Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 413, Marzo 2026

Caso núm. 3464 (Perú) - Fecha de presentación de la queja:: 30-ABR-24 - En seguimiento

Allegations: The complainant organization alleges the imposition of sanctions on a trade union leader after exercising a representative function, the refusal to provide appropriate facilities, a series of acts of anti-union discrimination and interference by an enterprise in the petroleum sector, and violation of a trade union’s right to strike by the Government

1. 294. The complaint is contained in a communication dated 30 April 2024 from the Autonomous Workers’ Confederation of Peru (CATP).
2. 295. The Government sent its observations in communications dated 17 July and 2 September 2024, 10 March and 22 July 2025, and 6 January 2026.
3. 296. 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. 297. In its communication dated 30 April 2024, the Autonomous Workers’ Confederation of Peru (CATP) alleges that the La Pampilla SAA oil refinery (hereinafter “the enterprise”) imposed penalties on the then general secretary of the Refinería La Pampilla Single Union of Workers (SUTRELAPA) after exercising a representative function, committed various acts of anti-union discrimination and interference against the union, and refused to provide it with appropriate facilities. It further alleges that the Ministry of Labour and Employment Promotion (MTPE) violated SUTRELAPA’s right to strike by declaring two calls to strike inadmissible and one strike illegal, and delaying the determination of the minimum services.
2. Sanctions imposed on the then general secretary of SUTRELAPA
3. 298. The complainant states that, in 2018, internal regulations for the enterprise’s Occupational Safety and Health Committee (CSST) were imposed, requiring the workers’ representatives to sign the minutes of each meeting. It claims that, in October 2018, Mr Jack Bory Chavarry Agurto, then general secretary of SUTRELAPA, who was acting as the workers’ representative to the CSST, asked for items related to the physical and mental health of workers on extended workdays to be included on the CSST agenda, and expressed his opposition to the policy of keeping information handled by the CSST confidential. According to the complainant, these proposals were rejected, and Mr Chavarry Agurto was denied the possibility of having them reflected in the minutes, which led him to refrain from signing.
4. 299. The complainant states that Mr Chavarry Agurto was subjected to disciplinary measures as a result, receiving warning letters dated 2 November and 5 December 2018, and a three-day suspension on 30 April 2019. It states that these penalties were imposed as retaliation for the oversight function performed by Mr Chavarry Agurto in his capacity as the workers’ representative to the CSST by reporting issues arising at the refinery in order to protect the workers’ life and health.
5. 300. The complainant indicates that, in July 2019, SUTRELAPA instituted proceedings for amparo (remedy for the protection of constitutional rights) against the penalties, but the Sixth Constitutional Court of Lima, in a decision dated 9 April 2021, declared the application unfounded and determined that: (i) the right to freedom of association was unaffected since Mr Chavarry Agurto was acting as the workers’ representative to the CSST and not as a leader of SUTRELAPA; (ii) the aforementioned internal regulations could require workers’ representatives to sign the CSST minutes, despite disagreeing with their content; and (iii) the enterprise had the power to sanction Mr Chavarry Agurto in that context.
6. 301. The complainant reports that this decision was upheld by the Lima Superior Court of Justice on 13 January 2022 and by the Constitutional Court on 4 September 2023. The complainant claims that the functions of both trade union representative and workers’ representative to the CSST assumed by Mr Chavarry Agurto constitute forms of collective representation and are inseparable. It asserts that disciplinary sanctions should not have been imposed for acts that are part of the 302. The complainant submits that, since the start of the collective bargaining processes with the enterprise, facilities had been agreed for members of the SUTRELAPA negotiating committee. It states that these facilities were maintained and even improved until the negotiations for the period 2016–17, including open trade union leave for up to one year and monthly travel expenses for the five members of the negotiating committee.303. However, the complainant alleges that, from the 2018 collective negotiations onwards, the enterprise began to undermine the bargaining process by refusing to grant such facilities. It claims that the last valid agreement concerning the granting of leave remains the one concluded for the period 2016–17, since the collective agreement remains in force until it is amended, but that the enterprise attempted to have the agreement expire automatically in order to render its provisions null and void.304. The complainant reports that, in February 2018, SUTRELAPA instituted amparo proceedings concerning this matter, but the Seventh Constitutional Chamber of Lima declared the application inadmissible in 2023, determining that, as the collective agreement had been reached in 2018, the immediate collective negotiations had not been affected and there was therefore no need to rule on the substance of the matter. However, it indicates that SUTRELAPA appealed against this decision to the Lima Superior Court of Justice.305. The complainant further alleges that, for the 2023 and 2024 negotiations, the members of the SUTRELAPA negotiating committee did not have open leave; they only had leave granted at the enterprise’s discretion, which prevented them from participating in the bargaining sessions and preparatory meetings with the other negotiators.Staff in positions of trust306. The complainant indicates that, although the statutes of SUTRELAPA, which has minority union status, allow staff in positions of trust to become members provided that they are not managerial staff, the enterprise refuses to apply the collective agreements negotiated by SUTRELAPA to these workers. It also claims that, on 4 March 2016, the National Labour Inspection Supervisory Authority (SUNAFIL) found that at least 115 workers at the enterprise had been incorrectly classified as “staff in positions of trust”, when they were in fact ordinary workers.307. The complainant states that the distinction drawn by the enterprise between workers covered by the agreement and workers not covered by the agreement, which corresponds to the distinction between ordinary workers (446) and workers in positions of trust or managerial posts (353), is intended to arbitrarily limit the scope of the trade union’s membership. It claims that the distinction is discriminatory and anti-union, since it is based on the erroneous assumption that staff in positions of trust are excluded from the collective agreement, when in reality, if these workers are members, the agreement also applies to them. The complainant indicates that, in 2023, SUTRELAPA filed a complaint in this regard with SUNAFIL.Extension of the agreement conclusion bonus308. The complainant states that SUTRELAPA negotiated collective agreements with the enterprise for the periods 2016–17, 2018–19 (through an arbitration award), 2020–21 and 2022 in which a financial benefit referred to as an “agreement conclusion bonus”, intended solely for unionized workers in recognition of their participation in collective bargaining, was agreed. However, it claims that the enterprise unduly and unilaterally extended the benefit to non-union workers, which disincentivized membership and weakened the union. The complainant indicates that SUTRELAPA filed a complaint in this regard with SUNAFIL, which issued a notice of violation for anti-union practices on 13 September 