Interim Report - Report No 350, June 2008

Case No 2553 (Peru) - Complaint date: 20-MAR-07 - Closed

Allegations: Acts of anti-union discrimination and anti-union practices and hindrances to collective bargaining in the enterprise Mar y Tierra de IMI del Perú SAC

1. 1517. The complaint is contained in a communication from the International Trade Union Confederation (ITUC) dated 20 March 2007.
2. 1518. In the absence of a reply from the Government, the Committee had to postpone its examination of the case on three occasions. At its March 2008 meeting, the Committee issued an urgent appeal to the Government, drawing its attention to the fact that, in accordance with the procedure of rules set out in paragraph 17 of its 127th Report, approved by the Governing Body, it might present a report on the substance of the case at its next meeting if the information or observations requested of the Government had not been received in due time [see 349th Report, para. 10]. In the meantime, a reply has not been received from the Government.
3. 1519. Peru has ratified the Freedom of Association and Protection of 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. 1520. In its communication dated 20 March 2007, the ITUC alleges that, on 18 September 2006, the Single Trade Union of Workers of Mar y Tierra de IMI del Perú SAC in Piura was established at an extraordinary general assembly in the presence of 29 workers of the enterprise IMI del Perú SAC. The union subsequently joined the National Federation of Petroleum, Energy and Allied Workers of Peru (FENUPETROL).
2. 1521. On 3 October 2006, the regional office of the Ministry of Labour registered the union, which brought its establishment to the attention of the enterprise by providing it with a copy of the union’s founding document and by-laws.
3. 1522. The ITUC adds that once the enterprise became aware of the union’s existence, it began an anti-union campaign and immediately dismissed four workers, who were relatives of union officials and members working within the same enterprise group, indicating their names.
4. 1523. On 23 October 2006, the union therefore requested a first meeting with the Talara district labour authority on 26 October 2006, which the enterprise failed to attend.
5. 1524. Furthermore, on 24 October 2006, the union reported five representatives of the enterprise IMI SAC to the Talara Criminal District Attorney for having violated freedom of association by coercing workers into resigning from the union using threats of dismissal. The enterprise successfully pressured Mr Julio Morales Ortega, secretary for defending the union’s rights, into resigning from the union.
6. 1525. On the same day, that is 24 October 2006, the union presented the enterprise with a draft collective agreement, with a list of demands for 2006–07 contained in 34 clauses, which it brought to the attention of the administrative authority (the Talara district labour authority).
7. 1526. In letters certified by a notary and sent to the union and the Talara district labour authority, the enterprise stated that it would not accept the draft collective agreement, with its list of demands for 2006–07, until the union provided it with the minutes of the general assembly at which the members of the committee for defending the list of demands were appointed.
8. 1527. On 26 October 2006, the enterprise’s head of industrial relations filed an administrative appeal challenging the registration of the union; the labour authority declared this appeal to be inadmissible.
9. 1528. Furthermore, on 8 November 2006, the enterprise filed a petition against the decision to reject the appeal.
10. 1529. On 20 November 2006, through Decision No. 01-019-C48-2006, the Talara district labour authority declared that the enterprise’s demand (which made collective bargaining subject to the receipt of the minutes of the assembly at which the members of the committee for defending the list of demands were appointed) had no legal basis, given that it is not a legal requirement. This decision, which notes that the enterprise does not wish to engage in collective bargaining, declares the appeal filed by the enterprise to be unfounded in all aspects and orders the initiation of conciliation procedures by summonsing both parties to a meeting on 27 November 2006.
11. 1530. On 20 December 2006, through Directorate Decision No. 149-2006-DRTPE-PIURA DPSC, the labour appeals authority issued a second and final instance ruling that the appeal filed by the enterprise was unfounded in all aspects.
12. 1531. The ITUC adds that, on 4 January 2007, at the request of the National Director of the Ministry of Labour and the Talara district labour authority, the parties were summonsed to a meeting on Friday, 12 January 2007 at 10 a.m., which the enterprise failed to attend. The enterprise filed an appeal, which the aforementioned Director dismissed on 18 January 2007. The enterprise has now filed a criminal complaint against the Ministry of Labour and is requesting that the courts cancel the union’s registration.
13. 1532. Lastly, on 10 January 2007, the enterprise dismissed Mr Pedro Pablo Ayala, the union’s press and propaganda secretary, while he was taking annual leave. The ITUC points out that the Ministry of Labour authorities have fulfilled their responsibility of trying to promote the trade union rights of workers, whereas the enterprise is violating Conventions Nos 87 and 98.

