Rapport intérimaire - Rapport No. 350, Juin 2008

1. 1452. The complaints are contained in communications from the Federation of Fishing Industry Workers of Peru (FETRAPEP) dated 6 November 2006 and 18 December 2007, the National Federation of Mine, Metal and Steel Workers of Peru (FNTMMSP) dated 4 September 2007 and the General Confederation of Workers of Peru (CGTP) dated 21 September 2007.
2. 1453. The Government sent its observations in communications dated 13 July and 26 October 2007 and 3 March 2008.
3. 1454. Peru has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and the Labour Relations (Public Service) Convention, 1978 (No. 151).

A. The complainants’ allegations

1. 1455. In its communication dated 6 November 2006, FETRAPEP alleges that after converting a workers’ committee into a trade union – SITRAPESNER – the Pesquera Némesis SAC and Pesquera Ribaudo SA enterprises (both have employees at the same factory, with the same head of personnel) dismissed 20 workers on grounds of total suspension of work. In the light of its experience of how fishing industry enterprises act when a trade union is formed, the FETRAPEP requested the Ministry of Labour to conduct an inspection to demonstrate the lack of compliance with the labour legislation but such an inspection has not been carried out to date. FETRAPEP also alleges that after putting pressure on the workers, the Tecnológica de Alimentos SA enterprise (TASA) dismissed workers at each of the plants on 25 July 2006.
2. 1456. FETRAPEP also alleges the following acts of anti-union discrimination:
   • – Dismissal of the last two FETRAPEP general secretaries at the Pesquera San Fermín enterprise. Mr Eugenio Caritas (2003–05, extended until 20 February 2006) was dismissed amid accusations of negligence in his work, although it was common knowledge among the workers that he only received orders from his immediate boss regarding the work to be done; and Mr Wilmert Medina Campos, the current general secretary (2006–08), was dismissed amid accusations of serious misconduct.
   • – Revocation of trade union registration. The Pesca Perú Huarmey SA enterprise, transferred to Consorcio Pesquero Inca SA (COPEINCA), initially chose to put pressure on two workers who, under duress and fearing dismissal without benefits other than their severance payments, “resigned voluntarily” on payment of incentives, and subsequently legal action was taken to seek revocation of the registration of the union on the grounds that there were now insufficient members, and this was achieved in the record time of one and a half months. After revocation of the trade union registration, the surviving members of the union executive committee founded the corresponding committee, whereupon the enterprise sent them letters “inviting” them to resign voluntarily in return for incentives; the workers either accepted reluctantly or refused to accept altogether.
   • – Suspension of trade unionists. Pesca Perú Huarmey SA, transferred to COPEINCA, suspended unionized workers invoking the unfair Supreme Decree (DS) 006-96-TR. FETRAPEP claims that DS 006-96-TR, enacted on 11 August 1996, is unconstitutional and has been detrimental to the interests of fishing industry workers for a decade, inasmuch as it enables employers to suspend employment contracts for up to 90 days, with extensions of an additional 15 or 30 days in many cases, on the pretext of the existence of the closed season for fishing, the latter, however, being a predictable phenomenon.
   • – Suspension of trade unionists. Pesquera San Fermín SA requested the suspension of 50 workers out of a total of 68. All the suspended workers are union members, which shows that the enterprise is discriminating against trade unionists, creating an atmosphere of mistrust among them at work and encouraging some members to resign from the union.
   • – Refusal to bargain collectively. Pesquera Némesis SAC, which has been resorting to a programme of restructuring in order to escape its obligations, has blocked any possibility of complaints on the part of the workers.
   • – Non-recognition of a trade union. Alexandra SAC is unwilling to recognize the trade union of workers at the enterprise which was founded on 23 September 2006 and was registered by trade union through Resolution No. 001-2006-RG-MTPE/2/12621. The enterprise is currently harassing and discriminating against union members to make them resign from the union.
3. 1457. In its communication of 18 December 2007, FETRAPEP alleges new acts of anti-union discrimination, namely:
   • – Dismissals at the port of Chancay. Pesquera Diamante SA purchased all the shares of Pesquera Polar SA. The new administration introduced itself to the workers and offered to improve the economic and working conditions. On 31 July 2007, the new administration dismissed 37 unionized workers who refused to sign a six-month contract since they were on stable contracts of indefinite duration. At the same time on the same day, the superintendent of Pesquera Diamante SA in Chancay forcibly detained all the workers until all the union members signed a new contract under a new company name and with a new date of entry into employment. The police officially recorded the forcible detention, i.e. the officials of Pesquera Diamante SA are recognized to have committed blackmail at the Chancay plant. To date, the workers have signed a new contract with Pesquera Diamante SA for one year with the proviso that the trade union remains inactive for one year.
