Report in which the committee requests to be kept informed of development - Report No 370, October 2013

Case No 2900 (Peru) - Complaint date: 15-SEP-11 - Closed

Allegations: The complainant organization alleges anti-union practices by Banco Falabella Peru against the Banco Falabella Workers’ Trade Union (SUTBAF) and its members, including the dismissal of the Secretary-General, and pressure on its members to resign

1. 611. The complaint is contained in a communication from the Single Confederation of Workers of Peru (CUT) dated 15 September 2011.
2. 612. The Government sent its observations in communications dated 24 February, 6 and 20 August 2012, and 15 January and 28 May 2013.
3. 613. 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. 614. In its communication of 15 September 2011, the CUT states that the Banco Falabella Workers’ Trade Union (SUTBAF), affiliated to the Confederation, has been the subject of anti-trade union practices, which has resulted in a fall in membership numbers. According to the complainant organization, only ten union members remain of the 24 workers who founded SUTBAF in June 2012 because 14 left the union under pressure from the company (five no longer work in the company and nine still work there and state that they have agreed a settlement with the company). The complainant organization adds that the company has contested the registration of SUTBAF and that it has also rejected the list of demands to initiate collective bargaining.
2. 615. The CUT adds that SUTBAF members are subject to anti-trade union acts in the form of telephone calls to engage in discussions with individuals from the bank’s management, during which they are urged to resign from the union and are offered incentives and better conditions. The CUT alleges that against this background of refusal to recognize the union or to engage in collective bargaining, the Secretary-General of SUTBAF, Mr Hugo Rey Douglas, was dismissed on 2 December 2010, on the grounds of infringements and alleged non-compliance with respect to the employment relationship. The CUT also states that, despite repeated requests for the Ministry of Labour to intervene and the fact that labour inspections always conclude that anti-trade union acts have been committed, the employer is never penalized or ordered to restore the rights that have been violated (particular reference is made to the dismissal of the Secretary-General, who has had to take legal action regarding his dismissal).

B. The Government’s reply

1. 616. In its communication of 24 February 2012, the Government notes that Banco Falabella sent a report dated 6 December 2011, stating that a list of demands is currently being negotiated as per normal procedure and that meetings had been held for the purposes of collective bargaining (a copy of the record of the opening session of collective bargaining is attached to the reply).
2. 617. Regarding the complainant’s allegation that SUTBAF was subject to anti-trade union practices, resulting in a systematic fall in membership numbers, the bank states that there are 34 union members, which contradicts information provided by the complainants that there are only ten remaining members. With respect to the request for the annulment of the administrative act on the automatic registration of SUTBAF, the bank states that the only reason for making the aforementioned request was because it was stated in the communication sent by the trade union that its executive board members included Mr Henry Llerena Córdova, who had voluntarily resigned from his post and whose employment relationship had ended before the union’s registration. The bank also points out that the complainant organization has provided no evidence to show that the company is constantly calling workers affiliated to the union to urge or encourage them to resign in exchange for incentives, or that it is seeking the resignation of unionized workers.
3. 618. For its part, the Government states that the Ministry of Labour and Employment Promotion, in the exercise of its powers, has imposed a fine on the bank (through Subdirectorate Decision No. 608-2011 of 17 October (procedure No. 422-2011)) of 12,672,100 Peruvian nuevos soles (PEN) (approximately US$4,600), for employment relationship infringements. (As recorded in the decision handed down by the Government: “It is ascertained that the company inspected is guilty of the following employment relationship infringements: I. The commission of acts relating to the suspension without pay of nine unionized workers (listed by name) on 21, 22 and 23 September 2010, which also affected the other 28 trade union members at the time the acts violating freedom of association were committed, as a result of which this office imposed a fine amounting to 6,336 Peruvian nuevos soles; II. A very serious employment relationship infringement: the commission of acts impinging on the freedom of association of the worker or trade union organization such as those encouraging resignation from the union, which concerned 37 workers affiliated to the Banco Falabella Workers’ Trade Union referred to in point I of this paragraph, following which this office imposed a fine amounting to 6,336 Peruvian nuevos soles.”) The Government adds that the bank lodged an appeal against this decision on 2 January 2012, which was granted on 6 January of the same year.
4. 619. The Government also reports that judicial proceedings are under way to deal with the application for annulment of the dismissal filed by Mr Rey against the bank, which will ascertain whether or not, in carrying out the dismissal, an anti-trade union act was committed.
5. 620. In its communication of 6 August 2012, the Government reports that the Fourth Subdirectorate for Labour Inspection handed down a ruling through Subdirectorate Decision No. 350-2012-MTPE/1/20.44 on 25 May 2012, relating to the aforementioned procedure No. 422-2011, and decided to fine the workplace known as Banco Falabella the sum of PEN19,008 (approximately $6,800). In its communication of 20 August 2012, the Government reports that the bank lodged an appeal against that decision, which was rejected, and that the Fourth Subdirectorate for Labour Inspection handed over the case file to the Fines Control Unit to process enforcement of the fine. In its communication of 15 January 2013, the Government states that the Fines Control Unit of the Ministry of Labour and Employment Promotion has informed it that the bank has paid the fine imposed.

