Report in which the committee requests to be kept informed of development - Report No 364, June 2012

Case No 2833 (Peru) - Complaint date: 10-DEC-10 - Closed

Allegations: Violations of the right to collective bargaining and acts of anti-union discrimination by Proyecto Especial CORAH

1. 789. The complaint is contained in a communication from the Autonomous Confederation of Workers of Peru (CATP) dated 10 December 2010.
2. 790. The Government sent its observations in communications dated 8 May and 24 October 2011, and February 2012.
3. 791. Peru has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and the Labour Relations (Public Service) Convention, 1978 (No. 151).

A. The complainant’s allegations

1. 792. In its communication of 10 December 2010, the CATP explained that it has an affiliate union, the Single Union of Workers at CORAH (SUTCORAH), which operates within the Proyecto Especial CORAH (the Special Project for Control and Reduction of Coca Farming in the Alto Huallaga), a subdivision of the Ministry of the Interior that exists solely to eradicate illegal farming of coca leaves in Peru. Its workers have contracts under local private labour law. The CATP adds that a very large number of these workers are employed in the Narcotics Affairs Section (NAS) under the auspices of the United States Embassy.
2. 793. The CATP alleges that, in September 2009, SUTCORAH submitted its list of demands to launch a collective bargaining process with the employer’s representatives and a process of conciliation through the Ministry of Labour for the Ucayali region. The employer maintained that it was not in a financial position to meet the main demands of the workers, and that it therefore could not sign the collective agreement. At present, after more than a year of attempts at dialogue and conciliation through the Ministry of Labour, the employer (Proyecto Especial CORAH) still maintains that it lacks the financial resources to fulfil what is asked in the list of demands, arguing that the institution’s international budget does not account for these demands. However, despite the foregoing, in June 2010, the whole workforce was awarded a minimal wage increase, which makes a mockery of collective bargaining and of the application for arbitration submitted by the union.
3. 794. Furthermore, the CATP alleges that the employer continues to demand that non-unionized workers sign a “compulsory” register to state that the union does not represent them. The union has reported this to the Ministry of Labour. These claims were corroborated by statements concerning employer interference in connection with the signing of the register made by workers during a labour inspection. Specifically, the inspector took sworn statements from two workers who had recently joined and who claimed they had been made to sign the aforesaid register. The CATP also alleges that, on the first day on which the register was being signed, the meeting of workers called by the union (17 March 2010 at 6 p.m.–7 p.m.) was sabotaged; although the meeting had written authorization to proceed, all the relevant managers urged their workers not to attend as it was “during working hours and [they could] not have the necessary permission”.
4. 795. Likewise, in March 2009, the general secretary of the union, Mr Iván Carlos Bazán Villanueva, was arbitrarily dismissed following an accusation of serious misconduct against a female co-worker. This case has been before the court for over a year, during which there has been no significant change in his situation and he has not been reinstated in his previous position, even though at no stage has there been any impartial administrative investigation. The place where the events are alleged to have occurred (the NAS facilities at Pucallpa Airport) is monitored by a large number of security cameras, but no recordings of the events have ever been supplied to shed light on the allegations under investigation.
5. 796. Likewise, the union’s sports secretary, Mr Jesús Aníbal Mancilla Gamero, was also dismissed arbitrarily following an accusation of gross misconduct supposedly against the employer. This accusation is false.
6. 797. The CATP also alleges that six employees who were members of SUTCORAH, Messrs Martín Saavedra Cartagena, Linder Ibarra Zavaleta, Aquiles del Águila Ruiz, César Wilfredo Vergara Castillo, Daniel Fasabi Manihuari and José Ríos Rodríguez, were forced to resign their membership. It is claimed that, under threat, coercion and pressure of a rescission of their employment contracts, they were made to register their resignation from the union on the same day, and using the format and type of paper (the size of card used by the NAS), under direct interference from the employer.
7. 798. Furthermore, the employer, Proyecto Especial CORAH, appealed to the Ucayali region Ministry of Labour, requesting the annulment of the order under which the union had been registered. In April 2009, the employer transferred the union’s defence secretary, Mr Leoncio Morales, to another post, as a reprisal for his request for labour inspections; this irregular transfer was carried out the same day; the transfer had never been mentioned in the organization’s plan.
8. 799. The CATP also alleges that Mr Manuel Fonseca Núñez, a union member, was dismissed arbitrarily following an accusation of gross misconduct against Proyecto Especial CORAH.
9. 800. The complainant organization also alleges that SUTCORAH was repeatedly treated by the employer as a “minority union”, even though no other union existed within Proyecto Especial CORAH. It further alleges persistent refusal by the managing director to allow entry to the union’s legal adviser and the CATP’s own adviser during the process of direct collective bargaining.
10. 801. Lastly, the complainant organization notes a failure to meet legal standards concerning workers’ benefits and concerning some general assertions that lack adequate data or names.