   • – Violation of freedom of association and collective bargaining by CFG Investment SAC at the port of Chancay. In order to avoid completing the collective bargaining process for 2006–07, the enterprise harshly and arbitrarily dismissed 16 workers belonging to the trade union, including eight of the nine members of the executive committee and the members of the negotiating board, the parties being in the final phase of collective bargaining (conciliation stage with informal meetings).
   • – Violation of freedom of association by Pesquera San Fermín SA. The enterprise dismissed Mr Richard Veliz Santa Cruz using the end of his contract as a pretext. After noting his decision to join the workers’ union, the enterprise proposed the renewal of his contract for one more year if he resigned from the union. This situation was obviously irregular and is in breach of article 28 of the Constitution. The worker has been employed by the enterprise since 2 June 2005 without interruption, signing the first contract for six months, the second for six months, the third for one year, and the last for two months, finishing on 3 August 2007. Mr Velia Santa Cruz sent a letter dated 27 June 2007 to the enterprise regarding the harassment to which he had been subjected by the superintendent to make him resign from the union; the union then sent official letter No. 43-2007-SETPSFSA, dated 16 July 2007, referring to the anti-union attitude of the enterprise, inasmuch as it also sent pre-dismissal letters last March to Mr Freddy Medina Soto (member), Mr Juan Martínez Dulanto (documents and archives secretary) and Mr Ronald Díaz Chilca (secretary for discipline, culture and sport).
4. 1458. In its communication dated 4 September 2007, the FNTMMSP alleges that, in order to be able to initiate collective bargaining at the Southern Peru Copper Corporation, it was necessary to go on strike for five days in April 2007. The complainant organization claims that the essential problem is that the Southern Peru Copper Corporation had stipulated long-term negotiations (2001–07) which had practically been imposed on it since there were many different unions (eight) at that time and hence the enterprise had been able to impose the long-term bargaining.
5. 1459. According to the complainant, in the present collective bargaining process, the enterprise seeks at all costs to impose a six-year period in the bargaining and to this end it is making use of five minority unions which were set up after the union amalgamation creating a membership of 2,500 workers. The minority unions only represent 350 workers and with them it has already signed long-term (six-year) agreements with financial incentives (a bonus of 16,000 soles for signing the agreement). The complainant considers that the policy implemented by the enterprise destroys the whole legal structure of collective bargaining and the very essence of freedom of association, and the Ministry of Labour and Employment Promotion appears indifferent towards this situation. It adds that the enterprise invited the workers through its newsletter (August issues Nos 22 and 23) to join in the long-term negotiations which it signed with the minority unions but which are still open. In newsletter No. 23, it goes even further because it intimidates the workers, stating that it will stop paying the benefits accruing from the previous round of collective bargaining. The Minister for Labour and Employment Promotion has been informed of this situation by means of official letter No. 558-2007-CEN-FNTMMSP.
6. 1460. In its communication dated 21 September 2007, the CGTP states that Textiles San Sebastián SAC was founded in 1993 and manufactures clothing for export. One of the top 20 textile and clothing exporters in Peru, the enterprise is owned by the Tang Chea family and is linked to Multiservicios Laborales SAC and Corporación Ecotint, among others. The CGTP asserts that ever since it went into operation, the enterprise has failed to observe a series of labour rights, and this has given rise to numerous demands from the workers and even from the administrative labour authority to solve the problems. The workers therefore decided to get together to improve the dialogue with the enterprise to solve the problems and improve their quality of life and work, establishing the Single Union of Workers of Textiles San Sebastián SAC at a general assembly on 3 September 2006. The union has a total of 55 members, a figure which increased after one month of operation to 250 members from a total of 708 workers (662 blue-collar workers and 46 white-collar workers).
7. 1461. The CGTP states that, by means of automatic registration record No. 182547-2006-DRTPEL/DPSC/CDRG/DRS of 26 September 2006, the Ministry of Labour and Employment Promotion registered the Single Union of Workers of Textiles San Sebastián SAC. By means of a letter sent on 15 November 2006, the union informed the enterprise of the content of automatic registration record No. 182547-2006-DRTPEL/DPSC/
   • CDRG/DRS and the recognition thereof by the Ministry of Labour and Employment Promotion. The complainant alleges that on the same date the enterprise submitted an appeal against the Ministry of Labour and Employment Promotion automatic registration record No. 182547-2006-DRTPEL/DPSC/CDRG/DRS, which grants legal status to the union. The enterprise sought to dissolve the union, claiming that it had not complied with the corresponding procedure, since no public notary was present at the constitutive assembly of the union and, in addition, some signatures of those present were forged.
