Interim Report - Report No 355, November 2009

Case No 2664 (Peru) - Complaint date: 08-AUG-08 - Closed

Allegations: The complainant organization alleges that, as a result of the declaration by the administrative authority that a strike was illegal, numerous trade union leaders and members in the mining sector were dismissed; it also alleges that, against this backdrop, two trade union members were murdered

1. 1068. The complaint is contained in a communication from the National Federation of Miners, Metalworkers and Steelworkers of Peru (FNTMMSP) dated 8 August 2008. The complainant organization submitted new allegations in a communication of 29 September 2009.
2. 1069. In the absence of a reply from the Government, the Committee has twice had to postpone its examination of the case. At its June 2009 meeting [see 354th Report, para. 9], the Committee issued an urgent appeal to the Government and drew its attention to the fact that, in accordance with the procedural rules set out in paragraph 17 of its 127th Report (1972), approved by the Governing Body, it might submit a report on the substance of the case at its next session, even if the requested information or observations had not been received in due time. To date, the Government has not sent its observations.
3. 1070. Peru has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant’s allegations

1. 1071. In its communication of 8 August 2008, the FNTMMSP indicates that, on 30 April 2007, it was obliged to stage an indefinite strike, calling on the Government to amend labour legislation and ensure respect for the fundamental rights of miners, metalworkers and steelworkers, in accordance with demands which the federation had been making for over ten months when the strike began. Among its main demands, the FNTMMSP is seeking the approval by Congress of: Bill No. 1696/2007-CR on the subcontracting of workers, in view of the fact that over 85,000 miners have no protection; Bill No. 1670-2007-PE on work-related profits, amending Legislative Decree No. 892, which confiscates workers’ profits; Bill No. 837/2006-CR, reintroducing the eight-hour working day, bearing in mind that in the mining, metalworking and steelworking sector, employers unilaterally imposed the atypical 12-hour day; Bill No. 1226/2006-CR requesting free withdrawal from the private pension system for all workers in the sector, as the system is damaging and jeopardizes their life and health; and Bill No. 847/2006-CR, demanding that the scope of the Miners’ Retirement Act (Act No. 25009) be restored in full.
2. 1072. The complainant organization indicates that the strike of 30 April 2007, which was held against this backdrop, was called off when an agreement was reached on 3 May 2007 with the Ministry of Labour. The Government undertook certain commitments, but failed to honour them. In view of the Government’s non-compliance, the FNTMMSP called an indefinite general strike on 5 November 2007. The strike was suspended on 8 November 2007, in view of the progress made with regard to Bill No. 1670-2007-PE on profit-sharing, and given that representatives in the National Congress had pledged to pass it as law; however, that objective was not achieved.
3. 1073. The complainant organization adds that, in view of the failure of the Government and the National Congress to honour their commitments, an agreement was reached at its 61st National Assembly of Representatives to hold another strike, starting on 12 May 2008. In direct dialogue with the President of the Council of Ministers, who agreed to take the necessary action to achieve the remaining objectives, the FNTMMSP agreed to suspend the industrial action, also taking into account the imminent Fifth Latin America and Caribbean–European Union Summit, held in Lima. However, the Government has continued to disregard its commitments. An agreement was reached at the 62nd National Assembly of Representatives to begin an indefinite general strike, starting on 30 June 2008, calling on the Government to honour its commitments. On that occasion, the FNTMMSP demanded that Congress approve two bills that had been passed in
   • the respective committees (Bill No. 1670-2007-PE on profit-sharing and Bill No. 847/2006CR on miners’ retirement). The strike began on 30 June 2008 and was suspended on 6 July 2008.
4. 1074. The complainant organization alleges that the strikes which began on 30 April and 5 November 2007 and 30 June 2008 were declared illegal by the Ministry of Labour and Employment Promotion, which prompted the enterprises Southern Peru Copper Corporation (SPCC), Minera Los Quenuales SA and Minera Barrick Misquichilca SA to dismiss union leaders and members.
5. 1075. The complainant organization also indicates that, as a result of the declaration by the Ministry of Labour and Employment Promotion that the strike of 30 June 2008 was illegal, a damaging campaign was launched, sponsored by the National Mining, Petroleum and Energy Society (SNMPE), to bring about the dismissal by the SNMPE of union leaders and members, on the basis of an interpretation of strike action as constituting unjustified absence or dereliction of duty.