B. The Government’s reply

1. 802. In its communication of 8 May 2011, the Government affirms its total respect for the Constitution and other standards concerning the collective rights of workers. It states that the State respects the right to form trade unions, to conduct collective bargaining and to strike, and that it has a vital role to play in ensuring the democratic exercise of those rights; it guarantees freedom of association, encourages collective bargaining, promotes peaceful solutions to labour disputes and regulates the right to strike so that it is exercised in harmony with the interests of society. Both the State and the employers, as well as either of their representatives, are forbidden from acts of any kind that might curtail, restrict or undermine in any way the right of workers to form trade unions, and are forbidden from interfering in any way in the creation, administration or upkeep of trade union organizations formed by those workers. While there is full freedom of association, when a group of workers makes that free and voluntary decision to form a trade union, there is a comprehensive regulatory framework that exists to safeguard and protect them. However, the specific standards governing the formation of trade unions contained in article 28 of the Political Constitution of Peru provide that such a trade union may exist for the purposes of studying, developing, protecting and defending the relevant rights and interests [of workers] (legal defence), as well as furthering the social, economic and moral improvement of its members. By virtue of SUTCORAH’s application for union status, all the above applies to it. However, unions must equally respect the standards and rights that apply to other organizations and bodies, since they may not, in exercising their own rights, jeopardize the rights of others, including those conferred on their employer by the national Constitution and the applicable laws. Similarly, a union must recognize the jurisdiction and competence of the judiciary, while both employer and union must respect the courts and not expect to be able to speed up or even override their decisions through collective pressure.
2. 803. In general terms, the Government states that the complaint that has been made lacks any real or legal basis, as it bears no relation to the truth and hence lacks any documentary evidence to support the claim that the Ministry of the Interior has violated or is violating labour or trade union rights in any way. The Government flatly denies all the allegations in the complaint brought by SUTCORAH.
3. 804. Concerning the allegation of violation of collective bargaining, the Government expresses its full respect for the standards governing this process, and stresses that it could never attempt to “skip” any of the steps and stages contained in the process. In this respect, SUTCORAH cannot claim that the Government breached labour standards in regard to collective bargaining simply because the negotiations and talks did not result in their objectives’ being met.
4. 805. With regard to the allegation concerning the register of non-unionized workers, the Government states that it is by no means clear that the employer has been “requiring” non unionized workers to sign registers stating that the union does not represent them. Any document signed by workers – unionized or not – is signed of their own free will on the basis that they are adults.
5. 806. With regard to the allegations of anti-union discrimination, the Government states that, on 6 February 2009, Mr Iván Bazán did commit gross misconduct in the form of improper physical contact against his female co-worker Ms Marina Liz Montesinos Chávez. The executive management ordered the launch of an investigation process into the complaint submitted by Ms Montesinos Chávez and the two were sent memoranda dated 18 February 2009 summoning them to attend CORAH premises to make their respective statements to the preliminary investigation ordered by the executive management. Mr Iván Bazán did not appear or make any statement on this or any later occasion, but merely sent an affidavit in which he appealed to a piece of legislation that was no longer in force. Before this, he was sent, in accordance with the law, a charge letter informing him of the launch of the labour disciplinary process, giving him six calendar days to exercise his right of defence and excusing him from attending his usual workplace. The whole procedure was carried out in accordance