Definitive Report - Report No 391, October 2019

Case No 3197 (Peru) - Complaint date: 30-DEC-15 - Closed

Allegations: The complainant organization reports the commission of various anti-union acts by a shipping company, including non-renewal of employment contracts and non-observance of a collective agreement. It also reports significant judicial delays

1. 486. The complaint appears in a communication dated 30 December 2015 from the Autonomous Workers’ Confederation of Peru (CATP).
2. 487. The Government sent its observations in communications dated 6 May and 8 July 2019.
3. 488. 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 organization’s allegations

1. 489. In its communication of 30 December 2015, the complainant organization indicates that the company IMI del Perú S.A.C. (hereafter “the shipping company”), whose primary activity is sea transport, provides services to the oil company Savia del Perú S.A.C. (hereafter “the oil company”). According to the complainant, as well as the documents attached to the complaint, as a result of a number of complaints filed by the shipping company’s trade union (SINTRAIMI) for violation of labour rights and acts of anti-union discrimination, including non-renewal of employment contracts for unionized workers, on 30 July 2008, the Ministry of Labour for the province of Talara issued a violation report against both the shipping and oil companies for violations relating to payslips, distortion of third-party contracts and distortion of market-needs contracts. According to the violation report, the shipping company’s payroll included workers who actually had an employment relationship with the oil company (considered the main company). The Ministry fined both companies and ordered the oil company to add 988 workers from the shipping company to its payroll. The complainant indicates that the oil company contested the ministerial decision before the courts and that, as a result of its delaying tactics, the courts have not yet issued a ruling, as an appeal for annulment filed by the oil company is still pending before the Supreme Court of Justice.
2. 490. The complainant organization also indicates that the shipping company has been using the low price of crude oil as a pretext for implementing workforce reduction programmes offering minor incentives, threatening workers with the loss of a wide range of rights should they forego the incentives. The complainant indicates that the company has downsized by 246 workers through its reduction programmes and alleges that it is trying to further reduce its workforce by 200 workers with a view to dismantling the union. The complainant adds that the company does not make its overtime payments and that, even though SINTRAIMI filed a complaint in this regard and the National Labour Inspection Authority (SUNAFIL) found that the shipping company owed the unionized workers overtime, the company has not made any overtime payments. The complainant also alleges that, faced with workers’ growing interest in the union, the shipping company has tried to discourage and destabilize its workers through dismissals, transfers, schedule changes and increased health premiums.
3. 491. In addition, the complainant organization alleges that, although SINTRAIMI has signed three collective agreements with the shipping company and has submitted the fourth collective list, the company not only refuses to discuss economic improvements with the union, but also fails to comply with the collective agreements that have already been concluded. The complainant indicates that on 29 January 2015, the administrative authority fined the shipping company for failing to comply with the arbitration award issued in relation to collective bargaining during the period 2012–13, regarding the payment of an extended service bonus. It also alleges that the company does not observe the 2013–14 collective agreement with regard to the food to be provided to workers.