B. The Committee’s conclusions

1. 1533. The Committee deplores the fact that, despite the time that has elapsed, the Government has not provided in due time the observations that were requested on several occasions, including by means of an urgent appeal made to the Government at the Committee’s March 2008 meeting. Under these circumstances, and in accordance with the applicable rule of procedure [see 127th Report of the Committee, para. 17, approved by the Governing Body at its 184th Session], the Committee is bound to present a report on the substance of this case in the absence of the Government’s observations.
2. 1534. The Committee reminds the Government, first, that the purpose of the whole procedure for the examination of allegations concerning violations of freedom of association is to ensure respect for this freedom both in law and in practice. While this procedure protects governments against unreasonable accusations, governments should in turn recognize the importance of providing, for objective examination, detailed replies on the substance of the allegations made against them [see the Committee’s First Report, para. 31].
3. 1535. The Committee observes that, in this case, the complainant alleges that: (1) after the establishment of a trade union, the enterprise Mar y Tierra de IMI del Perú SAC proceeded to dismiss four workers who were close relatives of union officials and members working within the same group of the IMI enterprise; (2) the enterprise coerced workers, using threats of dismissal, into resigning from the union: this pressure led the secretary responsible for defending the union’s rights, Mr Julio Morales Ortega, to relinquish his trade union duties; (3) the enterprise refused to negotiate the list of demands presented by the union, on the grounds that the union first had to provide the minutes of the general assembly at which the members of the committee for defending the list of demands were appointed (this, despite the fact that the labour authorities had declared this request, which is not provided for by legislation, to be contrary to law); (4) the enterprise challenged the union’s registration and the labour authority declared this challenge to be contrary to law; and (5) Mr Pedro Pablo Ayala, the union’s press and propaganda secretary, was dismissed while he was taking annual leave.
4. 1536. The Committee also notes that, according to the allegations, the enterprise failed to attend the conciliation meeting convened by the labour authority and that the enterprise: (1) appealed this decision; and (2) has requested that the courts cancel the union’s registration and has filed a criminal complaint against the Ministry of Labour.
5. 1537. Under these circumstances, given that, according to the allegations, the administrative decisions in favour of the union have been appealed through the courts by the enterprise, the Committee, before making definitive conclusions concerning this case, requests the Government to send, without delay, a detailed reply to all the allegations as well as copies of the rulings and administrative decisions concerning this case. Furthermore, the Committee requests the Government to obtain the enterprise’s comments relating to this case through the relevant employers’ organization and to send them to the Committee.
6. 1538. Lastly, while waiting for the Government’s observations, the Committee cannot but express its concern over the seriousness of the allegations and generally recall that no person should be dismissed or prejudiced in employment by reason of trade union membership or legitimate trade union activities, and it is important to forbid and penalize in practice all acts of anti-union discrimination in respect of employment [see Digest of decisions and principles of the Freedom of Association Committee, 2006, para. 771], and that it is important that both employers and trade unions bargain in good faith and make every effort to reach an agreement; moreover, genuine and constructive negotiations are a necessary component to establish and maintain a relationship of confidence between the parties [see Digest, op. cit., para. 935]. The Committee requests the Government to continue to promote collective bargaining as set out in Convention No. 98, which Peru has ratified.

The Committee's recommendations

1. 1539. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) Regretting the fact that the Government has not sent its reply to the allegations, the Committee requests it to send, without delay, a detailed reply to all the allegations as well as copies of the rulings and administrative decisions concerning this case.
   • (b) The Committee requests the Government to obtain the enterprise’s comments relating to this case through the relevant employers’ organization and to send them to the Committee.
   • (c) The Committee requests the Government to continue to promote collective bargaining as set out in Convention No. 98, which Peru has ratified.