Recently, Labor Inspection Court established an administrative precedent of mandatory observance in relation to the transfer of unionized workers (Chamber Resolution No. 002-2024-SUNAFIL/TFL).

The following are the most interesting points regarding this new pronouncement:

Relevant Background

The inspection procedure was initiated as a result of a complaint of anti-union practices, due to the transfer of unionized workers to several headquarters located in the center and north of the country, in violation of the consensus or mandatory prior negotiation established in the regulations in force within the framework of the COVID-19 pandemic (Supreme Decree No. 011-2020-TR).

Binding Precedent

The following grounds were established as binding administrative precedents:

  • By not informing the union organization about the reasons for the transfer of the workers to other headquarters, the company did not allow prior negotiations that seek to satisfy the interests of both parties, violating the right to freedom of association, understood as the self-determining capacity to participate in the constitution and negotiation of the protective jurisdiction in its geographical area.

  • To disprove the violations, it is not sufficient to state the reasons for the transfer decision, but evidence of those reasons is required.

  • Displacing affiliated workers in such a way that they were geographically disconnected, preventing them from their right to participate in ordinary and extraordinary union activities, is an anti-union act. Therefore, no additional aggravating factor is required to prove the harm caused to the workers affected by the measure.

  • As it does not consider the exercise of union rights, the employer's actions exceeded the regular exercise of management power.

We hope that this information will be of relevance to you and your company. If you require any further information, do not hesitate to contact us.