with current relevant labour law. Mr Iván Bazán contested the charge letter through an affidavit of 23 February 2009, which simply referred to Supreme Decree No. 032-91-TR, a law that had been (and still is) repealed, and in which he once again failed to respond to the charges levelled against him by Ms Montesinos Chávez. This is why, in an affidavit dated 2 March 2009, the worker Mr Iván Carlos Bazán Villanueva was permanently dismissed from his post at CORAH, since he had not submitted a defence of any kind against the accusation made against him of gross misconduct against his co worker Ms Marina Liz Montesinos Chávez under subparagraph (f) of section 25 of the Consolidated Amended Text of the Act on Labour Productivity and Competitiveness, Supreme Decree No. 003-97-TR. The settlement of his social benefits was drawn up, but the now former employee refused to accept them, so they were paid by means of a court deposit in his name at the Banco de la Nación. The former employee instigated court proceedings in the Labour Court of Coronel Portillo, which is currently in process.
6. 807. With regard to Mr Jesús Aníbal Mancilla Gamero, this worker was dismissed from CORAH for gross misconduct under subparagraph (d) of section 25 of Supreme Decree No. 003-97-TR, the Consolidated Amended Text of the Act on Labour Productivity and Competitiveness, for providing “false information to the detriment of the employer”. In a sworn statement given by the former employee Mr Jesús Aníbal Mancilla Gamero, his signature witnessed by a public notary, he claimed to defend Mr Iván Carlos Bazán Villanueva from the allegations of improper conduct, stating that he had been in the city of Pucallpa and had been a present witness that on 6 February 2009, Mr Iván Carlos Bazán Villanueva had been at the NAS facilities at Pucallpa Airport and had not attempted to make improper physical contact with Ms Marina Liz Montesinos Chávez. However, in reality, Mr Mancilla Gamero had spent that day at the police station in Santa Lucía (Tocache province, San Martín department), on work business. In the affidavit giving notice of his dismissal, dated 13 March 2009, he was given the official period (six calendar days) to make his defence. In his defence letter, dated 17 March 2009, Mr Mancilla Gamero acknowledged having made a sworn statement to be used as evidence of the supposed impropriety of the dismissal of Mr Iván Carlos Bazán Villanueva; however, he made no defence against the accusation that he could not have been a witness on the aforesaid date on account of having been elsewhere. As he failed to answer the charge against him, he was indeed dismissed for the serious misconduct of having provided false information as provided for in subparagraph (c) of section 25 of the Consolidated Amended Text of the Act on Labour Productivity and Competitiveness, Supreme Decree No. 003-97-TR. Mr Mancilla Gamero received the sum of 2,772.23 nuevos soles (PEN) as settlement of his social benefits and has not, to date, instigated any legal proceedings against CORAH.
7. 808. As regards the allegations of forced resignation of union membership by workers, the Government states that at no time did CORAH ever threaten, coerce or pressure the employees Messrs Martín Saavedra Cartagena, Linder Ibarra Zavaleta, Aquiles del Águila Ruiz, César Wilfredo Vergara Castillo, Daniel Fasabi Manihuari and José Ríos Rodríguez into not taking up or resigning membership of SUTCORAH, since this is a free, personal decision which each individual worker must make for her/himself, and it never threatened to dissolve their employment contracts.
8. 809. With regard to the appeal to the Ministry of Labour submitted by the employer (Proyecto Especial CORAH) against the decision to register the union, the Government states that, under the broad and unreserved rights afforded it in the Constitution and in administrative law, CORAH is entitled to present arguments relating to the administrative procedural system with regard to any situation that it considers irregular in regard to the law, and to submit to the labour authorities an appeal seeking to ensure compliance with due process and enjoy the protection of the appropriate court.
