Definitive Report - Report No 401, March 2023

Case No 3322 (Peru) - Complaint date: 10-MAR-18 - Closed

Allegations: The complainant alleges anti-union practices by an industrial enterprise, including dismissals of trade union members and officials

1. 611. The complaint is contained in communications dated 10 March and 23 July 2018 submitted by the Autonomous Confederation of Workers of Peru (CATP).
2. 612. The Government of Peru sent its observations on the allegations in communications dated 16 and 23 August, 9 October and 21 and 30 November 2018, 22 January, 8 March and 6 May 2019, and 10 August 2022.
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 10 March 2018, the complainant alleges anti-union practices, including the dismissal of officials of the Union of Workers of VSI Industrial SAC, by the enterprise VSI Industrial SAC (“the enterprise”), which is engaged in the sanitary ware and faucets trade in the country and is part of the Vainsa SA corporate group (“the corporate group”).
2. 615. The complainant states that, after the establishment of the trade union in 2010, the corporate group undertook a corporate reorganization to extricate itself from its commitments to its workers. As a result, the union began organizing activities to protect the rights of its members, which resulted in the signing of seven collective agreements over the years.
3. 616. The complainant indicates that on 27 May 2011, after a 40-day strike that led to the signing of a collective agreement, the enterprise dismissed the union’s General Secretary, Mr Daniel Salazar Ayala, its Defense Secretary, Mr Walter Legia Onton, and its Organization Secretary, Mr Robert Chauca Prado, with a view to reducing the trade union action. It maintains that the enterprise called the officials to negotiate their dismissal and reached an agreement with Mr Salazar Ayala and Mr Legia Onton, who resigned in exchange for financial benefits.
4. 617. The complainant informs the Committee that Mr Chauca Prado did not accept the enterprise’s proposals and took his case to the 27th Labour Court, which ruled in his favour and set aside his dismissal in a decision dated 18 May 2012, which was confirmed at the second instance by the Third Labour Chamber of Lima on 1 August 2013. The complainant also indicates that the enterprise lodged an application for judicial review, which was dismissed by the Constitutional Law Chamber of the Supreme Court on 12 January 2015.
5. 618. The complainant maintains that the enterprise disregarded the terms of the ruling and moved Mr Chauca Prado to another division whose manufacturing process did not align with his specialization. It indicates that he had to learn new tasks and received a lower wage, and that his wages were frozen whereas others in the same category received wage increases. It states that Mr Chauca Prado sent a letter to the senior management of the enterprise requesting that they comply with the court ruling but they refused, telling him that workers had to respect the employer’s rules and that not doing so would be considered serious misconduct.
6. 619. The complainant informs that in 2016, the union elected Mr Chauca Prado as General Secretary and Mr Valerio Torvisco Rojas as Defense Secretary and that, in accordance with the approved work plan, they reported various violations, including acts of anti-union discrimination and violations of the right to bargain collectively, to the National Labour Inspection Authority (SUNAFIL), requesting that it carry out inspections in the enterprise in this regard.
7. 620. The complainant submits that, in response to these initiatives, the enterprise threatened the union officials with dismissal and began giving raises to its non-unionized workers and extending the benefits obtained by the union to those workers. It indicates that the union leaders sent a letter to the Managing Director of the enterprise in which they condemned these financial incentives to encourage its members to leave the union and requested that he take corrective action.
8. 621. According to the complainant, the enterprise continued its anti-union practices by establishing a Committee on the Working Environment so that non-unionized workers would channel all of their complaints and demands to it with the aim of reducing trade union action. The complainant explains that each section or division had to elect a representative to that committee and that union members were not eligible for election.
9. 622. The complainant states that on 19 January 2017, Mr Chauca Prado and Mr Torvisco Rojas requested a labour inspection as a result of the violation of fundamental rights in connection with the establishment of this parallel organization, and that on 31 January 2017, the enterprise dismissed them on the grounds of serious misconduct consisting of verbally insulting their hierarchical superior and having provided false information. It indicates that Mr Chauca Prado and Mr Torvisco Rojas applied to have their dismissals set aside by the First Standing Specialized Labour Court of South Lima, and that the union has been disbanded and is inactive as a result of these dismissals.
10. 623. In its communication of 23 July 2018, the complainant alleges that the enterprise also dismissed three union members for anti-union reasons. It indicates that: (i) Mr Jorge Silva Nuñez was dismissed on 16 March 2018 for serious misconduct consisting of libel and having provided false information to the enterprise, after a dispute with the enterprise over the results of a medical examination he had undergone after an accident at work; (ii) Mr Willians Sallago Izquierdo was dismissed on 22 June 2018 on the grounds of verbal insults and slander after speaking to a co-worker about pay gaps that existed in the enterprise; and (iii) Mr Lucio Rey Salazar was dismissed on 5 July 2018 for abandonment of work for seven days when he was absent due to injury and had not yet received his medical certificate.
11. 624. The complainant informs the Committee that Mr Silva Nuñez and Mr Sallago Izquierdo have sought reinstatement through the courts, but criticizes the slowness of legal proceedings in the country. It states that the sole purpose of the dismissals was to break the union and that the same does not happen to non-unionized workers, who enjoy the full support of management.

