Report in which the committee requests to be kept informed of development - Report No 318, November 1999

1. 393. The complaint in the present case is contained in a communication dated 20 January 1999 from the General Confederation of Workers of Peru (CGTP). This organization sent additional information in a communication dated 15 April 1999. The Government replied in communications of 26 April and 6 September 1999.
2. 394. 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. 395. In its communications of 20 January and 16 April 1999, the General Confederation of Workers of Peru (CGTP) alleges that the dismissal on 4 September 1998 of Mr. Benancio Aguilar Atahua, Economic and Financial Secretary of the CGTP's National Executive Board and employee of the Unión de Cervecerías Peruanas Backus y Johnston S.A., was anti-union in nature. The complainant also alleges that there has been an excessive delay in the legal proceedings initiated by Mr. Aguilar Atahua in October 1998 against his dismissal.
2. 396. Furthermore, the complainant recalls that the company in question had attempted in July 1996 to include the trade union official Mr. Aguilar Atahua on a collective redundancy list but that on that occasion the administrative authority had ruled that he was protected by virtue of his trade union function and could not be included on the list. The complainant adds that the company appealed against this administrative ruling before the administrative disputes tribunal, which has yet to give a ruling.

B. The Government's reply

1. 397. In its communications of 26 April and 6 September 1999, the Government states that according to the complainant, the dismissal of Mr. Benancio Aguilar Atahua was an arbitrary and discriminatory act carried out because of his activity as a union official after he had been elected Economic and Financial Secretary of the CGTP's National Executive Board on 3 December 1995 and had been included in a collective redundancy list issued by the company. The Government adds that the list in question, which was to terminate the official's employment, was approved by the labour authority through resolution No. 140-96. However, the Government indicates that according to this resolution, which was subsequently confirmed by resolution No. 034-96, Mr. Aguilar Atahua was not included in the collective redundancy list, which prompted the company to appeal to the Third Administrative Labour Disputes Tribunal to annul these resolutions. The Government notes the complainant's allegation that it has been denied justice and that it is presenting a complaint against Peru to the International Labour Organization.
2. 398. As regards the allegation that no motives were given for the dismissal of the trade union official, the Government indicates that the complainant states that the situation is one of dismissal in connection with a collective lay-off and that, under the terms of labour standards, collective lay-offs have objective causes arising from unforeseen circumstances, force majeure, economic, technological, structural or other similar factors, or company closure. The Government adds that, given that the company Unión de Cervecerías Peruanas Backus y Johnston S.A. is in the process of merging with the Compañía Nacional de Cerveza S.A., the Sociedad Cervecera de Trujillo S.A. and the Cervecería del Norte S.A., it is reasonable to conclude that the mass dismissals have come about as a result of this merger process and, under the terms of section 63(b) of Supreme Decree No. 001-96-TR, are also applicable to workers normally protected by virtue of union office whenever there are specific reasons for including them in a "collective lay-off". At the same time, the Government indicates that, since the present case is still being examined by the 13th Labour Court of Lima and a ruling against the dismissal has not yet been handed down, existing remedies have not been exhausted and the complainant is in no position to present a complaint against Peru to the ILO.

C. The Committee's conclusions

1. 399. The Committee notes that in the present case, the complainant alleges that the dismissal on 4 September 1998 of Mr. Benancio Aguilar Atahua, Economic and Financial Secretary of the CGTP's National Executive Board and employee of the Unión de Cervecerías Peruanas Backus y Johnston S.A., was of an anti-union nature, and also alleges that there has been an excessive delay in the legal proceedings initiated by Mr. Aguilar Atahua in October 1998 against his dismissal.
2. 400. In the first place, the Committee notes that the Government's and complainant's versions of events relating to the dismissal of the union official in question are contradictory. According to the complainant, the dismissal was carried out without any motive being given and for anti-union reasons, whilst the Government indicates that the complainant itself stated that the dismissal was part of a collective lay-off, and that, given that the company is in the process of merging with other companies, "it is reasonable to conclude that the mass dismissals have come about as a result of this merger process". In this regard, the Committee notes that the complainant has at no time suggested that Mr. Aguilar Atahua was dismissed as a result of the collective lay-offs (which in fact occurred in July 1996) and indeed attached to its complaint a copy of the company's official notification to the union official in question which stated that he had been dismissed without any reason being given with effect from 5 September 1998. In this context, since it is an established fact that the dismissal took place without a motive being given, the Committee recalls that in its previous examination of similar allegations it had stated "In a case in which trade union leaders could be dismissed without an indication of the motive, the Committee requested the Government to take steps with a view to punishing acts of anti-union discrimination and to making appeal procedures available to the victims of such acts" and "It would not appear that sufficient protection against acts of anti-union discrimination, as set out in Convention No. 98, is granted by legislation in cases where employers can in practice, on condition that they pay the compensation prescribed by law for cases of unjustified dismissal, dismiss any worker, if the true reason is the worker's trade union membership or activities" (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, paras. 706 and 707).
3. 401. The Committee highlights the fact that the administrative authority in July 1996 ordered that the union official Mr. Aguilar Atahua, who had been on a list of persons to be laid off, should not be dismissed because he was protected by virtue of his union office and that he was nevertheless dismissed two years later in September 1998 while still protected. In these circumstances, while observing that a judicial process is under way on this matter, the Committee considers that Mr. Benancio Aguilar Atahua should be reinstated in his post without loss of pay and requests the Government to take all the necessary measures to this end, taking particular account of the slowness of the judicial process thus far (there has still been no ruling on the appeal lodged by the company in 1996 against the administrative resolution ordering that the union official in question should not be dismissed since he was protected by virtue of his union status). The Committee requests the Government to keep it informed of any measures which it may adopt in this regard.
4. 402. As regards the anxieties of the complainant regarding the delay in the judicial proceedings initiated by Mr. Aguilar Atahua in October 1998 to have his dismissal annulled, the Committee recalls that:
   • Cases concerning anti-union discrimination contrary to Convention No. 98 should be examined rapidly, so that the necessary remedies can be really effective. An excessive delay in processing cases of anti-union discrimination, and in particular a lengthy delay in concluding the proceedings concerning the reinstatement of the trade union leaders dismissed by the enterprise, constitute a denial of justice and therefore a denial of the trade union rights of the persons concerned.
   • (see Digest, op. cit., para. 749). Under these circumstances, the Committee firmly trusts that the legal proceedings begun in October 1998 by the union official Mr. Aguilar Atahua in connection with his dismissal will be concluded in the near future. The Committee requests the Government to keep it informed of any court ruling which should be handed down swiftly in this regard.
5. 403. Concerning the Government's statement that since a judicial procedure is under way the complainant was in no position to present a complaint to the ILO, the Committee recalls that, according to its procedures, although the use of internal legal procedures, whatever the outcome, is undoubtedly a factor to be taken into consideration, the Committee has always considered that, in view of its responsibilities, its competence to examine allegations is not subject to the exhaustion of national procedures. (See Procedures of the Committee, para. 33.)