Rapport définitif - Rapport No. 413, Mars 2026

Cas no 3481 (Pérou) - Date de la plainte: 12-JUIN -24 - Clos

Allegations: The organization alleges the imposition of disciplinary sanctions and dismissal proceedings initiated against the general secretary of the Cross-regional Federation of Mine, Metal and Steel Workers of Southern Peru

1. 368. The complaint is contained in a communication dated 12 June 2024 from the General Confederation of Workers of Peru.
2. 369. The Government sent its observations on the allegations in communications dated 19 November 2024, 11 and 12 December 2024, and 6 January 2026.
3. 370. 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. 371. In a communication dated 12 June 2024, the complainant organization states that: (i) Mr Arturo Luque Andrade held the positions of general secretary of the Cross-regional Federation of Mine, Metal and Steel Workers of Southern Peru (Southern Cross-regional Federation) and Southern Regional Secretary of the National Mining Federation, and had also been elected workers’ representative on the Occupational Safety and Health Committee of the Cerro Verde Mining Company PLC (the enterprise); (ii) Mr Luque received various anti-union sanctions from the enterprise; (iii) in November 2023, the enterprise sanctioned Mr Luque with one day of suspension without pay for having intervened in an occupational health and safety accident with the intention of safeguarding the health and physical integrity of the workers involved; (iv) in December 2023, he was again sanctioned, with two days’ suspension without pay, for having absented himself from his post on 7 November 2023 in order to carry out trade union activities in his capacity as trade union leader. The complainant organization states that Mr Luque submitted his request for union leave to the enterprise’s human resources department prior to his absence, but that it was only rejected once he was already attending the session in question.
2. 372. The complainant organization also alleges that (i) on 8 April 2024, Mr Luque was informed of his dismissal for “alleged breach of good faith in the workplace, repeated resistance to orders regarding his duties, insults and failure to keep his word”, owing to an anonymous complaint stating that Mr Luque had allegedly made comments and expressed offensive and defamatory opinions about the enterprise and another trade union in a private workers’ group on an electronic messaging application; (ii) Mr Luque’s dismissal was illegal and violated his trade union immunity, as his comments were made in a private group for the communication of trade union action to workers called “Cerro Verde Union”, protected by communication secrecy and in the framework of his trade union activity, and as the message attributed to him was not offensive to the enterprise and did not expressly mentioned it or any specific individual; and (iii) the dismissal was preceded by disciplinary sanctions which, taken together, constituted a campaign of anti-union action against Mr Luque.

