Effect given to the recommendations of the committee and the Governing Body - Report No 408, October 2024

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

1. 42. The Committee last examined this case, which concerns allegations of violations of freedom of association in three enterprises in the agro-industry sector, at its March 2022 meeting [see 397th Report, paras 672–708]. On that occasion, the Committee issued the following recommendations:
   • The Committee trusts that the complaints concerning the alleged irregularities during the general assembly of the SITESAV and in the establishment of its executive board will be resolved as soon as possible by the judicial authorities. The Committee also requests the Government to ensure that SITESAV’s activities can be carried out without interference. The Committee requests the Government to keep it informed in this regard.
   • The Committee requests the Government and the complainant organization to specify whether the union leaders and members of SITESAV who attended the general assembly of 3 June 2016, and those for whom compulsory leave was applied as part of their intermittent contracts, were subsequently reinstated in their work.
2. 43. With regard to recommendation (a) concerning the allegations related to the alleged irregularities in the holding of the general assembly of SITESAV and in the formation of its board of directors, by communication dated 19 March 2024, the Government transmitted a communication from the First Provincial Criminal Prosecutor’s Office of Trujillo, district of La Libertad, which indicates that: (i) on 23 November 2022, a judgment of acquittal was handed down regarding the commission of the crimes of use of false private documents and electoral fraud in respect of the leaders Messrs Melanio Rafael Chiquimango Rosado, Santos Vargas Rodriguez and Alonzo Villanueva Félix; (ii) this judgment was appealed by the Public Prosecutor’s Office on 12 December 2022; and (iii) at a hearing on 10 July 2023, the Public Prosecutor’s Office withdrew the appeal on the grounds that the criminal action had lapsed (statute of limitations) and the Third Criminal Court ruled that the withdrawal on the grounds that the criminal action had lapsed due to the extraordinary statute of limitations was well founded.
3. 44. With regard to the Committee’s request to the Government in recommendation (a), to ensure that the activities of SITESAV can be carried out without interference, in its communication of May 2022, the Government transmitted Report No. 02-2022 of the National Superintendence of Labour Inspection (SUNAFIL), which states that, as part of the investigations carried out under inspection order No. 1609-2018-SUNAFIL/IRE-LIB, it was verified that the company had been complying with the granting of trade union leave, as well as with the withholding and payment of union dues.
4. 45. By a communication dated 10 May 2022, the Government transmitted several documents containing information relating to recommendation (b). These documents include a report from SUNAFIL containing the employment record of the workers who attended the 3 June 2016 assembly and the record of suspensions of workers indicating the periods worked by the workers who attended the 3 June 2016 assembly, including the beginning and end or termination of employment, the reason for termination (if applicable), and whether in 2022, the year in which the Government sent the communication, they were still in current employment with their employer.
5. 46. From the set of documents provided by the Government, it appears that, of the 28 workers who attended the June 2016 assembly, 20 workers were placed on compulsory rest from the date of the assembly until they left the company, most of them due to termination of their contract and others due to dismissal or resignation. Most of these workers had their employment terminated in 2016, others resigned and between 2018 and 2019 the company dismissed six workers, four union board members, one union election committee member and one affiliate. Five workers who attended the assembly and who had not been subject to the above-mentioned compulsory rest were working at the company 2022, including one worker who resigned from the union’s board of directors.
6. 47. By communications dated 4 May 2022 and 19 January 2024, the Government reported on the status of the judicial proceedings for fraudulent dismissal brought by the member of the electoral committee of the trade union, Mr Félix Alonzo Villanueva (file No. 00681-2019-0-1601-SP-LA-02). The Government indicates that the cassation appeal lodged by the respondent company has been declared admissible and that the files will therefore be examined, with the hearing of the case scheduled for 9 November 2023, pending the issuance of the judgment on the merits.
7. 48. The Committee takes note of the information provided by the Government. With regard to recommendation (a), concerning the criminal complaint on the offences of use of false private documents and electoral fraud, the Committee notes that, according to the Government, all the leaders concerned were acquitted.
8. 49. With regard to the request made to the Government to ensure that the activities of SITESAV can be carried out without interference (recommendation (a)), the Committee takes note of a report of SUNAFIL dated May 2022, which indicates that it has verified that the company complied with trade union leave and the withholding and payment of union dues. While noting that this report refers to a 2018 inspection order and that it was issued a few months after the Committee examined this case, the Committee also notes that it has not received any information in this respect from the complainant organization. Based on the above, the Committee will not pursue the examination of this aspect of the case.
9. 50. With regard to recommendation (b), the Committee takes note of the documentation annexed by the Government from which it appears that: (i) of the 28 workers who attended the June 2016 assembly, 20 of them were given compulsory rest from the date of the assembly until they left the company, in most cases due to termination of contract in 2016, others due to resignation and between 2018 and 2019 the company dismissed six workers, including four members of the union’s board of directors, one member of the union’s electoral committee and one affiliate; and (ii) five workers who attended the assembly and who had not been subject to the above-mentioned compulsory rest were working in the company in 2022, including one worker who resigned from the union’s board of directors.
10. 51. The Committee notes that, according to information provided by the Government, as well as to information in the public domain, Mr Félix Alonzo Villanueva, a member of the electoral committee of the complainant trade union, to whom compulsory rest was applied in 2016 and who was dismissed on 26 July 2018, filed two complaints: one for cessation of acts of hostility in which he requested to be reinstated at work (file No. 104-2016-0-1611-JM-LA-01) and another complaint for fraudulent dismissal (file No. 681-2019-0-1601-SP-LA-02). The claim for cessation of acts of hostility was declared well-founded in all instances. When he was reinstated, the company initiated a dismissal procedure that culminated in the dismissal of the worker, in response to which he filed a claim for nullity of dismissal. This claim was declared well-founded in the first and second instance and on 9 November 2023, the appeal lodged by the company was declared unfounded, the dismissal was declared null and void on the grounds of infringement of the plaintiff’s freedom of association, among other elements, and the company was ordered to reinstate the worker in his job with the payment of the remuneration he had not received since the date on which the dismissal took place.
11. 52. The Committee takes note of the text of the above-mentioned judgments. The Committee notes that in the judgment handed down in the hostility proceedings, it was concluded that the acts carried out by the company against the members of SITESAV had prevented the elected trade union leaders from exercising their functions as such, since all of them were either given temporary breaks or their contracts were not renewed; in other words, they were unable to exercise the positions for which they had been elected; in the same way, those who participated in the election of the board of directors were also given temporary breaks, giving the other workers “notice” of the consequences of their subsequent affiliations to a newly reactivated trade union body.
12. 53. The Committee notes with concern the points made in the judgment concerning the infringement of the freedom of association of Mr Félix Alonzo Villanueva and other leaders and members. The Committee notes that the above-mentioned leader was ordered to be reinstated in his post with the payment of the remuneration he had not received since the date of his dismissal. The Committee requests the Government to ensure that the judgment has been fully complied with. The Committee is not aware of any other claims for reinstatement and, having received no further information from the complainant organization, the Committee, while stressing once again the importance of taking measures to ensure that the activities of SITESAV and its leaders can be carried out without interference or reprisals, considers that this case is closed and does not call for further examination.