Definitive Report - Report No 197, November 1979

Case No 933 (Peru) - Complaint date: 12-JUN-79 - Closed

1. 290. The complaint appears in a communication from the Peruvian General Confederation of workers (CGTP) dated 12 June 1979. The Government sent its observations by two communications of 9 August and 25 September 1979.
2. 291. Peru has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. A. The complainants' allegations

1. 292. CGTP alleges that the Government has passed "emergency" legal provisions for the mining, fisheries and other sectors, which have resulted in the taking of measures in violation of trade union rights. It states that many workers have been unlawfully and unjustly dismissed, in particular following the recent miners' strike in the south of the country, that collective agreements have been ignored and the right to organise denied.
2. 293. The complainant organisation further considers that the adoption of Act No. 22126 facilitates the dismissal of workers and prejudices freedom of association by establishing a trial period of three years during which workers may not join trade unions. It also alleges that this Act introduces subjective grounds for loss of stability of employment and makes it difficult for trade union organisations to obtain recognition.
3. 294. According to CGTP the Ministry of Labour refuses to consider justified trade union petitions, fails to recognise legitimate organisations and, in some cases, such as that of the workers in the paper industry, prevents representative bodies of workers from registering.
4. 295. CGTP also alleges that all strikes are declared illegal on the pretext that the labour authorities were not previously aware of the problems which were the subject of the strike notification, or that these problems lie within the competence of the authorities and that the strike is thus "an unacceptable instrument of coercion".
5. 296. CGTP adds that the Constitutional provision proscribing the arrest of persons without a judicial warrant remains suspended, and that dozens of miners, textile workers, metalworkers and teachers, as well as the members of the CGTP National Council, Pedro Huillca (Vice-President) and Julian Sierra (Organisation Secretary), are under arrest. According to the complaint these persons have been detained for unduly long periods, and no charge has been brought against the teachers' leaders, who have been detained since the beginning of March 1979, or against Julian Sierra, who has been in prison since the end of April. CGTP indicates that the Government has ignored applications for habeas corpus and has refused to give any information on the situation of those under arrest. Lastly, the complainant requests that a representative should be sent to Peru to investigate the facts complained of.
6. 297. In its observations the Government stresses the fundamental importance of the mining and fishery industries in the economic crisis through which the country is passing and the need to ensure continuity of production in these sectors. For this purpose two legislative decrees were passed declaring both industries to be in a state of emergency, and empowering undertakings in these industries to break the labour relationship of persons attempting to paralyse them in any illegal manner. The Government states that, since it is not its intention to give employers full licence to order arbitrary dismissals, the legislative decrees stipulate that the illegality of work stoppages is to be determined by presidential resolution (decree of the Executive Power) endorsed by the Minister of Labour and by the Minister of Power and Mines or the Minister of Fisheries as appropriate.
7. 298. The Government also states that, in order to satisfy the legitimate expectations of these workers, collective agreements have been negotiated giving them better pay and higher benefits. In addition, given the decrease in purchasing power, legislative decrees have recently been passed to increase the remuneration of all workers and pensioners as well as the minimum wage. The Government supplies copies of these texts.
8. 299. According to the Government, in some trade union executives there are groups which have begun to create a climate of social and political chaos with an eye to the forthcoming elections, and which have favoured illegal stoppages in emergency and other sectors; this has obliged the Government to take steps to avoid further harm to the population. The Government states that it respects freedom of association, but that it cannot allow attempts to destabilise it by cliques of sectarian politicians.
9. 300. The Government points out that, contrary to the allegations in the complaint, Legislative Decree No. 22126 guarantees stability of employment and full employment, since it lists the specific grounds for terminating a labour relationship and obliges undertakings to fill vacancies due to dismissals, retirement or other reasons within 30 days.
10. 301. The Government also states that it is untrue that the labour authority has refused registration to organisations which have fulfilled the requirements established by law. In this connection it refers to Presidential Decree No. 009 of 1961, as amended in 1962, which stipulates that before it can be registered a trade union must show that its membership consists of more than 50 per cent of the manual or non-manual workers, as the case may be, or of both groups if the trade union is a mixed one. It mast also present a list of the names of its members and a copy of its rules and the record of the proceedings of the assembly at which they were approved.
11. 302. The Government further states that the right to strike is recognised by the authorities. Restrictions have been placed on its exercise in emergency situations with due regard for national priority interests. The forces of order have intervened to check the excesses of political agitators who have committed offences such as assault, destruction of property, the stoning of public buildings, setting vehicles on fire, etc.
12. 303. The Government denies the accusation that arrests have been made without justification. In its opinion, the vagueness of the allegations in speaking, for example, of "dozens of workers", etc., shows that an attempt is being made to create a misleading impression and not to present a genuine complaint. It states that Pedro Huillca was detained by officers of the Investigation Police in the city of Cuzco, for his part in a brawl, that he was brought before the examining magistrate on 29 May 1979, and that he has now been released. Julián Sierra, Organisation Secretary of CGTP, was arrested in Lima on 30 April 1979 to assist in inquiries regarding his participation in acts of agitation and disturbance of the peace and was released on 26 June 1979.
13. 304. Although the citizens referred to above are trade union representatives, says the Government, the facts on the basis of which they were arrested have nothing to do with their functions as such. The national authorities consider that trade union office does not confer upon its holders immunity from criminal liability, still less so when criminal offences are designed to provoke the public authorities to intervene to re-establish order for the purpose of raising protests which are intended to mislead public opinion and international bodies.

