Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 331, Juin 2003

1. 643. The complaint is contained in communications dated 27 September and 9 November 2001 from the National Federation of Paper Manufacturing, Chemical and Allied Workers of Peru (FENATPAQUISP), which sent additional information in a communication dated 8 December 2001.
2. 644. The Government sent its observations in a communication dated 22 January 2003.
3. 645. 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. 646. In communications dated 27 September and 9 November 2001, the National Federation of Paper Manufacturing, Chemical and Allied Workers of Peru (FENATPAQUISP) alleges that on 25 May 2001 the trade union of workers of the company “Manufacturera de Papeles y Cartones del Perú S.A. – Planta Chillón” filed its founding documents with the labour authorities in accordance with legislation. On 29 May 2001, at the company’s request, a meeting took place with the union’s executive committee, and the union was even allowed to install a notice board in a space made available by the company. However, on the following day (30 May 2001), to the surprise of all the workers, the union’s officers and organizers were unilaterally prevented by the company from entering the site and 15 official letters of dismissal were sent out selectively, including six to members of the union’s executive committee (which has a total of seven members).
2. 647. The complainant organization states that in the legal proceedings initiated by the dismissed workers (who under the terms of section 31 of Decree No. 25593 enjoyed trade union immunity “from the date on which the application for registration was filed until three months after that date”) the company falsely stated that it did not know about the establishment of the trade union and that the dismissals were due to economic factors, although in reality the company had increased its nominal capital from 122 to 132 million new soles between 8 September 1999 and 26 July 2002.
3. 648. The complainant also alleges that the company not only applied repressive measures against workers but is blackmailing them with the threat of dismissal to force them out of their union. Evidence of this is provided by the three workers’ letters of resignation from the union dated 5 July 2001.
4. 649. The complainant also alleges acts of interference by the company in the union’s internal affairs. Specifically, it states that, faced with the dismissal of the six union officials, the union general meeting elected sub-secretaries and presented a draft collective agreement. The company then put pressure on the newly elected officials to leave the union, which in the end they all did (the letters of resignation are all worded in the same way and bear the same typescript). The company rejected the draft collective agreement in another discriminatory act of bad faith.
5. 650. In its communication of 8 December 2001, the complainant indicates that on 19 October 2001 a company manager sent to the Ministry of Labour 29 official letters of resignation from the union, which shows the direct interference by the company in union affairs. The management of the company has actually hardened its anti-union stance, as shown by its constant pressure on union members to leave the union by summoning them and confronting them with a stark choice between leaving the union or being dismissed. Faced with the imminent loss of their jobs, union members choose to resign from the union.

