Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 404, Octobre 2023

1. 474. The complaint is contained in a communication from the Autonomous Confederation of Workers of Peru (CATP) dated 5 May 2019.
2. 475. The Government of Peru sent its observations on the allegations in eight communications dated 1 and 15 October and 25 November 2019, 3 January, 2 March and 24 July 2020, 10 August 2022 and 12 September 2023.
3. 476. 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).

The complainant’s allegations

1. 477. In its communication dated 5 May 2019, the complainant alleges violations of freedom of association and the right to collective bargaining in various ways by several enterprises and the Government of Peru.
2. 478. The complainant organization states that since the establishment of the Single Union of Calidda Workers (SUTRACADD) in 2015, the enterprise Natural Gas of Lima and Callao S.A. (hereinafter “enterprise A”) has carried out all kinds of obstructionist actions to dilute trade union activity and eliminate SUTRACADD. It indicates that on 5 December 2017, the National Labour Inspection Authority (SUNAFIL) sanctioned enterprise A through infraction report No. 3131-2017-SUNAFIL/ILM for unilaterally extending the benefits agreed with SUTRACADD to workers not affiliated with a trade union.
3. 479. The complainant further alleges that: (i) in 2018, enterprise A sanctioned Mr Harold Villón Rojo, SUTRACADD’s organization secretary, on two occasions, by means of unfair and arbitrary reprimands; (ii) after Mr Villón Rojo submitted a list of claims on 15 November 2018, on 25 November 2018 the parties entered into a collective bargaining process, and (iii) on 26 November 2018, enterprise A dismissed Mr Villón Rojo with the intention of removing him from the leadership of SUTRACADD and the collective bargaining process.
4. 480. The complainant alleges that: (i) on 31 December 2017, 27 workers of the Casapalca Mining Company (hereinafter “enterprise B”) formed the Single Union of the Casapalca Mining Company (hereinafter “the trade union of enterprise B”); (ii) on 8 January 2018, enterprise B began circulating leaflets in the mining camp, stating that 80 per cent of its workers had been transferred to the staff of the subcontracting company Comprehensive Mine Management S.A.C. (hereinafter “enterprise C”), which enterprise B had created; (iii) on 18 February 2018, enterprise B dismissed 26 of the union’s 27 members, including its six leaders, for not agreeing to be transferred to enterprise C; (iv) the dismissed workers challenged this decision before the judicial authorities and, although one year had passed, no ruling had been issued at the date of submission of the complaint, and (v) on 26 February 2019, enterprise B dismissed the last member of the trade union, Mr Julio Gregorio García Burga, thereby completing its elimination.
5. 481. The complainant states that on 2 May 2014, the workers of the enterprise Rímac Insurance and Reinsurance S.A. (hereinafter “enterprise D”) and the enterprise Rímac EPS S.A. (hereinafter “enterprise E”), operating in the insurance and hospital sectors, respectively, formed the Rímac Workers’ Union (SINTRARIMAC, hereinafter “the trade union of enterprises D and E”). It states that enterprises D and E, in an act of discrimination and with the intention of intimidating the trade union leaders, filed a criminal complaint for aggravated defamation against its secretary general, Mr José Carlos García. The complainant states that this complaint was finally closed after a lengthy judicial process. It further maintains that the managers of enterprises D and E are persecuting Mr García and prowling around his home, so he had to request personal protection measures from the Sub-Prefecture of San Isidro against those managers.
6. 482. The complainant also alleges acts of anti-union discrimination and abuse against the union members. In this regard, it indicates that complaints were lodged with SUNAFIL in relation to the following matters: payment of utilities (File No. 76108), hostility (File No. 76110), working hours and attendance records (File No. 76111), as well as occupational safety and health (File No. 76112). According to the complainant, these complaints led to the imposition of sanctions against enterprises D and E.
7. 483. The complainant further maintains that: (i) in April 2015, the trade union of enterprises D and E submitted its first list of claims at the branch level to enterprises D and E, as well as to the Ministry of Labour and Employment Promotion; (ii) the enterprises systematically refused to negotiate with the trade union and lodged administrative objections; (iii) after the union had resorted to optional arbitration, the enterprises delayed the process through acts of bad faith, and (iv) collective bargaining has been paralyzed since the issuance, on 5 April 2019, of an arbitral award that declared the list of claims inadmissible and ordered the union to adapt the list to the scope that corresponds to its capacity and legitimacy to negotiate with enterprises D and E.
8. 484. The complainant alleges that on 30 May 2016, the subcontractor Confipetrol Andina S.A., formerly known as Skanska Peru S.A. (hereinafter “enterprise F”), dismissed 115 members of the Single Trade Union of Workers of Skanska Peru S.A. El Alto, Los Órganos and Talara (hereinafter “the trade union of enterprise F”), who worked for the client enterprise CNPC Peru, formerly known as Petrobras Energía (hereinafter “enterprise G”), in an attempt to abolish the union.
