Informe provisional - Informe núm. 378, Junio 2016

Caso núm. 2982 (Perú) - Fecha de presentación de la queja:: 20-AGO-12 - En seguimiento

Allegations: Murder and threats against union leaders and members in the construction sector, inadequacy of the measures taken and ineffectiveness of the investigations, maintenance of the registration of pseudo-unions and the progressive entry of some pseudo-unions into official institutions, to the detriment of the complainant federation

1. 629. The Committee examined this case at its March 2014 meeting and on that occasion presented an interim report to the Governing Body [see 371st Report, paras 670–704, approved by the Governing Body at its 320th Session (March 2014)].
2. 630. The Federation of Civil Construction Workers of Peru (FTCCP) sent additional information in a communication of 9 April 2014. The General Confederation of Workers of Peru (CGTP) sent additional information in a communication of 10 July 2014.
3. 631. The Government sent its observations in communications of 20 May and 14 July 2014.
4. 632. 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. Previous examination of the case

1. 633. At its previous meeting, the Committee made the following recommendations [see 371st Report, para. 704]:
   • (a) While it deplores and expresses concern at the seriousness of the alleged acts of extortion and the murder of six trade unionists (and one more reported in a recent allegation), and observes that the present case is within the context of an inter-union struggle, the Committee firmly expects that in the near future the current criminal investigations will lead to the identification of all the perpetrators and instigators of the murders of the three union leaders and three union members in the construction sector, that the responsibilities will be clearly identified and that those found guilty will be severely punished. The Committee requests the Government to keep it informed in this regard, and also on the progress of the criminal proceedings. On the other hand, the Committee welcomes the measures taken by the Government concerning, inter alia, the register of workers and works in the construction sector, and invites the Government to continue taking measures in the framework of the existing tripartite dialogue.
   • (b) The Committee requests the Government to provide additional information relating to its explanations and those of the complainant organizations concerning the causes of the violence against union leaders in the construction sector, and suggests that the Public Prosecutor’s Office be instructed to conduct a thorough investigation into the reasons for the violence in the construction sector, and that all the necessary penal action is taken based on the findings of the investigations.
   • (c) In relation to the allegation of the entry into official institutions of certain pseudo-unions engaged in extortion, the Committee considers that the complainant organizations have not supported their allegations with sufficient information and particulars, and invites them to do so.
   • (d) The Committee requests the Government to provide without delay its observations with regard to the recent allegations made by the CTP, dated 29 November 2013, concerning various matters, including the murder of union leader Miguel Díaz Medina, and the accusation that the police have wished to falsely implicate the union of civil construction workers in acts of extortion and blackmail in complicity with criminals.
   • (e) The Committee draws the special attention of the Governing Body to the extreme seriousness and urgent nature of the matters dealt with in this case.

B. Additional information provided by the complainant organizations

1. 634. In its communication of 9 April 2014, the FTCCP refers to recommendation (c) of the Committee based on its previous examination of the case (entry into official institutions of certain pseudo-unions engaged in extortion) and explains that through a 2009 Executive Board Decision the Standing Orders of the National Construction Industry Training Service (SENCICO) were revised, such that its executive board, which until then had included two workers’ representatives proposed by the most representative union of the sector (the FTCCP), thereafter included two workers’ representatives proposed by the most representative unions of the sector, which meant that one of the FTCCP representatives was replaced by a representative of a pseudo-union. According to the FTCCP, the decision to change the board’s composition was taken at the request of the Ministry of Labour, with the sole purpose of allowing onto the board a representative of the construction sector pseudo-unions which were being registered by the Government then in power. Similarly, the FTCCP understands that this modification contravenes Supreme Decree No. 043-2006-PCM, which establishes that modifications of the standing orders of decentralized public entities must be approved by Supreme Decree, and not by Executive Board Decision.
2. 635. With regard to the National Board of the Fund for the Construction of Housing and Recreational Centres for Civil Construction Workers (CONAFOVICER), the FTCCP indicates that although the Government had proposed to change the composition of its Directorate in order to introduce representatives of construction sector pseudo-unions, no follow-up was given to this request, and there is no current initiative to make any changes to its Directorate. In its communication, the FTCCP includes a copy of a letter sent to the Minister of Labour in relation to this matter and indicates that, along with the CGTP and other social partners, it promoted a national-level event to call for a national pact to address violence and organized crime, such as that committed by the union mafias registered by the Ministry of Labour.
3. 636. In its communication of 10 July 2015, the CGTP details the reasons for which the FTCCP did not attend the tripartite forum for dialogue on violence in construction works organized by the Ministry of Labour in June 2014. The CGTP indicates that, although the forum was convened, and took place on 12 June 2014, the FTCCP did not attend as it considered that certain union organizations which had been invited were not legitimate or representative participants. The CGTP explains that the FTCCP, as the union directly affected by the emergence of pseudo-unions, cannot engage in dialogue with them, as this would signify a relinquishing of its firm stance against violence and its determination to re-establish peaceful labour relations. As a result of various conversations between the Ministry and the FTCCP a decision was taken to postpone the dialogue forum until such time as certain actions to generate trust between the parties were completed.