8. 1462. The CGTP states that, on 27 November 2006, the Ministry of Labour declared the appeal for nullity inadmissible, and this decision was appealed against. The latter appeal was declared inadmissible on 12 February 2007 for failing to meet the prescribed deadline. The decision granting legal status to the union was thus upheld. Nevertheless, the enterprise continues to fail to recognize the existence of the union in practice, obstructing and refusing any possibility of dialogue. Moreover, the enterprise refuses to apply the check-off facility for the collection of union dues, which, incidentally, the employer is legally obliged to do, thereby undermining the union’s organizational capacity by depriving it of its main source of funding. In addition, with the aim of better exercising the right to freedom of association, by means of a written communication submitted on 1 January 2007, the union requested space from the enterprise in which to install a noticeboard, exclusively for official union business. This request has been completely ignored by the enterprise.
9. 1463. The complainant adds that the union workers relied on the trade union and the collective bargaining process to improve their conditions of work. The collective agreement should be constructive, reconciling the various interests and avoiding confrontations which are costly to both parties. Accordingly, on 10 January 2007, the union submitted a list of demands in writing to the enterprise and to the administrative labour authority, together with the draft collective agreement covering the period 10 January 2007 to 9 January 2008. On 12 January 2007, the administrative labour authority ordered the start of collective bargaining, a decision which was questioned by the enterprise, which challenged the Ministry of Labour’s ruling stating that an administrative complaint relating to registration of the union had been submitted.
10. 1464. Despite the fact that the administrative labour authority declared the aforementioned claim unfounded by means of directives dated 7 March and 7 June 2007, the enterprise continues to fail to recognize the union in practice, blocking any possibility of dialogue. Indeed, despite the fact that the union made a written request to the enterprise on 18 June 2007 to set a time and place for starting the bargaining process, the enterprise maintains its stance of not recognizing either the union or the demands submitted. The union was therefore obliged, given the repeated refusals of the enterprise, to inform the Ministry of Labour in writing on 6 July 2007 of the end of the direct negotiations and to request that both parties be summoned to conciliation. To date, the position of the enterprise remains unchanged.
11. 1465. The above details show that the employer is not only failing to honour the workers’ decision to join the union and use collective bargaining as a democratic mechanism for settling differences but also disregarding the very provisions laid down by the administrative labour authority, despite the fact that the latter has acted according to the law. The enterprise has been obstructing the start of collective bargaining. Furthermore, it should be pointed out that the workers, in order to be able to exercise their right to collective bargaining appropriately, applied in writing on 15 November 2006 for the union licences required for the negotiating board. The enterprise did not reply to this application, in practice imposing restrictions on the union’s right to bargain.
12. 1466. As indicated above, the CGTP points out that the enterprise has carried out various actions against the workers’ labour rights, and these actions have been stepped up, since the union was established, especially against the union’s members. In this respect, as shown by the report relating to inspection order No. 665-2007-MTPE/2/12.3 of 31 January 2007, the Ministry of Labour has recorded various events in breach of the law which are damaging to the workers’ rights. For example, the employer did not pay compensation for length of service (CTS) for 2004, 2005 and 2006; it did not allow annual holidays or make holiday payments for 2003, 2004 and 2005; it did not pay company profits for 2004 and 2005; it did not credit wage payments for January 2007. The union also sent various written communications to the enterprise – 16 October, 2 and 14 November – calling on it to fulfil its obligations regarding payment of the CTS, profits, holidays and also payment of the bonus for December 2006. These communications have not received a satisfactory reply from the enterprise.
13. 1467. Moreover, apart from the anti-union practices described above, the CGTP alleges that because of the establishment of the union the enterprise has indefinitely distorted the employment contracts of certain members and would-be members, converting them into contracts subject to non-traditional “exporting” procedures. This system allows the enterprise to conclude indefinite fixed-term contracts, i.e. temporary contracts without a legal limit regarding their duration. This change has pressurized the workers into signing the contracts. However, these contracts are likely to be used in a fraudulent manner since there is no reason justifying the introduction of a special contract in relation to a new round of bargaining or new organization of work; however, this is what happens in practice, as there is no justification for such a change. This shows clearly that the enterprise is seeking to get rid of any permanent link with the workers so that it can make renewal of the contract dependent on leaving the union or not joining it in the first place. This was communicated by the union on 2 November 2006. However, this communication was unfortunately treated in the same way as the previous ones.