9. 810. As regards the allegation concerning the transfer of one worker, the Government states that the employee Mr Leoncio Morales Castro (personnel assistant) was relocated to the infrastructure management department as a maintenance assistant on 13 April 2009 as his services were required there. He retained his previous occupational category and wage in accordance with the law. At no point did CORAH act in reprisal for his involvement in the management of SUTCORAH; merely, it is sometimes appropriate for the institution to transfer or rotate its employees in accordance with labour requirements.
10. 811. With regard to the allegations concerning Mr Manuel Fonseca Núñez, the Government states that, in the exercise of his duties as an administrative assistant in the logistics subsection, among others, one of his tasks was to purchase air travel tickets for institution staff needing to travel to other cities in the country, for which purpose he would be entrusted with the cost of the tickets. In a letter dated 13 May 2009, the firm Amazon World – Pucallpa asked CORAH to settle an amount outstanding for the purchase of plane tickets for its staff. Prior to this, an internal audit was carried out, which found that Mr Manuel Fonseca had been unlawfully keeping sums entrusted to him for the purchase of plane tickets on several occasions. On this basis, he was sent a charge letter on 27 May 2009 citing subparagraph (c) of section 25 of Supreme Decree No. 003-97-TR. Mr Manuel Fonseca failed to file any defence within the legal time limit; thus, under section 42 of Supreme Decree No. 001-96-TR, he was sent notice of dismissal on just cause and issued with a settlement of his social benefits in accordance with the law. As the now former employee refused to accept this settlement, it was paid by means of a court deposit in his name at the Banco de la Nación. Mr Fonseca’s claim under labour law was declared inadmissible in two incidents by the court.
11. 812. The Government states that it rejects all claims of hostility towards and/or discrimination against any worker; the workers mentioned in the complaint, just like any other workers under the managerial authority granted to the employer by the law, may be required to perform labour duties according to the administrative needs of the organization, account taken of that worker’s category and wage under the relevant legal framework.
12. 813. With regard to the allegation that the SUTCORAH was repeatedly treated as a minority union, despite the absence of any other union, the Government states that it complies with the national Constitution and the standards relating to workers’ collective rights and that, for its own part, it rejects any allegation of improper treatment of SUTCORAH. The Government adds that the union in question may in fact meet the criteria for a “minority” union, given its small membership (34) out of a current workforce of 661.
13. 814. With regard to the allegation of persistent denial of access to the CORAH premises for the legal adviser and the adviser from the union confederation during the collective bargaining process, the Government states that it never denied access to SUTCORAH’s legal adviser and that he was in fact granted entry to CORAH headquarters every time he asked. The Government respects section 50 of the Consolidated Amended Text of the Act on Collective Labour Relations approved by Supreme Decree No. 010-2003-TR.
14. 815. With regard to the allegations of pressure put on the workers Messrs Martín Saavedra Cartagena, Linder Ibarra Zavaleta, Aquiles del Águila Ruiz, César Wilfredo Vergara Castillo, Daniel Fasabi Manihuari and José Ríos Rodríguez to resign their membership of the union, the Government states that the Administrative Labour Authority ordered inspection No. 001562 (file No. 238-2009-DRTPE-SD-ISST-UC) to be conducted at the Ministry of the Interior (Proyecto Especial CORAH) and, inter alia, ordered that the resignation of union membership by the aforesaid workers be investigated. The inspection report notes that, at the hearing held on 23 March 2009, the competent assistant labour inspector recorded that Messrs César Wilfredo Vergara Castillo, Aquiles del Águila Ruiz and José Ríos Rodríguez had stated that their decisions to leave the union had been voluntary, and that they had not been threatened or coerced in any way to make their decision.
15. 816. The Government adds that it has asked the Director-General of the labour inspectorate to provide it with information on the outcomes of other inspections. As soon as it receives this information, it will send it to the Committee on Freedom of Association.
16. 817. Lastly, in its communication of February 2012, the Government resends and summarizes its previous replies concerning this case.