9. 485. The complainant also states that: (i) enterprise F did not deduct union dues from the union members during the last seven months of 2016; (ii) enterprise F systematically refused to accept letters of membership from new union members in 2017; (iii) following a complaint to SUNAFIL by the trade union on 15 December 2017, the enterprise was fined and ordered to deduct the union dues of four workers (File No. 465-2018); (iv) in 2018, the enterprise continued its anti-union practices, as it did not recognize the membership and, consequently, did not deduct the union dues of nine union members, and (v) on 6 September 2018, the union filed a complaint with SUNAFIL in this regard.
10. 486. The complainant states that Petroperú S.A. (hereinafter “enterprise H”) is a State-owned enterprise in the energy and mining sector. It states that there are 12 trade union organizations within enterprise H, all of which are minority unions, and that, since 2008, eight of them have formed the National Coalition of Trade Unions of Petroperú S.A. (hereinafter “the Coalition”), which maintains trade union relations with enterprise H. According to the complainant, there is open discrimination against non-grouped trade union organizations, which are excluded from the collective bargaining table.
11. 487. The complainant also alleges that the clauses contained in the collective agreements concluded over the years are only applied to the trade union organizations attached to the authority of the time, which openly favours them over other organizations. It states that enterprise H, by means of the Single Collective Labour Agreement of 1982–1983, undertook to grant trade union leave to four representatives of each trade union so that they could perform the functions inherent to their duties. It explains that, despite the changes introduced over the years, this benefit was never lost, since only the number of leaders has changed according to the number of members in each trade union organization. However, it maintains that when the National Unified Union of Employees and Administrative Workers of Petróleos del Perú (SINUTREAPP) requested trade union leave for two of its leaders, enterprise H refused to grant it.
12. 488. The complainant also indicates that clause 16 of the Single Collective Labour Agreement provides for the establishment of a committee composed of representatives of the Industrial Relations Department, as well as two members of each of the trade union organizations, in order to detect unsafe conditions in the different areas of work. It states that SINUTREAPP has been requesting to participate in these important work visits for many years, but has thus far been excluded.
13. 489. The complainant further states that clause 22 of the Single Collective Labour Agreement provides for the granting of an annual allowance of 3,000 Peruvian soles to trade unions that do not have their own premises allocated by enterprise H, and alleges that enterprise H discriminates against SINUTREAPP by not granting it this benefit. According to the complainant, although it is true that the aforementioned clause was last amended in 2006 when SINUTREAPP did not yet exist, this benefit is granted to other organizations that also did not exist at that time.
14. 490. The complainant indicates that in 2014, the Lindley Corporation (hereinafter “enterprise I”), which specializes in the bottling of carbonated beverages, built two mega plants in Trujillo and Lima in order to increase its production and reduce labour costs by reducing its personnel and using state-of-the-art technology, which resulted in the closure of other plants. It states that, as part of these changes, enterprise I reduced the workforce of its mega plant in Pucusana from more than 2,000 to 500 workers, particularly dismissing workers who belonged to a trade union organization.
15. 491. The complainant further maintains that in May 2017, enterprise I, resorting to illegal proceedings, implemented a process of outsourcing its activities, through which it replaced several unionized workers with workers from the subcontracting company San Miguel Industrial S.A (hereinafter “enterprise J”). It also states that enterprise I incentivized or forced its workers to transfer to subcontracting companies and increased the salaries of the staff working for them, which has weakened the trade union organizations present in enterprise I. According to the complainant, enterprise I also created new trade union organizations that promote outsourcing and submit to its proposals when signing collective agreements. It states that workers in subcontracting companies only have temporary contracts that are not renewed if they try to organize to demand better working conditions.
16. 492. The complainant states that, in order to be able to work on civil construction projects, metallurgical workers in the country must register in the National Register of Civil Construction Workers (RETCC). It indicates that when they do so, they are automatically covered by the collective agreement drawn up by the civil construction union, whose dues are also deducted weekly. The complainant states that this situation does not allow metallurgical workers’ unions to participate in collective bargaining processes and that, as a result, their working conditions have deteriorated, since the differences between these workers – who generally work on an industrial project until its completion – and those regulated by the civil construction regime – who are only active on site in the initial phase – are not taken into account.
17. 493. The complainant also alleges the abuse of fixed-term contracts, which allow enterprises to dilute trade union activity in the civil construction sector. It maintains that, in most cases, metallurgical workers do not report the injustices and arbitrary acts committed against them because when they do, employers do not renew their contracts and coordinate with other enterprises in the sector to not accept them by establishing blacklists of trade union leaders and activists. The complainant refers to the cases of Mr Pedro Condori Laurente and Mr Alfredo Cahuaya, trade union leaders and former workers of the enterprise Techint (hereinafter “enterprise K”), who are no longer able to work in their field due to rumours that they are social agitators.
18. 494. In addition, the complainant indicates that on 31 December 2018, Supreme Decree No. 345-2018-EF was issued, through which the Government approved the National Competitiveness and Productivity Policy. According to the complainant, this policy should have been developed in consultation with the social partners, but this was not the case. Therefore, the policy accepts the reasoning expressed at the Annual Conference of Executives, where it was noted that the reinstatement of workers before dismissal generates costs and hinders the free action of employers. The complainant states that this situation violated the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144), and points out that it had requested the Government to hold the discussion on the above-mentioned policy at the National Council for Labour and Employment Promotion (CNTPE).