2023.Increases for workers not affiliated with SUTRELAPA309. The complainant alleges that, during the collective negotiation for the 2023 period, the enterprise committed an act of discrimination by providing an additional benefit to SUTRELAPA non-members. It claims that, between March and April 2023, the enterprise granted wage increases averaging 11.7 per cent to non-unionized staff, including 39 individual increases of between 10 and 33 per cent, whereas the last wage offer that the enterprise made to SUTRELAPA was barely a 6 per cent increase, which shows unjustified differential treatment.Establishment of another union310. The complainant alleges that, on 20 December 2023, the enterprise announced and promoted by institutional email the establishment on 12 December 2023 of the Refinería La Pampilla Workers’ Union (SINTRELAPA). It states that the enterprise initiated negotiations with this trade union under its control on 18 December 2023, and that the parties reached an agreement in record time on 22 December 2023. According to the complainant, the agreement provides for a 7.5 per cent pay increase applicable retroactively from 1 October 2023, although SINTRELAPA did not even exist then, and the extension of the agreed benefits to non-unionized staff with the aim of disincentivizing membership of SUTRELAPA. The complainant submits that the enterprise subsequently used this agreement with its puppet trade union to its benefit, informing SUTRELAPA that its final offer was a 7.5 per cent increase. It indicates that, on 12 March 2024, SUTRELAPA filed a complaint in this regard with SUNAFIL.Dismissals of three unionized workers311. The complainant alleges that three SUTRELAPA members, Ms Evelyn Katina Chamorro Curi, Ms Erika Girón Champi and Ms Saray Iris Poma Gonzales, who had been hired by the enterprise on temporary contracts to perform permanent roles, were victims of discriminatory dismissal for their trade union membership.312. The complainant claims that Ms Chamorro Curi was dismissed on 25 February 2023 while she was pregnant, and that she appealed against this decision to the Ventanilla Labour Court on 28 March 2023. The complainant states that Ms Girón Champi was dismissed on 31 March 2023 after informing the enterprise of her trade union membership, and that she appealed against this decision to the Ventanilla Labour Court on 2 May 2023.313. Regarding Ms Poma Gonzales, the complainant claims that, after joining SUTRELAPA while she was pregnant, the enterprise pressured her, upon expiry of her temporary contract, not to report what would amount to discriminatory dismissal on the grounds of her pregnancy and to renounce her membership of SUTRELAPA, in exchange for receiving a new temporary contract at a later date. It submits that Ms Poma Gonzales was dismissed and that she appealed against this decision to the Ventanilla Labour Court on 9 May 2023.Strike called in 2022314. With regard to the right to strike, the complainant claims that SUTRELAPA agreed to a 48-hour stoppage for 27, 28 and 29 June 2022 to protest against multiple breaches of the collective agreements on the part of the enterprise. It indicates that the measure was not enacted, as a strike termination agreement and a letter of agreement on collective bargaining were signed on 24 June. However, the MTPE, despite having been informed, declared the stoppage inadmissible in a resolution issued on 27 June 2022, after the agreements were signed, arguing that the grounds invoked did not constitute a legitimate defence of the rights and interests of the workers. The complainant indicates that SUTRELAPA appealed against this decision, but it was upheld by the MTPE in a resolution dated 6 July 2022.Determination of minimum services315. The complainant claims that, on 30 January 2023, the enterprise submitted a proposal to the MTPE for the establishment of minimum services in the event of a strike for the 2023 period, and that SUTRELAPA expressed disagreement with the proposal on 28 February 2023. It also points out in this regard that article 68 of Supreme Decree No. 014-2022-TR, amending the Regulations of the Collective Labour Relations Act, provides that, in order to resolve disagreements regarding minimum services, the administrative labour authority has 30 working days in which to make a decision and that it may avail itself of the support of an independent body to do so.316. The complainant states that, on 26 July 2023, after the statutory deadline, the MTPE initiated the procedure and appointed the Centre for Expertise of the Engineers’ Association of Peru (CIP) as an independent technical body to conduct the technical analysis. It submits that the CIP informed the enterprise that it would carry out a verification visit on 22 November 2023, and that the visit was conducted without notifying or involving SUTRELAPA. The complainant states that, since the technical report had not been submitted before the statutory deadline, SUTRELAPA requested, on 21 December 2023, the refund of the money paid for the report.317. The complainant indicates that, on 15 February 2024, SUTRELAPA requested to withdraw from the procedure as it considered that there was bias in favour of the employer, but did not receive a timely response. It adds that SUTRELAPA then notified the MTPE of the application of negative administrative silence and requested the General Directorate of Labour of the MTPE to refrain from issuing a decision in the procedure. The complainant claims that the MTPE nevertheless made a decision on the disagreement, upholding the enterprise’s proposal in its entirety.Strike called in 2023318. The complainant alleges that, on 24 July 2023, SUTRELAPA informed the enterprise and the MTPE that it would call a 48-hour strike for 10, 11 and 12 August 2023. However, on 4 August 2023, the MTPE declared the call to strike inadmissible, as the enterprise’s activities constituted an essential service and a certain number of workers were therefore required to continue working during the strike. The complainant states that SUTRELAPA appealed against the decision on 9 August 2023, but was informed of the inadmissibility of the stoppage the following day, when it had already started. It adds that, in a resolution dated 16 August 2023, the General Directorate of Labour of the MTPE informed SUTRELAPA that the strike was illegal. The resolution was appealed on 21 August 2023 and upheld by the MTPE in a resolution notified on 25 August 2023.319. In this regard, the complainant notes that article 83 of Decree Law No. 25593 provides that gas, fuels and transport are essential public services. However, it claims that this classification is insufficient to require a certain number of workers to continue working during the strike. According to the complainant, the stoppage would not have endangered the safety, health or life of the population, given that other enterprises in the Peruvian market could have substituted the refinery’s production without causing shortages or cost increases. It adds that a 48-hour strike was organized at the enterprise in 2009 without affecting the population.Sanctions imposed following the strike of 2023320. The complainant claims that SUTRELAPA members took part in the strike and that, since it had been declared illegal by the MTPE, the enterprise initiated disciplinary proceedings against 113 members in September 2023 and imposed penalties on 32 of them, without complying with Supreme Decrees Nos 001-96-TR and 011-92-TR, which provide that only absences occurring after the employer has issued a formal notice may be considered unjustified. Such notice must be given by affixing a notice at the entrance to the workplace once the resolution declaring the strike illegal has become final or enforceable. It reports that SUTRELAPA lodged an amparo appeal with the Ninth Constitutional Chamber of Lima on 14 September 2023, on which no decision has been rendered.

