Report in which the committee requests to be kept informed of development - Report No 353, March 2009

Case No 2627 (Peru) - Complaint date: 14-JAN-08 - Closed

Allegations: Anti-union transfers and dismissals, attempts by the public utility SEDAPAL to obstruct collective bargaining, and practices intended to disadvantage one of the trade unions

1. 1244. The complaint is contained in a communication of the General Confederation of Workers of Peru (CGTP) dated 14 January 2008. The CGTP sent additional information in a communication dated 7 February 2008. The Government sent its observations in communications dated 28 and 30 May 2008.
2. 1245. 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. 1246. In its communications of 14 January and 7 February 2008, the CGTP alleges various anti-union practices carried on by the Lima Drinking Water and Sewerage Service (SEDAPAL) that were prejudicial to the Union of Officials, Professional Employees and Technicians (SIFUSE). The CGTP explains that, in September 2006, the company dismissed Mr Luis Humberto Tori Gentille, the General Secretary of SIFUSE, who was removed from company premises by security personnel in a humiliating manner, despite the fact he was not violent and offered no resistance. An appeal against the dismissal was lodged with the court and is being examined. On the day before the dismissal, SIFUSE had written to the company’s general manager drawing his attention to certain arbitrary decisions by the human resources director.
2. 1247. The CGTP adds that the company refused to negotiate the list of claims presented by SIFUSE and that it did not even attend the conciliation hearings held by the administrative authority in November and December 2006. In February 2007, SIFUSE decided to resolve the dispute through arbitration. The company, disregarding a previous ruling by the Ministry of Labour and Employment Promotion on the mandate of SIFUSE, informed the union in writing that 66 of its members should belong to the other union, the Single Union of Drinking Water and Sewerage Service Workers (SUTESAL) operating at the company, rather than SIFUSE. The company also opposed the arbitration requested by SIFUSE on the grounds that a collective agreement had been concluded with the other union.
3. 1248. The company transferred Mr José Toche Lora, cultural and sports activities secretary of SIFUSE, to another work area and dismissed him two months later. It also assigned new tasks to the legal affairs officer of SIFUSE, Mr Juan Herrera Liendo, who carried out specialized tasks in a collection group at the services centre of Villa El Salvador. Lastly, the company dismissed Mr Alvaro Jesús Torres Enríquez, a SIFUSE member. On 15 October 2007 the company suspended email communications between the SIFUSE leaders and members. In January 2008, the question of the dismissals of the trade union officials and other members had still not been resolved, nor had the list of claims for
4. 2006–07.
5. 1249. Lastly, the CGTP alleges that the company privileged the other union (SUTESAL) which coexists at the company by refusing trade union leave to SIFUSE leaders, carrying out various promotions for SUTESAL members, and making the renewal of employment contracts conditional on leaving SIFUSE. As regards collective bargaining, the company continues to create delays and lodge appeals.