C. The Committee’s conclusions

Allegations concerning violations of the right to collective bargaining and concerning the consideration of SUTCORAH as a minority union

1. 818. The Committee takes note of the allegations of the complainant organization, according to which: (1) Proyecto Especial CORAH persistently treats SUTCORAH as a “minority union” even though no other union exists at the organization; (2) the union’s legal adviser and the adviser from the CATP (of which the union is a member) were denied access to the direct talks stage of collective bargaining; and (3) during the collective bargaining process launched in September 2009, SUTCORAH submitted its list of demands and, during the talks that followed, Proyecto Especial CORAH stated that it could not sign the collective agreement as it did not have the necessary funds in June 2010; however, Proyecto Especial CORAH did grant a minimal wage rise to its whole workforce.
2. 819. The Committee notes the Government’s statements that: (1) it never denied access to the union’s legal adviser, but rather granted him entry to CORAH headquarters every time he asked and that, under the law, parties to collective bargaining may be advised by lawyers or professional colleagues and by directors of higher level organizations to which the union is affiliated, although the law also requires such advisers to restrict their intervention to within their own professional competencies and in no way to act as substitutes for the parties to bargaining or to take decisions; (2) it strenuously denies all accusations of improper treatment of SUTCORAH by CORAH, and, in particular, notes that the union has only 34 members out of a total of 661 workers; and (3) it has complied with all standards governing collective bargaining but in this particular case the talks to date have only shown that the union’s objectives have not been met and the union cannot try to “skip” the various steps and stages of the collective bargaining process. The Committee also notes that, according to the allegations (which the Government has not denied), CORAH did not accept the union’s request to take the issue of wages to arbitration, preferring instead to grant a minimal wage rise to the whole workforce.
3. 820. On this last point, the Committee stresses that CORAH’s “minimal” offer of a rise, as referred to by the complainant organization, was below the level demanded by the union (which had demanded a rise of 30 per cent, according to the documentation that it submitted). The Committee concludes that, considering the evidence, SUTCORAH’s limited representativeness, as highlighted by the Government, cannot but have affected its practical chances of success in the direct bargaining process and, later, in its demand for binding arbitration. Consequently, the Committee does not intend to continue further in examining these allegations as they relate to wage bargaining.
4. 821. With regard to the allegation that CORAH denied access to the legal adviser and the adviser from the complainant organization (CATP) “during the negotiations” between the union and CORAH, the Committee takes due note that the Government claims that it has never hindered the union’s legal adviser from entering CORAH, cites the legal provisions permitting intervention by advisers for the parties to collective bargaining and emphasizes that such advisers must restrict their intervention to within their own professional competencies and in no way act as substitutes for the parties to bargaining or make decisions. However, the Committee points out that the Government has not explicitly denied having prevented the participation of two union advisers in collective bargaining (it has only referred to the access of one adviser). The Committee therefore requests the Government to ensure that SUTCORAH is able to make use of support from its two advisers in practice in collective bargaining, if it so wishes.