B. The Government’s reply

1. 492. In its communications dated 6 May and 8 July 2019, the Government sent its observations, together with those of the shipping company.
2. 493. The Government provides the following information concerning the violation reports issued against the shipping and oil companies. With regard to the shipping company, the Government indicates that the company contested the violation report in which it was fined for violations relating to payslips and prohibited intermediation (third-party distortion) and that the report was declared null and void. In response, SINTRAIMI filed an appeal, and a new decision was issued, upholding the fine. The fine was contested once again by the company and, on 30 April 2009, the imposition of a fine was upheld once again. The company then initiated administrative dispute proceedings against the decision: (i) in its judgment of 16 November 2011, the Second Temporary Labour Court of Piura found that the action was partially founded; declared null and void the decision penalizing the company for engaging in the prohibited labour intermediation of 988 workers and dismissed the action to render null and void the penalty imposed for the distortion of intermittent market-needs contracts; (ii) this judgment was upheld by the Specialized Labour Chamber of Piura on 15 October 2012; (iii) on 12 March 2015, the Supreme Court of Justice dismissed the appeal for annulment filed by SINTRAIMI; and (iv) on 8 January 2015, the Second Labour Court, in an implementation order, ordered the issuance of a new decision rendering null and void the penalties imposed. The Government also indicates that an appeal for annulment filed by the shipping company is still pending.
3. 494. With regard to the oil company, the Government indicates that, after the company contested the violation report in which it was fined and ordered to add 988 workers from the shipping company to its payroll, the report was declared null and void. This was subsequently appealed by SINTRAIMI, which nullified the action taken and upheld the fine and the order to add the workers. The company then initiated administrative dispute proceedings against the decision: (i) in its judgment of 16 June 2014, the Second Temporary Labour Court of Piura found that the action was unfounded; (ii) in its judgment of 12 January 2015, the Specialized Labour Chamber of Piura revoked the ruling of 16 June 2014 and declared the violation report null and void; (iii) in its judgment of 12 March 2015, the Supreme Court of Justice dismissed the appeal for annulment filed by SINTRAIMI; and (iv) on 11 March 2016, the Second Labour Court issued an implementation order, ordering the Piura regional government to issue a new administrative order, rendering the administrative disciplinary proceedings relating to prohibited labour intermediation null and void. The Government also indicates that an appeal for annulment filed by the shipping company is still pending.
4. 495. The Government further indicates that SUNAFIL has ruled that the shipping company owes its workers overtime pay. The Government indicates that, although the shipping company has not contested the decision, it has not made the payments in accordance with the decision and that SUNAFIL has therefore requested the Regional Directorate for Labour and Employment Promotion of Piura to take the appropriate measures. The Government adds that the shipping company has been penalized for failing to comply with clause II of the arbitration award corresponding to the period August 2012 to June 2013.
5. 496. With regard to the incentive-based workforce reduction programmes, the shipping company states that, following the significant drop in the price of the barrel, the oil industry was obliged to reduce its operations, as a result of which the shipping company was obliged to reduce its activities and adopt various measures, such as inviting workers to take part, on a voluntary basis, in an incentive-based workforce reduction programme. The company indicates that, between March and September 2015, 246 workers agreed to voluntarily terminate their employment relationship and that, to date, none of the workers who chose to terminate their employment have initiated judicial proceedings or have reported to the labour administrative authority any irregularities relating to termination of labour relations by mutual consent or to the supposed threats alleged by the complainant organization.
6. 497. Lastly, the shipping company states that the schedule changes, transfers and non-payment of overtime were solely due to the difficult financial situation in which the company found itself and that such measures had not been aimed at harming workers.

