Rapport définitif - Rapport No. 405, Mars 2024

Cas no 3199 (Pérou) - Date de la plainte: 21-DÉC. -15 - Clos

Allegations: The complainant organization alleges anti-union discrimination (dismissals, transfers and changes to hours) and obstacles to collective bargaining in an enterprise in the private security sector. It also alleges that the Government has failed to strengthen the entities responsible for ensuring compliance with social and labour standards

1. 460. The complaint is contained in a communication from the Autonomous Workers’ Confederation of Peru (CATP) dated 21 December 2015.
2. 461. The Government sent its observations in communications dated 22 December 2016, 13 January and 21 July 2017 and 8 January 2024.
3. 462. 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. 463. In its communication dated 21 December 2015, the CATP states that, in 2012, the enterprise Risk Control SAC (“the enterprise”), which has provided private security services since 1997, was acquired by Securitas Group SAC (“the corporate group”), which in turn belongs to a transnational corporate group, and alleges that, between then and the presentation of the complaint, the corporate group carried out hostile and discriminatory acts against the enterprise’s unionized workers. Specifically, the complainant organization alleges that the corporate group: (i) dismissed some 30 unionized workers with permanent positions on the grounds that their specified task employment contracts had expired (ten unionized workers were dismissed in 2011, 14 were dismissed on 1 January 2013 and another six were dismissed on 31 December 2014); (ii) renewed the contracts of non-unionized workers without any issues; (iii) transferred unionized workers to remote areas, changed their hours and/or moved them to less well paid positions, while at the same time obstructing and hindering their trade union leave and rejecting their annual leave requests; and (iv) blocked the establishment of the committee responsible for negotiating the list of outstanding demands. The CATP further alleges that, on 10 January 2014, the corporate group dismissed those union leaders who were members of the negotiating committee but that these individuals went to court and obtained an injunction, as a result of which in July 2014 they were reinstated.
2. 464. The complainant organization alleges that hostilities increased when the enterprise’s workers’ union began invoking the labour rights of its members and that the union proposed discussing these issues in working groups but never received a favourable response. The complainant organization adds that the enterprise’s workers’ union filed a complaint with the National Labour Inspection Authority (SUNAFIL) and referred the matter to the Labour Administrative Authority (AAT), that these two authorities punished the corporate group and issued arbitration awards in favour of the workers, but that the corporate group failed to comply with the terms of these awards on the grounds that it lacked the capital to do so. The complainant organization states that, even though the enterprise was profitable, it preferred to suspend its operations rather than negotiate and, in early 2015, it launched a fictitious liquidation process in order to get rid of the union.
3. 465. The complainant organization also alleges that not only has the Government failed to strengthen the entities responsible for ensuring compliance with social and labour standards, the labour inspection system has also been weakened. The complainant organization also refers to the Government’s lack of willingness to establish regional offices of SUNAFIL, which it believes has resulted in violations of workers’ labour rights in the various regions not being investigated in a timely manner or in inspections simply not being carried out, which in turn makes it easier for employers to launch fictitious bankruptcy proceedings in order to intimidate their workers by making them think they could lose their jobs. The complainant organization states that this prevents workers from enjoying adequate protection against acts of anti-union discrimination, as called for in Articles 1 and 3 of Convention No. 98.

B. The Government’s reply

1. 466. In its communications dated 22 December 2016, 13 January and 21 July 2017, the Government sends the observations of SUNAFIL, the Regional Labour and Employment Promotion Directorate of Piura and the enterprise. The enterprise denies the facts alleged in the complaint and states that it has always respected the freedom of association and collective bargaining rights of its workers. The enterprise states that: (i) all of its workers received the same treatment and enjoyed the same rights regardless of whether they belonged to the union or not; (ii) the decision to change workers’ shifts, days and hours and to move workers to other positions of the same category and with the same pay and working conditions was based on the needs of the workplace and the rights of the workers, in accordance with the principle of reasonableness; (iii) such decisions were not the result of anti-union discrimination and, moreover, it had challenged the AAT’s ruling that its decision to change the way in which services were provided was unlawful and filed an administrative appeal; and (iv) it complied with the legislation in force concerning the granting of annual leave to workers who belonged to the union.
2. 467. The enterprise states that unionized workers were not dismissed, rather they stopped working for the enterprise because their fixed-term employment contracts had expired. The enterprise points out that the complainant organization has not provided more specific information or proof in this regard. With respect to the dismissal of union leaders who were members of the negotiating committee, the enterprise states that: (i) this decision was taken independently by the enterprise and had nothing to do with the corporate group; and (ii) the individuals concerned were dismissed because they were guilty of serious misconduct (failure to carry out their duties and participation in a strike that was declared illegal by the AAT in Directive No. 049–2013 of December 2013), not because the leaders were members of the enterprise’s workers’ union or of the negotiating committee.
3. 468. With respect to negotiations on the list of demands, the enterprise states that it found itself in a difficult economic situation and that it acted transparently by handing its accounting and financial documents to the union for verification, after which the general assembly of shareholders approved the dissolution and liquidation of the enterprise. The enterprise states that it wanted to resolve the demands of workers through dialogue but this was not reciprocated by the union representatives.
4. 469. For its part, SUNAFIL states that, in 2015, the Talara Area Office for Labour and Employment Promotion carried out several inspections at the enterprise and found evidence of hostile acts and a deterioration in labour relations with respect to working hours but only in relation to those workers who belonged to the enterprise’s workers’ union. SUNAFIL states that, as a result of the above, the AAT fined the enterprise for these practices and that, after confirming that the infractions relating to working hours continued, it asked the Regional Labour and Employment Promotion Directorate of Piura to carry out additional inspections. The Directorate states that: (i) the complaints filed by the enterprise’s workers’ union were duly addressed and labour inspections were carried out in line with the labour legislation in force; and (ii) the enterprise underwent a process of liquidation, after which its employees were employed with other security enterprises.
5. 470. In its communication sent on 8 January 2024, SUNAFIL states that the aforementioned inspections resulted in an infringement and, consequently, in disciplinary proceedings, which in turn culminated in definitive rulings being handed down. In addition, SUNAFIL provides information on the prevention and promotion activities that have been carried out in recent years and which have helped strengthen labour inspections relating to freedom of association and states that: (i) between 2014 and 2023, freedom of association training was given to 27,754 people via 963 training programmes, with a view to promoting adequate compliance with the legislation in force; (ii) between 2020 and 2023, SUNAFIL provided technical assistance relating to fundamental rights to 302 employers and assistance relating to freedom of association to 24 employers via 22 technical assistance programmes; and (iii) between 2018 and 2023, five conferences on the subject of freedom of association were held involving 378 people.