B. The Government’s reply

1. 373. In its various communications, the Government provides information on the actions of the National Labour Inspection Supervisory Authority (SUNAFIL), provides an update on the legal proceedings relating to the disciplinary sanctions imposed on Mr Luque and to his dismissal, and submits information provided by the enterprise regarding the allegations in the present case. With regard to the allegations, the enterprise states that:
   • • Prior to the dismissal, the enterprise sanctioned Mr Luque on two occasions, on the basis of article 9 of the single consolidated text of the Productivity and Labour Competitiveness Act (LPCL). On the first occasion, on 22 November 2023, the enterprise sanctioned Mr Luque with one day of suspension without pay for having absented himself from his post without prior notice or authorization from his shift supervisor, putting the operation at risk and neglecting the tasks assigned to him, in contravention of articles 15, 27(a) and (b), and 30 of the internal labour regulations of the enterprise. It indicates that Mr Luque acknowledged that he had absented himself from his post without notice to observe and record an incident as he was a member of the occupational safety and health committee. The enterprise notes that the accident in question was already being managed by the responsible persons and that Mr Luque’s duties in the committee in question did not include observing and recording safety-related incidents.
   • • In a second situation, Mr Luque was sanctioned with two days’ suspension without pay for being absent from work without justification on 7 November 2023, in contravention of articles 27(a) and 30 of the internal labour regulations. According to the enterprise, Mr Luque justified his absence by alleging union activities that would be covered by a request for union leave, although he acknowledged that he had not submitted such a request to the human resources department with the necessary advance notice and formalities required under Peruvian law. The enterprise states that Mr Luque absented himself from work without confirmation of the authorization of the trade union leave, which would have disrupted the normal functioning of his work team.
   • • The enterprise maintains that the disciplinary measures imposed on Mr Luque were unrelated to his trade union activities, and were instead based on serious labour misconduct, and that his right of defence was respected at all times and he had the opportunity to present his defence before being sanctioned.
   • • With regard to the dismissal of the trade union leader, the enterprise states that on 11 March 2024 it received an anonymous email reporting that Mr Luque had made statements considered to be defamatory in an electronic messaging group, in which he criticized SUTRACV and made unsubstantiated accusations regarding alleged irregular negotiations between the union and the enterprise, messages that were allegedly shared with a significant number of workers, thereby aggravating the alleged workplace offence. According to the enterprise, the message that led to the dismissal read as follows:
     • This cutracv trade union from the dark side is like kongress conducting its negotiations under the table with whoever suits it best and has its ally to bend the rules and laws with its sweet talk that snake oil salesman.
   • • The enterprise states that the message was clearly referring to alleged corruption and collusion between the enterprise and SUTRACV, despite not expressly mentioning the name of the enterprise and writing the name of the trade union differently. Furthermore, it indicates that the enterprise conducted an internal investigation, during which Mr Luque did not deny having written the messages. It states that the existence of the email containing the anonymous complaint was certified by a notary and that the content of the screenshots was confirmed by another worker who belongs to the messaging group, who voluntarily provided access to the messages in question and a statement to that effect.
   • • In light of the above, the enterprise states that Mr Luque’s behaviour was classified as serious misconduct under national labour legislation, comprising insults, breach of promise and failure to comply with employment obligations and internal regulations, constituting a breach of good faith in the workplace. Consequently, the enterprise maintains that the dismissal was duly justified, on the basis of: legal grounds provided for in article 25(f) of the LPCL, which classifies any verbal or written insults and breaches of promise directed at the employer or other workers as serious misconduct by a worker; article 27(d) of the company’s internal regulations, which considers it an obligation of all the workers in the enterprise to “show due respect and consideration to all workers in the enterprise”, and article 30(d), which prohibits “disrespecting, threatening, insulting, defaming, assaulting or harassing their co-workers or any other worker, whether senior or junior”; as well as the principles of business conduct and those related to the compliance management system, with the dismissal not being related to Mr Luque’s trade union status, also taking his disciplinary record into account.
2. 374. With regard to the judicial proceedings filed by Mr Luque, the enterprise states that the proceedings seeking the annulment of the worker’s dismissal were declared unfounded in the second instance and the cassation appeal lodged by the plaintiff is pending before the Supreme Court of Justice of Peru. With regard to the judicial proceedings that contest both disciplinary sanctions, the enterprise states that, in the second instance, the Supreme Court of Justice of Arequipa upheld the validity of the disciplinary measure imposed in November 2023, due to abandonment of duties without authorization from the immediate superior, and considered that the sanction of the two-day suspension in December 2023, due to absence on union leave, should be set aside. It also states that it has lodged a cassation appeal, which is also pending before the Supreme Court.
3. 375. The Government provides information on the result of inspection activities carried out by SUNAFIL at the enterprise, which analysed the background of allegations of: (i) harassment and acts of hostility in relation to Mr Luque, in which no violation of the matters contained in the inspection order was detected; (ii) violation of freedom of association in relation to the granting of trade union leave to Mr Luque, in which it considered that the procedure for requesting the granting of trade union leave must take into account the advance notice with which the request is submitted and other conditions for granting it, so that the employer can plan for the worker’s absence, a fact that had not been observed by Mr Luque, indicating that no violation of the matters contained in the inspection order had been detected; and (iii) violation of freedom of association in relation to the dismissal of Mr Luque, in which SUNAFIL states that it does not have jurisdiction to issue rulings on the allegations relating to the dismissal, as judicial proceedings are under way.