19. 495. The complainant also denounces the issuance of Supreme Decree No. 009-2017-TR, which introduced several amendments to the legislation regarding recourse to optional arbitration and its modalities, introducing among other things a mandatory ninety-day period before it may be used. According to the complainant, this decree was adopted without prior consultation with trade union organizations, discourages collective bargaining and hinders the process of concluding collective agreements, which is becoming costly and tedious for workers.

The Government’s reply

1. 496. In its communication dated 1 October 2019, the Government provides the observations of enterprise A on the allegations against it presented by CATP. Enterprise A informs that it operates in the natural gas sector and has 414 workers, of which 25 are members of SUTRACADD. With regard to the alleged extension to non-unionized workers of the benefits agreed with SUTRACADD, enterprise A confirms that it was sanctioned by SUNAFIL, but indicates that it challenged this sanction through administrative litigation proceedings, since the infringements for which the fine was imposed were not duly proven.
2. 497. With regard to the list of claims presented by SUTRACADD on 15 November 2018, enterprise A indicates that the parties are negotiating in administrative conciliation. It also denies having dismissed Mr Villón Rojo in order to remove him from the collective bargaining process. According to enterprise A, he was dismissed for having falsified documents signed by an enterprise representative before presenting them to an insurance company.
3. 498. In its communications dated 2 March and 24 July 2020, 10 August 2022 and 12 September 2023, the Government indicates that: (i) SUNAFIL imposed a fine of 41,006.25 soles on enterprise A for having unilaterally extended the benefits agreed with SUTRACADD to non-unionized workers, (ii) on 12 September 2019, an administrative appeal lodged by enterprise A against the sanctioning resolution was dismissed; (iii) enterprise A challenged this decision before the 25th Permanent Labour Court of Lima, which declared its claim unfounded, and (iv) on 18 May 2022, enterprise A lodged an appeal against this decision before the Lima Superior Court of Justice, which remains pending. With regard to Mr Villón Rojo, the Government states that he filed a complaint against enterprise A with regard to the payment of social benefits, which was declared unfounded by the 1st Permanent Labour Court of Lima on 25 September 2020.
4. 499. In its communication dated 1 October 2019, the Government provides the observations of enterprises B and C. Enterprise B states that its reorganization with enterprise C was of a strategic business nature. It states that the reorganization was not intended to prevent the establishment of a trade union organization, but to optimize its activities through the spin-off of an equity block, which of course involved the movement of staff.
5. 500. Enterprise B states that it took this decision before becoming aware of the formation of the trade union of enterprise B. In this regard, it maintains that on 15 May 2018, the Regional Labour and Employment Promotion Directorate of the Lima Regional Government cancelled the registration of the aforementioned union for falsely stating that its members still had an employment relationship with enterprise B on 8 January 2018, the date on which it was established.
6. 501. In addition, enterprise B states that the members of the trade union, with the exception of Mr García Burga, were not dismissed, but transferred to enterprise C. With regard to Mr García Burga, it states that he held a position of trust by virtue of his duties, and in spite of this, he committed a dishonest act in the course of his work, for which he had to be dismissed. In this regard, the Government, in its communications of 2 March 2020, 10 August 2022 and 12 September 2023, states that: (i) Mr García Burga filed an appeal before the 20th Permanent Labour Court of Lima; (ii) following the issuance of a ruling on 21 February 2021, enterprise B filed a cassation appeal before the Fourth Chamber of Constitutional and Social Law of the Supreme Court of Justice, which was declared inadmissible; and (iii) as a result of this decision, enterprise B reinstated Mr García Burga to his post.
7. 502. For its part, enterprise C also maintains that the reorganization was never implemented with the intention of undermining the collective rights of the workers. With regard to the 26 workers transferred, it indicates that: (i) 7 workers continue to work for it; (ii) 3 workers have resigned; and (iii) 16 workers have been dismissed for repeated failure to perform their duties for more than forty days.
8. 503. In its communication dated 25 November 2019, the Government provides the observations of enterprise D. With regard to the criminal complaint lodged against Mr García, enterprise D denies having lodged it for anti-union reasons. It maintains that: (i) the complaint was filed in 2018, four years after the establishment of the trade union of enterprises D and E; (ii) it was a result of the commission of defamatory acts by Mr García, who had made false accusations against the enterprise on social media; and (iii) although the complaint was dismissed, the enterprise did not act with an unlawful purpose. Enterprise D also rejects the allegation that its staff prowl around Mr Garcia’s home. In that regard, it maintains that, on 7 August 2018, the Sub-Prefecture of San Isidro rejected Mr García’s request on the grounds that it lacked sufficient reasonable evidence to justify granting protection measures.
9. 504. With regard to the allegations that it is repeatedly opposing collective bargaining with the union of enterprises D and E, enterprise D refers to the arbitral award of 5 April 2019, mentioned in the complaint, which established that the union was not entitled to bargain at the level of the branch of activity with enterprises D and E, since they do not execute the same activities. It maintains that this decision, which was issued in the optional arbitration initiated by the union for the settlement of its 2015–2016 list of claims, has repercussions on the other lists of claims that were presented subsequently, in which the union also intends to negotiate at the level of the branch of activity.