C. The Committee’s conclusions

1. 471. The Committee observes that in the present case the complainant organization alleges that in 2012 a corporate group acquired an enterprise that provides private security services in the country and that, from then on, it carried out discriminatory acts against workers belonging to the enterprise’s union, including dismissing union leaders in 2014 and some 30 union members between 2011 and 2014, transferring union members to remote areas and changing their hours, and blocking negotiations on the list of demands presented by the union. The complainant organization alleges that these acts were reported, that SUNAFIL and the AAT punished the corporate group and issued arbitration awards in favour of the workers, but that the enterprise failed to comply with the terms of these awards and continued to commit anti-union acts. The complainant organization also alleges that the Government has failed to strengthen the entities responsible for ensuring compliance with social and labour standards with a view to protecting the exercise of fundamental rights, referring in particular to SUNAFIL.
2. 472. The Committee takes note of the fact that, according to the communications sent by the Government, the enterprise: (i) denies that the decision to dismiss some 30 unionized workers between 2011 and 2014 constituted an anti-union act, claiming instead that these individuals stopped working for the enterprise because their fixed-term employment contracts had expired; (ii) denies that the decision to transfer unionized workers to remote areas and to change their hours constituted an anti-union act, claiming instead that these decisions were based on the needs of the workplace and the rights of the workers; (iii) claims that it has complied with the legislation in force concerning the granting of annual leave to unionized workers; (iv) states that the decision in January 2014 to dismiss those union leaders who were members of the committee responsible for negotiating the list of demands was taken by the enterprise, not by the corporate group, and that these individuals were dismissed because they were guilty of serious misconduct (failure to carry out their duties and participation in a strike that was declared illegal by the AAT in December 2013); and (v) had challenged a ruling by the AAT that its decision to change the way in which services were provided was unlawful and filed an administrative appeal in this regard.
3. 473. While taking due note of the information provided by the enterprise, the Committee takes note of the fact that, according to SUNAFIL, several inspections were carried out at the enterprise, resulting in infringement and, consequently, in disciplinary proceedings, which in turn culminated in definitive rulings being handed down. According to SUNAFIL, these inspections found evidence of hostile acts and a deterioration of labour relations with respect to working hours but only in relation to those workers who were members of the enterprise’s workers’ union and, consequently, the AAT fined the corporate group for these practices. The Committee observes that, according to the documents provided by the Government, in 2015 the enterprise was given a fine for unilateral modification of contract and late payment of renumeration and employment benefits in relation to the union’s secretary-general, Mr Nelson Tinedo Olaya. The Committee also observes that, according to the aforementioned documents, a SUNAFIL investigation into the dismissal of 20 unionized workers that was launched in 2013 was closed after the parties reached an agreement. Moreover, even though the complainant organization stated that the union leaders dismissed in January 2014 had been reinstated as a result of an injunction issued in July of the same year, the Committee regrets that, despite the time that has passed since the presentation of the complaint, it has not received any more information on the definitive resolution of this legal process. Lastly, the Committee observes that the enterprise claims to have found itself in a difficult economic situation, which prevented it from negotiating the list of demands and further observes that, according to the Regional Labour and Employment Promotion Directorate of Piura, the enterprise underwent a process of liquidation, after which its employees were employed with other security enterprises.
4. 474. The Committee takes due note of all the information provided. Recalling that no person should be prejudiced in employment by reason of legitimate trade union activities and that cases of anti-union discrimination should be dealt with promptly and effectively by the competent institutions [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 1077] and taking note of the various actions and decisions taken by SUNAFIL in relation to the facts alleged in the present case, the Committee expects the Government to continue taking the measures necessary to ensure full respect for freedom of association.
5. 475. With respect to the complainant organization’s allegation that the labour inspection system has been weakened to the detriment of State protection against anti-union discrimination, the Committee, while taking due note of the prevention and promotion activities which, according to the Government, SUNAFIL has carried out in recent years, reiterates its invitation to the Government to provide information to the Committee of Experts on the Application of Conventions and Recommendations on the measures adopted to improve the effectiveness of inspection activities in the area of trade union rights [see 404th Report, Case No. 3373, para. 578].

The Committee’s recommendations

1. 476. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee expects the Government to continue taking the measures necessary to ensure full respect for freedom of association.
   • (b) The Committee reiterates its invitation to the Government to provide information to the Committee of Experts on the Application of Conventions and Recommendations on the measures adopted to improve the effectiveness of inspection activities in the area of trade union rights.
   • (c) The Committee considers that the present case is closed and does not call for further examination.