B. The Government’s reply

1. 321. In its communications dated 17 July and 2 September 2024, the Government submits its observations on the allegations relating to the right to strike, forwards the enterprise’s response to the allegations against it and reports on the outcomes of some of the judicial proceedings. In its communications of 10 March and 22 July 2025 and 6 January 2026, the Government provides updated information on the judicial proceedings.
2. Sanctions imposed on the then general secretary of SUTRELAPA
3. 322. According to the information forwarded by the Government on the allegations concerning Mr Chavarry Agurto, the enterprise states that it did not impose the internal regulations on the CSST; it was proposed and approved by a majority of CSST members. With regard to the minutes, it claims that the items proposed by Mr Chavarry Agurto were not included because they did not gain the support of the majority of CSST members. The enterprise adds that CSST members can register their disagreement in writing in the minutes, without this preventing them from signing. Concerning the penalties imposed, the enterprise claims that Mr Chavarry Agurto’s rights were not violated because the disciplinary measures applied were objective, legal and without prejudice to his position as general secretary of SUTRELAPA, which was confirmed by the judicial decisions issued on the matter.
4. Trade union leave and allowances
5. 323. As for the allegations concerning trade union leave and allowances, the enterprise claims that the facilities were provided to the SUTRELAPA negotiating committee in 2016 as an act of good faith on a discretionary basis with the aim of contributing to the collective bargaining process; they were not intended to be permanent. It adds that the facilities mentioned in the minutes of the opening session of direct bargaining for the 2016 collective bargaining round were explicitly conditional upon the completion of this process and that the enterprise is under no legal obligation to continue providing them.
6. 324. With respect to the collective bargaining round for the period 2023–24, the enterprise submits that, in an act of good faith, it offered SUTRELAPA open trade union leave for up to one month for the five members of the negotiating committee, which would have taken effect from the start of the collective bargaining process. However, it indicates that the proposal was rejected by the SUTRELAPA representatives, arguing that they would not accept facilities other than those granted in the previous processes. The enterprise denies having restricted the participation of members of the negotiating committee, and points out that no evidence has been presented that they had been refused any leave requested for the bargaining sessions or preparatory meetings.
7. Staff in positions of trust
8. 325. Regarding the allegations relating to staff in positions of trust, the enterprise acknowledges SUNAFIL’s finding of incorrect classification in 2016, but states that this in no way confirms the complainant’s view that the enterprise intended to limit the scope of SUTRELAPA’s membership. It submits that the classification of each post was made on the basis of objective criteria and guidelines that considered the nature of the posts and their real and direct relationship with the employer. The enterprise indicates that the complaint filed by SUTRELAPA with SUNAFIL in 2023 concerned solely the extension of the benefits of the collective agreement to non-union workers and not to the classification of staff in positions of trust, and that no final decision has yet been made on the matter.
9. Extension of the agreement conclusion bonus
10. 326. As regards the alleged extension of the agreement conclusion bonus, the enterprise indicates that benefits were extended to non-unionized workers in response to the need to avoid wage inequalities. It states that it did not engage in anti-union practices, since it sought to guarantee its workers’ right to equality rather than discourage membership of SUTRELAPA.
11. Increases for workers not affiliated with SUTRELAPA
12. 327. With regard to the wage increases allegedly granted to non-unionized workers during the collective negotiations with SUTRELAPA for the 2023 period, the enterprise states that its wage policy considers objective criteria such as length of service, performance, application of collective agreements, work experience, job responsibility, academic background and place of work, and that nothing precludes wage differentials, provided that they are duly justified. It adds that the 33 per cent increase granted to one worker was due to a promotion.
13. Establishment of another union
14. 328. Regarding the alleged establishment of a parallel trade union, the enterprise denies having been involved in SINTRELAPA’s formation. It states that the union was established by eight workers, mostly firefighters, who had previously been expelled by SUTRELAPA for not taking part in the stoppage of 10, 11 and 12 August 2023, as they considered it extreme and dangerous. The enterprise points out that the workers formally notified SUTRELAPA of their withdrawal in a letter dated 11 October 2023.
15. 329. The enterprise also states that the 7.5 per cent wage increase was agreed with SINTRELAPA since it was a nascent trade union with a low number of members, which implied a lower financial impact. It adds that this same percentage was offered to SUTRELAPA, despite the fact that it was initially considering an increase of only 6 per cent, but SUTRELAPA decided to wait for an even higher offer. The enterprise maintains that the extension of the benefits agreed with SINTRELAPA to non-unionized staff does not constitute an anti-union practice because the collective agreement signed with SINTRELAPA allows such an extension, which is in line with the principle of equality.
16. Dismissal of unionized workers
17. 330. The enterprise denies the allegations of anti-union dismissals. It submits that, since Ms Chamorro Curi was hired as a substitute on a fixed-term contract, her contract was terminated when the regular worker returned. The Government, for its part, reports that the Ventanilla Labour Court declared the claim lodged by the worker to be unfounded, but that the appeals court annulled this judgment and ordered the Labour Court to issue a new ruling.
18. 331. In the case of Ms Girón Champi, the enterprise denies dismissal on anti-union grounds as her temporary contract duly expired. It states that, when the decision was made not to renew the contract, it had no knowledge of her SUTRELAPA membership. As for the appeal lodged by Ms Girón Champi, the enterprise indicates that no final or binding decision has yet been rendered by the judiciary.
19. 332. In the case of Ms Poma Gonzales, the Government indicates that the Ventanilla Labour Court declared the claim lodged by Ms Poma Gonzales to be unfounded, but that the appeals court annulled this decision and ordered the Labour Court to issue a new ruling.
