Effect given to the recommendations of the committee and the Governing Body - Report No 387, October 2018

Case No 3043 (Peru) - Complaint date: 26-JUL-13 - Follow-up

Effect given to the recommendations of the committee and the Governing Body

1. 58. The Committee examined this case at its March 2015 meeting and made the following recommendations on the matters still pending [see 374th Report, paras 770–801]:
   • (a) The Committee stresses that it is important that the complainant union should enjoy all trade union rights in the same way as the other unions at ESSALUD (collective bargaining, union leave, deduction of membership dues and union office) but at the same time would point out that the requirement of registering the union executive committee at the Ministry of Labour is not incompatible with Convention No. 87 and that, in general, this registration tends to promote recognition and protection for union officials. Hence it suggests to the complainant union that it might consider the registration of its executive committee at the Ministry of Labour and suggests to the Government that in the meantime it should facilitate the exercise of all union rights for the complainant union, including negotiation of the new collective agreement without delay.
   • (b) As regards the alleged exclusion of the complainant confederation from the tripartite National Labour Council, the Committee regrets that the Government has not responded to this allegation and requests it to do so without delay.
   • (c) As regards the alleged death threats via the union official Mr César Augusto Elías García’s mobile phone which he attributes to another company that dismissed him in 2006, the Committee invites the complainant confederation to supply all possible information and details in this regard and to indicate whether legal action has been taken in the criminal court. The Committee requests the Government to send detailed information in this regard on the basis of the above statements.
   • (d) As regards the allegations relating to the dismissal of trade union official Mr Andrés Avelino Pizarro, the Committee notes the contradictions between the version of the complainant confederation as regards motives (anti-union reprisals) and the version of the company Luz del Sur SAA (which, on the basis of an auditing report, claims serious misconduct including the appropriation of a sum of money from the cash box for which this official was responsible in his area of work). The Committee requests the Government to keep it informed of the outcome of the legal action brought by this union official.
2. 59. The National Union of Health Social Security Workers (SINACUT-ESSALUD) submitted additional information on 31 March and 21 and 24 August 2015, and the Trade Union Confederation of Workers of Peru (CSP) submitted additional information on 19 April and 20 September 2015, and 31 January and 22 June 2018. The Government sent its observations on 11 December 2015, 24 January 2017, 23 August and 16 October 2018.
3. 60. The Committee recalls that the allegations in the present case relate to: (i) the refusal of a public health institution to grant members of SINACUT-ESSALUD all the trade union rights enjoyed by other unions; (ii) the exclusion of the CSP from the national tripartite body; (iii) the anti-union dismissal of two trade union officials; and (iv) the death threats made against one of them.
4. 61. With regard to the allegations that the public health institution is obstructing the enjoyment of trade union and collective bargaining rights by members of SINACUT-ESSALUD, the Committee takes note of the further allegations and additional information submitted by SINACUT-ESSALUD, according to which: (i) the Government is still not granting union leave to union officials and is still withholding union dues; (ii) the union, despite its efforts, has yet to conclude a collective agreement; and (iii) the union is subjected to unfavourable treatment by the employer, even by comparison with other union organizations that have not registered their executive committees. Furthermore, the Committee takes note of the information provided by the Government on 11 December 2015, indicating that the union has started the registration process, however it has not yet met the requirement to register its executive committee with the administrative labour authority, that the union dues are being withheld; and that these dues and the union premises will be made available to the union once it has registered its executive committee. The Committee also takes note of the communication provided by the Government on 23 August 2018 indicating that the names of the members of the executive committee of the union were recorded for the period 28 March 2015 and 27 March 2017. In view of the contradictory information at its disposal, the Committee requests the complainant organization and the Government to provide updated information on the situation of SINACUT-ESSALUD, in particular on the registration of its executive board and on its capacity to exercise its trade union and collective bargaining rights. The Committee trusts that the administrative labour authority will facilitate the registration of the executive committee of SINACUT-ESSALUD without delay and that the union will be able to enjoy all trade union rights in the same way as other unions, including the right to collective bargaining. The Committee requests the Government to keep it informed in this respect.
