Effect given to the recommendations of the committee and the Governing Body - Report No 362, November 2011

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

1. 130. The Committee last examined this case at its March 2010 meeting, and on that occasion made the following recommendations [see 356th Report, paras 1075–1091]:
   • (a) As regards the allegations concerning the dismissal of Mr David Elíaz Rázuri, Secretary for Defence of the National United Trade Union of Workers of Nestlé Peru SA (SUNTRANEP) and member of the workers’ committee which negotiated the 2007 list of demands, the Committee requests the Government to keep it informed of the final outcome of the legal proceedings before the Sixth Labour Court of Lima initiated by the union official in question.
   • (b) As regards the allegations concerning failure to adhere to the terms of the 2007 collective agreement and alleged anti-union attitudes displayed by the company, the Committee urges the Government to keep it informed of developments in those proceedings and to send a copy of any rulings that have already been handed down.
   • (c) As regards the allegations of anti-union attitudes and delaying tactics on the part of the company during negotiations on the collective agreement and intimidation and replacement of striking workers during the strike that occurred in October 2008, the Committee requests the Government to keep it informed of the company’s appeal of the decision imposing the fine, as well as of the sanctions proceedings initiated against the company for failure to comply with the collective agreement and the replacement of striking workers, currently under way before the Second Subdirectorate for Labour Inspection.
2. 131. In its communication of 7 February 2011, the Government states that, with regard to the appeal lodged by the company Nestlé Perú SA against the decision imposing a fine for violations of freedom of association, the appointed enforcement officer, in communication No. 928-2010-MTPE/4/11.01 dated 24 November 2010, reported that decision No. 022009-MTPE/4/10.101 suspended the enforcement proceedings against the company Nestlé Perú SA. This is the result of the administrative appeal lodged by the company calling for the fine to be overturned. Moreover, in decision No. 5, dated 19 July 2010, the evidence submitted by both parties was admitted and it was determined that the files should be referred to the Civil Public Prosecutor’s office in Lima. This case is currently awaiting a decision by that authority.
3. 132. Regarding the proceedings initiated by Mr David Elíaz Rázuri in connection with his dismissal, the Government indicates that, according to the online court database, in ruling No. 109-2009, the Sixth Labour Court of Lima upheld the appeal against dismissal. However, on 27 April 2010, Nestlé Perú SA in turn lodged an appeal against that ruling. Subsequently, in decision No. 21, dated 2 July 2010, the Sixth Labour Court of Lima upheld the appeal with suspensive effect. This case is currently pending a decision by the Labour Tribunal.
4. 133. As regards the proceedings initiated by the National United Trade Union of Workers of Nestlé Perú SA (SUNTRANEP) in relation to alleged failure to comply with the 2007 collective agreement, the Government indicates that in a ruling dated 11 March 2010, the Second Civil Tribunal of Lima declared inadmissible the amparo (protection of constitutional rights) filed by SUNTRANEP. However, on 21 April 2010, SUNTRANEP filed an appeal against that ruling on grounds of constitutional violation. Subsequently, in a decision dated 6 September 2010, the Constitutional Court declared the application for amparo inadmissible. The decision in question indicates that, according to clause 48 of the collective agreement, “this [provision] expired on 31 December 2007, but would continue to apply until amended by a subsequent collective agreement”, which was not duly acknowledged by SUNTRANEP. Therefore, since proof of certain facts is required, the Constitutional Court decided that the remedy of amparo is not the appropriate channel for resolving this case. Lastly, according to the court report obtained from the online court database, decision No. 17 of 7 January 2011 ordered that the case be set aside.
5. 134. The Committee takes note of this information. As concerns allegations that legal proceedings are overly lengthy, the Committee recalls the importance it attaches to such proceedings being concluded expeditiously, as justice delayed is justice denied [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 104]. The Committee requests the Government to keep it informed of the outcome of: (1) the administrative appeal lodged by Nestlé Perú SA against the fine imposed for violation of freedom of association; and (2) the proceedings regarding the dismissal of Mr David Elíaz Rázuri, Secretary for Defence of SUNTRANEP, currently before the Labour Tribunal.