14. 1468. The CGTP also alleges that from March 2007 onwards the enterprise initiated a new policy for the organization of its production, outsourcing part of its production chain to other companies. In this way, it tries to cover up a direct employment relationship between the workers and Textiles San Sebastián, restricting their freedom of association, particularly their right to form part of the union since they are not formally linked to the enterprise. Currently, only the unionized workers have remained directly linked to Textiles San Sebastián. This ploy has not only restricted the rights of the subcontracted workers but also, from March 2007, has enabled the enterprise to transfer its production and plant to premises at Av. Manuel Valle Mz. H Lt. 1 – Pachacamac, with the unionized workers relegated to secondary tasks such as separating second cuts, thus preventing them from working normally.
15. 1469. According to the CGTP, the enterprise is systematically harassing the workers who belong to the union. In June 2007, Textiles San Sebastián transferred the unionized workers to a new establishment located two hours’ drive away, thereby tripling or quadrupling the workers’ normal travel costs. In the new premises, the workers trained for sewing work are now obliged to perform manual work for which they are overqualified, such as selecting cloth to recycle for cutting. As can be seen, the enterprise is harassing the staff, firstly, by taking them to a different location which entails higher travel costs and, secondly, by not employing them in the sewing work which is the true function of the enterprise.
16. 1470. The CGTP also indicates that, in February 2006, the enterprise unfairly dismissed several unionized workers, including a woman who was five months pregnant at the time. Subsequently, on 27 August 2007, the enterprise sent letters of dismissal to three workers (two union officials and one union member): Mr Michael Martínez Arias, general secretary, Mr César Dávila Nieto, secretary for workers’ rights, and Mr César Caro Rivas, union member. The reasons given by the enterprise for the dismissals are the alleged attempted seizure of enterprise property, and also slander in lodging a complaint against representatives of the enterprise for alleged violations of freedom of work. None of the cases was proven by the judicial authorities. All of this is evidence of clear anti-union activity since the enterprise has been getting rid of unionized workers during the collective bargaining process and not allowing the renewal of new contracts, reducing the union’s capacity for self-expression to a minimum, as well as dissuading people from becoming members.

B. The Government’s reply

1. 1471. In its communications of 13 July and 26 October 2007, the Government states that the observations requested by the Committee on Freedom of Association relate to the supposed violation of trade union rights laid down in national and international labour legislation. The State of Peru has ratified Convention No. 87 by means of Legislative Resolution No. 13281 of 15 December 1959, which came into force on 2 March 1961, and it has therefore been applicable in national law since the first of the aforementioned dates.
2. 1472. In particular, the Government states, in relation to the supposed violation of trade union rights by the State of Peru on which the complaint is based, that the claim in question is inaccurate since there is no concrete factual or legal evidence to support it. The Government declares that this argument is based on the fact that Pesquera San Fermín SA, Grupo SIPESA, Pesca Perú Huarmey SA and Pesquera Némesis SAC indicated through various communications that the claims made by FETRAPEP do not reflect the truth since the termination of the employment relationships occurred in accordance with the law, using the established legal channels for such cases, and that the reduction in the number of union members at those enterprises was not caused by unlawful actions on the part of the employers but by the voluntary decision of the workers to leave their employment. Consequently, since the number of union members was lower than the minimum required by collective labour legislation, this constituted one of the grounds for seeking the dissolution of the union and the revocation of its registration. In the cases of Pesca Perú Huarmey SA and Pesquera Némesis SAC, the alleged violations contained in the present complaint have been shown to be without substance in view of the existence of the administrative and judicial rulings on the matter. Furthermore, with regard to the subject of anti-union persecution, it should be pointed out that the harassment described did not occur, since the revocation of the union’s registration was caused by failure to observe the terms of the Collective Labour Relations Act, namely having the legal minimum number of members.
3. 1473. The situations described by FETRAPEP essentially occurred because of the unions’ failure to observe one of the legal requirements for carrying out their activities, namely having the minimum number of members, and this led to the revocation of the union registration on the basis of a judicial ruling to this effect – which was not challenged by the union and was therefore upheld – and this was authorized by the competent body of the Ministry of Labour and Employment Promotion, in accordance with the relevant legislation.
4. 1474. In the light of the above, the Government considers that there is no legal or factual basis to support the allegations of any form of anti-union persecution or discrimination, refusal by the enterprises to engage in collective bargaining or recognize the registration of trade unions, or obstruction of the formation of unions in the ports by the aforementioned companies. Rather, the situations described in the complaint have arisen from the unions’ failure to observe the legal requirements laid down by the national labour legislation.