5. 62. With regard to the alleged exclusion of the CSP from the tripartite National Labour and Employment Promotion Council (CNTPE), the Committee recalls the allegation by the complainant organization that, despite being one of the most representative confederations, it has neither the right to speak nor the right to vote in the CNTPE. It also takes note of the Government’s observations indicating that: the confederation has observer status; according to the internal regulations governing the organization and operation of the CNTPE, workers’ and employers’ representatives are appointed in accordance with the agreed distribution for each group; applications for membership are assessed at the level of the executive coordinators for workers and employers; and the social partners have expressed the need for criteria of representativity to justify the inclusion of new organizations. In this respect, the Committee recalls its consideration that it is not called upon to express an opinion as to the right of a particular organization to be invited to take part in joint or consultative bodies unless its exclusion constituted a clear case of discrimination affecting the principle of freedom of association. This is a matter to be determined by the Committee in the light of the facts of each given case [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 1570]. Furthermore, the Committee recalls that any decision concerning the participation of workers’ and employers’ organizations in a tripartite body should be taken in full consultation with all the organizations whose representativity has been objectively proved. Duly noting the information that there are no criteria for the determination of the representativity of workers and employers in the CNTPE to justify the inclusion of new organizations, the Committee invites the Government to encourage the initiation of consultations with the social partners with a view to establishing an independent mechanism to evaluate representativity based on objective criteria so as to ensure that all representative social partners can participate in the work of the CNTPE. The Committee requests the Government to keep it informed in this respect.
6. 63. With regard to the allegations that death threats were sent to the mobile phone of union official Mr César Augusto Elías García, the Committee notes that the complainant organization did not supply the additional information and details as requested. Taking note of the information that the Government is waiting for information from the Public Prosecutor’s Office, the Committee requests the Government to keep it informed in this respect.
7. 64. With regard to the alleged anti-union dismissal of Mr César Augusto Elías García by a second mining company, the Committee takes note of the additional information supplied by the CSP indicating that: (i) the union filed a petition for amparo (protection of constitutional rights) against the second mining company, and on 10 August 2015 the Fourth Constitutional Chamber of the Supreme Court of Lima issued a precautionary measure ordering his reinstatement; (ii) even though the worker was reinstated and even though the Fourth Constitutional Chamber of the Surpreme Court of Lima subsequently upheld the application for amparo, as from November 2015 the trade union official suffered from a deterioration in his working conditions; (iii) on 14 December 2016, the trade union official was dismissed again; (iv) on 9 February 2017, Mr César Augusto Elías García filed a claim for wrongful dismissal, which is currently pending before the 14th Specialized Labour Court; (v) the CSP filed an appeal calling for the reinstatement order issued by the Fourth Constitutional Chamber of the Supreme Court of Lima in respect of the first application for amparo to be applied with respect to the second dismissal of the trade union official; this appeal was rejected as inadmissible on 21 July 2017 by the Fourth Constitutional Chamber; and (vi) an appeal was filed against this decision and the matter remains pending. The Committee takes note of the Government’s observations that, in the decision of 22 December 2015, the application for amparo was upheld and an order was issued for the reinstatement of the trade union official either to his position of crane operator or to an equivalent or similar position, and that the mining company in question had acted upon the precautionary measure ordering the reinstatement. The Committee notes that in the decision of the Fourth Constitutional Chamber of Lima of 21 July 2017, a copy of which was sent by the complainant organization, the court stated that there was no connection at all between the first and the second dismissals, even though both involved the same employee, which is why it ordered that a new application for amparo should be filed. This matter, together with the claim for wrongful dismissal, is still pending. The Committee trusts that the courts will make a decision without delay on the second dismissal of Mr César Augusto Elías García and that, in the course of the legal proceedings, consideration will be given to the grounds for the dismissal and as to whether the dismissal was of an anti-union nature. The Committee also trusts that, should the courts establish that the trade union official was dismissed because of his trade union membership or because of his union activities, steps will be taken to reinstate him immediately to an equivalent or similar position, as a priority solution, or should this prove impossible, steps will be taken to ensure that he receives full and adequate compensation that constitutes a sufficiently dissuasive sanction so that further anti-union acts will not occur in the future. The Committee requests the Government to send its observations and to keep it informed in this respect.
8. 65. As regards the dismissal of Mr Andrés Avelino Pizarro, the Committee notes that neither the complainant organization nor the Government have provided information on the case that was pending before the courts. The Committee requests the Government and the complainant organization to keep it informed of the outcome of the legal action brought by the union official.