C. The Committee’s conclusions

1. 621. The Committee notes that in this case the complainant organization alleges acts of anti-trade union discrimination and interference by Banco Falabella against members of SUTBAF (the alleged dismissal of the Secretary-General and pressure on members to resign from the union, which had allegedly resulted in a fall in membership numbers), and that the bank has contested the registration of SUTBAF and has also rejected the list of demands to initiate collective bargaining.
2. 622. Regarding the alleged acts of anti-union discrimination and interference against SUTBAF members (pressure on members to resign, which had allegedly resulted in a fall in membership numbers), the Committee takes note of the Government’s statement that the bank informed it that there are 34 union members, which contradicts information provided by the complainants that there are only ten remaining members, and that the complainant organization has provided no evidence to show that the company is constantly calling workers affiliated to the union to urge or encourage them to resign in exchange for incentives, or that it is seeking the resignation of unionized workers.
3. 623. The Committee notes that the Government, for its part, reports the following: (1) The Ministry of Labour and Employment Promotion, in the exercise of its powers, has imposed a fine on the bank (through Subdirectorate Decision No. 608-2011 on 17 October (procedure No. 422-2011) of PEN12,672,100 (approximately $4,600), for employment relationship infringements (as recorded in the decision handed down by the Government, the bank was guilty of the following employment relationship infringements: (i) the commission of acts relating to the suspension without pay of nine unionized workers (listed by name) on 21, 22 and 23 September 2010, which also affected the other 28 trade union members at the time the acts violating freedom of association were committed; and (ii) a very serious employment relationship infringement: the commission of acts impinging on the freedom of association of the worker or trade union organization such as those encouraging resignation from the union, which concerned 37 workers affiliated to SUTBAF referred to in point (i) of this paragraph; (2) the bank lodged an appeal against this decision on 2 January 2012, which was granted on 6 January of the same year; (3) the Fourth Subdirectorate for Labour Inspection handed down a ruling through Subdirectorate Decision No. 350-2012-MTPE/1/20.44 on 25 May 2012, relating to the aforementioned procedure No. 422-2011, and decided to fine the bank an amount in excess of PEN19,008 (approximately $6,800); (4) the bank lodged an appeal against that decision, which was rejected; and (5) the Fines Control Unit of the Ministry of Labour and Employment Promotion has informed it that the bank has paid the fine imposed.
4. 624. In this respect, the Committee notes that the administrative authority ascertained and penalized the alleged anti-trade union acts; however, because they involve very serious violations of freedom of association, the Committee notes with concern that the administrative proceedings ultimately resulting in a fine being imposed lasted more than 13 months (October 2011 to January 2013) and recalls that “cases concerning anti-union discrimination contrary to Convention No. 98 should be examined rapidly, so that the necessary remedies can be really effective; an excessive delay in processing cases of anti union discrimination, and in particular a lengthy delay in concluding the proceedings concerning the reinstatement of the trade union leaders dismissed by the enterprise, constitute a denial of justice and therefore a denial of the trade union rights of the person concerned” [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 826].
5. 625. With regard to the alleged anti-union dismissal of the SUTBAF Secretary-General, Mr Hugo Rey Douglas, on 2 December 2010, the Committee takes note of the Government’s statement that judicial proceedings are under way to deal with the application for annulment of the dismissal filed by Mr Rey against the bank, which will determine whether or not, in carrying out the dismissal, an anti-trade union act was committed. In this respect, the Committee notes with concern that more than two years have elapsed since this union official’s dismissal and recalls that “justice delayed is justice denied” [see Digest, op. cit., para. 105]. Under these circumstances, the Committee expects that the judicial authority will hand down a ruling in the very near future and that, if the dismissal proves to have been of an anti-union nature, he will be reinstated without delay and paid any outstanding wages. The Committee requests the Government to keep it informed on this matter.
6. 626. As for the alleged challenge against the union registration of SUTBAF by the bank, the Committee takes note of the Government’s statement that the bank reports that the only reason for making the aforementioned request was that it was stated in the communication sent by the trade union that its Executive Board members included Mr Henry Llerena Córdova, who had voluntarily resigned from his post and whose employment relationship had ended before the union’s registration. In this connection, regretting that the Government has failed to send its observations concerning this allegation, the Committee requests the Government to keep it informed about the status of the SUTBAF registration.
7. 627. With regard to the bank’s alleged refusal to engage in collective negotiation with SUTBAF, the Committee takes note of the Government’s statement that the bank reports in its communication dated 6 December 2011 that it was negotiating a list of demands as per normal procedure and that meetings had been held for the purposes of collective bargaining (the Government sent a copy of the record of the opening session of collective bargaining). In this regard, the Committee regrets that the Government has failed to send more detailed observations concerning these allegations and that it has merely transmitted the information from the bank stating that negotiations took place in December 2011. Recalling that “measures should be taken to encourage and promote the full development and utilization of machinery for voluntary negotiation between employers or employers’ organizations and workers’ organizations, with a view to the regulation of terms and conditions of employment by means of collective agreements” [see Digest, op. cit., para. 880], the Committee requests the Government to keep it informed about the outcome of the negotiations between the bank and SUTBAF and whether an agreement is ultimately reached on the terms and conditions of employment in the aforementioned workplace.

The Committee’s recommendations

1. 628. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) With regard to the alleged anti-union dismissal of the Secretary-General of SUTBAF, Mr Hugo Rey Douglas, on 2 December 2010, the Committee expects that the judicial authority will hand down a ruling in the very near future and that, if the dismissal proves to have been of an anti-union nature, he will be reinstated without delay and paid any outstanding wages. The Committee requests the Government to keep it informed on this matter.
   • (b) As for the alleged challenge against the union registration of SUTBAF by the bank, the Committee, regretting the lack of reply from the Government to these allegations, requests the Government to keep it informed about the status of this organization’s registration.
   • (c) The Committee requests the Government to keep it informed about the outcome of the negotiations between the bank and SUTBAF and whether an agreement is ultimately reached on the terms and conditions of employment in the aforementioned workplace.