10. 505. Enterprise D also rejects the allegations that it committed acts of discrimination and abuse against members of the trade union of enterprises D and E. In this regard, the Government confirms, in its communication dated 3 January 2020, that SUNAFIL carried out labour inspections in relation to Files Nos 76108, 76110, 76111 and 76112. It reports that the inspections that were carried out resulted in the imposition of two infraction reports against enterprise D with regard to attendance records (Files No. 76111) and occupational safety and health (Files No. 76112).
11. 506. In its communication dated 1 October 2019, the Government transmits the observations of enterprise F on the allegations against it from CATP. With regard to the alleged anti-union dismissals, enterprise F indicates that on 22 September 2014, it signed a service contract with enterprise G, which expired on 31 May 2016, as it was not renewed. It states, therefore, that the dismissal of the workers was due to a cause beyond its control and involved both unionized and non-unionized workers.
12. 507. As regards the alleged non-deduction of trade union dues, enterprise F states that the non-deduction of trade union dues mentioned in File No. 465-2018, to which the complainant refers, was not proven before SUNAFIL. It also maintains that there was an error in its payment system, which did not take into account the union deductions of nine workers, which were eventually regularized in favour of the union of enterprise F. For its part, the Government, in its communication dated 3 January 2020, confirms that SUNAFIL, in a decision dated 31 November 2019, declared that the offences imputed by the acting inspector in File No. 465-2018 did not exist.
13. 508. In its communication dated 1 October 2019, the Government forwards the observations of enterprise H on the allegations made against it. Enterprise H states that SINUTREAPP is a minority trade union that lacks legitimacy for the purposes of collective bargaining, given that the Coalition exists, with which it has been negotiating. It indicates that the product of this negotiation is applicable to all workers, including those affiliated to SINUTREAPP, since the legal system has established the mechanism of greater representativeness as the instrument that protects the interests of workers. Enterprise H reports that a collective bargaining process requested by SINUTREAPP is ongoing before the Ministry of Labour and Employment Promotion.
14. 509. According to enterprise H, three trade union organizations, including SINUTREAPP, are not part of the aforementioned Coalition. It states that, in accordance with the Collective Labour Relations Act and its regulations, two leaders from each of these organizations are granted trade union leave for a period of thirty days per year. Furthermore, enterprise H maintains that, in accordance with the Law on Safety and Health at Work and its regulations, it established a Safety and Health at Work Committee, made up of its own representatives and workers’ representatives who are selected through an election process every two years. With regard to the provision of trade union premises, it states that SINUTREAPP does not enjoy that benefit, as it did not participate in the collective bargaining carried out in 2006.
15. 510. In its communication dated 3 January 2023, the Government reports that SUNAFIL carried out 74 labour inspections at enterprise I between 2017 and 2019, which resulted in the issuance of 25 infraction reports against it. It states that five of those infraction reports related to freedom of association, including two for acts of anti-union discrimination.
16. 511. In its communication dated 1 October 2019, the Government indicates that, following complaints by Mr Condori Laurente, SUNAFIL initiated labour inspections related to discrimination at work and employment contracts on 24 May 2017 and 29 August 2019, respectively. It points out that these cases are still ongoing.
17. 512. With regard to the National Competitiveness and Productivity Policy, the Government states that the Ministry of Labour and Employment Promotion has developed a broad process of social dialogue and consultation with labour actors at the national, regional and civil society levels. It also points out that the tripartite consultations referred to in Convention No. 144 refer specifically to the promotion of the application of international labour standards, not to national policies.
18. 513. In its communication dated 15 October 2019, the Government states that Supreme Decree No. 009-2017-TR amended Article 61-A of the Regulations of the Collective Labour Relations Act to provide that optional arbitration may only be used for collective bargaining if at least six direct or conciliation meetings have been convened, and three months have elapsed since the start of the negotiation. According to the Government, the intention was to avoid practices that seek to shorten the natural course of direct negotiation in order to resort directly to arbitration and, thus, distort the system of voluntary negotiation.

C. The Committee’s conclusions

1. 514. The Committee takes note that, in the present case, the complainant alleges, on the one hand, a series of anti-union acts on the part of enterprises in various sectors and, on the other, that the Government did not consult trade union organizations before adopting two supreme decrees that would affect the interests of their members. The Committee takes note that the Government, for its part, responds to the allegations against it, in addition to sending in the observations of most of the enterprises concerned, as well as information on the judicial proceedings initiated as a result of some of the alleged anti-union measures.
2. 515. The Committee takes note that the complainant alleges that enterprise A, which operates in the energy sector, attempts to obstruct SUTRACADD’s activity and was sanctioned by SUNAFIL on 5 December 2017 for having unilaterally extended the benefits agreed with this union to its non-unionized workers. The Committee notes that the Government, for its part, indicates that: (i) SUNAFIL imposed a fine of 41,006.25 soles on enterprise A for having committed the aforementioned infringement; (ii) an administrative appeal lodged by enterprise A against the sanctioning resolution was dismissed on 12 September 2019; (iii) enterprise A challenged this decision before the 25th Permanent Labour Court of Lima, which declared its claim unfounded; and (iv) on 18 May 2022, enterprise A appealed this decision before the Lima Superior Court of Justice. In this respect, the Committee recalls that, in a case in which some collective agreements applied only to the parties to the agreement and their members and not to all workers, the Committee considered that this is a legitimate option – just as the contrary would be – which does not appear to violate the principles of freedom of association, and one which is practised in many countries [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 1287]. The Committee observes that, in the Peruvian legal system, article 9 of the Collective Labour Relations Act provides that, in collective bargaining, the trade union that has the absolute majority of the workers within its field as members assumes the representation of all of them, even if they are not members, while the minority trade union represents only its members, unless it allies itself with other unions and they collectively have more than half of those workers as members. Noting that the matter in question is the subject of a pending appeal, the Committee trusts that a decision will be issued shortly.