B. The Government’s reply

1. 625. By communications dated 16 August and 9 October 2018, the Government transmits the observations of the enterprise concerning the allegations in the present case. The enterprise states that in 2013, it underwent a corporate reorganization as a result of a decision of its owners. It maintains that the reorganization was in strict compliance with the procedures under Peruvian legislation and was not intended to extricate the enterprise from its labour commitments.
2. 626. With regard to the dismissals that took place in 2011, the enterprise maintains that the three union officials committed serious misconduct by unlawfully using the logo, branding and distinguishing signs of the enterprise and that that is unrelated to union activity, which functions smoothly in the enterprise, as evidenced by the collective agreements signed between 2010 and 2018. It states that it complied with the court decisions on the reinstatement of Mr Chauca Prado, in that he was assigned to the same category, with the same remuneration, and was paid his accrued remuneration. In relation to Mr Salazar Ayala and Mr Legia Onton, it states that there was no dispute, as the employment relationship was terminated by mutual agreement.
3. 627. Concerning the establishment of the Committee on the Working Environment, the enterprise asserts that any worker was eligible to stand for election and that the elections were conducted openly. It indicates that the labour inspection in relation to the committee that was initiated by a request from the union to SUNAFIL did not detect any violations on the part of the enterprise.
4. 628. With respect to the dismissals that occurred in 2017, the enterprise states that Mr Chauca Prado and Mr Torvisco Rojas committed serious misconduct (insulting and defaming the employer and officials) that was unrelated to their trade union activity.
5. 629. As to the dismissals of the three union members in 2018, the enterprise states that they resulted from acts of serious misconduct entirely unrelated to their right to freedom of association. It denies that its intention was to destabilize the union and states moreover that Mr Rey Salazar has never been a member of the union.
6. 630. In its communication of 23 August 2018, the Government provides information on the labour inspections conducted by SUNAFIL in the enterprise. It indicates that between 1 January 2014 and 26 July 2018, 69 inspection orders were created, of which 12 resulted in reports of infringements. It specifies that three of these infringements were related to collective labour relations, two to acts of hostility and harassment, and two to acts of discrimination in the workplace.
7. 631. In its communications of 21 November 2018, 22 January, 8 March and 6 May 2019, and 10 August 2022, the Government provides information on the outcomes of the legal proceedings related to the present case. In relation to the appeal lodged by Mr Chauca Prado and Mr Torvisco Rojas after their dismissals in 2017, the Government indicates that the First Standing Specialized Labour Court of South Lima ordered their provisional reinstatement on 7 June 2018, and informs the Committee that the enterprise reinstated Mr Chauca Prado on 27 June 2022.
8. 632. As to the appeals against the dismissals of 2018, the Government informs the Committee that: (i) the Second Specialized Labour Court of South Lima ordered the reinstatement of Mr Silva Nuñez and Mr Sallago Izquierdo in decisions dated 7 May 2019 and 18 October 2019, respectively; and (ii) after an application by the enterprise for a judicial review of the ruling of 18 October 2019 was dismissed, the enterprise complied with Mr Sallago Izquierdo’s reinstatement.