B. B. The Committee's conclusions

1. 305. The Committee observes that the complainant organisation has not presented specific information in support of its allegations regarding the anti-trade union measures said to have been taken in the miring, fishery and other sectors, and regarding interference with the exercise of the right to strike. The Committee wishes to point out that it is only in essential services, in the strict sense of the word, that restrictions or even prohibition of strikes have been admitted by the Committee and expresses the hope that the possibility of exercising this right legally will be restored in the sectors mentioned above in the near future.
2. 306. Legislative Decree No. 22126, of 21 March 1978,1 to which the complainant also refers, contains provisions on the stability of employment of workers in the private sector. Generally speaking, this right is enjoyed by workers who have been in the service of the same employer for an uninterrupted period of three years, who may be dismissed only for the reasons specified in section 4 of the Legislative Decree. This section also provides for a system of appeals to the administrative authority and the labour courts in cases of dismissal for any one of the reasons listed. Section 9 specifies that a collective stoppage of work which complies with the requirements fixed by the legislation shall not be included in the reasons for dismissal related to deliberate reduction of output. Trade union leaders must enjoy stability of employment even when they do not have the length of service indicated above (section 33). The Legislative Decree contains no provisions regarding the right of workers to join trade unions. Consequently, the Committee considers that no evidence has been supplied that this Legislative Decree violates freedom of association.
3. 307. As regards the allegations referring to the difficulties in the registration of workers' organisations, the Committee remarks that the Government, while rejecting these allegations, refers to the provisions of Presidential Decree No. 009 of 1961, regarding the Constitution and registration of trade unions. It should be pointed out in this connection in general terms that the Committee of Experts on the Application of Conventions and Recommendations has for a number of years remarked that several of these provisions fail to comply with the standards of Convention No. 87, ratified by Peru. The Committee stressed, in particular, the right of workers, if they so desire, to set up more than one union in the same undertaking, and the need to harmonise the provisions of sections 5 and 9 of the Presidential Decree, which merely permit the establishment of unions for each undertaking and each occupation, with the provisions of Article 2 of the Convention and the practice announced by the Government, under which industrial associations may be established, The Committee feels obliged to urge the Government to adopt in the near future the necessary measures to bring its legislation in these respects into conformity with Convention No. 87, as indicated by the Committee of Experts.
4. 308. As regards the allegations relating to the arrest of two leaders of CGTP, the Committee notes the information supplied by the Government, from which it appears that Mr. Huillca was arrested for his part in an offence under common law and brought before the competent judge, and that he has now been released. As regards Mr. Sierra, the Committee observes that he was under arrest for almost two months, apparently without being brought before the courts, for acts of agitation and disturbance of the peace, no further details of which are supplied by the Government. The Committee has observed in a number of earlier cases that the preventive detention of trade unionists may involve a serious interference with the exercise of trade union rights, and that it has always emphasised the right of all detained persons to receive a fair trial at the earliest possible moment. In this respect the Committee has taken the view that it is one of the fundamental rights of the individual that a detained person should be brought without delay before the appropriate judge and that, in the case of persons engaged in trade union activities, this is one of the civil liberties which should be ensured by the authorities in order to guarantee the full effectiveness of the exercise of trade union rights. Subject to these principles, and given the fact that both CGTP officials have been released, the Committee considers that there would be no point in proceeding further with the examination of this aspect of the case.

The Committee's recommendations

1. 309. In these circumstances the Committee recommends the Governing Body:
   • (a) as regards the arrest of two officials of the Peruvian General Confederation of workers, to take note that both have been released and, subject to the principles mentioned in paragraph 308 above -regarding the right of detained trade unionists to be brought without delay and in all cases before the appropriate judicial authority, to decide that there would be no point in proceeding further with the examination of this aspect of the case;
   • (b) as regards the current legal provisions regarding the establishment and registration of trade unions, to urge the Government to adopt in the near future the necessary measures to bring them into conformity with Convention No. 87, as indicated by the Committee of Experts on the Application of Conventions and Recommendations;
   • (c) as regards the emergency measures to restrict strikes in the mining and fishery industries, to express the hope, so as to ensure respect for the principles of freedom of association recalled in paragraph 305, that the possibility of exercising this right legally may be restored in these sectors in the near future;
   • (d) to bring this report to the notice of the Committee of Experts on the Application of Conventions and Recommendations.