3. 516. The Committee also notes the complainant’s statement that after Mr Harold Villón Rojo, SUTRACADD’s organization secretary, submitted a list of claims on 15 November 2018, enterprise A dismissed him on 26 November 2018 in order to prevent him from participating in the collective bargaining process between the parties, which had started one day before. The Committee notes that enterprise A, in its observations transmitted by the Government, maintains that it did not dismiss Mr Rojo to keep him away from the collective bargaining process, but for having falsified documents signed by an enterprise representative before presenting them to an insurance company. The Committee also notes the Government’s indication that, in a decision dated 25 September 2020, the 1st Permanent Labour Court of Lima declared unfounded a complaint filed by Mr Rojo against enterprise A regarding the payment of social benefits. The Committee notes the contradictory versions of the complainant and enterprise A concerning the reasons for Mr Rojo’s dismissal. Understanding that the decision of 25 September 2020 from the 1st Permanent Labour Court of Lima on the payment of social benefits was issued as a result of an appeal lodged by Mr Rojo following his dismissal, the Committee requests the Government and the complainant to indicate whether, through this appeal or any other that may have been lodged, the dismissal itself was also contested, and to report on any decision issued in this regard.
4. 517. The Committee takes note that the complainant maintains that: (i) after 27 workers from enterprise B, which operates in the mining sector, established the trade union of enterprise B on 31 December 2017, enterprise B created enterprise C and transferred 80 per cent of its workforce, including 26 unionized workers, to this new subcontracting company on 8 January 2018; (ii) on 18 February 2018, enterprise B dismissed the 26 members of the union for not agreeing to the transfer, a decision which they challenged in court; and (iii) in order to eliminate the union, enterprise B dismissed its last member, Mr Julio Gregorio García Burga, on 26 February 2019. Furthermore, the Committee takes note that enterprise B, in its observations provided by the Government, states that: (i) its reorganization with enterprise C was of a strategic nature and the decision was taken before it became aware of the existence of the trade union; (ii) on 15 May 2018, the union’s registration was cancelled by the Regional Labour and Employment Promotion Directorate of the Lima Regional Government due to the absence of an employment relationship between its members and enterprise B on 8 January 2018, the date on which the trade union was established; (iii) the 26 members of the trade union were not dismissed, but transferred to enterprise C; and (iv) Mr García Burga was dismissed for having committed a dishonest act in the course of his work. The Committee also takes note that the Government, for its part, states that: (i) Mr García Burga filed an appeal before the 20th Permanent Labour Court of Lima; (ii) a ruling was handed down on 21 February 2021, against which enterprise B lodged a cassation appeal before the Fourth Chamber of Constitutional and Social Law of the Supreme Court of Justice; and (iii) as a result of the decision to reject that cassation appeal, Mr García Burga was reinstated by enterprise B.
5. 518. The Committee takes due note of the information provided by the Government with regard to the reinstatement of Mr García Burga. The Committee also takes note of the divergent versions expressed by the complainant and enterprise B concerning the date on which the trade union was established and the relationship between the establishment of the trade union, the decision of enterprise B to establish enterprise C and the alleged dismissals or transfers of 26 unionized workers by enterprise B. While noting that it does not have sufficient information to comment on these matters, the Committee takes note that 26 of the 27 members of the trade union were among the workers transferred to enterprise C, and that the last member of the union was dismissed, before being reinstated following judicial proceedings. Recalling that it is not within the Committee’s purview to pronounce itself on allegations relating to restructuring programmes, even when these involve collective dismissals, unless they have given rise to acts of anti-union discrimination or interference [see Compilation, para. 1114], the Committee requests the Government to respond specifically to the allegation of the complainant regarding the transfer of workers from enterprise B to enterprise C. It also requests the Government and the complainant to provide information on any administrative or judicial proceedings brought by members of the trade union of enterprise B in this regard and on the eventual outcome of such proceedings.