B. The Government’s reply

1. 1250. In its communications of 28 and 30 May 2008, the Government explains that the Labour Inspectorate noted that in July 2007, the utility company SEDAPAL employed 1,668 workers and had two registered trade unions. One is SUTESAL, with 1,486 members, and the other is SIFUSE, with 280 members. On the date of the inspections, SUTESAL had a collective agreement which the company has fully implemented (according to the General Secretary of the union).
2. 1251. As regards the dismissals of union leaders Messrs José Toche Lora and Alvaro Jesús Torres Enríquez, the Government states that the labour authority, through an injunction dated 6 July 2007, instructed SEDAPAL to comply with the provisions of ILO Convention No. 98, as it had violated trade union immunity and freedom of association by dismissing the workers on the alleged grounds that it was revoking trust, although they had not in fact been employed in positions of trust and the real reasons for their dismissal were their trade union membership. The company’s failure to comply with the injunction constituted a serious contravention which resulted in the issue of an infraction notice No. 2310-2007 and a proposed fine of 61,479 new soles (equivalent to US$21,575.58).
3. 1252. As regards the lists of claims for 2006 and 2007, the first was opposed by SEDAPAL and declared invalid by Order No. 105-2006-MTPE/2/12.2. The situation at the moment is that SEDAPAL has not signed the arbitration agreement needed to allow SIFUSE to resolve the dispute through arbitration. As regards the 2007 list of claims, the document in question has been opposed by SEDAPAL and the case is still pending.
4. 1253. The Government adds that the Ministry of Labour requested the Labour Inspectorate to take action in response to two communications from Congress (requests that led to the order for inspections in the areas of freedom of association and discrimination at work on grounds of union membership or for other reasons).
5. 1254. In the course of the inspections it was found that in almost all cases the dismissals of SIFUSE members had given rise to court cases (of the 15 workers who were dismissed, 12 had initiated legal action).
6. 1255. Finally, the labour authority cannot intervene in this matter because under the terms of the country’s political Constitution, the administrative authority cannot rule on matters that are still before a court.
7. 1256. As regards the list of claims for 2006 presented by SIFUSE, the Government reiterates that SEDAPAL opposed collective bargaining with SIFUSE on the grounds that it had been negotiating the list of claims for 2006 with SUTESAL, which represented an absolute majority of SEDAPAL workers and therefore had the right to represent the entire workforce. On 1 June 2006, the Subdirectorate for Collective Negotiations issued Order No. 016-2006-MTPE/2/12.210 upholding the company’s opposition to collective bargaining. That ruling was set aside by Order No. 105-2006-MTPE/2/12.2 issued on 21 August 2006 by the Directorate for the Prevention and Resolution of Conflicts, mainly on the grounds that SUTESAL did not at that time have a registered and functioning executive body, which meant that SEDAPAL could not claim that SUTESAL represented a majority of workers as a reason for opposing collective bargaining with SIFUSE. Consequently, on 20 November 2006 the parties were instructed to begin collective bargaining. To that end conciliation meetings were planned for 9 and 21 November and 4 and 29 December 2006 (not attended by the employer) and 15 and 19 January 2007 (attended by both parties).
8. 1257. The Office of Labour Economics and Productivity drew up the corresponding labour ruling which was delivered on 29 December 2006 to SIFUSE and on 15 January 2007 to SEDAPAL.
9. 1258. In communication No. 43824-2007, SIFUSE announced its decision to resolve the dispute with the employer through arbitration. It nominated a co-arbitrator and requested that SEDAPAL also nominate one, and that the administrative authority appoint the chairperson of the arbitration tribunal.
10. 1259. The Subdirectorate for Collective Negotiations instructed SIFUSE to submit the arbitration agreement concluded with SEDAPAL, as section 49 of Supreme Decree No. 011-92-TR (implementing regulations of the Collective Labour Relations Act) stipulates that a decision to refer a dispute to arbitration must involve both parties. SIFUSE, however, did not submit the arbitration agreement because SEDAPAL had not signed it.
11. 1260. As regards the list of claims for 2006, the Government states that on 12 December 2006 the court ruled that an application to declare null and void SEDAPAL’s administrative decision (Order No. 105-2006-MTPE/2/12.2, declaring the company’s refusal to negotiate the claims to be without foundation) was admissible. With regard to the list of claims for 2007 presented by SIFUSE (subdirectorate Order No. 052-2007-MTPE/2/12.210 of 14 December 2007), the objection formulated by SEDAPAL was declared to be justified, and that decision was subsequently confirmed by Order No. 097-2007-MTPE/2/12.1 of 5 December 2007.
12. 1261. With regard to trade union leave of absence, the Government states that the company on the occasion of the last labour inspection visit confirmed the leave granted to SIFUSE leaders. As regards the facilities made available to the trade union, the request for an email account for SIFUSE is being processed.
13. 1262. The inspectors, despite having coordinated with the SIFUSE economic secretary to obtain any information with a bearing on the investigation, were unable to make contact with him or with any other representatives of the trade union in question.
14. 1263. Consequently, according to the Government the labour administration authority (National Labour Inspection Directorate and Lima – Callao Regional Directorate for Labour and Employment Promotion) had complied with labour legislation; it has declined to examine certain situations currently being examined by the courts, because according to the approved text of the Organic Act on the Judiciary the administrative authority must refrain from pronouncing on cases that are sub judice in the courts because of the possible liability of officials in the event of contraventions. This is consistent with section 139(2) of the Basic Law, which is based on respect for the independence of the judiciary, a fundamental pillar of the rule of law in Peru.
15. 1264. The Government has asked the judicial authority for information on the current status of judicial proceedings in connection with the complaint (this will in due course be communicated to the ILO) in order to ensure that the State, in judicial proceedings, has complied with the relevant national and international labour standards and avoided any action that would violate or hinder the exercise of the rights set out in collective labour legislation or relevant ILO Conventions.