20. Strike called in 2022
21. 333. As regards the allegations concerning the exercise of the right to strike, the Government submits that the General Directorate of Labour of the MTPE declared the 48-hour strike called by SUTRELAPA for 27, 28 and 29 June 2022 to be inadmissible, indicating that, according to the legislation in force at the time, namely article 63 of the Regulations of the Collective Labour Relations Act, a strike based on non-compliance with the provisions of a labour agreement was admissible only when a final judicial decision had not been complied with, which was not established in the present case. It further indicates that this decision was upheld by the MTPE after an application for review was filed by SUTRELAPA.
22. Determination of minimum services
23. 334. Regarding the determination of minimum services in the event of a strike for the 2023 period, the Government confirms that the enterprise submitted its proposal on 30 January 2023 and that SUTRELAPA subsequently expressed its disagreement, calling into question the number of workers proposed, and the General Directorate of Labour of the MTPE therefore appointed the CIP as an independent technical body on 26 July 2023. It states that the CIP submitted its technical report on 29 December 2023 and that SUTRELAPA announced its withdrawal from the procedure on 15 February 2024, but that the procedure nevertheless continued owing to the enterprise’s opposition as an interested third party and to the fact that the matter was of general interest.
24. 335. With respect to the negative administrative silence, the Government states that, pursuant to article 68 of Supreme Decree No. 014-2022-TR, trade union organizations that initiate an administrative procedure as holders of rights or interests may invoke it once the statutory deadline for the authority to issue a decision has expired. It claims, however, that SUTRELAPA did not file the relevant administrative appeals or bring a claim in the contentious administrative jurisdiction to challenge the failure to issue a timely decision and that, accordingly, the obligation of the MTPE to issue a decision remained.
25. 336. The Government indicates that, on the basis of the CIP report, the MTPE issued a resolution dated 18 March 2024 determining that the stoppage of work in 32 positions would pose serious risks to the safety, health and life of the population, as it concerned an essential public service, whereas other positions were classified as indispensable but non-essential activities. The Government states that both the enterprise and SUTRELAPA submitted applications for review on 11 April 2024, and expressed their desire to resolve the dispute through informal meetings, which were arranged by the MTPE.
26. Strike called in 2023
27. 337. With regard to the strike called by SUTRELAPA for 10, 11 and 12 August 2023, the Government claims that the General Directorate of Labour of the MTPE declared the call to strike inadmissible in a resolution dated 31 July 2023, as SUTRELAPA had failed to comply with the obligation to present, together with the notice to strike, the list of workers who would continue providing the minimum services. It explains that this is a requirement when the strike affects essential public services, and that the enterprise’s main activity is the manufacture of refined petroleum products, an essential service pursuant to article 83 of Decree Law No. 25593.
28. 338. The Government also confirms that, on 10 August 2023, the MTPE declared the application for review filed by SUTRELAPA to be unfounded. It also mentions SUTRELAPA’s disagreement with respect to the minimum services notified by the enterprise for the 2023 period, which was pending a decision at the time of notification of the call to strike, indicating that, pursuant to article 68-A of Supreme Decree No. 014-2022-TR, the declaration made by the employer in that regard must take effect until the disagreement is settled.
29. Sanctions imposed following the strike of 2023
30. 339. With respect to the penalties imposed for the strike on 10, 11 and 12 August 2023, in the information forwarded by the Government, the enterprise states that it had the power to penalize the workers because they brought its activities to a standstill by participating in a strike that had been declared illegal and because their absences were unjustified. It further states that this failure to comply by the 113 members seriously affected its operations, as it provides an essential public service whose interruption endangers the facilities and the safety of the community.
31. 340. For its part, the Government indicates that, even when a strike has been declared inadmissible or illegal, employers may not impose penalties or initiate disciplinary proceedings against workers that have exercised such a right until there is a final decision and the formal legal requirements have been met, such as the publication of the notice to return to work. It also reports that a decision on the amparo appeal lodged by SUTRELAPA on the matter remains pending.

C. The Committee’s conclusions

1. 341. The Committee observes that this case concerns a series of allegations of violations of freedom of association and collective bargaining by an oil refining enterprise, as well as allegedly excessive restrictions on the right to strike imposed by the labour administration. The Committee notes that the complainant organization alleges in particular that: (i) the enterprise imposed penalties on the then general secretary of the SUTRELAPA trade union for his activities representing workers on the enterprise’s Occupational Safety and Health Committee (CSST), refused to provide appropriate facilities to the aforementioned trade union’s representatives, and committed various acts of anti union discrimination and interference, including the dismissal of three of the union’s members who had temporary contracts; and (ii) the MTPE violated SUTRELAPA’s right to strike by declaring two calls to strike inadmissible, unduly delaying the determination of the minimum services and declaring one strike illegal. The Committee also notes that the Government, for its part: (i) forwards the observations of the enterprise, which denies that the acts of which it has been accused occurred for anti-union reasons; and (ii) maintains that the decisions taken by the MTPE in relation to the strikes were justified and that SUTRELAPA did not lodge the relevant appeals following the failure to meet the deadline for establishing the minimum services.
2. Sanctions imposed on the then general secretary of SUTRELAPA
3. 342. With regard to the allegations of discriminatory penalties imposed on the then general secretary of SUTRELAPA, Mr Jack Bory Chavarry Agurto, the Committee notes that the complainant asserts that: (i) in October 2018, Mr Chavarry Agurto, as the workers’ representative to the enterprise’s CSST, asked for items related to the physical and mental health of workers on extended workdays to be included on the committee’s agenda; (ii) after his proposals were rejected and he was denied the possibility of recording them in the minutes, Mr Chavarry Agurto refused to sign the minutes; (iii) based on the fact that his refusal to sign the minutes violated the internal rules of the CSST, Mr Chavarry Agurto received warning letters on 2 November and 5 December 2018, and a three-day suspension on 30 April 2019; (iv) SUTRELAPA challenged these penalties in court, but the Sixth Constitutional Court of Lima, in the judgment of 9 April 2021, declared the application unfounded, determining that the right to freedom of association was unaffected since Mr Chavarry Agurto was acting as the workers’ representative to the CSST and not as a trade union leader; and (v) this ruling was upheld by the Lima Superior Court of Justice on 13 January 2022 and by the Constitutional Court on 4 September 2023. The Committee also notes that, according to the information forwarded by the Government, the enterprise, for its part, submits that: (i) the matters proposed by Mr Chavarry Agurto were not included in the minutes because they did not receive the support of the majority of CSST members, and Mr Chavarry Agurto had the opportunity to register his disagreement in writing; and (ii) the disciplinary measures applied were objective, legal and without prejudice to Mr Chavarry Agurto’s position as general secretary of SUTRELAPA, meaning that his rights were not violated, as confirmed by the judicial decisions issued in this regard.