B. The Government’s reply

1. 651. The Government refers to the remarks made by the company Manufacturera de Papeles y Cartones del Perú S.A., according to which: (1) between July and October 2001, the workers sent it copies of their letters of resignation from the union to which they belonged; (2) the enterprise flatly denies having directly interfered in any way in the trade union organization; (3) none of the union members were induced or pressured to resign from the union; (4) on the other hand, since 2000, the enterprise has been experiencing a serious economic crisis which resulted in it being declared bankrupt on 10 June 2002 by INDECOPI. Consequently, all of the wages owed prior to this date will be bound by the bankruptcy process, a labour representative having already been chosen to sit on the corresponding Creditors’ Board.
2. 652. The Government considers that the complaint should be declared unfounded if in this case the facts are suitably laid out. The Government recalls that article 28 of the Constitution indicates that the State recognizes the rights to freedom of association, collective bargaining and strike and defends their democratic exercise: (1) it guarantees freedom of association; (2) promotes collective bargaining and peaceful forms of solving labour disputes. Collective agreements are binding; (3) regulates the right to strike which is to be exercised in keeping with the general interest and indicates the corresponding exceptions and restrictions. Article 2 of Act No. 25593, concerning collective labour relations, establishes that “the State grants workers the right to organize, without prior authorization, for the study, development, protection and defence of their rights and interests and the social, economic and moral progress of its members”. This standard establishes protection for all members of trade union organizations with respect to any coercive actions the employer might carry out. In this connection, article 3 indicates “membership is free and voluntary. The employment of a worker cannot be made conditional upon membership, lack of membership or resignation from membership, a worker cannot be obliged to join a trade union nor can he be stopped from doing so”. Meanwhile, article 4 indicates that “the State, employers and the representatives of both shall abstain from any type of action intended to coerce, restrain or undermine, in any way, the right to organize of workers, and to intervene in any way in the establishment, administration or support of the trade union organizations that they may set up”. Furthermore, article 29(a) of Supreme Decree No. 003-97-TR, consolidated text of Legislative Decree No. 728, concerning productivity and labour competitiveness, indicates that any dismissal on the grounds of membership of a trade union or participation in trade union activities has no legal force. In this way dismissals that affect freedom of association are sanctioned with invalidity. Consequently, the last paragraph of article 34 of this standard indicates that “in cases relating to invalid dismissals, if the worker’s claim is found to be justified he will be reinstated in his post, unless in the execution of the judgement he opts for the compensation established in article 38”.
3. 653. The Government adds, with respect to the legal texts described, that the administrative labour authority ensures compliance with them by means of labour inspection, which can be carried out following a complaint by a worker who considers himself to have been wronged.
4. 654. Likewise, workers have an expedited right to lodge a claim with the courts if they consider their labour rights to have been violated. For this reason, it is important to point out that it is this authority that must decide on any claims that may have been lodged by the workers.

C. The Committee’s conclusions

1. 655. The Committee observes that the allegations relate to: (1) the dismissal of 15 members (including six union officials) of the trade union of workers of “Manufacturera de Papeles y Cartones del Perú S.A. – Planta Chillón”, a few days after the establishment of the trade union; (2) threats of dismissal against workers who refused to leave the union (more than 29 workers have left) and pressure put on the six union officials who replaced the dismissed officials to leave the union (withdrawals achieved by the enterprise); and (3) the refusal by the enterprise to negotiate a draft collective agreement. The Committee notes the information from the Government concerning the legal provisions and mechanisms that provide protection against acts contrary to freedom of association and that it is the judicial authority that is responsible for examining this case.
2. 656. Concerning the allegation relating to the dismissal of 15 trade unionists (including six trade union officials), a few days after the establishment of a union, the Committee notes the enterprise’s indication that following an economic crisis, it was officially declared bankrupt in June 2002. The Committee points out, nevertheless, that the dismissals date back to May 2001 and that the Government does no more than indicate that legislation provides judicial recourse. The Committee therefore expresses its concern at the severity of the allegations concerning anti-union dismissals and calls attention to the principle whereby no person should be dismissed or prejudiced in his or her employment by reason of trade union membership or legitimate trade union activities, and it is important to forbid and penalize in practice all acts of anti-union discrimination in respect of employment [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 696]. The Committee observes that the dismissals have prompted judicial proceedings, and expresses the hope that these will soon be concluded, hoping also that if the persons in question cannot be reinstated in their jobs (in particular because the enterprise cannot continue its operations) they will be fully compensated, and requests the Government to keep it informed of the decisions that are handed down.
3. 657. As regards the alleged threats of dismissal against workers who refused to leave the union (more than 29 members have left) and pressure (also to leave) put on the six union officials who replaced the dismissed officials (withdrawals achieved by the enterprise), the Committee notes the enterprise’s denial of any type of pressure or inducement for affiliated workers to leave and, given the contradictory nature of both versions, it asks the Government urgently to conduct an investigation into this matter and, if the claims are found to be true, to take the necessary steps to apply the sanctions provided by law, and to ensure that such acts are not repeated. The Committee requests the Government to keep it informed in this respect.
4. 658. Lastly, concerning the alleged refusal by the enterprise to negotiate a draft collective agreement, the Committee observes that the enterprise is in the process of bankruptcy owing to an economic crisis and asks the Government that if the enterprise manages to continue its operations to take steps to stimulate and promote collective bargaining in the enterprise.