Definitive Report - REPORT_NO348, November 2007

1048. The Committee examined this case at its November 2006 meeting and presented an interim report to the Governing Body [see 343rd Report, paras 1030–1048, approved by the Governing Body at its 297th Session (November 2006)].

1. 1049. The Government sent new observations in a communications dated 12 March and 26 October 2007.
2. 1050. 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. Previous examination of the case

1. 1051. At its November 2006 meeting, the Committee made the following recommendations concerning the questions that remained pending [see 343rd Report, para. 1048]:
2. (a) The Committee requests the Government to indicate whether the trade union official, Mr. Julio Purizaca Cornejo (Petrotech Peruana SA) has applied to the courts for a reinstatement order and, if he has done so, to communicate the outcome.
3. (b) Noting the allegations concerning the criminal proceedings initiated against the trade union official, Mr. Ricardo José Quispe Caso, by the Southern Peru Copper Corporation for disrupting public order (“disorderly meeting”), in the absence (according to the complainant organization) of any credible evidence and for anti-union motives, the Committee requests the Government to send a copy of any ruling handed down.
4. (c) As regards the alleged dismissal of more than 300 workers of the permanent workforce at the Corporación Aceros Arequipa SA and their replacement with workers hired on less favourable terms with a view to undermining the trade union, the Committee once again urges the Government to communicate the outcome of the inspection visit carried out by the authorities to the enterprise and to send its observations on the dismissal of more that 300 workers.
5. (d) The Committee once again urges the Government without delay to send its observations on the allegations concerning harassment of Mr. Victor Alejando Valdivia Castilla, the press and propaganda secretary of the Trade Union of Ancash Regional Government Workers, by the President of the Ancash region.
6. B. The Government’s reply
7. 1052. In its communications of 12 March and 26 October 2007, in relation to the recommendation of the Committee on Freedom of Association regarding the enterprise Petrotech Peruana SA (dismissal of trade union official Mr Julio Purizaca Cornejo), the Government states that the Ministry of Labour and Employment Promotion sent a letter to the General Confederation of Workers of Peru (CGTP) requesting information on the matter. No reply was received and the Government accordingly requested the Higher Court of Justice of Lima to inform it whether Mr Julio Purizaca Cornejo had applied to the courts for a reinstatement order against Petrotech Peruana SA. In reply to this last request, the Government was informed that the Centre for the Issuing of Reports of the Higher Court of Justice of Lima had no record in its database of any proceedings brought by Mr Julio Purizaca Cornejo. The Government recalls that, when the case was last examined, it was noted that another trade union official had been reinstated by the enterprise by order of the judicial authority.
8. 1053. As to the criminal proceedings initiated against the trade union official Mr Ricardo José Quispe Caso by the Southern Peru Copper Corporation for disrupting public order, in the absence (according to the complainant organization) of any credible evidence and for anti-union motives, the Government provides information from the Titular Head of the Provincial Prosecutor’s Office of Jorge Basadre, Jorge Basadre Province, Tacna Department, according to which, on 20 April 2005, it was ruled that, as it had not been proved that an offence had been committed, there were no grounds for proceeding with the case, for which reason the criminal proceedings were set aside definitively. The claimant lodged an appeal against the decision to set aside the proceedings. That appeal was decided by the Second Higher Combined Prosecutor’s Office of Tacna, which upheld the definitive setting aside of the proceedings and dismissed the case.
9. 1054. As to the alleged dismissal of more than 300 workers from the Aceros Arequipa SA de Pisco workforce, the Government states that, at the beginning of the 1990s, the enterprise Corporación Aceros Arequipa SA began to introduce the concept of “total quality” with regard to its staff, as a preliminary step in the process of modernizing the organization of its two plants. In this way, and through the introduction of cutting-edge technology, the enterprise brought its quality system into line with the latest requirements of standard ISO 9001. Thus, in 1990, a contract for the transfer of technology was signed with the metallurgical enterprise Méndez Junior (SMJ) of Brazil. As a part of the agreement, a team of workers from the enterprise Corporación Aceros Arequipa SA ran a 1,480-hour training programme at the Brazilian plant.
10. 1055. As stated by the enterprise Corporación Aceros Arequipa SA, in registration letter No. 2070, of 7 July 2005, the enterprise was forced to change its internal structure as a result of this modernization process. Some workers employed in areas affected by the introduction of new technology, in particular operations and production, were laid off. These dismissals were carried out in accordance with article 38 of the Act on Productivity and Labour Competitiveness and Legislative Decree No. 728 which provides for appropriate compensation for each worker.
11. 1056. It should also be pointed out that, if more than 300 workers had been dismissed from the enterprise Corporación Aceros Arequipa SA, then the enterprise would currently be faced with the same number of judicial proceedings. The report of the Higher Court of Justice of Ica shows that this is not at all the case; only two cases, brought by the Union of Workers of the Corporación Aceros Arequipa SA, are currently before the Labour Court of Pisco (files Nos 2002-241 and 2004-267). These cases concern the restoration of social benefits, food stamps, bonuses by category, five-yearly bonuses, restoration of attendance bonuses and family allowances.
12. 1057. On 17 August 2006, following a complaint made by the trade union, an inspection visit (ordered by the Regional Directorate of Labour and Employment Promotion of Ica, Pisco Labour and Employment Promotion Area) was carried out at plant No. 2 of the enterprise Corporación Aceros Arequipa SA, in the city of Pisco, in order to ascertain whether the workers hired by the enterprise Servicios Globalizados SA (SERGLOSA) to work at the user enterprise are employed permanently in the user enterprise’s production or core activities, and whether the workers hired by the enterprise Corporación Aceros Arequipa SA receive the same benefits as permanent workers, such as production or attendance bonuses. The labour inspector noted that:
13. – the 31 workers hired by the enterprise, SERGLOSA, are assigned to the enterprise Corporación Aceros Arequipa SA for work in production and related areas under “fixed-term, intermittent employment” contracts;
14. – neither production bonuses nor attendance bonuses are included in the collective agreement. The enterprise Corporación Aceros Arequipa SA reserves the right as employer to grant workers such bonuses on a fair basis. Some 207 workers do not currently receive either of the bonuses while six contracted workers receive both.
15. 1058. A scheduled inspection visit to the enterprise SERGLOSA was carried out on 24 October 2006, on the orders of the Regional Directorate of Labour and Employment Promotion of Ica, Pisco Labour and Employment Promotion Area. The purpose of the visit was to verify compliance by the enterprise with labour standards (file No. 106-2006-JL-PIS-UPG). During the visit, the following points were noted: the enterprise SERGLOSA produced payrolls showing that the workers had been registered; pay slips for July, August and September 2006, showing payments to the workers; proof of payment of length of service entitlements (CTS) and submission of documents listing payments made to each individual for the periods November 2005–April 2006 and May–October 2006; proof of statutory payments to workers for December 2005 and July 2006; proof of holiday payments and holiday entitlements for the period in question; proof of distribution among the workers of a share of the profits for the 2005 tax year, as well as the corresponding documents listing payments made; proof that a summary of payrolls for June 2006 was presented to the Ministry of Labour and Employment Promotion; proof of use of an industrial relations service and of notification of this fact to the Administrative Labour Authority; submission of the internal labour regulations approved by the Administrative Labour Authority; proof of availability of a recognized social assistance service; submission of an attendance sheet and a complementary insurance policy for hazardous work.
16. 1059. As to the complaint regarding the Regional Government of Ancash, the Government recalls that, in the complaint, it is alleged that the President of the Ancash region lodged a complaint alleging aggravated defamation against Mr Víctor Alejando Valdivia Castilla (Press and Propaganda Secretary of the Trade Union of Ancash Regional Government Workers) following statements he made to the media (previously the Trade Union of Ancash Regional Government Workers reported the President of the Ancash region to the Provincial Prosecutor’s Office of Huaraz for “embezzlement and misappropriation of funds”). The Committee on Freedom of Association urged the Government without delay to send its observations on the allegations concerning harassment of Mr Víctor Alejando Valdivia Castilla, the Press and Propaganda Secretary of the Trade Union of Ancash Regional Government Workers, by the President of the Ancash region. In this regard, the Government states that it has received no verbal or written notice of this complaint concerning harassment of the trade union official.