C. The Committee’s conclusions

1. 1265. The Committee notes that in this case, the complainant organization alleges: (1) the arbitrary dismissal in September 2006 of Mr Luis Humberto Tori Gentille, General Secretary of SIFUSE, following the sending of a letter from the union to the company complaining of arbitrary decisions (the dismissal in question is being reviewed by the judicial authority); the dismissal of Mr José Toche Lora, sports activities secretary; the dismissal of Mr Alvaro Jesús Torres Enríquez and other members of SIFUSE; and the change in the job description of Mr Juan Herrera Liendo, legal affairs officer of SIFUSE; and (2) delays, appeals and other anti-union practices by the company SEDAPAL in the collective talks of 2006 and 2007 with SIFUSE; and various advantages granted to the other union (SUTESAL).
2. 1266. With regard to the dismissal of trade union officers and members of SIFUSE, the Committee notes that the Government does not deny the dismissal of the SIFUSE General Secretary in September 2006, or that according to the complainant organizations no decision has yet been taken on that official’s application to the court. The Committee notes that according to the administrative authority, the company refused to comply with its instruction to reinstate the union leaders Messrs José Toche Lora and Alvaro Jesús Torres Enríquez (dismissed, according to the administrative authority, because of their trade union membership and not, as the company maintained, because of any withdrawal of trust, because in reality they had not technically been employed in positions of trust); for this, the company was fined 61,479 new soles (US$21,575).
3. 1267. The Committee also notes that according to the Government, a total of 15 SIFUSE members have been dismissed and 12 of them have initiated legal action. The Committee emphasizes that no one should be dismissed or suffer prejudice by reason of trade union membership or activities, and hopes that the court will give a ruling soon on the applications presented by the dismissed trade unionists in question. The Committee regrets the delay in these proceedings and requests the Government to keep it informed in this regard and, if the anti-union nature of the dismissals is confirmed, to take appropriate steps with a view to reinstating the trade unionists. The Committee requests the Government to respond to the allegation regarding the change in the duties of Mr Juan Herrera Liendo within the company.
4. 1268. As regards the allegations regarding the measures to which the company resorted in order to avoid negotiating a list of claims submitted by SIFUSE in 2006, the Committee notes the Government’s statements to the effect that: (1) on 20 January 2006, SIFUSE submitted its list of claims for the period 1 January 2006 to 31 December 2006 and an instruction was given to start collective bargaining on 23 January 2006; (2) SEDAPAL objected to this on the grounds that it had been negotiating the list of claims for 2006 with SUTESAL, which was the appropriate representative organization for all the company’s workers; (3) on 1 June 2006, the Subdirectorate for Collective Negotiations upheld the company’s objection; that ruling was quashed by an order issued on 21 August 2006 by the Directorate for the Prevention and Resolution of Conflicts, mainly on the grounds that SUTESAL did not at that time have a registered executive body, which meant that SEDAPAL could not claim that SUTESAL was the majority union in order to avoid engaging in collective bargaining with SIFUSE; (4) consequently, on 20 November 2006, the parties were instructed to begin collective bargaining and conciliation meetings were planned for 9 and 21 November and 4 and 29 December 2006, but these were not attended by the employer, and both parties met only on 15 and 19 January 2007; (5) in written communication No. 43824-2007, SIFUSE announced its decision to seek a settlement through arbitration, nominated a co-arbitrator, and requested that SEDAPAL be instructed to nominate a co-arbitrator and that the administrative authority be required to appoint a chairperson for the arbitration tribunal; and (6) to that end, the Subdirectorate for Collective Negotiations instructed SIFUSE to submit the arbitration agreement concluded with SEDAPAL since, according to section 49 of Supreme Decree No. 01192TR (implementing regulations for the Collective Labour Relations Act), the decision to refer a dispute to arbitration must involve both parties. The Government, however, has indicated that SIFUSE did not submit the agreement in question because SEDAPAL had not signed it. The Committee recalls its principles concerning arbitration, in particular the principle that the imposition of compulsory arbitration at the request of only one of the parties is contrary to Convention No. 98.