4. 343. The Committee notes that, in their examination of the complaint, the courts considered that: (i) it had not been established that the disciplinary sanction imposed on Mr Chavarry Agurto was due to his status as a union leader but rather to his refusal to sign the minutes of the CSST in his capacity as the workers’ representative to the body; and (ii) it was not demonstrated, on the basis of the articles of the internal rules of the CSST, that Mr Chavarry Agurto did not have the opportunity to leave a written record of his disagreements. The Committee takes due note that, at the time of the events, Mr Chavarry Agurto was simultaneously acting as the general secretary of SUTRELAPA and the workers’ representative to the CSST.
5. 344. The Committee emphasizes that the protection of workers’ health and safety is an important element of trade union activity, as Peruvian law highlights by affording trade union organizations a significant role in this respect, including in holding elections to CSSTs. The means of action and safeguards inherent to freedom of association, such as freedom of opinion and expression and protection against anti-union discrimination, must therefore extend to trade union representatives when they are also exercising staff representation functions in health and safety matters.
6. 345. On the basis of the foregoing, the Committee requests the Government to ensure that, with a view to attaining a constructive dialogue, the representatives of the workers and the employer on the CSST are able to express their opinions freely without fear of being sanctioned for doing so.
7. Trade union leave and allowances
8. 346. As regards the enterprise’s refusal to provide appropriate facilities to the representatives of SUTRELAPA, the Committee notes that the complainant alleges that: (i) during the initial collective bargaining processes between the parties, facilities were provided that included open trade union leave for up to one year and monthly allowances for members of the SUTRELAPA negotiating committee, but, in 2018, the enterprise began to refuse to grant such facilities; (ii) SUTRELAPA instituted amparo proceedings, but the Seventh Constitutional Chamber of Lima dismissed the claim in 2023, and SUTRELAPA appealed against this decision to the Lima Superior Court of Justice; and (iii) for the 2023 and 2024 negotiations, the members of the SUTRELAPA negotiating committee only had leave granted at the enterprise’s discretion, which prevented them from participating in the bargaining sessions and preparatory meetings. The Committee also notes that the enterprise claims that: (i) as the facilities provided in 2016 were offered in good faith and were explicitly conditional upon the completion of the corresponding collective bargaining process, it was under no legal obligation to continue providing them; (ii) open trade union leave of up to one month was offered to the members of the SUTRELAPA negotiating committee for the period 2023–24, but this proposal was rejected; and (iii) the participation of the negotiating committee was not restricted at any bargaining session or preparatory meeting.
9. 347. The Committee takes note of the opposing views of the complainant and the enterprise regarding the facilities that should be provided to the members of the SUTRELAPA negotiating committee for the 2023–24 negotiations. The Committee observes that the dispute does not concern the refusal of trade union leave for the SUTRELAPA negotiating team, but rather the alleged reduction in the number of hours made available by the enterprise in comparison with previous collective bargaining processes. The Committee further notes that it lacks the details that would allow it to determine whether the enterprise has a legal obligation to maintain the amount of leave granted in previous stages of negotiation. Emphasizing the importance of direct dialogue for finding solutions in terms of trade union facilities that respond to the specific needs of both parties, the Committee invites the Government to take the necessary steps to promote dialogue between the enterprise and SUTRELAPA with a view to finding a negotiated solution to this dispute. The Committee also requests the Government to keep it informed of the outcome of the appeal lodged by SUTRELAPA with the Lima Superior Court of Justice.
10. Staff in positions of trust
11. 348. With regard to the alleged acts of anti-union interference contained in the complaint, the Committee notes that, according to the complainant: (i) although SUTRELAPA’s statutes allow membership of staff in positions of trust, the enterprise refuses to apply the collective agreements negotiated by SUTRELAPA to this category of workers; (ii) in a decision of 4 March 2016, SUNAFIL concluded that at least 115 workers at the enterprise had been incorrectly classified as “staff in positions of trust”, when they were in fact ordinary workers; (iii) the distinction drawn by the enterprise between workers covered and those not covered by the collective agreement, corresponding to 446 ordinary workers and 353 workers in positions of trust or managerial posts, is intended to restrict arbitrarily the scope of SUTRELAPA’s membership; and (iv) in 2023, SUTRELAPA filed a complaint in this regard with SUNAFIL. The Committee notes that the enterprise, for its part, states that: (i) the incorrect classification determined by SUNAFIL in 2016 was not the result of an intention to restrict the scope of SUTRELAPA’s membership, since each post was classified according to objective criteria, considering their nature and the direct relationship with the employer; and (ii) the complaint filed in 2023 concerned solely the extension of the benefits of the collective agreement to non-unionized workers and not to the classification of staff in positions of trust, and no final decision has yet been made on the matter.
12. 349. The Committee takes note of the diverging positions of the complainant and the enterprise with respect to the enterprise’s alleged intention to restrict the scope of SUTRELAPA’s membership by not applying the collective agreement to workers in positions of trust affiliated with SUTRELAPA and by adopting an excessively broad definition of those who would fall within this group. The Committee also observes that the complainant and the enterprise disagree on the subject matter of a complaint filed with SUNAFIL in 2023. The Committee notes at the same time that: (i) the enterprise does not deny having drawn a distinction between its ordinary workers and its workers in positions of trust with respect to the application of the collective agreements concluded with SUTRELAPA; and (ii) in a 2016 decision, SUNAFIL considered that 115 workers at the enterprise had been incorrectly classified as workers in positions of trust. In this respect, concerning the applicability of the collective agreement to workers in positions of trust affiliated with SUTRELAPA, the Committee recalls that the right to collective bargaining should be guaranteed to trade unions representing all kinds of workers and that the will expressed by the parties in their collective agreement should prevail with regard to the personal scope of the agreement. The Committee requests the Government to inform it of the outcome of the complaint filed with SUNAFIL in 2023 and expects that the complaint will be resolved as soon as possible.
