of temporary employment under the LPENT, as well as the cassation appeal lodged in the proceeding concerning the payment of the snacks and refreshment allowance to several members of the trade union, will be resolved promptly and that the Government will take the necessary measures to ensure full compliance with the courts’ decisions.
11. 63. Based on the above and having received no information from the complainant organization since 2016, the Committee considers this case closed and will not pursue its examination.