Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 371, Marzo 2014

1. 744. The complaint is contained in a communication of the Single Trade Union of Workers of Casa Grande and Allied Enterprises (SUTCGA) dated 6 March 2013. The complainant organization submitted new allegations in a communication dated 27 August 2013. The Federation of Workers of the Peruvian Revolution (CTRP) supported the complaint in communications dated 25 April and 7 May 2013.
2. 745. The Government provided its observations in communications dated 20 September and 27 November 2013.
3. 746. 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. 747. In its communications of 6 March and 27 August 2013, the SUTCGA alleges that, following the approval on 9 January 2013 by the extraordinary assembly of delegates of the decision to call a strike on 23 January 2013, in compliance with all the legal requirements (including those relating to the notification of the employer and the authorities within the statutory period of five days prior to the strike, that is, up to 16 January), in pursuance of a series of work-related claims and an end to the violation of the law by the enterprise, the administrative labour authority decided on 18 January to declare the strike notification invalid, adding that the number of members had not been reported and that the communication notifying the employer of the strike and the list of workers engaged in essential services had not been provided (however, the complainant union states that the enterprise had not supplied the list of workers considered indispensable in the event of a strike at the beginning of the year, as required by law). Finally, on 28 January 2013, following an appeal by the union, the administrative authorities once again declared the work stoppage of 23 January 2013 invalid and illegal.
2. 748. The complainant also alleges the arbitrary dismissal by the enterprise, on 3 May 2013, of six trade union leaders for their trade union activities during the period 2012–13, and particularly the strikes of 23 January and March 2013. It adds that the six union leaders filed a judicial appeal against the enterprise in the First Labour Court of Ascope and that, up to now, they have obtained an interim order for their reinstatement, the execution of which was however delayed by over a month.
3. 749. The complainant further alleges that the enterprise did not transfer the union dues for May, June and July 2013.

B. The Government’s reply

1. 750. In its communications dated 20 September and 27 November 2013, the Government indicates that the strike of 23 January 2013, to which the complainant union refers was called in the middle of the collective bargaining process (the Government provides a very extensive list of meetings between the enterprise and the union, indicating the documents signed during the negotiation process), and states that the enterprise did not take any disciplinary measures against the workers who participated in the strike.
2. 751. With regard to the alleged dismissal of Armengol Saucedo Castillo, Jorge Luis Gil Verde, Olegario Rodríguez Reaño, Mauro Lezcano Pajares, Víctor Rubio Olvida and Jaime Noriega Sánchez, the Government observes that, in their capacity as trade union leaders, they convened and presided over the extraordinary assembly of union delegates held on 5 March 2013, as indicated in the report of the extraordinary assembly. The specific agenda of the assembly was the “decision to call a 48-hour strike on 14 and 15 March 2013 in view of alleged labour violations by the enterprise”, which was unanimously approved, on the understanding that the decision needed to be confirmed by the base, that is the majority of workers who were members of the union. Accordingly, on 6 March 2013 (the day after the extraordinary assembly), the former leaders communicated to both the enterprise and the Regional Administration for Labour and Employment Promotion of La Libertad the notification of the 48-hour strike, which was held on 14 and 15 March 2013. The following documents were attached to the notification:
   • – the list of members of the union;
   • – order No. 145, issued by a sub-directorate of the regional labour administration, confirming receipt of the list of members of the executive board of the union;
   • – the legally certified copy of the report of the extraordinary assembly of delegates;
   • – a copy of the record of the ballot;
   • – the report of the approval of the decision adopted by the extraordinary assembly of delegates, containing the list of names of the members of the SUTCGA who approved the decision by the assembly of delegates to call a 48-hour strike, including their names, signatures and national identity document numbers;
   • – the sworn statements by the members of the executive board, in which they stated under oath that the decision to call the 48-hour strike was adopted in compliance with the requirements set out in law, with the indication “I assume the corresponding responsibility for any failure to be truthful”;
   • – a copy of the minutes of the direct negotiations between the union and the enterprise; and
   • – a copy of the request made to the regional labour administration asking for information concerning the notification of essential services by the enterprise.
3. 752. When these documents had been reviewed, report No. 003-2013-SRH was issued recording irregularities, as the list of names of the members of the union who allegedly signed and approved the decision taken by the assembly of delegates to call the 48-hour strike, including their names, signatures and national identity document numbers, contained the following inaccurate information:
   • – the workers Constante Sagástegui Álvarez, Walter Correa Quiroz y Erasmo Wilmar Obando Sevillano, although members of the union, testified that they did not sign a document in the month of March 2013 approving a strike on 14 and 15 March 2013;
   • – a group of persons were recorded as having signed the decision who at the time of its alleged approval (6 March 2013) were not working for the enterprise, as their employment had ended; and
   • – the list contained the name of Carlos Alberto Llanos Salazar, who was sadly no longer a member as he had died on 18 July 2012.
4. 753. Accordingly, the dismissal of the former union leaders was not based on anti-union grounds, but because they committed the serious fault of: failure to comply with labour-related requirements, resulting in a breakdown of good faith; failure to comply with the internal work rules; and the provision of false information to the employer with the intention of causing prejudice or obtaining an advantage. According to the information provided by the enterprise, the former leaders were identified as being responsible for these acts. It should be emphasized that this breach not only concerned the submission of the document containing false information, but also its use to comply with a legal requirement, on the basis of which the strike was also held.
5. 754. According to the information provided by the enterprise Casa Grande, the latter complied with and offered the former leaders all the guarantees of due process, namely: (i) they were sent a letter giving them notice of dismissal in writing, duly supported by the respective documents informing them of the serious fault attributed to them; (ii) they were granted a period of not less than six calendar days to defend themselves in writing against the charges levelled against them; (iii) they were sent another notarized communication to clarify aspects which the former leaders in their replies had raised as not being accurate; (iv) replies to the second notarized communication; (v) further analysis and assessment of the charges and the replies sent by the former leaders; and (vi) once the respective evaluation and analysis had been completed, they were sent letters of dismissal on 3 May 2013, in which they were informed of the specific reasons for their dismissal and the date of termination.
6. 755. This demonstrates that, when the former leaders were dismissed, all the guarantees of due process were observed, such as the right of defence and the principles of immediacy and reasonableness, as required by law when initiating a termination procedure.
7. 756. The Government also confirms that a case is currently before the courts challenging the dismissal of the six trade union leaders. It is being heard by the First Labour Court of Ascope, which is ultimately competent to decide whether or not the dismissals were valid. It adds that the enterprise complied with the interim reinstatement order.
8. 757. With reference to the allegation concerning the failure to pay the union dues, the Government indicates that, according to the enterprise, it did indeed make the payment of the last three union dues referred to in the allegations, although through the judicial assignment of the funds. It opted for that procedure for the following reasons:
   • – the person who had been receiving the cheque for the union dues every month was Mauro Lezcano Pajares (former financial secretary), whose employment at the enterprise Casa Grande ended on 3 May 2013, for which reason the enterprise, in accordance with the statutes of the union, sent a notarized communication to Segundo Saúl Cabrera Urbina, deputy secretary, who was responsible for assuming that function. However, he replied to the communication indicating that he was no longer the deputy secretary, as he had resigned from that position with full effect. In light of the above, and for reasons of legal security, the enterprise proceeded to the judicial assignment of the union dues so that a duly accredited union representative appearing before the court could take receipt of the payment;
   • – in accordance with order No. 145-2001-GR-LL-GG/GRTPE-DPSC-SDNCRG, issued on 22 July 2011 by the Sub-Directorate for Collective Bargaining and General Records, the representative status of the executive board elected for the period 2011–13 expired on 21 July 2013; and
   • – the enterprise Casa Grande was appraised of the conflicts that existed within the union, that are fully known to the Regional Administration for Labour and Employment Promotion of La Libertad, and which resulted in the establishment of two electoral committees, which in turn recognized two executive boards, and it was therefore for the purpose of safeguarding the funds resulting from the contributions of all the unionized workers that it proceeded to the judicial assignment of the union dues at the court of Paz Letrado de Chocope, so that legitimacy to represent the union and receive the payment of the union dues could be confirmed by the courts.
9. 758. In light of the above, the Government requests the Committee to set aside the present complaint and to declare the case closed.