13. Extension of the agreement conclusion bonus
14. 350. Concerning the alleged extension to non-union workers of the agreement conclusion bonus agreed with SUTRELAPA, the Committee notes that the complainant alleges that: (i) in four collective agreements concluded for the periods 2016–17, 2018–19 (through an arbitration award), 2020–21 and 2022, the enterprise and SUTRELAPA agreed to include an “agreement conclusion” bonus, solely for unionized workers, in recognition of their participation in collective bargaining; (ii) the enterprise unduly and unilaterally extended this benefit to non-unionized workers, thus disincentivizing union membership; and (iii) SUTRELAPA filed a complaint with SUNAFIL, which issued a notice of violation for anti-union practices on 13 September 2023. The Committee notes that, while the enterprise, for its part, does not deny that the collective agreement provided that the bonus was focused on unionized workers, it maintains that it did not engage in anti-union practices since it intended to ensure equality between its workers rather than to discourage membership of SUTRELAPA.
15. 351. In relation to the applicability of the content of the collective agreements to non-unionized workers, the Committee recalls that, in a case in which some collective agreements applied only to the parties to the agreement and their members and not to all workers, the Committee considered that this is a legitimate option – just as the contrary would be – which does not appear to violate the principles of freedom of association, and one which is practised in many countries [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 1287]. In the context of the Peruvian legal system, the Committee observes that: (i) article 9 of the Collective Labour Relations Act provides that, in collective bargaining, the trade union that has the absolute majority of the workers within its field as members assumes the representation of all of them, even if they are not members, while the minority trade union represents only its members, unless it allies itself with other unions and they collectively have more than half of those workers as members; and (ii) pursuant to article 28 of the Regulations of the Collective Labour Relations Act, as amended in 2022, employers may not unilaterally extend the effects of the collective agreement to workers not included within its scope of application. The Committee understands that, on this basis, as SUTRELAPA is a minority trade union within the enterprise, SUNAFIL issued a notice of violation for anti-union practices in 2023.
16. 352. Hence, recalling that agreements should be binding on the parties [see Compilation, para. 1334] and that mutual respect for the commitment undertaken in collective agreements is an important element of the right to bargain collectively and should be upheld in order to establish labour relations on stable and firm ground [see Compilation, para. 1336], the Committee requests the Government, in accordance with the decision issued by SUNAFIL in 2023, to ensure that the personal scope of the collective agreement concluded by the parties in general, and the agreement conclusion bonus in particular, is fully respected.
17. Increases for workers not affiliated with SUTRELAPA
18. 353. With regard to the alleged acts of anti-union discrimination, the Committee notes that the complainant claims that, between March and April 2023, the enterprise granted wage increases averaging 11.7 per cent to non-unionized staff, including 39 individual increases of between 10 and 33 per cent, whereas the last wage offer made to SUTRELAPA was a 6 per cent increase, which constitutes unjustified differential treatment. The Committee also notes that the enterprise states that its wage policy is based on objective criteria, that there may be wage differentials provided that they are duly justified, and that the 33 per cent increase it granted was the result of a promotion. While stressing that the Committee is not competent to examine whether individual wage increases are justified, the Committee observes that, in a situation in which collective agreements are not applicable to all workers in an enterprise and there is a wage policy applicable to workers whose remuneration is not fixed by collective bargaining, it is important to ensure that such a policy neither has a detrimental effect on collective bargaining processes nor discourages trade union membership. In the light of the above, the Committee requests the Government to take the necessary steps to ensure that the enterprise’s wage policy does not have a detrimental effect on collective bargaining processes and trade union membership within the enterprise.
19. Establishment of another union
20. 354. The Committee notes that the complainant alleges that: (i) SINTRELAPA, a trade union under the enterprise’s control, was established on 12 December 2023; (ii) on 18 December 2023, the enterprise began negotiating with SINTRELAPA and, on 20 December 2023, it announced and promoted the union’s establishment by institutional email; (iii) on 22 December 2023, they concluded an agreement in record time that provides for a 7.5 per cent pay increase applicable retroactively from 1 October 2023, when SINTRELAPA did not yet exist, and the benefits were extended to non-unionized staff with the aim of disincentivizing membership of SUTRELAPA; and (iv) on 12 March 2024, SUTRELAPA filed a complaint with SUNAFIL regarding the matter. The Committee notes that the enterprise, for its part, states that: (i) it was not involved in the formation of SINTRELAPA, which was created by eight workers who had previously been expelled from SUTRELAPA; (ii) the 7.5 per cent wage increase was agreed with SINTRELAPA since the union had recently been established and had a low number of members, which meant a lower financial impact; (iii) the same percentage increase was subsequently offered to SUTRELAPA, which rejected it; and (iv) the extension of the benefits agreed with SINTRELAPA to non-unionized staff does not constitute an anti-union practice because the collective agreement allows it.
21. 355. The Committee takes note of the opposing views of the complainant and the enterprise regarding the alleged control exercised by the enterprise over SINTRELAPA. While observing that it does not have sufficient information to comment on this matter, the Committee notes that the enterprise concluded a collective agreement with the above-mentioned trade union, which included a higher wage increase than the one proposed in the last offer to SUTRELAPA, in four days. Hence, the Committee requests the Government to take the necessary steps to guarantee equal treatment between the trade unions operating in the enterprise and to ensure bargaining in good faith. The Committee also requests it to keep it informed of the outcome of the complaint filed by SUTRELAPA with SUNAFIL in this regard.