Allegations concerning acts of anti-union discrimination

1. 822. With regard to the allegation concerning a compulsory register of signatures for non unionized workers (a claim that, according to the allegations, was evidenced before the labour inspectorate by means of statements of workers who had recently joined that attempts were made to make them sign such a register – according to the complainant organization), and to the allegation that, on the day on which these signatures were first collected, CORAH area directors urged workers not to attend a meeting that had been called by the union on 17 March 2010 with CORAH’s authorization, the Committee notes the Government’s statement that it is unclear whether the employer had been “forcing” non-unionized workers to sign registers stating that the union did not represent them; any such document signed by workers, unionized or not, would have been signed of their own free will and on the basis that they were adults. The Committee observes that the Government’s statement is couched in rather vague terms, failing as it does to refer either to the statements made by the workers to the labour inspectorate on the collecting of signatures or to the meeting called by the union for the same day, with CORAH’s authorization, which area directors are alleged to have prevented. In these circumstances, the Committee requests the Government to hold a further investigation on these allegations and to keep it informed in this respect so that it can re-examine the allegations in full knowledge of the facts.
2. 823. With regard to the allegations concerning the arbitrary dismissal of the union leaders Messrs Iván Carlos Bazán Villanueva and Jesús Aníbal Mancilla Gamero without an impartial administrative investigation, the Committee notes the Government’s statements that the former of these two individuals was dismissed as a result of an accusation of improper physical contact made by a female co-worker while the latter was dismissed for making false statements sworn before a notary to the effect that he had been on the premises where the events concerning Mr Bazán Villanueva were alleged to have occurred, in an attempt to exonerate Mr Bazán Villanueva. The Committee observes that, according to the Government, the union leader Mr Jesús Aníbal Mancilla Gamero received settlement for his social benefits and did not instigate court proceedings, while the union leader Mr Bazán Villanueva did begin court proceedings demanding reinstatement, which are still ongoing. The Committee requests the Government to communicate to it the outcome of these proceedings.
3. 824. With regard to the alleged arbitrary dismissal of the union member Mr Manuel Fonseca Núñez, the Committee notes the Government’s statements that: (1) an internal audit found that this administrative assistant had been unlawfully keeping sums entrusted to him by Proyecto Especial CORAH for the purchase of plane tickets; and (2) the court found against Mr Fonseca Núñez.
4. 825. With regard to the alleged forced resignation of six employees who were union members under the threat of a rescission of their contracts, the Committee notes the Government’s denial of these allegations and the threats and its report that a labour inspection was carried out on 23 March 2009 in which three of these workers stated that they had left the union voluntarily, with no threats or coercion. The Committee draws attention to the complainant organization’s claim that the resignations were written on the same day and used the same format and type of paper. The Committee observes that the Government has not made any reference to these claims and asks it to conduct a further investigation on this matter.
5. 826. With regard to the transfer to another post of the union leader Mr Leoncio Morales in April 2009 for the reason, according to the allegations, that he had requested labour inspections, the Committee notes the Government’s statement that the law allows a worker to be assigned to different work duties according to the needs of the organization with due account taken of her/his category and wage. The Committee also observes that the complainant organization has not provided information on any appeals lodged against the transfer.

Appeal against the registration of the union SUTCORAH

1. 827. The Committee takes note of the allegations that the employer, Proyecto Especial CORAH, lodged an appeal with the Ministry of Labour requesting that the registration of the union SUTCORAH be annulled. The Committee notes the Government’s statement that CORAH is free under the law to present arguments relevant to the administrative procedural system in regard to any situation that it considers irregular, including lodging appeals with the administrative authorities. The Committee requests the Government to send it a copy of the administrative appeal filed by CORAH in which it declares SUTCORAH’s registration invalid, and to communicate the text of the administrative decision in order that it should have enough information to make a judgement on the allegations.

The Committee’s recommendations

1. 828. In light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government to ensure that the union SUTCORAH can make use of support from its two advisers in practice in collective bargaining, if it so wishes.
   • (b) With regard to the allegation concerning a compulsory register of signatures for non-unionized workers and the allegation that, on the day on which these signatures were first collected, CORAH area directors urged the workers not to attend a meeting that had been called by the union on 17 March 2010 with CORAH’s authorization, the Committee observes that the Government has not responded fully and requests it to hold a further investigation and, to keep it informed in this respect so that it can re examine these allegations in full knowledge of the facts.
   • (c) The Committee requests the Government to communicate to it the outcome of the proceedings currently in progress concerning the dismissal of the union leader Mr Bazán Villanueva.
   • (d) With regard to the alleged forced resignation of six workers from the union under threat of rescission of their contracts, the Committee notes the Government’s denial of these allegations and the threats and its report that a labour inspection was conducted on 23 March 2009, in which three of these workers stated that they had left the union voluntarily. The Committee draws attention to the complainant organization’s claim that the resignations were written on the same day and used the same format and type of paper. The Committee observes that the Government has not made any reference to these claims and requests it to conduct a further investigation into this issue.
   • (e) The Committee requests the Government to send it a copy of the administrative appeal lodged by CORAH in which it declares SUTCORAH’s registration invalid, and to communicate the text of the administrative decision in order that it should have enough information to make a judgement on the allegations.