6. 519. The Committee takes note that the complainant alleges that: (i) workers in enterprises D and E, which operate respectively in the insurance and health sectors, formed the trade union of enterprises D and E on 2 May 2014; (ii) in order to intimidate the trade union leaders, the enterprises filed a criminal complaint for aggravated defamation against Mr José Carlos García, secretary general of the trade union of enterprises D and E, which was closed after a lengthy legal process, and (iii) the managers of enterprises D and E are persecuting Mr García and patrolling around his residence; so he had to request personal protection measures from the Sub-Prefecture of San Isidro. The Committee notes that enterprise D, in its observations transmitted by the Government, states that: (i) the criminal complaint was filed in 2018, four years after the establishment of the trade union, and it was a result of false accusations made against the enterprise on social media; (ii) although the complaint was rejected, it did not act for anti-union or illegal reasons; (iii) its staff do not prowl around near Mr Garcia’s home, and (iv) the Sub-Prefecture of San Isidro rejected Mr Garcia’s requests for protection measures on 7 August 2018. The Committee takes due note of the rejection of the criminal complaint by the courts and the request for protection measures by the Sub-Prefecture of San Isidro. Noting that the criminal complaint was made following Mr García’s posts on social media, the Committee recalls that the right of workers’ and employers’ organizations to express opinions through the press or otherwise is an essential aspect of trade union rights [see Compilation, para. 239]. In this context, the Committee invites the Government to take the necessary measures to foster a climate of dialogue and trust between the parties, conducive to the establishment of harmonious labour relations.
7. 520. With regard to the allegations of anti-union discrimination against members of the trade union of enterprises D and E, the Committee notes that the complainant maintains that several violations were reported to SUNAFIL in relation to the payment of utilities, acts of hostility, working hours, attendance records, and occupational safety and health, which have led to the imposition of sanctions on enterprises D and E. The Committee also notes that enterprise D denies any acts of discrimination and abuse against trade union members. The Committee notes that the Government, for its part, confirms that SUNAFIL carried out inspections on the aforementioned matters and sanctioned enterprise D in the areas of attendance records (File No. 76111) and occupational safety and health (File No. 76112). Taking account of the decisions already issued by SUNAFIL, as well as the vagueness of the allegations concerning the anti-union component of the violations, the Committee will not pursue its examination of this aspect of the case.
8. 521. As regards the alleged refusal to bargain collectively, the Committee notes that the complainant alleges that: (i) following the submission by the trade union of enterprises D and E of its first list of claims at the level of the branch of activity, enterprises D and E repeatedly refused to bargain collectively and lodged administrative objections; and (ii) after the union resorted to optional arbitration, an arbitral award dated 5 April 2019 was issued, which paralyzed the negotiation by declaring the list inadmissible and ordering that it be amended to correspond to the capacity and legitimacy of the union. The Committee notes that enterprise D states that the aforementioned arbitral award established that the trade union of enterprises D and E could not negotiate with enterprises D and E at the level of the branch of activity, since they do not carry out the same activities. In this regard, the Committee recalls that it does not adopt a stance either in favour of bargaining at the level of the branch of activity or at the enterprise level and that the fundamental principle concerns the need for the level of collective bargaining to be freely determined by the parties concerned [see Compilation, para. 1407]. Noting that the arbitral award of 5 April 2019 was issued at the request of the trade union, the Committee will not pursue its examination of this allegation.
9. 522. The Committee takes note that, according to the complainant, on 30 May 2016, enterprise F, which operates in the energy sector, dismissed 115 members of the trade union of enterprise F, who worked for the same client enterprise, enterprise G, with a view to eliminating this union. It also notes that enterprise F, in its observations communicated by the Government, maintains that the dismissal of the workers affected both unionized and non-unionized workers, and was due to a cause beyond its control, since its service contract with enterprise G had expired and was not renewed. The Committee notes the opposing views of the complainant and enterprise F on the reasons that led to the aforementioned dismissals, as well as the lack of observations from the Government relating to this allegation. While it does not have sufficient information to make a determination on this matter, the Committee recalls that where cases of alleged anti-union discrimination are involved, the competent authorities dealing with labour issues should begin an inquiry immediately and take suitable measures to remedy any effects of anti-union discrimination brought to their attention [see Compilation, para. 1159]. The Committee therefore requests the Government to take the necessary measures to carry out an investigation into the alleged anti-union nature of the dismissals carried out by enterprise F at the time of the termination of its service contract with enterprise G. The Committee also requests the Government and the complainant to indicate whether the workers dismissed at that time have initiated legal proceedings and, if so, to be kept informed of any rulings handed down.
10. 523. Furthermore, the Committee takes note of the complainant’s statement that: (i) enterprise F did not deduct union dues from the members of the aforementioned trade union for seven months in 2016, and refused to accept the letters of membership from its new members in 2017; (ii) following a complaint by the trade union in this regard, SUNAFIL fined the enterprise and ordered it to deduct the union dues of four workers (File No. 465-2018), and (iii) in 2018, the enterprise did not deduct the union dues of nine members of the union, so the union filed another complaint with SUNAFIL. The Committee notes the Government’s statement that, for its part, in a decision dated 31 November 2019, SUNAFIL declared that the offences identified by the inspector in File No. 465-2018 did not exist. With regard to the union deductions of the nine workers in 2018, the Committee takes note that enterprise F states that these were initially not made due to an error in its payment system, but that the situation was corrected in the end. In this regard, the Committee recalls that the withdrawal of the check-off facility, which could lead to financial difficulties for trade union organizations, is not conducive to the development of harmonious industrial relations and should therefore be avoided [see Compilation, para. 690]. Noting the indication by enterprise F that the problem with its payment system has been rectified, the Committee trusts that the competent authorities will continue to ensure that the trade union benefits fully from the deduction at source (check-off) of its members’ union dues.