22. Dismissal of unionized workers
23. 356. The Committee notes that the organization further alleges that: (i) three SUTRELAPA members on temporary contracts, Ms Evelyn Katina Chamorro Curi, Ms Erika Girón Champi and Ms Saray Iris Poma Gonzales were dismissed owing to their trade union membership; (ii) Ms Chamorro Curi was dismissed on 25 February 2023; (iii) Ms Girón Champi was dismissed on 31 March 2023, after having informed the enterprise of her union membership; (iv) Ms Poma Gonzales was pressured into leaving the trade union in exchange for a new temporary contract and was subsequently dismissed by the enterprise; and (v) all three members filed cases in the Ventanilla Labour Court. The Committee also notes that the enterprise denies the aforementioned allegations. The Committee further notes that, in the case of Ms Chamorro Curi: (i) the enterprise states that the employment relationship was terminated on the objective grounds that, at the end of contract, the regular worker whom Ms Chamorro was replacing returned; and (ii) the Government reports that the Ventanilla Labour Court declared the claim lodged by the worker to be unfounded, but the appeals court annulled this decision and ordered that a new ruling be issued. In the case of Ms Girón Champi, the Committee notes that the enterprise claims that the temporary contract simply expired, that it had no knowledge of her trade union membership when the decision was made not to renew the contract and that no decision has yet been issued on the judicial appeal filed. In the case of Ms Poma Gonzales, the Committee notes that the Government reports that the Ventanilla Labour Court declared the application unfounded, but the appeals court annulled this decision and ordered that a new ruling be issued.
24. 357. The Committee takes note of the divergent versions expressed by the complainant and the enterprise concerning the termination of the employment relationship of the three workers and the reasons therefor. On the one hand, the complainant claims that the three workers were dismissed owing to their membership of SUTRELAPA and, on the other, the enterprise denies these allegations and claims in particular that the temporary contracts of Ms Chamorro Curi and Ms Girón Champi were not renewed, without any discrimination involved. Observing that lawsuits remain pending in all three cases, the Committee expects that they will be resolved as soon as possible in accordance with freedom of association principles, and requests the Government to keep it informed in this respect.
25. Strike called in 2022
26. 358. Concerning the alleged violation of the right to strike, the Committee notes that the complainant refers firstly to the declaration of inadmissibility of a call to strike in 2022, claiming that: (i) SUTRELAPA decided to organize a stoppage for 27, 28 and 29 June 2022 in response to several breaches of the collective agreements on the part of the enterprise, and disclosed this information to the MTPE; (ii) after signing a document ending the strike and a collective bargaining agreement, this measure was ultimately not taken; (iii) however, the MTPE still issued a resolution declaring the call to strike inadmissible, considering that the reasons given did not constitute a legitimate defence of the rights and interests of the workers; and (iv) SUTRELAPA appealed this decision, which was upheld by the MTPE on 6 July 2022. The Committee also notes that the Government indicates that the MTPE declared the call to strike inadmissible on the basis of the legislation in force at the time, since article 63 of the Regulations of the Collective Labour Relations Act provided that a strike based on non compliance with collective agreements was admissible only when a final judicial decision had not been complied with. The Committee takes due note of the documents signed by the enterprise and SUTRELAPA. It also observes, based on publicly available information, that article 63 of the Regulations was repealed on 24 July 2022 by Supreme Decree No. 014 2022 TR. In these circumstances, the Committee will not pursue the examination of this aspect of the case.
27. Determination of minimum services
28. 359. The Committee notes that the complainant refers secondly to the determination of the minimum services, alleging that: (i) on 30 January 2023, the enterprise submitted a proposal to the MTPE to establish the minimum services in the event of a strike for 2023, and that SUTRELAPA expressed disagreement with the proposal on 28 February 2023; (ii) article 68 of Supreme Decree No. 014 2022 TR establishes that responsibility for resolving disagreements regarding minimum services lies with the administrative labour authority, which has 30 working days in which to issue its decision, and it may avail itself of the support of an independent body to do so; (iii) on 26 July 2023, after the statutory deadline, the MTPE initiated the procedure and appointed the CIP to conduct a technical analysis, and the CIP carried out a verification visit at the enterprise on 2 November 2023, without notifying the trade union in advance; (iv) on 15 February 2024, SUTRELAPA requested to withdraw from the procedure due to bias in favour of the employer, but it did not receive a timely response; and (v) SUTRELAPA then informed the MTPE of the application of negative administrative silence and requested that it abstain from issuing a decision in the procedure, but the MTPE did so regardless and upheld the enterprise’s proposal in full.
29. 360. The Committee notes that the Government, for its part, claims that: (i) after the enterprise submitted the proposal on 30 January 2023, SUTRELAPA expressed its disagreement with respect to the suggested number of workers, and the MTPE therefore appointed the CIP as an independent technical body on 26 July 2023; (ii) the CIP submitted its technical report on 29 December 2023 and SUTRELAPA announced its withdrawal from the procedure on 15 February 2024; (iii) the procedure nevertheless continued, owing to the enterprise’s opposition as an interested third party and to the fact that the matter was of general interest; (iv) in view of the failure to issue a timely decision, the invocation of administrative silence was admissible, but SUTRELAPA did not file the relevant administrative appeals or bring a claim in the administrative courts; and (v) based on the CIP report, the MTPE issued a resolution on 18 March 2024, but the enterprise and SUTRELAPA submitted applications for review on 11 April 2024 and expressed their desire to resolve the dispute through informal meetings, which were arranged by the MTPE.
30. 361. The Committee notes that it is apparent from the above that the administrative labour authority was responsible for resolving the disagreement expressed by SUTRELAPA within 30 working days pursuant to article 68 of Supreme Decree No. 014-2022-TR, that the union withdrew from the procedure alleging bias and that more than a year passed before a decision was issued. The Committee also observes that no prior negotiations seem to have been held between the enterprise and SUTRELAPA. The Committee recalls that negotiations over the minimum service should be ideally held prior to a labour dispute, so that all parties can examine the matter with the necessary objectivity and detachment, and that any disagreement should be settled by an independent body, like for instance, the judicial authorities, and not by the ministry concerned [see Compilation, para. 876]. The Committee requests the Government to take the necessary steps to amend the legislation in force with a view to ensuring that the determination of minimum services is negotiated by the parties concerned and that any disagreement in that regard is settled by an independent body. The Committee also requests to be kept informed of the outcome of the informal meetings arranged by the MTPE between the enterprise and SUTRELAPA.