5. 1475. As regards the suspension of employment contracts in the fishing industry and the declaration of the closed season by the State, the Government points out that section 11 of the single consolidated text of Legislative Decree No. 728, Labour Productivity and Competitiveness Act, approved by Supreme Decree No. 003-97-TR, states that the employment contract shall be suspended when the worker’s obligation to provide services and the employer’s obligation to pay the respective remuneration ceases temporarily, without the employment relationship coming to an end (called “total labour suspension” (suspensión laboral perfecta) in official parlance, with the employment relationship being maintained between the parties but the obligations between them being suspended). The grounds for this type of suspension are thus established and are to be found in section 12 of the Labour Productivity and Competitiveness Act, including paragraph (l) of that section, which provides for “total suspension” as a result of fortuitous occurrence or force majeure, and this is the aspect which is under analysis in the present legal opinion. Furthermore, section 15 of the Labour Productivity and Competitiveness Act develops the grounds referred to above, stating that should a case of fortuitous occurrence or force majeure arise, the employer has the right, without any need for prior authorization, to suspend work for up to a maximum of 90 days, provided that he immediately notifies the administrative labour authority of such an occurrence. Nevertheless, the legal provisions explain, this measure should be adopted as a last resort, with holidays – either owed or taken in advance – to be granted first as far as possible, or any other reasonable measure taken which avoids undermining the workers’ situation.
6. 1476. It is important to point out that the conceptual limits between fortuitous occurrence (caso fortuito) and force majeure (fuerza mayor) are not fully defined, and this is therefore a subject of legal discussion. Accordingly, section 21 of the regulations implementing the Labour Productivity and Competitiveness Act, Supreme Decree No. 001-96-TR, establishes the essential characteristics of fortuitous occurrence or force majeure, namely inevitability, unpredictability and irresistibility, resulting in the impossibility of continuing work for a specified period of time. An occurrence is inevitable when nothing can be done to prevent the harm, danger or trouble in question; it is irresistible when it cannot be tolerated or endured; and it is unpredictable when there are no signs or indications to enable it to be seen, recognized or anticipated.
7. 1477. Consequently, by way of illustration, the Government declares that the closed season is the period during which logging, hunting and fishing are prohibited by law. Its purpose is to protect species, especially those threatened with extinction. The closed season can be temporary or permanent, depending on the species to be protected, the quantity and quality thereof, etc. Moreover, the closed season may be declared on the basis of foreseeable or unforeseeable causes. This applies to the types of closed season referred to by Supreme Decree No. 006-96-TR which give rise to the total suspension of employment contracts in the fishing industry, in line with National Directive No. 006-94-TR concerning application of the procedure relating to the total suspension of work for up to 90 days, for reasons of fortuitous occurrence or force majeure, approved by Ministerial Resolution No. 087-94-TR of 12 July 1994.
8. 1478. Hence, during the closed season periods laid down in the legislation questioned by FETRAPEP, fishing activities are suspended, with no provision of personal services giving rise to remuneration in this period. Consequently, the scenario of the total suspension of work for the reasons set out in the legislation in question is fully validated and recognized by labour doctrine, and so there is no legal foundation to support the claims of the trade union federation with regard to the aspect under examination.
9. 1479. With regard to the supposedly unconstitutional nature of the provisions contained in Supreme Decree No. 006-96-TR regarding the total suspension of work contracts in closed season periods, the Government declares that, given that there is no clearly established legal pronouncement which declares it either inapplicable or unconstitutional, the provisions questioned by FETRAPEP are binding and therefore currently in force. Hence, in accordance with the Political Constitution, the Government considers that the provisions contained in section 1 of Supreme Decree No. 006-96-TR fully maintain their effectiveness and their applicability is not open to questioning by any trade union without prior observance of the constitutional procedure for challenging such regulations: a final pronouncement through constitutional or ordinary channels.
10. 1480. The Government states that Peruvian labour legislation has been undergoing a constant process of improvement since 1992, with the aim of bringing its provisions into line with international standards relating to the subject matter of the present report, as is the case with Convention No. 87 of the International Labour Organization. In this context, the ILO has not observed any irregularity in relation to the abovementioned Supreme Decree No. 006-96-TR, and its validity is therefore fully recognized by the said international organization. With regard to the alleged violations reported by FETRAPEP, the Government considers that there is no legal or factual basis for concluding that there has been any form of anti-union persecution or discrimination, refusal by enterprises to bargain collectively or recognize the registration of trade unions or obstruction by enterprises of the establishment of trade unions in ports. Rather, the occurrences covered by the complaint have arisen from the unions’ failure to observe the legal requirements laid down by the national labour legislation, without which they are unable to exercise any trade union activity. As regards the grounds for the approval of Supreme Decree No. 006-96-TR, this consists of giving legal force to the suspension of work during the closed season periods established by the competent government authority (the Ministry of Production in this case), a situation in which fishing activities are suspended, with no provision during that period of any personal services that would give rise to remuneration.