11. 524. The Committee notes that the complainant alleges that: (i) since 2018, 8 of the 12 trade union organizations, all minority unions, that exist within enterprise H, which operates in the energy and mining sectors, have joined forces to form the National Coalition of Trade Unions of enterprise H, which maintains trade union relations with enterprise H; and (ii) as a result, the other four organizations are excluded from collective bargaining, which is discriminatory. The Committee notes that enterprise H, in its observations provided by the Government, states that: (i) the collective agreements concluded with the Coalition apply to all its workers due to the mechanism of greater representation provided for in the legislation; and (ii) SINUTREAPP, one of the trade unions not included in the Coalition, submitted a request for collective bargaining which is being processed by the Ministry of Labour and Employment Promotion. The Committee notes the divergent positions of the complainant and enterprise H on the possibility for minority trade unions in the enterprise that are not included in the Coalition to bargain collectively. In this respect, the Committee notes that section 9 of the Collective Labour Relations Act provides that “if there are several trade unions within the same field, trade unions which together have members representing more than half of all the workers may jointly represent them all” and that (...) “if there is no agreement, each union represents only its members.” The Committee recalls that systems based on a sole bargaining agent (the most representative) and those which include all organizations or the most representative organizations in accordance with clear pre-established criteria for the determination of the organizations entitled to bargain are both compatible with Convention No. 98 [see Compilation, para. 1360]. The Committee further observes that, according to the publicly available sustainability reports of enterprise H, SINUTREAPP did participate in the negotiation and signing of a collective agreement for the periods 2019–2020 and 2021–2022. In the light of the foregoing, the Committee will not pursue its examination of this allegation.
12. 525. The Committee also notes that the complainant maintains that enterprise H applies the clauses contained in the collective agreements concluded over the years only to certain trade unions. The Committee notes that the complainant states in particular that: (i) although it undertook to grant trade union leave to a certain number of representatives of each trade union, depending on the number of members of each organization, enterprise H refused to grant union leave to SINUTREAPP when it requested it for two of its leaders; (ii) although clause 16 of the Single Collective Labour Agreement provides for the inclusion of two members from each trade union organization on a committee responsible for detecting unsafe working conditions, SINUTREAPP was excluded in spite of its repeated requests to participate in the work visits organized by this committee; and (iii) although clause 22 of the Single Collective Labour Agreement provides for the granting of an annual allowance of 3,000 soles to trade unions that do not have their own premises allocated by enterprise H, the enterprise refuses to grant this benefit to SINUTREAPP.
13. 526. The Committee notes that, for its part, enterprise H states that: (i) in accordance with the Collective Labour Relations Act and its regulations, it grants trade union leave for a period of thirty days per year to two officials from each trade union organization that is not part of the Coalition; (ii) in accordance with the Law on Safety and Health at Work and its regulations, it created a Safety and Health at Work Committee made up of its own representatives and workers’ representatives, elected every two years; and (iii) SINUTREAPP did not participate in the collective bargaining carried out in 2006, so it does not benefit from the privilege established by the collective agreement in relation to trade union premises.
14. 527. The Committee takes due note of the information provided by the complainant and by enterprise H concerning the applicability to SINUTREAPP, a minority trade union that has not signed the enterprise’s collective agreement, of a series of facilities provided for therein. Observing once again that it appears from the sustainability reports of enterprise H that SINUTREAPP did participate in the negotiation and signing of a collective agreement for the periods 2019–2020 and 2021–2022, the Committee will not pursue its examination of this allegation.
15. 528. The Committee notes that the complainant states that, in 2014, enterprise I, which operates in the bottling sector, decided to cut its labour costs by building two new state-of-the-art mega plants in Trujillo and Lima and reducing the workforce of its mega plant in Pucusana from more than 2,000 to 500 workers. According to the complainant, these dismissals were aimed particularly at unionized workers. Regretting that the Government has not responded to this allegation, the Committee recalls once again that it is not within the Committee’s purview to pronounce itself on allegations relating to restructuring programmes, even when these involve collective dismissals, unless they have given rise to acts of anti-union discrimination or interference [see Compilation, para. 1114]. The Committee requests the Government to respond specifically to the allegation of the complainant regarding the dismissals of workers at the Pucusana mega plant carried out by enterprise I. The Committee also requests the Government and the complainant to provide information on any administrative or judicial proceedings that might have been brought by the dismissed workers in this regard and on the eventual outcome of such proceedings.
16. 529. The Committee also notes that the complainant maintains that, as part of a process of outsourcing its activities initiated in May 2017, enterprise I: (i) replaced several unionized workers with workers from enterprise J; (ii) incentivized or forced unionized workers to transfer to subcontracting companies; (iii) created new trade union organizations that promote outsourcing and submit to its proposals when signing collective agreements; and (iv) ensures that the temporary contracts of subcontracted workers who try to organize are not renewed. The Committee notes that the Government, for its part, indicates that between 2017 and 2019, 74 labour inspections carried out by SUNAFIL in enterprise I led to the issuance of 25 infraction reports, of which five were related to freedom of association, including two for acts of anti-union discrimination.