C. The Committee’s conclusions

1. 633. The Committee notes that in the present case, the complainant alleges that an enterprise in the sanitary ware and faucets sector committed anti-union acts against a trade union that was established in 2010, including the dismissal of three of its officials on 27 May 2011, the dismissal of two of its officials on 31 January 2017, and the dismissal of three of its members in 2018. It notes that the enterprise states that the dismissals came as a result of acts of serious misconduct and that the Government provides information on the outcomes of labour inspections conducted in the enterprise and the legal proceedings related to the dismissals.
2. 634. In relation to the dismissals, the Committee notes that the complainant states that: (i) on 27 May 2011, the enterprise dismissed the then General Secretary of the union, Mr Daniel Salazar Ayala, and two other union officials, Mr Walter Legia Onton and Mr Robert Chauca Prado, to reduce trade union action as a result of a 40-day strike; (ii) the enterprise reached an agreement with Mr Salazar Ayala and Mr Legia Onton that they would resign in exchange for financial benefits; (iii) Mr Chauca Prado challenged his dismissal and, after court rulings in his favour, the enterprise reinstated him in another division at a lower wage; (iv) on 31 January 2017, the enterprise dismissed Mr Chauca Prado, who had been elected General Secretary of the trade union, and Mr Valerio Torvisco Rojas, another union official, after they requested the SUNAFIL to conduct inspections related to violations of labour rights; (v) Mr Chauca Prado and Mr Torvisco Rojas challenged their dismissals before the First Standing Specialized Labour Court of South Lima; (vi) in 2018, the enterprise dismissed three members of the union, Mr Jorge Silva Nuñez, Mr Willians Sallago Izquierdo and Mr Lucio Rey Salazar, for anti-union reasons; and (vii) Mr Silva Nuñez and Mr Sallago Izquierdo lodged appeals in the courts seeking their reinstatement.
3. 635. The Committee notes that the enterprise, in its observations provided by the Government, states that: (i) it dismissed the union officials and members because they had committed serious misconduct and not because of their trade union activity or membership; (ii) it complied with the court rulings that overturned Mr Chauca Prado’s first dismissal, as he was reinstated in the same category of work with the same remuneration and received his accrued remuneration; (iii) it never intended to destabilize the trade union; and (iv) Mr Rey Salazar has never been a member of said union.
4. 636. The Committee also notes that the Government indicates that: (i) between January 2014 and July 2018, the SUNAFIL conducted 69 inspections in the enterprise and issued 12 reports of infringements; (ii) in a decision dated 7 June 2018, the First Standing Specialized Labour Court of South Lima ordered the provisional reinstatement of Mr Chauca Prado and Mr Torvisco Rojas; (iii) on 27 June 2022, the enterprise reinstated Mr Chauca Prado for a second time; (iv) in decisions dated 7 May and 18 October 2019, the Second Specialized Labour Court of South Lima ordered the reinstatement of Mr Silva Nuñez and Mr Sallago Izquierdo, respectively; and (v) the enterprise filed an application for judicial review of the decision of 18 October 2019, the application was dismissed on 3 September 2020, and the enterprise therefore reinstated Mr Sallago Izquierdo. Taking due note of the acts of infringement established by the SUNAFIL, the court rulings related to the dismissals, and the information provided by the Government on the reinstatement of Messrs Chauca Prado and Sallago Izquierdo, the Committee expects that Messrs Torvisco Rojas and Silva Nuñez have also been reinstated and that the competent authorities will continue to ensure that freedom of association is fully respected in the aforementioned enterprise. Moreover, taking into account that several years have elapsed between the decision ordering the reinstatement of Mr Chauca Prado and his actual reinstatement, the Committee expects that orders of reinstatement are respected in a timely manner to provide effective protection against acts of anti-union discrimination.
5. 637. Furthermore, the Committee notes that the complainant alleges that: (i) the enterprise established a Committee on the Working Environment to channel all of the non-unionized workers’ complaints and demands; and (ii) the union members could not join the committee, whose purpose was to reduce trade union action. The Committee notes that the enterprise states that: (i) all of its workers could be elected to the said committee; and (ii) SUNAFIL conducted an inspection in this regard and did not detect any infringement on the part of the enterprise. Noting the diverging positions of the complainant and the enterprise, the Committee recalls the importance of ensuring that, where there exist in the same undertaking both trade union representatives and elected representatives, appropriate measures are to be taken to ensure that the existence of elected representatives is not used to undermine the position of the trade unions concerned. The Committee trusts that SUNAFIL took these criteria into account in the inspections it conducted in the enterprise. In the light of the foregoing, the Committee considers that this case does not call for further examination and is closed.

The Committee’s recommendations

1. 638. In the light of the foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee expects that Messrs Torvisco Rojas and Silva Nuñez have been reinstated and that the competent authorities will continue to ensure that freedom of association is fully respected in the enterprise. It further expects that orders of reinstatement are respected in a timely manner to provide effective protection against acts of anti-union discrimination.
   • (b) The Committee trusts that, during its inspections in the enterprise, SUNAFIL verified that the existence of elected representatives did not have the effect of undermining the position of the trade union concerned.
   • (c) The Committee considers that this case is closed and does not call for further examination.