11. 1481. With reference to the enterprises involved in the present complaint, the Government concludes that, in the cases of Pesca Perú Huarmey SA and Pesquera Némesis SAC, the alleged violations have been shown to be without substance in view of the existence of the respective administrative and judicial rulings. Furthermore, with regard to Pesquera San Fermín SA, informal meetings were held at which no agreement was reached because of differences of opinion between the parties. Hence, in this case, as with Grupo SIPESA and Alexandra SAC, since the violations were not proven, the Regional Labour Directorate of Lima-Callao will need to be reminded to take the appropriate steps to enable evaluation of the situations reported by FETRAPEP, which in turn will be communicated to the ILO. In addition, it should be pointed out that to date there has been no declaration of unconstitutionality or inapplicability of Supreme Decree No. 006-96-TR of 11 August 1996, which regulates the total suspension of work contracts in the closed fishing season; consequently, the Decree remains fully applicable as part of the labour legislation.
12. 1482. In its communication of 3 March 2008, the Government states, with respect to the allegations made by the FNTMMSP, that information in this regard was requested from the National Labour Relations Directorate by means of official letter No. 1065-2007-MTPE/9.1 of 24 October 2007. By means of official letter No. 2970-2007-MTPE/2/11.1, the Directorate sent the following information:
    • – between 2 July and 3 August 2007, informal meetings were held between the enterprise representatives and the Unified Union of SPCC ILO Workers, the Unified Union of SPCC Toquepala and Allied Workers and the Unified Union of SPCC Cuajone and Allied Workers, at which the points contained in the list of demands were discussed, agreement having been reached on a total of 48 clauses, with seven points proposed by the unions still pending, such as pay rises, closure bonus, working hours, union leave and licences, company rights, annual adjustment of benefits and continuity of employment;
    • – the collective bargaining procedures undertaken by the three unions have now been fully and definitively concluded with the signature of 49 clauses of the draft collective agreements submitted by the trade unions plus the signature of the record of the informal meeting of 9 October 2007. In addition, on 26 October 2007, pending issues such as the general increase and adjustment in pay, closure bonus, working hours and annual adjustment of benefits were definitively resolved.
13. 1483. The Government adds that the National Labour Relations Directorate stated that, by means of official letter No. 2320-2007-MTPE/2/11.1, the National Labour Inspection Directorate was requested to carry out inspections to verify whether any actions had been committed by the enterprise which had affected the freedom of association of the workers or trade unions. It is currently awaiting the results of those inspections.
14. 1484. As regards the complaint submitted by the CGTP alleging violations of trade union rights by Textiles San Sebastián SAC, the Government, needing to be aware of the practical labour issues in the reported situations, requested detailed information from the Regional Directorate of Labour and Employment Promotion of Lima-Callao by means of official letter No. 1102-2007-MTPE/9.1 of 5 November 2007. By means of report No. 330-2007-MTPE/2/12.1 of 15 November 2007, the Directorate stated that an examination of the situation and the inspection visits made reveal that Textiles San Sebastián SAC was unwilling to recognize the union or initiate a dialogue with it. Moreover, acts of harassment towards members of the trade union are reported, assigning them work to which they were unaccustomed and transferring them to various places of work, even failing to assign them specific tasks and leaving them virtually without work. This anti-union practice culminated in the dismissal of 73 workers. It is also revealed that the enterprise in question violated social and labour regulations on numerous occasions, having been the recipient of inspections and fines totalling 215,384 soles in 2007. On 30 October 2007, Textiles San Sebastián SAC was requested to restore the workers’ rights, including reinstating the 73 dismissed workers. Finally, at the hearing held on 9 November 2007, the enterprise did not comply with the relevant conditions since its representative did not have the necessary accreditation. The Regional Directorate of Labour and Employment Promotion of Lima-Callao is waiting for the Labour Inspection Directorate to send its final report and the record of the infringement in question.

C. The Committee’s conclusions

1. 1485. The Committee observes that, in the present case, the complainant organizations allege various violations of trade union rights and collective bargaining at various enterprises in the fishing industry (Pesquera Némesis SAC – Ribaudo SA; Tecnológica de Alimentos SA; Pesquera San Fermín SA; Pesca Perú Huarmey SA; Alexandra SAC; Pesquera Diamante SA and Consorcio Malla), one enterprise in the mining industry (Southern Peru Copper Corporation) and one enterprise in the textile industry (Textiles San Sebastián SAC).