C. The Government’s reply

1. 637. In its communication of 20 May 2014, the Government refers to recommendation (a) of the Committee and provides information on the investigations carried out into the murders of the union leaders, Carlos Armando Viera Rosales, Guillermo Alonso Yacila Ubillus and Rubén Snell Soberón Estela. The reports of the Ministry of the Interior, attached by the Government, indicate that, while the suspected murderer of Carlos Armando Viera Rosales has been identified and detained, those responsible for the murders of Guillermo Alonso Yacila Ubillus and Rubén Snell Soberón Estela have not been identified.
2. 638. With regard to recommendation (b), and specifically the recommended comprehensive investigation by the Public Prosecutor’s Office into the motives and those responsible for the violence in the construction sector, the Government indicates that the Crime Observatory of the Public Prosecutor’s Office had included in its workplan for 2014 a qualitative and quantitative investigation into the cases of extortion and homicide in the civil construction sector.
3. 639. As regards recommendation (d), the Government indicates that the suspected instigator of the murder of union leader Miguel Díaz Medina has been charged and detained. The Government maintains that this murder, as well as the others mentioned by the complainants, has its origins in the disputes between groups belonging to the construction union to control works. The Government considers that the allegations according to which the police have attempted to implicate the union of civil construction workers in acts of extortion and blackmail in complicity with criminals are unfounded and not substantiated.
4. 640. In its communication of 14 July 2014, the Government refers to the information provided by the FTCCP in relation to recommendation (c) (entry into official institutions of certain pseudo-unions) and explains that the configuration of the executive board of SENCICO – that is, its membership, the number of members and its functions – is governed by Legislative Decree No. 147, which establishes the executive board as the highest body of SENCICO and authorizes it, as such, to set the necessary standards for its own optimum functioning, in accordance with the technical, administrative and economic autonomy conferred upon it. Consequently, according to the Government, the change to the representation of the workers on SENCICO’s executive board was made, within its authority, by the executive board itself, as it sets its own standards concerning its composition and operation.
5. 641. For all the above reasons, the Government requests the Committee to set the case aside.