C. The Committee’s conclusions

1. 1060. As to the request for information contained in recommendation (a), made during the last examination of this case, the Committee notes the Government’s statement that the Centre for the Issuing of Reports of the Supreme Court of Justice has no record in its database of any proceedings initiated by Mr Julio Purizaca Cornejo, and that the complainant organization failed to respond to the Ministry of Labour’s request to be informed as to whether the trade union official had applied to the courts for a reinstatement order against Petrotech Peruana SA. The Government recalls that, when the case was last examined, it was noted that another trade union official had been reinstated by the enterprise under an order issued by the judicial authority. The Committee therefore invites the complainant organization, should it so desire, to initiate judicial proceedings in connection with the dismissal of the official in question following the establishment of a trade union.
2. 1061. As to recommendation (b), the Committee notes that the Public Prosecutor’s Office set aside definitively the criminal proceedings initiated against the trade union official, Mr Ricardo José Quispe Caso, by the Southern Peru Copper Corporation for disrupting public order (“disorderly meeting”).
3. 1062. As to the alleged dismissal of more than 300 workers since 1990 from the permanent workforce at the Corporación Aceros Arequipa SA with the aim of undermining the trade union (recommendation (c)), the Committee notes the outcome of the inspection visits carried out by the labour inspectorate which are described in detail in the Government’s reply. According to the Government, the enterprise had been carrying out restructuring since July 2005 for technological reasons and that process had led to dismissals and the payment of statutory compensation. The Committee notes the Government’s statement to the effect that the trade union of the enterprise has lodged only two complaints concerning social benefits and bonuses. Moreover, during an inspection visit carried out by the labour inspectorate at the enterprise Corporación Aceros Arequipa SA concerning the labour contracting enterprise SERGLOSA, which had assigned 31 workers to the enterprise Corporación Aceros Arequipa SA, it was noted that these workers were employed under fixed-term intermittent contracts, that production and attendance bonuses are not included in the collective agreement and that the company reserves the right to grant such bonuses on a fair basis.
4. 1063. The Committee notes that, according to the Government and the results of the last labour inspection visit, the enterprise SERGLOSA appears to be in compliance with labour legislation. However, given the concerns expressed by the complainant organization, the Committee requests the Government to ensure that the production and attendance bonuses are not used by the enterprise Corporación Aceros Arequipa SA in a discriminatory fashion against workers belonging to the trade union and working for the enterprise Corporación Aceros Arequipa SA or the enterprise SERGLOSA. Finally, the Committee notes that no mention is made in the labour inspectorate reports of anti-trade union dismissals or practices and that the dismissals carried out since 1990 and referred to in the allegations are due mainly to the restructuring process carried out from 2005 onwards for technological reasons.
5. 1064. Finally, as to recommendation (d), regarding the harassment of trade union official Mr Víctor Alejando Valdivia Castilla by the President of the Ancash region (involving, according to the allegations, a complaint of aggravated defamation [see 338th Report, para. 1190]), the Committee notes that the authorities have not received any verbal or written notice in this regard. The Committee invites the complainant organization to initiate legal proceedings.