   • Fishing industry
2. 1486. The Committee notes the allegations that: (1) after a trade union was established at Némesis-Ribaudo SA, 20 workers were dismissed on grounds of labour suspension; (2) after putting pressure on the workers, Tecnológica de Alimentos SA – Grupo SIPESA – dismissed workers at all plants on 25 July 2006; (3) Pesquera San Fermín SA dismissed the last two general secretaries of FETRAPEP, Mr Eugenio Caritas and Mr Wilmert Medina Campos, and union member Mr Richard Veliz Santa Cruz, and sent pre-dismissal letters to Mr Juan Martínez Dulanto, records and archives secretary, Mr Ronald Díaz Chilca, discipline, culture and sport secretary, and Mr Freddy Medina Soto, member; (4) Pesca Perú Huarmey SA suspended workers who were union members, invoking Supreme Decree No. 006-96-TR – which is detrimental to fishing industry workers, according to FETRAPEP, inasmuch as it allows the employer to suspend work contracts; and (5) Alexandra SAC does not recognize the union and is harassing its members. The Committee notes the Government’s statement to the effect that: (i) the fishing industry companies stated that the position of FETRAPEP does not reflect the truth, given that the termination of the employment relationships occurred in accordance with the prevailing legislation, using the channels established by law for such cases, and, in the case of Pesca Perú Huarmey SA and Pesquera Némesis SAC, the alleged violations described in the complaint have been shown to be without substance, since administrative and judicial rulings have been issued in relation to the allegations; and (ii) in the case of Pesquera San Fermín SA, the Government indicates that informal meetings were convened at which no agreement was reached in the dispute between the parties, and therefore in this case and in those concerning Tecnológica de Alimentos SA – Grupo SIPESA and Alexandra SAC the Regional Labour Directorate of Lima-Callao should be requested once again to take the appropriate steps to enable evaluation of the situations reported by FETRAPEP.
3. 1487. Furthermore, as regards the workers’ suspensions, the Committee notes the Government’s statement to the effect that: (i) section 11 of the single consolidated text of Legislative Decree No. 728, Labour Productivity and Competitiveness Act, approved by Supreme Decree No. 003-97-TR, provides that an employment contract shall be suspended when the worker’s obligation to provide services and the employer’s obligation to provide remuneration ceases temporarily, without the employment relationship coming to an end; (ii) the grounds for this type of suspension are laid down restrictively in section 12 of the abovementioned law and they include total suspension in cases of fortuitous occurrence or force majeure and section 15 develops the grounds, stating that in the event of fortuitous occurrence or force majeure, the employer has the right, without prior authorization, to suspend work for up to 90 days, provided that it immediately notifies the administrative labour authority; (iii) section 21 of the law lays down the characteristics defining what constitutes a case of fortuitous occurrence or force majeure, namely inevitability, unpredictability and irresistibility; (iv) in this context, the closed season is the period during which logging, hunting or fishing is prohibited by law, for the purpose of protecting species, and it may be temporary or permanent; (v) the closed season may be declared on the basis of foreseeable or unforeseeable causes; the types of closed season to which Supreme Decree No. 006-97-TR refers are those which give rise to the total suspension of work contracts in the fishing industry, and these are included among the unforeseeable causes.
4. 1488. In these conditions, the Committee expects that the administrative authority will launch without delay the evaluation which it announces in relation to the allegations concerning Pesquera San Fermín SA (dismissal of the last two general secretaries of FETRAPEP, Mr Eugenio Caritas and Mr Wilmert Medina Campos, and of member Mr Richard Veliz Santa Cruz, and pre-dismissal letters sent to Mr Juan Martínez Dulanti, records and archives secretary, Mr Ronald Díaz Chilca, discipline, culture and sport secretary, and Mr Freddy Medina Soto, member), Tecnológica de Alimentos SA – Grupo SIPESA (after putting pressure on the workers, all workers at all plants were dismissed on 25 July 2006) and Alexandra SAC (non-recognition of the union and harassment of its members), and requests the Government to send its observations in this respect.
5. 1489. As regards the allegation that Pesca Perú Huarmey SA requested judicial revocation of the registration of the trade union on the grounds that the latter no longer had the requisite minimum number of members, the Committee notes the Government’s statement that the absence of the minimum number of members required by labour law constitutes one of the grounds for seeking dissolution of the union and revocation of the respective registration, and also that the enterprise indicates that the reduction in the number of union members was not the result of actions by the employer but of the workers’ decision. In these conditions, while observing that the revocation of the union registration was effected through judicial channels, the Committee requests the Government to confirm that the judicial authority did not find that the reduction in the minimum number of workers which gave rise to the revocation of the union registration occurred as a result of anti-union persecution.