5. 1269. The Committee takes note of the Government’s statement to the effect that on 12 December 2007, it was decided that the company’s appeal (against the decision of the Ministry of Labour rejecting the company’s decision to oppose negotiation of the list of claims for 2006) was admissible; the matter is still pending. The Committee regrets the delay in the proceedings and requests the Government to inform it of any ruling handed down.
6. 1270. As regards the list of claims for 2007, the Committee takes note of the Government’s statements to the effect that on 14 September 2007 the Ministry of Labour upheld the company’s objection to collective bargaining. The Committee takes note of the Government’s explanations, according to which SUTESAL, with 1,668 members (SIFUSE has, according to the Government, only 280 members) has concluded a collective agreement. The Government notes in this regard that according to legislation in force, if a trade union in a given area does not represent an absolute majority of the workers of that area, its representative authority is limited to its own members (section 34 of Regulation Supreme Decree DS 011-92-TR); on the other hand, a collective agreement concluded by a majority union is applicable to all workers at a given enterprise.
7. 1271. As regards the advantages from which SUTESAL (the majority union) is alleged to have benefited, the Committee notes that, according to the complainant organization, those advantages lie in refusals of trade union leave for SIFUSE leaders, various forms of promotion for SUTESAL members, the withdrawal of electronic mail facilities used by the union to communicate with its members, and making renewal of temporary contracts conditional on resignation from SIFUSE.
8. 1272. The Committee notes the Government’s statements to the effect that the company on the occasion of the last inspection confirmed the trade union leave granted to SIFUSE members, and is processing a request by SIFUSE for an email account. The Committee requests the Government to carry out an inquiry into the various promotions which the company is alleged to have granted to two SUTESAL members in a manner that discriminates against SIFUSE members, and into the allegation that renewal of temporary contracts has been made conditional on resignation from SIFUSE. The Committee requests the Government to keep it informed of the outcome.

The Committee's recommendations

1. 1273. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) Regretting the large number of dismissals of SIFUSE members, the Committee emphasizes that no one should be dismissed or suffer prejudice by reason of trade union membership or activities, and hopes that the court will give a ruling soon on the applications presented by the trade unionists in question. The Committee regrets the delay in these proceedings and requests the Government to keep it informed in this regard and, if the anti-union nature of the dismissals is confirmed, to take appropriate steps with a view to reinstating the trade unionists in question. The Committee requests the Government to respond to the allegation regarding the change in the duties of Mr Juan Herrera Liendo within the company.
   • (b) The Committee requests the Government to communicate any ruling handed down by the court following the application made by the company regarding the administrative decisions concerning negotiation of the list of claims for 2006 presented by SIFUSE.
   • (c) The Committee requests the Government to carry out an inquiry into the various types of promotion which the company is alleged to have given to SUTESAL members in a way that discriminates against SIFUSE members, and into the allegation that renewal of temporary contracts has been made conditional on resignation from SIFUSE. The Committee requests the Government to keep it informed of the outcome.