Definitive Report - Report No 409, March 2025

Case No 3435 (Peru) - Complaint date: 22-JUL-22 - Closed

Allegations: The complainant organization alleges that it was denied the right to represent one of its affiliated workers in court, since this was considered to be the prerogative of primary trade unions and not of federations

1. 305. The complaint is contained in a communication dated 22 July 2022 from the National Federation of Peruvian Textile Workers (FNTTP).
2. 306. The Government of Peru sent its observations on the allegations in communications dated 29 December 2022, 3 March 2023 and 13 January 2024.
3. 307. 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. 308. In a communication dated 22 July 2022, the FNTTP states that: (i) on 13 August 1991, with 39 unions from Lima and the provinces in attendance, a unanimous decision was taken to establish and constitute the FNTTP; (ii) pursuant to article 1 of its statute, the FNTTP comprises regional workers’ federations, economic group workers’ federations, workers’ unions, workers and former workers in this branch of activity that are directly affiliated with the Federation; and (iii) in accordance with its statutory rules, the FNTTP has represented its members, which include workers affiliated with the primary trade unions that make up the Federation, as well as workers and former workers in the yarn, textile, synthetic fibre, dye, clothing, leather and footwear industries and related activity branches, before the administrative and judicial authorities and public and private institutions throughout Peruvian territory without complication.
2. 309. On 1 May 2014, Mr Edilter Dávila Díaz, an FNTTP member, was dismissed by termination of contract by his employer, Hilandería de Algodón Peruano S.A. (HIALPESA, hereinafter the “Company”). In the light of this, the FNTTP, in defence of its member and in accordance with its statutes, lodged a claim for distortion of contract and petitioned for reinstatement, processed under file No. 15418-201-0-1801-JR-LA-01. In response to the claim, the Company challenged the claimant’s legal standing, arguing that the claim had been signed only by three leaders of the FNTTP and not by the worker or the Company’s union of workers – the primary union of which the complainant is a member – thereby failing to comply with the rules on court appearance under articles 8.2 and 8.3 of the New Act on Labour Procedure (NLPT).
3. 310. The complainant organization indicates that the First Standing Specialized Labour Court of Lima, in its ruling dated 13 January 2016, rejected the respondent’s challenge, noting that: (i) while it was true that Mr Edilter Dávila Díaz was a member of the Company’s union of workers, the court proceedings could be instituted by the Federation since the union had been admitted as a new FNTTP member according to a copy of the minutes of the FNTTP extraordinary general meeting dated 15 March 2014; and (ii) as stated in the minutes of that general meeting, the leaders who signed the claim had the authority to institute all kinds of civil or labour proceedings and to defend the rights and interests of their members. It also upheld the claim and ordered the reinstatement of Mr Edilter Dávila Díaz.
4. 311. The complainant organization adds that the ruling was appealed by the Company and was upheld in its entirety by the Fourth Labour Chamber of Lima in its ruling dated 19 May 2017, in which it stated that, as Mr Edilter Dávila Díaz had become a member of the FNTTP on 15 March 2014, nothing prevented the Federation from filing the claim as the worker’s representative.
5. 312. The complainant organization states that the Company subsequently lodged a cassation appeal, which was heard by the Second Provisional Chamber of Constitutional and Social Law of the Supreme Court of Justice of the Republic. As the highest court, it decided that the claimant lacked legal standing, pointing out that, under Peruvian law, federations did not have legal standing to bring cases in defence of individual workers’ rights, which was specially reserved for unions alone. The cassation appeal was therefore upheld and, as the appealed ruling had been overturned, the petition for the worker’s reinstatement was inadmissible.
6. 313. The complainant organization alleges that the Supreme Court cassation ruling (No. 15674 2017 LIMA) violated Articles 2 and 3 of Convention No. 87. It also claims that federations’ power to act in court proceedings in defence of the individual rights of their members is recognized under article 38 of Supreme Decree No. 010-2003-TR, approving the single consolidated text of the Collective Labour Relations Act (LRCT), which provides that federations and confederations are governed by all provisions on trade unions insofar as they are applicable. This includes the special rules under articles 8.2 and 8.3 of the NLPT, which allow unions to act in defence of collective rights and in defence of their leaders and members without the need for power of attorney, provided that they individually identify each of the members that they are representing, together with their respective claims. Lastly, the complainant organization alleges that the Supreme Court ruling: (i) violates freedom of association by not allowing the member to be represented in the labour courts, and (ii) jeopardizes the hundreds of claims lodged by the FNTTP since its founding, leaving more than 400,000 workers in the Peruvian textiles, clothing and related sectors vulnerable.

