Definitive Report - Report No 337, June 2005

1137. The complaint is contained in a communication from the General Confederation of Peruvian Workers (CGTP) dated 8 September 2004.

1. 1138. The Government sent its observations in a communication dated 12 January 2005.
2. 1139. 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. 1140. In its communication dated 8 September 2004, the General Confederation of Peruvian Workers (CGTP) alleges that in order to break up, destroy the leadership of and eliminate the trade union organization, the enterprise Jockey Club del Perú initiated a collective procedure for financial reasons with the intention of removing from their posts 8 per cent of the permanent workforce (34 workers, including three trade union leaders) and replacing them with temporary workers, contravening Peruvian legislation which states that such collective actions may only be undertaken as a result of technical advances and not owing to financial reasons. Consequently, the enterprise’s actions are groundless as they cannot be justified on technical grounds. The complainant organization states that the enterprise is attempting to use the Ministry of Labour in order to secure these objectives.
2. 1141. The CGTP states that it fears that the enterprise, possessing as it does significant financial resources and political influences, will apply pressure in order to obtain a ruling in its favour, for which reason the complainant organization presented this complaint to the Committee on Freedom of Association.
3. B. The Government’s reply
4. 1142. In its communication dated 12 January 2005, the Government states that, through a communication dated 13 August 2004, in accordance with the provisions of article 46 subparagraph (b) of Legislative Decree No. 728, Law on Productivity and Labour Competitiveness, the enterprise Jockey Club del Perú requested the collective termination of the labour contracts of 34 workers for financial reasons, arguing that the number of workers exceeds current needs, with total personnel costs up to May 2004 reaching 3,013,892 new soles and annual personnel costs at 8,438,000 new soles; from 2001 to 2003 the enterprise made a financial loss due to the fall in the number of bets placed at the Club.
5. 1143. According to the Government, the employer submitted an expert report prepared by the firm of auditors Urbizagástegui, Rivas & Asociados Sociedad Civil, the Union of Workers of the Jockey Club del Perú and the Union of Permanent Employees of the Jockey Club del Perú also presented an expert report within the deadline laid down by the law.
6. 1144. The Government states that on 30 September 2004, the Directorate for Dispute Prevention and Resolution issued Directoral Resolution No. 136-2004-DRTPELC-DPSC rejecting the request for the collective termination of the labour contracts on the basis of the reasons provided for the dismissals, which were financial in nature. The Directoral Resolution also found against the complete interruption of work of those workers affected and ordered the immediate resumption of work and the payment of wages not paid during the period of suspension amongst other things, a ruling which was based on the fact that the employer failed to justify the requested measure by not demonstrating that the enterprise’s deficit was a consequence of the high cost of employing the staff members in question on the payroll.
7. 1145. Through Directoral Resolution No. 019-2004-MTPE/DVMT-DRTPELC of 18 October 2004, the Regional Labour and Employment Promotion Directorate of Lima-Callao ruled on Appeal No. 0016711, lodged by the Jockey Club del Perú, confirming the rejection of the request for the collective termination of the labour contracts, as well as the immediate resumption of work and the payment of wages remaining unpaid. The National Labour Relations Directorate issued a Directoral Resolution dated 4 November 2004, declaring the appeal for review lodged by the Jockey Club del Perú to be groundless and confirming the decision issued by the court of appeal.
8. 1146. Finally, the Government states that the parties agreed from 16 November 2004 to reinstate in their posts those workers who had been suspended, undertaking to meet in order to reach an agreement on the wages outstanding, according to the document signed by both parties.

C. The Committee’s conclusions

1. 1147. The Committee notes that, in this case, the complainant organization alleges that the enterprise Jockey Club del Perú attempted to remove from their posts 34 unionized workers in order to break up, destroy the leadership of and eliminate the trade union, citing financial reasons for such a move.
2. 1148. The Committee notes the rulings issued by the administrative authorities with regard to this case, rejecting the collective termination of the labour contracts for financial reasons and notes with interest the agreement concluded between the Union of Workers of the Jockey Club del Perú and the enterprise Jockey Club del Perú by which the enterprise undertakes from 16 November 2004 to reinstate in their posts those workers who had been suspended and that the parties undertake to reach an agreement on the wages outstanding.