D. The Committee’s conclusions

1. 642. The Committee recalls that, in the present case, the complainant organizations allege murders of trade union leaders and members against the backdrop of a climate of violence, threats and extortion created by criminal mafia groups and pseudo-unions. According to the allegations, police officers have been involved in the situation since the term of the previous Government, and the violence is sometimes a result of confrontations between organized mafia groups seeking control of construction projects. The complainant organizations also allege that the authorities are disinterested and ineffective and that the groups which commit the crimes do so with impunity. The complainant organizations further allege the maintenance by the authorities of the registration accepted by the previous administration of a number of pseudo-unions, and the progressive entry of a number of such groups into official institutions, to the detriment of the FTCCP.
2. 643. The Committee takes note of the detailed information from the Ministry of the Interior, transmitted by the Government, on the status of the investigations carried out in relation to the murder of four trade union leaders (recommendations (a) and (d)), from which it is apparent that: (1) the suspected instigator of the murder of Miguel Díaz Medina has been identified and detained (the Committee observes that the Government has not provided information on the judicial process and asks to be kept informed in that regard); (2) the suspected murderer of Carlos Armando Viera Rosales has been identified and detained and the police investigations concluded; the process is now at the judicial stage (in this connection the Committee recalls that in 2012 the complainant organizations indicated that the suspected murderer of Carlos Armando Viera Rosales had been released three months after being detained and, therefore, the Committee requests the Government to clarify whether the suspected murderer is currently detained or has been released, and to provide information on the progress of the judicial proceedings); and (3) it has not been possible to identify the perpetrators of the murders of Guillermo Alonso Yacila Ubillus and Rubén Snell Soberón Estela. The Committee deeply regrets the failure to shed light on the events and circumstances surrounding the murders of Mr Alonso Yacila Ubillus and Mr Snell Soberón. The Committee equally regrets that the Government has not furnished any information whatsoever on the status of the criminal proceedings for the murders of the three union members Luis Esteban Luyo Vicente, Jorge Antonio Vargas Guillen and Rodolfo Alfredo Mestanza Poma. The Committee recalls that the absence of judgments against guilty parties creates, in practice, a situation of impunity, which reinforces the climate of violence and insecurity, and which is extremely damaging to the exercise of trade union rights [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 52]. The Committee requests the Government to keep it informed of developments in the criminal proceedings.
3. 644. The Committee recalls that, based on its previous examination of the case, it requested the Government to continue to take measures in the framework of the existing tripartite dialogue (recommendation (a)). In this connection, the Government takes note of the information transmitted by the CGTP in relation to the tripartite dialogue forum convened by the Government in June 2014 to address the issue of violence in the civil construction sector. The forum would serve as a space for analysis of the problem and would lead to priority multisectoral and intergovernmental actions that would facilitate eradication of the violence in the sector. The Committee notes that, according to the CGTP, the FTCCP did not attend the dialogue forum because it considered that some of the union organizations invited were not legitimate or representative participants. The Committee also notes that, as a result of various conversations between the Ministry and the FTCCP, a decision was taken to postpone the dialogue forum until certain actions designed to build trust between the parties had been completed. While welcoming the Government’s initiative to convene a tripartite dialogue forum with a view to eradicating the violence in the construction sector, the Committee notes that the forum had to be postponed owing to a lack of trust between the parties. The Committee emphasizes that the problem of violence in the civil construction sector, and the actions taken to eradicate it, must be considered with reference to social dialogue, and therefore requests the Government to inform it of the actions carried out in order to build trust between the parties and foster tripartite dialogue.
4. 645. With regard to recommendation (b), and specifically the thorough investigation to be carried out by the Public Prosecutor’s Office into the motives and those responsible for the violence in the construction sector, the Committee takes note of the Government’s indication that the Crime Observatory of the Public Prosecutor’s Office had included in its workplan for 2014 a quantitative and qualitative investigation into the cases of extortion and homicide in the civil construction sector. The Committee regrets that to date the Government has not sent any information whatsoever on this investigation and requests the Government to inform it, without delay, of the results of the investigation and of the follow-up measures which have been taken.
5. 646. The Committee recalls that, based on its previous examination, it requested the complainant organizations to furnish more details about the allegation of the entry into official institutions of certain pseudo-unions (recommendation (c)). The Committee notes that, according to the FTCCP, the 2009 modification of the Standing Orders of SENCICO contravenes Supreme Decree No. 043-2006-PCM, which establishes that modifications of the standing orders of decentralized public entities must be approved by Supreme Decree, and not by Executive Board Decision, as occurred in this instance. The FTCCP also alleges that this change to the Standing Orders, which affects its participation on the body’s executive board, was made in order to allow a representative of the pseudo-unions onto the board. The Committee takes note of the Government’s statements on this matter, according to which the configuration of the board of SENCICO – that is, its membership, the number of members and its functions – is governed by Legislative Decree No. 147, which establishes the executive board as the highest body of SENCICO and authorizes it, as such, to set the necessary standards for its own optimum functioning, in accordance with the technical, administrative and economic autonomy conferred upon it. While it acknowledges that the modification of the Standing Orders has a direct impact on the FTCCP’s participation on the executive board of SENCICO, the Committee observes that this modification was allegedly made on the basis of Legislative Decree No. 147, which establishes that the executive board has the authority to change the standards which govern its configuration and functioning. Furthermore, the Committee considers that the FTCCP has not provided enough detail to substantiate the allegation that the motive behind the change to the configuration of the executive board was to allow a representative of the pseudo-unions into the body’s management. The Committee notes that according to the FTCCP there is no current initiative to modify the Directorate of the CONAFOVICER. Therefore, the Committee will not pursue its examination of this allegation.

The Committee’s recommendations

1. 647. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee expresses its concern at the lack of judgments against those responsible for the murders of the four union leaders and firmly hopes that in the near future the criminal proceedings under way will lead to the identification of all the instigators and perpetrators of the murders, that responsibility will be apportioned and that those guilty will be duly punished. The Committee requests the Government to keep it informed of developments in the criminal proceedings relating to the four union leaders (and to clarify whether the suspected murderer of Carlos Armando Viera Rosales is detained or has been released) and to the three union members.
   • (b) While welcoming the Government’s initiative to convene a tripartite dialogue forum in June 2014, it notes that the forum was postponed owing to a lack of trust between the parties, and requests the Government to inform it of the actions taken to build trust between the parties and foster tripartite dialogue.
   • (c) The Committee requests the Government to inform it, without delay, of the results of the quantitative and qualitative investigation into the cases of extortion and homicide in the civil construction sector which, according to the Government, the Crime Observatory of the Public Prosecutor’s Office should have carried out in 2014.
   • (d) The Committee draws the special attention of the Governing Body to the extreme seriousness and urgent nature of this case.