6. 1076. As a result, at SPCC Cuajone, steps were taken to dismiss union leader Mr Roman More Peña, General Secretary of the Unified Trade Union of Workers of SPCC Cuajone, who was issued with a letter giving notice of dismissal and then a letter of dismissal on 10 July 2008, four days after the end of the strike, on the grounds of dereliction of duties for more than three consecutive days, which the enterprise classified as serious misconduct. Disregarding the right to strike, the enterprise, on the same grounds, dismissed other workers belonging to the same union, namely: Mr Pelagio Espinoza Quiroga; Mr Alberto Salas Rivera; Mr Félix Octavio Marca Adueño; Mr Orlando Bailón Mamani; Mr Cesar Miguel Delgado Fuentes; Mr Adolfo Sosa Sairitupa; Mr Luis Alfredo Hostia Mendoza; Mr Juan Aníbal Chui Choque; and Mr Jaime Aranibar Aranibar.
7. 1077. At SPCC–ILO, and in line with the enterprise’s policy of not recognizing the right to strike, steps were taken to dismiss the following unionized workers: Mr Guillermo Cesar Palacios Castillo, former Secretary of the SPCC Metalworking Union; Mr Juan José Valdivia Herrera; Mr Jorge Carlos Manchego Alcazar; Mr Jorge Fernando Cavaglia Stapleton; Mr José Tiburcio Lozada Huaman; Mr Juan Flavio Pinto Quispe; and Mr Jacinto Yataco Rejas.
8. 1078. At the enterprise Minera Los Quenuales SA, steps were taken to dismiss the leaders of the Single Trade Union of Miners of Specialized Enterprises, namely: Mr Vicente Ichpas Lima, General Secretary; Mr Ángel Huaira Zevallos, Organization Secretary; Mr Danubio Merino Torres, Legal Secretary; and Mr Jorge Llantoy Mancilla, Documents and Archives Secretary. They were also accused of having deliberately failed to show up for work for three consecutive days. This enterprise thus also fails to recognize the procedural rules governing the right to strike, as it regard strike days as unjustified absences.
9. 1079. In the enterprise Minera Barrick Misquichilca SA, the same approach was taken as in the other enterprises. On 25 July, letters giving notice of dismissal for “unjustified” absence were issued to trade union leader Mr Isaac Godofredo Cueto Lagos, Social Assistance Secretary, and to trade union members Mr Freddy Elías Calle Vilca; Mr Jorge Abel Cusipuma Ñañez; Mr Juan Cancia Condori Silloca; Mr Peter Richard Correa Álvarez; Mr Evaristo Chirapo Mamani; Mr Javier Miguel Mendoza Quispe; Mr Raúl Jaime Mescua Matos; Mr Alfredo Concepción Pachao Eyerbe; Mr Juan Sebastián Pérez Barreto; Mr Roberto Martín Romero Lucero; Mr Didhier Alberto Vilchez Torres; and Mr Juan Pio Zaconett Quequesana. The “legal” basis for these letters was unjustified absence from the workplace for more than three days, which undermined the procedural rules on the right to strike. On 1 August 2008, the enterprise dismissed the following nine workers: Mr Isaac Godofredo Cueto Lagos, Social Assistance Secretary of the union; Mr Jorge Abel Cusipuma Ñañez; Mr Evaristo Chirapo Mamani; Mr Javier Miguel Mendoza Quispe; Mr Alfredo Concepción Pachao Eyerbe; Mr Juan Sebastián Pérez Barreto; Mr Roberto Martín Romero Lucero; Mr Didhier Alberto Vilchez Torres; and Mr Juan Pio Zaconett Quequesana.
10. 1080. The complainant organization highlights the fact that the Government and the enterprises in question are undermining the right to strike and the applicable rules of procedure in Peru by unilaterally classifying strike days as unjustified absence, in order to dismiss union leaders and unionized workers. It recalls that article 28 of Peru’s Constitution provides that “the State recognizes the rights to freedom of association, collective bargaining and strike, and safeguards the democratic exercise of those rights: (1) it guarantees freedom of association; (2) promotes collective bargaining and peaceful forms of solving labour disputes. Collective agreements are binding; (3) regulates the right to strike which is to be exercised in keeping with the public interest, and sets out the corresponding exceptions and limitations”.
11. 1081. The enterprises have applied Supreme Decree No. 003-97-TR, the amended consolidated text of Legislative Decree No. 728 and its implementing regulations, to classify absences from work during strike days as unjustified leave; the complainant organization considers, however, that these legal provisions are not applicable because the right to strike is enshrined in Supreme Decree No. 010-2003-TR, which also expressly provides that a strike is a collective suspension of work and individual employment contracts which does not interrupt the employment relationship.
12. 1082. The complainant organization points out that, to date, seven meetings have been held with the Ministry of Labour and no settlement has been reached with regard to the four union leaders who were dismissed from the Single Trade Union of Miners and Metalworkers of Specialized Enterprises of the enterprise Minera Los Quenuales SA. Likewise, after three meetings with the Ministry of Labour, no settlement has been reached in the cases concerning the Unified Trade Union of Workers of SPCC–ILO and the Unified Trade Union of Workers of SPCC Cuajone. The same applies with regard to the Single Trade Union of Employees of the enterprise Minera Barrick Misquichilca SA.
13. 1083. Lastly, the complainant organization alleges that, against this anti-union backdrop, two workers, who were members of the Single Union of Miners of Specialized Enterprises of the enterprise Minera Aurífera Retamas SA (MARSA), were murdered. They are Mr Manuel Yupanqui Ramos, who was shot by the national police on 9 July 2008, at the MARSA site, and Mr Jorge Huanaco Cutipa, who died on 22 July 2008 in the town of Trujillo. These two cases are under investigation by the Public Prosecutor of Tayabamba Province, in the Department of La Libertad.

