Report in which the committee requests to be kept informed of development - Report No 356, March 2010

Case No 2667 (Peru) - Complaint date: 18-AUG-08 - Closed

Allegations: The complainant organizations allege: (1) the dismissal of Mr David Elíaz Rázuri, secretary for defence of SUNTRANEP; (2) failure to adhere to the collective agreement in 2007 and three-day suspensions imposed on workers who had protested against non-observance of the collective agreement during their meal breaks; (3) that during the process of drawing up the collective agreement for 2008 the company Nestlé Perú SA displayed anti-union attitudes and used delaying tactics which prompted the workers to resort to strike action on a number of occasions, leading to acts of intimidation and coercion by the employer and replacement of workers during the strike in October 2008

1. 1075. The present complaint is contained in communications from the General Confederation of Workers of Peru (CGTP) and the National United Trade Union of Workers of Nestlé Perú SA (SUNTRANEP) dated 18 August 2008. In communications dated 24 October and 28 November 2008, SUNTRANEP sent new allegations.
2. 1076. The Government sent its observations in communications dated 4 March 2009 and 25 February 2010.
3. 1077. 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. 1078. In a communication of 18 August 2008, the CGTP and SUNTRANEP allege the dismissal of Mr David Elíaz Rázuri, Secretary for Defence of SUNTRANEP and member of the workers’ committee that negotiated the list of demands for 2007, owing to the complaints he made on the union’s behalf concerning non-observance by the company of the collective agreement in force. According to the complainant organization, the company cited as grounds for dismissal the worker’s abandonment of his workplace, stoppage of work and various breaches of discipline, but the real motives for the dismissal were the various complaints made by the official regarding numerous instances of failure to adhere to the terms of the collective agreement, including the following instances: requiring workers to work on Sunday and take another day off during the week; failure to adhere to established work schedules; and failure to recognize different categories of workers, as a result of which various benefits under the collective agreement were not paid. Some of the complaints are being examined by the judicial authority and a decision is still awaited; in other cases the claims have been rejected. The complainant organization indicates that as a result of these instances of non-observance, a number of workers on 22 May 2007 carried out a protest and stopped work during a meal break, to which the company responded by suspending them for three days.
2. 1079. In its communications of 24 October and 28 November 2008, SUNTRANEP sent new allegations indicating that as part of the negotiations on a list of demands for 2007, the company refused to give the union any information on the company’s economic situation and refused to allow any leave or financial assistance for union officials appointed to take part in the talks (benefits which were granted to the other unions affiliated to the Federation of Nestlé Workers, from which SUNTRANEP withdrew as a result of disagreements). The complainant organization adds that in December 2007, the labour authority initiated the process of negotiation and after a number of failed attempts the parties met on 13 February 2008 to negotiate the union’s list of demands but that the company was intransigent and dragged its feet, seeking to impose terms and conditions less favourable than the current ones. For this reason, on 8 April 2007, the complainant organization declared that the direct negotiation stage had failed and asked the labour administrative authority to initiate conciliation proceedings and have an economic statement drawn up by the Ministry of Labour. This request triggered an anti-union attitude on the part of the company, which led to a ruling by the administrative authority in May 2008 calling on the company not to interfere with the process or take action against the workers. Owing to the failure of the conciliation process, the workers in August 2008 decided to resort to strike action, which was not authorized by the administrative authority. The company then applied a range of measures of coercion and intimidation against workers, which in turn gave rise to a further request for authorization of strike action, which was also refused. That decision was appealed and upheld by the higher administrative authority. The complainant organization also initiated legal action against the company seeking the annulment of certain clauses of the internal regulations.
3. 1080. The complainant organization adds that the circumstances referred to and the company’s stance have persisted, and that it has not been possible to negotiate a collective agreement for 2008. For that reason, the workers decided to resort to strike action which was finally authorized by the Ministry of Labour following various approaches by the workers and refusals by the administrative authority. The workers began their strike on 29 October 2008 and it continued for more than 30 days. The complainant organization adds that the company called on the striking workers to abandon the strike and replaced them with other workers (a state of affairs confirmed by the Labour Inspectorate).