6. 1490. Finally, the Committee urges the Government to send its observations without delay regarding the allegations concerning: (1) Pesquera Diamante SA (the alleged dismissal of 37 unionized workers who refused to sign a six-month contract and the alleged forcible detention of all unionized workers until they signed a new contract; at present, the workers have signed a contract for one year with the proviso that the union remains inactive for one year); and (2) CFG Investment SAC (the alleged dismissal of 16 workers who were members of the union – including eight members of the executive committee and the members of the board negotiating the list of demands – for non-completion of the negotiations for the 2006–07 period). The Committee also requests the Government to obtain and transmit the comments of the enterprises on these allegations, through the employers’ organization concerned.
   • Mining industry
7. 1491. As regards the allegation made by the FNTMMSP that the Southern Peru Copper Corporation is seeking to impose a six-year period of validity on collective bargaining and to that end is making use of five minority unions representing 350 out of 2,500 workers and is offering them money to sign the agreement, the Committee first of all recalls that it has had to examine allegations of anti-union discrimination at this enterprise on previous occasions [see 326th Report, Case No. 2111, and 338th Report, Case No. 2248]. As regards the allegations made in this case, the Committee notes the Government’s statement that the National Labour Relations Directorate sent information to the effect that: (1) between 2 July and 3 August 2007, informal meetings were held between the enterprise representatives and the Unified Union of SPCC ILO Workers, the Unified Union of SPCC Toquepala and Allied Workers and the Unified Union of SPCC Cuajone and Allied Workers, at which the points contained in the list of claims were discussed, agreement having been reached on a total of 48 clauses, with seven points proposed by the unions still pending; (2) the collective bargaining procedures undertaken by the three unions have now been concluded with the signature of the record of the informal meeting of 9 October 2007; and (3) the National Labour Inspection Directorate was requested to carry out investigations to verify whether any actions had been committed by the enterprise which had affected the freedom of association of the workers or trade unions and that it is currently awaiting the results of those investigations. In these conditions, the Committee requests the Government to keep it informed without delay of the outcome of the investigations undertaken by the National Labour Inspection Directorate at the Southern Peru Copper Corporation to verify whether any actions had been committed by the enterprise during the collective bargaining with three unions (minority unions, in the complainant’s view) which had affected the freedom of association of the workers or trade unions.
   • Textile industry
8. 1492. As regards the allegations concerning Textiles San Sebastián SAC (specifically, the CGTP alleges numerous anti-union acts since the establishment of the enterprise trade union, such as non-recognition of the union and obstruction of dialogue, refusal to collect union dues from members, refusal to allow the union to use a noticeboard, refusal by the enterprise to negotiate a collective agreement, outsourcing of production in order to restrict the exercise of the workers’ freedom of association, transfer of production relegating unionized workers to secondary tasks, transfer of unionized workers to a distant workplace and, finally, the dismissal on 27 July 2007 of the general secretary, the rights protection secretary and a member), the Committee notes the Government’s statement that the Regional Directorate of Labour and Employment Promotion of Lima-Callao sent information that the examination of the facts and the inspections undertaken had revealed: (1) the enterprise’s unwillingness to recognize the union by refusing to initiate dialogue with it; (2) harassment of members of the union, assigning them tasks to which they were not accustomed; (3) transfers to various workplaces without assigning them specific tasks and leaving them virtually without work; and, finally (4) anti-union practice culminating in the dismissal of 73 workers. The Regional Directorate of Labour and Employment Promotion of Lima-Callao also sent information to the effect that: (i) the enterprise has violated social and labour regulations on numerous occasions, resulting in inspections and fines in 2007; (ii) on 30 October 2007, the enterprise was requested to restore the workers’ rights, including reinstatement of the 73 workers who were dismissed; (iii) at a meeting to which it was summoned on 9 November 2007, the enterprise did not comply with the requirements; and (iv) it is waiting for the Labour Inspection Directorate to send the final report and record of the infringement. In these conditions, the Committee recommends to the Government to take measures to promote, in consultation with the social partners, a legislation which guarantees sufficiently dissuasive sanctions against acts of anti-union discrimination and reminds the Government that the technical assistance of the Office is at its disposal. The Committee requests the Government, if the allegations are confirmed, to take all the necessary measures to reinstate the dismissed trade union leaders and members as a primary remedy; if the judicial authority determines that reinstatement of trade union members is not possible for objective and compelling reasons, adequate compensation should be awarded to remedy all damages suffered and prevent any repetition of such acts in the future, so as to constitute a sufficiently dissuasive sanction against acts of anti-union discrimination. The Committee urges the Government to take the necessary steps to ensure that the enterprise recognizes the trade union, remedies the anti-union measures taken against it and refrains from adopting any such measures in the future, and also to promote collective bargaining between the parties. The Committee requests the Government to keep it informed in this respect.