B. The Government’s reply

1. 314. In its response dated 29 December 2022, the Government forwarded the opinion of the presiding judge of the Second Provisional Chamber of Constitutional and Social Law of the Supreme Court, according to which: (i) since the entry into force of the amendment to the LRCT Regulations, enacted by Supreme Decree No. 014-2022, approved on 24 July 2022, the State has recognized the right of workers to join federations or confederations directly, provided that their statutes allowed; therefore, federations already have the power to act in labour proceedings in defence of the collective rights of their leaders and members, if the amendment to the LRCT Regulations is read in conjunction with articles 8.2 and 8.3 of the NLPT; and (ii) accordingly, the court opinion at issue has been overridden by a contrary legal provision.
2. 315. Subsequently, in communications dated 3 March 2023 and 13 January 2024, the Government submitted information provided by the General Secretariat of the Supreme Court of Justice, indicating that: (i) prior to the entry into force of Supreme Decree No. 014-2022-TR, other court decisions had been handed down along similar lines to the ruling at issue in the complaint, particularly the Supreme Court labour cassation ruling of 2 July 2022 (No. 9021-2019-Callao); and (ii) the basis of the Supreme Court decision was that the subject matter of the proceedings was individual in nature and the Federation could not lodge any claims that were not collective, as only the capacity of trade unions to represent members in individual actions is recognized pursuant to articles 8.2 and 8.3 of the NLPT.

C. The Committee’s conclusions

1. 316. The Committee observes that this case concerns the alleged impediment for federations to represent their affiliated workers in court, since this was considered to be the prerogative of primary trade unions alone. The Committee notes that the complainant organization specifically alleges that: (i) on 1 May 2014, Mr Edilter Dávila Díaz, an FNTTP member, was dismissed by his employer, in the light of which the Federation lodged a claim for distortion of contract and petitioned for reinstatement; (ii) in response to the claim, the Company called into question the FNTTP’s capacity to act as the worker’s representative because only primary trade unions had such capacity pursuant to the special rules on court appearance under articles 8.2 and 8.3 of the NLPT; and (iii) although the case brought by the Company was dismissed by the courts of first and second instance in 2016 and 2017 (based in particular on the finding that the worker was directly affiliated with the FNTTP), the Supreme Court upheld the challenge lodged by the Company and annulled the worker’s reinstatement, affirming that, in accordance with the legal regulations in force, federations do not have legal standing to bring cases in defence of individual workers’ rights, as only trade unions have such standing pursuant to an exceptional provision of the NLPT.
2. 317. The Committee notes that, in 2022, the Government itself forwarded an opinion of the presiding judge of the Second Provisional Chamber of Constitutional and Social Law of the Supreme Court, according to which the Supreme Court’s decision had been overridden owing to the recognition of the possibility for workers to be direct members of federations and confederations pursuant to Supreme Decree No. 014-2022-TR, which had entered into force in July 2022, whereby federations would now have the power to bring cases in defence of the collective rights of their leaders and members. The Committee also notes that, in its subsequent communications, the Government submitted information provided by the General Secretariat of the Supreme Court, which: (i) highlights that the basis of the ruling at issue in the complaint was that the subject matter of the proceedings was individual in nature whereas, under the NLPT, the Federation could not lodge any claims that were not collective; and (ii) mentions another Supreme Court ruling along similar lines (labour cassation ruling of 2 July 2022, No. 9021-2019-Callao).
3. 318. Based on the information above, the Committee observes that this case revolves around the capacity of trade union federations to defend the interests of their affiliated workers in court, even in individual cases, which, according to the Supreme Court’s interpretation of the law, is the prerogative of primary unions alone.
4. 319. In relation to the capacity of trade union organizations to represent their members in individual cases, the Committee recalls that it has considered that neither legislation nor the application thereof should limit the right of employers’ and workers’ organizations to represent their members, including in cases of individual labour complaints [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 744].
5. 320. With regard to the prerogatives of federations and confederations, the Committee recalls that all workers should have the right to engage freely in the defence and promotion of their economic and social interests through the central organizations of their own choice [see Compilation, para. 1028], and that, in order to defend the interests of their members more effectively, workers’ and employers’ organizations should have the right to form federations and confederations of their own choosing, which themselves should enjoy the various rights accorded to first-level organizations, in particular as regards their freedom of operation, activities and programmes [see Compilation, para. 1034].
6. 321. In this respect, the Committee observes, on the one hand, that certain general provisions of Peruvian trade union legislation tend to equate the prerogatives of federations and confederations with those of primary trade unions (article 38 of Supreme Decree No. 010-2003-TR provides that federations and confederations are governed by all provisions on trade unions insofar as they are applicable), whereas other, more specific provisions refer solely to trade unions (articles 8.2 and 8.3 of the NLPT, mentioned above, grant trade unions the power to appear in labour proceedings of their own volition, either in defence of collective rights or in defence of their leaders and members, without explicitly mentioning federations and confederations).
7. 322. In the light of the foregoing, the Committee requests the Government, in consultation with representative organizations of workers and employers, to take the necessary steps, including legislative measures if necessary, to ensure that federations and confederations of both workers and employers have, in accordance with their statutes, the capacity to defend the interests of their members, including in individual actions. The Committee draws this aspect to the attention of the Committee of Experts on the Application of Conventions and Recommendations.

The Committee’s recommendations

1. 323. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • The Committee requests the Government, in consultation with representative organizations of workers and employers, to take the necessary steps, including legislative measures if necessary, to ensure that federations and confederations of both workers and employers have, in accordance with their statutes, the capacity to defend the interests of their members, including in individual actions.
   • The Committee draws the legislative aspect of this case to the attention of the Committee of Experts on the Application of Conventions and Recommendations.
   • The Committee considers that this case is closed and does not call for further examination.