B. The Government’s reply

1. 1081. In its communications of 4 March 2009 and 25 February 2010, the Government indicates that under the terms of official communication No. 1104-2008-MTPE/9.1 the alleged facts of the complaint were brought to the attention of the company Nestlé Perú SA which, in reports dated 20 January and 3 March 2009, made the following observations: as regards the dismissal of Mr David Elíaz Rázuri, the worker in question was a former employee of the company who was dismissed for serious misconduct which occurred on 22 and 23 May 2007 and as a result of which the company did not consider it reasonable to continue his employment; and the complaint brought by the former worker before the Sixth Labour Court of Lima (case file 0029902007) questioning the reasons for the dismissal is currently being considered by the court of first instance and no ruling has been given.
2. 1082. As regards the alleged disregard of existing collective agreements by Nestlé, the Government states that the company claims to have respected the collective rights of its staff at all times, as well as the agreements it has concluded with the various unions that co-exist in the company, and explains that SUNTRANEP, a minority union, is the only one to claim that the company has failed to comply with those agreements. As these disputes are being examined in procedures currently in progress in different labour courts in Lima, it is not possible to express a definitive position on these aspects of the complaint.
3. 1083. The Government adds that through official communication No. 1103-2008-MTPE/9.1 it requested information from the Regional Directorate for Labour and Employment Promotion of Lima-Callao on the measures adopted in response to the complaint. That authority, in report No. 22-2009-MTPE/2/12.1 of 13 January 2009, states that the Labour Inspection Directorate reported (in report No. 002-2009-MTPE/2/12.3 dated 7 January 2009) that in accordance with the complaint made by the workers of Nestlé Perú SA, in the context of the right to strike exercised by the union in response to alleged infringements of freedom of association, inspection order No. 18136-2008-MTPE/2/12.3 was issued on 3 November 2008. As a result of the inspections conducted, the labour inspectors found that the company had violated freedom of association by hiring workers to replace those on strike; it also found that work shifts and assignments had been changed and working hours increased in order to replace the workers on strike.
4. 1084. In response to this, contravention notice No. 2752-2008 was issued and a fine of 105,000 nuevos soles (PEN) imposed, and sanctions procedures have been initiated before the Second Subdirectorate for Labour Inspection. The sanctions procedure was initiated on 2 December 2008. A procedure for demanding compliance (file No. 1243-09) was initiated on 22 October 2009, and the company sought the suspension of this procedure since it had appealed the decision imposing the fine to court 19 of the Supreme Court of Justice of Lima. Thus, the procedure for demanding compliance had been suspended through decision No. 02-2009-MTPE/4/10.101 of 9 November 2009. The Government states that in the light of all this, it can be concluded that the labour administrative authority intervened directly in matters relating to the complaint by carrying out inspections and a series of timely out of court meetings, which facilitated the adoption of the record of the out-of-court meeting which brought an end to the 37-day general strike, and the conclusion of the 2008 collective agreement with SUNTRANEP.
5. 1085. The Government adds that through the collective agreement referred to above, agreements were reached in matters such as those relating to the list of demands for one year and increases of between 2 and 4.71 per cent of basic pay for different categories, as well as an undertaking to review wage categories in January 2009, etc. In addition, agreement was reached on reclassification of workers who joined the company in 2001 and 2007 and an increase of 5 per cent in collateral benefits such as school attendance allowances, childbirth allowances, education benefits, death benefits, retirement benefits, long-service bonuses, and mobility grants in connection with the death of a worker or family member.
6. 1086. Lastly, the Government indicates that up to date information is being sought on the status of the sanctions proceedings that have been under way before the Second Subdirectorate for Labour Inspection. Information has also been requested on the status of the proceedings in connection with the alleged failure to comply with the terms of collective agreements which have been examined in the judicial context, and a report to be issued in due course will enable the Government to adopt a definitive position on the matter.