C. The Committee’s conclusions

1. 498. The Committee observes that, in the present case, the complainant organization alleges that a shipping company, which provides services to an oil company, has committed a number of anti-union acts, including non-renewal of contracts for unionized workers. It also alleges that, although complaints have been filed in this regard and both companies have been penalized, the companies have filed administrative and judicial appeals that are still pending due to the use of delaying tactics.
2. 499. The Committee notes that, according to the complainant organization’s allegations and the documents submitted by the complainant: (i) as a result of a number of complaints filed by SINTRAIM for labour violations and anti-union discrimination (non-renewal of employment contracts for unionized workers), in 2008, the Ministry of Labour issued a violation report against both the shipping and the oil companies for violations relating to payslips, distortion of third-party contracts and distortion of market-needs contracts (temporary contracts); (ii) both companies were fined and the oil company was ordered to add 988 workers from the shipping company to its payroll; and (iii) the oil company has filed several judicial appeals in order to delay adding the workers to its payroll, and the courts have not yet issued a ruling. In this respect, the Committee notes the Government’s indication that both companies contested the violation reports initially through administrative channels and then through administrative dispute courts and that, in 2015, the Supreme Court of Justice dismissed the appeals for annulment filed by SINTRAIMI against the judgments that had rendered null and void the penalties imposed on both companies. The Committee observes that, in its reply, the Government also indicates that appeals for annulment filed by both companies are still pending.
3. 500. The Committee observes that neither the complainant organization nor the Government has provided copies of the judgments issued and that the information provided by the parties does not permit the Committee to establish whether the judicial proceedings in question have concluded or whether, to the contrary, they are still under way. Taking into account that these judicial proceedings relate to violation reports issued over a decade ago, the Committee recalls that delay in the conclusion of proceedings giving access to remedies diminishes in itself the effectiveness of those remedies, since the situation complained of has often been changed irreversibly, to a point where it becomes impossible to order adequate redress or come back to the status quo ante [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 1144], and hopes that if indeed, as the Government indicates, appeals are still pending before the Supreme Court of Justice, this Court will issue a judgment as soon as possible.
4. 501. As to the allegations that the shipping company has downsized by 246 workers through workforce reduction programmes offering minor incentives; that it has threatened workers with the loss of a wide range of rights should they forego such incentives; and that the company is trying to further reduce its workforce by 200 workers with a view to dismantling SINTRAIMI, the Committee notes the shipping company’s indication that the programmes were implemented for economic reasons; that the 246 workers who took part in these programmes between March and September 2015 did so on a voluntary basis and that none of these workers have initiated judicial proceedings or filed complaints in relation to these programmes. In this regard, the Committee recalls that it is only able to give an opinion on allegations concerning programmes and processes of restructuring or economic rationalization, whether or not they entail staff reductions or the transfer of companies or services from the public to the private sector, if they give rise to acts of discrimination or anti-union interference [see Compilation, op. cit., para. 42]. In the light of the lack of evidence demonstrating the anti-union nature of the incentive-based workforce reduction programme, the Committee will not pursue its examination of this allegation.
5. 502. The Committee also notes that, according to the complainant organization’s allegations, faced with workers’ growing interest in the union, the shipping company has tried to discourage and destabilize its workers through dismissals, transfers, schedule changes, non-payment of overtime to unionized workers and increased health premiums. In relation to the non-payment of overtime, the Committee notes that, according to the Government, this allegation has been confirmed by SUNAFIL, which has requested the Regional Directorate for Labour and Employment Promotion of Piura to take the appropriate measures to ensure that the company pays its debts and complies with its obligations. In this regard, the Committee trusts that the Government will ensure that the unionized workers receive the appropriate overtime payments.
6. 503. With respect to the alleged transfers, schedule changes and increased health premiums, while noting that the shipping company indicates that these were a result of the difficult economic situation affecting the oil industry and that they did not have any impact on the pay level of workers, the Committee also observes that the complainant organization does not provide evidence demonstrating the anti-union nature of the above-mentioned measures.
7. 504. As to the alleged dismissals, while observing that the Government has not sent its observations in this regard, the Committee observes that the complainant organization has not indicated how many workers have been dismissed and when or whether these workers were members of the union. In the light of the above, the Committee will not pursue its examination of these allegations.
8. 505. As to the alleged failure to comply with an arbitration award and the clauses of a collective agreement, the Committee notes that, according to both the complainant organization and the Government, on 29 January 2015 the shipping company was penalized by means of a fine for failing to comply with clause II of the arbitration award corresponding to the period August 2012 to June 2013. With respect to the alleged non-observance of the 2013–14 collective agreement with regard to the food to be provided by the shipping company to the workers, while observing that the Government has not sent its observations in this regard, the Committee notes that it has not received any information from the complainant organization on any appeals filed in relation to the alleged violation. In the light of the above, the Committee trusts that the Government will ensure the swift and effective resolution of any appeals filed in this regard.

The Committee’s recommendation

1. 506. In the light of its foregoing conclusions, the Committee invites the Governing Body to decide that this case does not call for further examination.