17. 530. While taking due note of the information provided by the Government, the Committee notes that it is not clear whether the aforementioned infraction reports are related to the specific allegations presented by the complainant in the context of this case. Recalling once again that where cases of alleged anti-union discrimination are involved, the competent authorities dealing with labour issues should begin an inquiry immediately and take suitable measures to remedy any effects of anti-union discrimination brought to their attention, the Committee requests the Government to provide information on the content of the five infraction reports issued by SUNAFIL concerning violations of freedom of association by enterprise I, and indicate whether sanctions have been imposed and corrective measures taken in relation to the acts of anti-union discrimination and interference alleged by the complainant.
18. 531. The Committee notes that the complainant states that: (i) Peruvian metallurgical workers must register in the RETCC in order to work on civil construction projects; (ii) when they register, they are automatically covered by the collective agreement concluded by the civil construction union, whose dues are also deducted, which prevents metallurgical workers’ unions from participating in collective bargaining processes, and (iii) as a result, their working conditions have deteriorated, as they usually work on an industrial project until its completion, and not only in the initial phase like civil construction workers. The Committee, while observing that the Government has not responded to these allegations, understands that under the Peruvian legislation that recognizes the majority trade union’s ability to negotiate on behalf of all workers in the area of bargaining in question, it is the civil construction trade union which, in the context of bargaining by branch of activity in the civil construction sector, negotiates for all workers in the sector, including the metallurgical workers registered in the RETCC. The Committee also understands that, according to the complainant’s allegation, the collective agreements concluded by the civil workers’ union would not meet the needs of metallurgical workers, which are different to those of civil construction workers. In this context, the Committee invites the Government to take the necessary measures to promote dialogue with all interested parties with a view to identifying modalities to enable the interests and needs of metallurgical workers and their organizations to be duly taken into account in the collective bargaining processes in the civil construction sector. The Committee requests the Government to keep it informed in this regard.
19. 532. On the other hand, the Committee notes that the complainant alleges that: (i) enterprises in the civil construction sector abuse temporary contracts in order to dilute trade union activity; (ii) when metallurgical workers report injustices committed against them, the enterprises do not renew their contracts and coordinate to draw up blacklists of trade union leaders and activists, and (iii) two trade union leaders and former workers in enterprise K, Mr Pedro Condori Laurente and Mr Alfredo Cahuaya, are no longer able to work in their field because of rumours that they are social agitators. The Committee also notes the Government’s indication that, following complaints lodged by Mr Condori Laurente, SUNAFIL initiated inspections concerning discrimination at work and employment contracts on 24 May 2017 and 29 August 2019, respectively, and that these cases are still ongoing. The Committee recalls that fixed-term employment contracts should not be used deliberately for anti-union purposes [see Compilation, para. 1096]. It also recalls that all practices involving the blacklisting of trade union officials or members constitute a serious threat to the free exercise of trade union rights and, in general, governments should take stringent measures to combat such practices [see Compilation, para. 1121]. The Committee requests the Government to take the necessary measures to ensure that the inspections carried out by SUNAFIL in relation to the complaints submitted by Mr Condori Laurente are concluded as soon as possible and to keep it informed of the outcome of the inspections.
20. 533. The Committee notes that the complainant alleges that: (i) on 31 December 2018, the Government issued Supreme Decree No. 345-2018-EF, which approved the National Competitiveness and Productivity Policy, and (ii) although this policy should have been developed in consultation with the social partners, this was not the case, in contravention of Convention No. 144. While noting the Government’s replies in this respect, the Committee notes that it has received similar allegations in Case No. 3373. The Committee therefore refers to its conclusions and recommendations adopted in the above-mentioned case (see 404th Report of the Committee, October–November 2023, paragraphs 580 to 584).
21. 534. With regard to the allegations concerning Supreme Decree No. 009-2017-TR, which amended article 61-A of the Regulations of the Collective Labour Relations Act, the Committee notes that the complainant states that: (i) it was adopted without consulting the trade union organizations; and (ii) several of its provisions relating to recourse to optional arbitration and its modalities discourage collective bargaining and make the process more difficult and costly for workers. The Committee notes that the Government, for its part, states that its intention, in adopting Supreme Decree No. 009-2017-TR, was to prevent practices that seek to shorten the natural processes of direct negotiation in order to have direct recourse to arbitration. The Committee, noting that the Government does not make reference to the alleged lack of consultation with the trade union organizations on the Supreme Decree, recalls that any changes to the scope and exercise of trade union rights should, as a matter of importance, be subject to in-depth consultations with the most representative organizations, in order to find, as far as possible, shared solutions [see Compilation, para. 1542]. The Committee therefore requests the Government to take the necessary measures to ensure that, in the future, the social partners are consulted during the process of drafting laws and regulations that affect the interests of trade union organizations and their members. With regard to the contents of Supreme Decree No. 009-2017-TR, the Committee observes that: (i) section 61-A of the Regulations of the Collective Labour Relations Act, which is the subject of the aforementioned Decree, was amended, and (ii) these provisions and their amendments are being examined by the Committee of Experts on the Application of Conventions and Recommendations in the context of monitoring Peru’s application of Convention No. 98. In these circumstances, the Committee will not pursue its examination of this aspect of the case.