B. The Committee’s conclusions

1. 1087. The Committee observes that, in the present complaint, the CGTP and the SUNTRANEP allege the following: (1) the dismissal of Mr David Elíaz Rázuri, Secretary for Defence of SUNTRANEP; (2) failure to adhere to the collective agreement in force in 2007 and three day suspensions imposed on the workers who had protested against non-observance of the collective agreement during their meal breaks; and (3) that during the process of drawing up the collective agreement for 2008 the company displayed anti-union attitudes and used delaying tactics which prompted the workers to resort to strike action on a number of occasions, leading to acts of intimidation and coercion by the company and replacement of workers during the strike in October 2008.
2. 1088. As regards the allegations relating to the dismissal of Mr David Elíaz Rázuri, Secretary for Defence of SUNTRANEP and member of the workers’ committee that negotiated the list of demands for 2007, the Committee notes that, according to the complainant organizations, the dismissal was due to the complaints he made on the union’s behalf concerning non-observance by the company of the collective agreement in force. In this regard, the Committee notes that, in its reply, the Government refers to the information transmitted by the company according to which Mr Rázuri was dismissed for serious misconduct which occurred on 22 and 23 May 2007 (no further details are supplied on the subject), and that the former employee lodged a complaint with the Sixth Labour Court of Lima, which is currently awaiting a decision. The Committee urges the Government to keep it informed of the final outcome of these legal proceedings.
3. 1089. With respect to the alleged failure to adhere to the collective agreement in force in 2007 and the three-day suspensions imposed on the workers who had protested against the non-observance of the collective agreement during their meal breaks, the Committee notes that, according to the Government, the company claims to have respected the collective rights of its staff at all times, as well as the agreements it has concluded with the various unions that coexist in the company, and indicates that the dispute with SUNTRANEP, a minority union, which is the only one to claim that the company has failed to comply with the collective agreement, is being examined in procedures currently before various courts and awaiting decision. The Committee urges the Government to keep it informed of developments in the legal proceedings referred to and to send copies of any decisions that are handed down.
4. 1090. As regards the allegations according to which, during the process of drawing up the collective agreement for 2008, the company displayed anti-union attitudes and used delaying tactics, which prompted the workers to resort to strike action on a number of occasions, leading to acts of intimidation and coercion by the company and the replacement of workers during the strike of October 2008, the Committee notes that according to the Government: (1) the Regional Directorate for Labour and Employment Promotion reported on 7 January 2009 that, in response to the complaint made by workers concerning alleged violation of freedom of association in the context of the right to strike exercised by the union in question, inspections were conducted and found that the company had hired workers to replace those on strike, and had altered work shifts and assignments and increased working hours in order to replace the striking workers; a contravention notice was duly issued and a fine of PEN105,000 imposed, and sanctions proceedings have been initiated before the Second Subdirectorate for Labour Inspection which are still in progress; (2) the procedure for demanding compliance had been suspended following the company’s appeal of the decision imposing the fine; and (3) when the administrative authority intervened, the parties concluded an out of court agreement which ended the 37day general strike at the end of 2008 and resulted in the adoption of the collective agreement for 2008 for a period of one year; the collective agreement provided for wage increases, an undertaking to review wage categories at the beginning of 2009, reclassification of certain workers and an increase of 5 per cent in various benefits. In this regard, the Committee requests the Government to keep it informed of the company’s appeal of the decision imposing the fine, as well as of the sanctions proceedings initiated against the company following the replacement of workers on strike, which are currently under way before the Second Subdirectorate for Labour Inspection.

The Committee's recommendations

1. 1091. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) As regards the allegations concerning the dismissal of Mr David Elíaz Rázuri, Secretary for Defence of the National United Trade Union of Workers of Nestlé Peru SA (SUNTRANEP) and member of the workers’ committee which negotiated the 2007 list of demands, the Committee requests the Government to keep it informed of the final outcome of the legal proceedings before the Sixth Labour Court of Lima initiated by the union official in question.
   • (b) As regards the allegations concerning failure to adhere to the terms of the 2007 collective agreement and alleged anti-union attitudes displayed by the company, the Committee urges the Government to keep it informed of developments in those proceedings and to send a copy of any rulings that have already been handed down.
   • (c) As regards the allegations of anti-union attitudes and delaying tactics on the part of the company during negotiations on the collective agreement and intimidation and replacement of striking workers during the strike that occurred in October 2008, the Committee requests the Government to keep it informed of the company’s appeal of the decision imposing the fine, as well as of the sanctions proceedings initiated against the company for failure to comply with the collective agreement and the replacement of striking workers, currently under way before the Second Subdirectorate for Labour Inspection.