C. The Committee’s conclusions

1. 376. The Committee observes that the present case relates to the dismissal on 8 April 2024 of Mr Arturo Luque Campana, an employee of a mining enterprise, general secretary of the Cross-regional Federation of Mine, Metal and Steel Workers of Southern Peru and a member of the SCV enterprise union, following statements made in a widely circulated private social media messaging group, in which he criticized alleged irregular negotiations between another trade union and the enterprise, in a context of inter-union conflict. The Committee observes that, in addition to the dismissal, the allegations refer to the existence of two previous disciplinary sanctions imposed on Mr Luque, which would prove the existence of an anti-union campaign against the leader.
2. 377. The Committee notes that the complainant organization alleges specifically that: (i) the statements made by Mr Luque, subject of the dismissal procedure mentioned, formed part of the legitimate and regular exercise of freedom of association; (ii) the message attributed to Mr Luque did not mention or expressly offend the enterprise or specific individuals; (iii) the dismissal was illegal and a violation of trade union immunity, having occurred due to messages posted in a “private group for the communication of trade union action” protected by communication secrecy and in the framework of the trade union activities of Mr Luque; and (iv) the dismissal was preceded by two unfounded disciplinary sanctions which, taken together, would constitute a campaign of anti-union action against Mr Luque.
3. 378. The Committee notes that, for its part, the Government: (i) sets out the enterprise’s position regarding the circumstances of Mr Luque’s dismissal; (ii) provides an update on the judicial proceedings filed by Mr Luque against the disciplinary sanctions imposed on him and his subsequent dismissal; and (iii) provides information about inspections carried out by SUNAFIL in the enterprise, in which SUNAFIL did not identify any irregularities, having decided not to rule on the dismissal given that judicial proceedings have been brought in this regard.
4. 379. The Committee notes that, according to the information provided by the Government, the enterprise states that: (i) prior to the dismissal, it sanctioned Mr Luque on two occasions in accordance with article 9 of the single consolidated text of the Productivity and Labour Competitiveness Act (LPCL), one for abandoning his post without prior notice or authorization to observe and record a safety-related incident, and the other for being absent from work on the grounds of trade union activities without being covered by trade union leave; (ii) following an internal investigation, the enterprise dismissed Mr Luque for having posted defamatory statements in a private messaging group criticizing the SUTRACV trade union and making baseless accusations of irregular negotiations and collusion with the enterprise, which were shared with a considerable number of workers; (iii) the dismissal is supported by article 25(f) of the LPCL, as Mr Luque’s conduct violates the provisions of the enterprise’s internal labour regulations, the relevant principles of business conduct and those related to the compliance management system; and (iv) concerning the two sets of legal proceedings brought by Mr Luque, the challenge to the sanctions imposed prior to the dismissal was partially upheld and the cassation appeal lodged by the enterprise is pending before the Supreme Court; the proceedings seeking the annulment of the dismissal and reinstatement were declared unfounded in the second instance and the cassation appeal lodged by Mr Luque is pending before the Supreme Court.
5. 380. The Committee duly notes this information. Regarding the legal action lodged by Mr Luque seeking the annulment of his dismissal, the Committee notes in particular that: (i) the court of first instance considered the dismissal to be anti-union in nature and declared it null and void; (ii) on 22 January 2025, the Supreme Court of Justice of Arequipa overturned the first instance decision, considering that Mr Luque’s dismissal for serious misconduct was justified; and (iii) Mr Luque lodged a cassation appeal before the Supreme Court against this decision, which is pending.
6. 381. The Committee observes that, in the aforementioned second instance ruling, the Supreme Court of Justice of Arequipa: (i) indicated that it had been proved that approximately 400 workers had had access to the message in question; (ii) indicated that, while Mr Luque was general secretary of the Cross-regional Federation of Mine, Metal and Steel Workers of Southern Peru, he was not, at the time of his dismissal, leader of the SCV enterprise union, but just a member, and consequently it considered that there was no evidence to suggest that his dismissal was in retaliation for trade union activity, for example conversations relating to a collective agreement; and (iii) considered that the worker made disparaging and offensive remarks, insinuating the existence of possible illegal arrangements, which constituted a lack of respect towards the employer, demonstrating a failure to comply with the basic duties of coexistence, discipline and hierarchical subordination, affecting workplace harmony and the principle of authority necessary for the employer to exercise management and organizational powers.
7. 382. The Committee observes that the information available indicates that: (i) the message that led to the dismissal of Mr Luque was sent to a private messaging group intended for communications of the SCV trade union, a mining enterprise trade union with several hundred members; (ii) the message expressed criticism of alleged negotiations under way with another enterprise trade union, calling into question in offensive terms the honesty of the process and its participants; (iii) while at the time of the events Mr Luque was just a member of the SCV, he was also performing the functions of general secretary of the Southern Cross-regional Federation and of Southern Regional Secretary of the National Mining Federation. The Committee also notes that, according to publicly available information, in the subsequent months the enterprise signed separate collective agreements with each of the trade unions (one with the SCV, the other with the SUCTRAV) and that the SCV contested the legality of the negotiations carried out with the SUCTRAV before the courts.
8. 383. The Committee observes that it appears from the above that, in a context of manifest collective bargaining tensions, Mr Luque, general secretary of a mining federation, made offensive comments to the members of the enterprise union of which he was a member, and in the framework of his union activities, in respect of the ongoing negotiations between another union and the enterprise.
9. 384. The Committee recalls that the full exercise of trade union rights calls for a free flow of information, opinions and ideas, and to this end workers, employers and their organizations should enjoy freedom of opinion and expression at their meetings, in their publications and in the course of other trade union activities. Nevertheless, in expressing their opinions, these organizations should respect the limits of propriety and refrain from the use of insulting language [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 236].
10. 385. While noting the substantial nature of the sanction (dismissal) imposed on Mr Luque, the Committee observes that it will be for the competent judicial authorities to weigh up the various circumstances of the case in conformity with the principles of freedom of association and stresses the relevance of the conclusions of the present case.

The Committee’s recommendations

1. 386. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations.
   • (a) While noting the substantial nature of the sanction (dismissal) imposed on Mr Luque, the Committee observes that it will be for the competent judicial authorities to weigh up the various circumstances of the case in conformity with the principles of freedom of association and stresses the relevance of the conclusions of the present case.
   • (b) The Committee considers this case closed, without requiring any further examination.