B. The Committee’s conclusions

1. 1084. The Committee regrets that, despite the time that has elapsed, the Government has not sent the requested observations, although it has been invited on several occasions, including by means of an urgent appeal, to present its observations on the case.
2. 1085. Under these circumstances, and in accordance with the applicable rules of procedure [see 127th Report, para. 17, approved by the Governing Body at its 184th Session], the Committee is bound to present a report on the substance of the case without the benefit of the information which it had hoped to receive from the Government.
3. 1086. The Committee reminds the Government that the purpose of the whole procedure established by the International Labour Organization for the examination of allegations of violations of freedom of association is to promote respect for this freedom, in law and in practice. The Committee is confident that, if the procedure protects governments from unreasonable accusations, governments, on their side, must recognize the importance of formulating, so as to allow objective examination, detailed replies to the allegations brought against them.
4. 1087. The Committee notes that, in the present case, the FNTMMSP alleges that the Ministry of Labour and Employment Promotion declared as illegal the strikes staged on 30 April and 5 November 2007 and 30 June 2008, calling for the amendment of national legislation and in response to the failure by the administrative authority to honour its commitments, and, as a result, several enterprises in the mining sector dismissed several union leaders and many trade union members, on the grounds of unjustified absence from work. The Committee also notes that the FNTMMSP also alleges that, against this backdrop, two members of a trade union in the sector were murdered. The Committee expresses its concern, noting that it has already had to examine several cases concerning violations of trade union rights in the mining sector in Peru.
5. 1088. With regard to the alleged declaration by the Ministry of Labour and Employment Promotion that the strikes were illegal, the Committee emphasizes that, on many occasions, it has stated that responsibility for declaring a strike illegal should not lie with the government, but with an independent body which has the confidence of the parties involved [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 628]. In these circumstances, the Committee notes with concern the alleged serious consequences of the administrative authority’s declaration that the strikes were illegal, and requests the Government to take steps to ensure respect for this principle in the future, and to indicate the basis upon which the Ministry of Labour declared the strike illegal.
6. 1089. With regard to the alleged dismissal of several union leaders and many trade union members (named in the complaint) in the mining sector as a result of the declaration that the strikes in question were illegal on the grounds that the workers were absent from work without justification, the Committee recalls that no one should be penalized for carrying out or attempting to carry out a legitimate strike and that when trade unionists or union leaders are dismissed for having exercised the right to strike, the Committee can only conclude that they have been punished for their trade union activities and have been discriminated against [see Digest, op. cit., paras 660 and 662]. In these circumstances, the Committee requests the Government to carry out an investigation without delay to determine the reasons for the dismissals, and, if it is found that they took place as a result of legitimate trade union activities, to take the necessary measures to reinstate the workers in their jobs. The Committee requests the Government to keep it informed in this regard.
7. 1090. With regard to the alleged murder of trade union members Mr Manuel Yupanqui and Mr Jorge Huanaco Cutipa on 9 and 22 July 2008, the Committee deplores these acts of violence and recalls that the right to life is a fundamental prerequisite for the exercise of the rights contained in Convention No. 87 [see Digest, op. cit., para. 42]. In these circumstances, the Committee notes that, according to the complainant organization, the Public Prosecutor of Tayabamba Province, in the Department of La Libertad, is conducting an investigation, and trusts that this investigation will make it possible to shed light, at the earliest possible date, on the facts and the circumstances in which the murders occurred and thereby determine where responsibilities lie, punish the guilty parties and prevent the recurrence of such acts. The Committee requests the Government to keep it informed in this regard.
8. 1091. The Committee requests the Government to provide its observations on the complainant organization’s new allegations of 29 September 2009.

The Committee's recommendations

1. 1092. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government to take measures to ensure that, in the future, responsibility for declaring a strike illegal will not lie with the Government but with a body independent of the parties in which they have confidence, and to indicate the basis upon which the Ministry of Labour declared the strike illegal.
   • (b) With regard to the dismissal of several union leaders and many trade union members (named in the complaint) in the mining sector following their participation in strikes that were declared illegal by the administrative labour authority, the Committee requests the Government to carry out an investigation without delay to determine the reasons for the dismissals, and, if it is found that they took place as a result of legitimate trade union activities, to take the necessary measures to reinstate the workers in their jobs. The Committee requests the Government to keep it informed in this regard.
   • (c) With regard to the alleged murder of trade union members Mr Manuel Yupanqui and Mr Jorge Huanaco Cutipa on 9 and 22 July 2008, the Committee notes that, according to the complainant organization, the Public Prosecutor of Tayabamba Province, in the Department of La Libertad, is carrying out an investigation, and trusts that this investigation will make it possible to shed light, at the earliest date, on the facts and the circumstances in which such murders occurred and in this way determine where responsibilities lie, punish the guilty parties and prevent the recurrence of similar acts. The Committee requests the Government to keep it informed in this regard.
   • (d) The Committee requests the Government to provide its observations on the complainant organization’s new allegations of 29 September 2009.