C. The Committee’s conclusions

1. 759. The Committee observes that in the present case the complainant alleges that a strike (on 23 January 2013) was declared invalid and illegal by the administrative authorities, even though all the legal requirements had been met. It also alleges the anti-union dismissal on 3 May 2013 of six union leaders by the enterprise Casa Grande y Anexos in reprisal for their union activities, and that the enterprise did not transfer the trade union dues for May, June and July 2013.
2. 760. With regard to the dismissal of the six union leaders, according to the allegations, for engaging in union activities, including the strikes called in January and March 2013, the Committee notes that the enterprise denies any anti-union motivation and indicates that it found that documents had been falsified and that there were irregularities in the list of workers who called the strike in 2013 (irregularities that are described in detail in the Government’s reply).
3. 761. In view of the divergence between the versions given by the complainant and the Government concerning the reasons for the dismissals, and taking into account the fact that the six union leaders have taken legal action against their dismissal and that the courts have issued an interim order for their reinstatement, which has been given effect by the enterprise, the Committee requests the Government to keep it informed of the outcome of the legal proceedings.
4. 762. With reference to the allegation that the strike on 23 January 2013 was declared invalid and illegal by the administrative labour authorities, the Committee observes that the Government, although it indicates that no disciplinary measures were taken against the workers who participated in the strike on 23 January 2013, has not denied that it was the administrative authorities which declared the strike invalid and unlawful (even though that decision was based on the documents attached by the complainants).
5. 763. The Committee wishes to recall in this respect, as it has on other occasions when the Peruvian authorities have declared strikes illegal, 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 Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 628]. The Committee once again requests the Government, as it has done on previous occasions, to take measures to amend the legislation to take this principle into account.
6. 764. Finally, the Committee notes the reasons given by the enterprise (and particularly the internal conflict which resulted in the existence of two executive boards) to justify the judicial assignment of the trade union dues for May, June and July 2013, which were to be paid to the union. The Committee recalls that it is not competent to make recommendations on internal dissentions within a trade union organization, so long as the government does not intervene in a manner which might affect the exercise of trade union rights and the normal functioning of an organization [see Digest, op. cit., para. 1114].