31. Strike called in 2023
32. 362. The Committee notes that the complainant refers thirdly to the declaration of inadmissibility of a call to strike and the subsequent declaration that the strike was illegal in 2023, claiming that: (i) on 24 July 2023, SUTRELAPA notified the enterprise and the MTPE that it would stage a strike on 10, 11 and 12 August 2023; (ii) in the resolution of 4 August, the MTPE declared this call to strike inadmissible, given that the enterprise’s activities constituted an essential service and a certain number of workers were therefore required to continue working during the strike; (iii) SUTRELAPA challenged this resolution, which was upheld by the MTPE on 10 August 2023, when the strike had already started; (iv) on 16 August 2023, the MTPE informed SUTRELAPA that the strike was illegal, and the decision was appealed by the trade union and upheld by the MTPE on 25 August 2023; and (v) although article 83 of Decree Law No. 25593 provides that gas, fuel and transport are essential public services, the strike would not have endangered the safety, health or life of the population because other enterprises in the market could have substituted production without causing shortages or cost increases. The Committee notes that, for its part, the Government indicates that: (i) the MTPE declared the call to strike inadmissible, given that SUTRELAPA failed to meet its obligation to attach to its notice the list of workers who had to remain on duty for the minimum services – a requirement when the strike affects essential public services; and (ii) since the disagreement expressed by SUTRELAPA relating to the minimum services for the 2023 period had still not been settled at the time of the strike, the proposal made by the employer in that regard had to take effect temporarily, pursuant to article 68-A of Supreme Decree No. 014-2022-TR.
33. 363. The Committee notes that the enterprise’s activities were classified as an essential service pursuant to article 83 of Decree Law No. 25593, and recalls in this respect that, in other cases, it did not consider the sectors of petroleum and transport in general to constitute essential services in the strict sense of the term [see Compilation, para. 842]. However, it also recalls that, given that the petroleum sector is a strategic service, of vital importance to the economic development of the country, nothing prevents a minimum service being imposed in this sector [see Compilation, para. 897].
34. 364. While referring to its previous conclusions regarding the establishment of minimum services in the event of disagreement between the parties, the Committee observes that the strike staged by SUTRELAPA was declared illegal by the MTPE. In this respect, the Committee recalls that responsibility for declaring a strike illegal should not lie with the government, but with an independent body which has the confidence of the parties involved [see Compilation, para. 907], and that to declare a strike or work stoppage illegal, the judicial authority is best placed to act as an independent authority [see Compilation, para. 910]. The Committee requests the Government to take the necessary measures to amend its legislation so that the legality or illegality of a strike is declared by an independent body that has the confidence of the parties, and to keep it informed of any developments in this regard.
35. Sanctions imposed following the strike of 2023
36. 365. With respect to the 2023 strike, the Committee notes that the complainant also alleges that: (i) after the strike was declared illegal, the enterprise initiated, in September 2023, disciplinary proceedings against 113 SUTRELAPA members who had taken part in the strike and penalized 32 of them, despite the fact that these absences did not meet the legal requirements to be considered unjustified; and (ii) SUTRELAPA lodged an amparo appeal with the Ninth Constitutional Chamber of Lima in this regard. The Committee also notes that the enterprise states that it could penalize these workers for unjustified absences as a result of their participation in a strike that was declared illegal and that seriously affected its operations. It further notes that the Government, for its part, indicates that: (i) even if a strike has been declared inadmissible or illegal, employers may not penalize the participants until there is a final decision and the formal legal requirements, such as the publication of a notice to return to work, have been met; and (ii) a decision on the amparo appeal lodged by SUTRELAPA remains pending.
37. 366. The Committee takes due note of the Government’s indication regarding the requirement for the formal legal requirements to be met in order to penalize the participants in a strike. The Committee also requests the Government to keep it informed of the outcome of the amparo appeal lodged by SUTRELAPA with the Ninth Constitutional Chamber of Lima.

The Committee’s recommendations

1. 367. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government to ensure that, with a view to attaining a constructive dialogue, the representatives of the workers and the employer on the Occupational Safety and Health Committee are able to express their opinions freely without fear of being sanctioned for doing so.
   • (b) The Committee invites the Government to take the necessary steps to promote dialogue between the enterprise and the Refinería La Pampilla Single Union of Workers (SUTRELAPA) with a view to finding a negotiated solution to their dispute over trade union leave. The Committee also requests the Government to keep it informed of the outcome of the appeal lodged by SUTRELAPA with the Lima Superior Court of Justice.
   • (c) The Committee requests the Government to inform it of the outcome of the complaint relating to staff in positions of trust filed with the National Labour Inspection Supervisory Authority (SUNAFIL) in 2023 and expects that the complaint will be resolved as soon as possible.
   • (d) The Committee requests the Government, in accordance with the decision issued by SUNAFIL in 2023, to ensure that the personal scope of the collective agreement concluded by the parties in general, and the agreement conclusion bonus in particular, is fully respected.
   • (e) While stressing that it is not competent to examine whether individual wage increases are justified, the Committee requests the Government to take the necessary steps to ensure that the enterprise’s wage policy applicable to non unionized workers does not have a detrimental effect on collective bargaining processes and trade union membership within the enterprise.
   • (f) The Committee requests the Government to take the necessary steps to guarantee equal treatment between the various trade unions operating in the enterprise and to ensure bargaining in good faith. The Committee also requests it to keep it informed of the outcome of the complaint filed by SUTRELAPA with SUNAFIL concerning the alleged establishment of a trade union under the enterprise’s control.
   • (g) The Committee expects that the lawsuits filed in relation to the alleged anti-union dismissals of Ms Evelyn Katina Chamorro Curi, Ms Erika Girón Champi and Ms Saray Iris Poma Gonzales will be resolved as soon as possible in accordance with freedom of association principles, and requests the Government to keep it informed in this respect.
   • (h) The Committee requests the Government to take the necessary steps to amend the legislation in force with a view to ensuring that the determination of minimum services is negotiated by the parties concerned and that any disagreement in that regard is settled by an independent body. The Committee also requests to be kept informed of the outcome of the extra-procedural meetings arranged by the Ministry of Labour and Employment Promotion (MTPE) between the enterprise and SUTRELAPA.
   • (i) The Committee requests the Government to take the necessary measures to amend its legislation so that the legality or illegality of a strike is declared by an independent body that has the confidence of the parties, and to keep it informed of any developments in this regard.
   • (j) The Committee also requests the Government to keep it informed of the outcome of the amparo appeal lodged by SUTRELAPA with the Ninth Constitutional Chamber of Lima relating to the penalties imposed following the strike of 2023.