Rapport définitif - Rapport No. 190, Mars 1979

Cas no 906 (Pérou) - Date de la plainte: 15-MAI -78 - Clos

96. The Committee has considered it advisable to examine the allegations remaining outstanding in Case No. 884 together with the allegations presented in Case No. 906. The Government has submitted observations and further information in respect of both matters in two letters dated 15 and 25 January 1979.

1. 96. The Committee has considered it advisable to examine the allegations remaining outstanding in Case No. 884 together with the allegations presented in Case No. 906. The Government has submitted observations and further information in respect of both matters in two letters dated 15 and 25 January 1979.
2. 97. 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

• Previous examination of Case No. 884
  98. 98 This case was already examined by the Committee at its session in February 1978 when it submitted a preliminary report, contained in paragraphs 279 to 312 of its 177th Report, which was approved by the Governing Body at its 205th Session (February-March 1976).
  99. 99 The complaints are contained in various letters sent between July and October 1977 by the World Federation of Trade Unions (WFTU), the World Confederation of Labour (WCL), the Permanent Congress of Trade Union Unity of Central American Workers (CPUSTAL), the Latin American Central of Workers (CLAT), the General Confederation of Workers of Peru (CGTP), the National Confederation of Workers (CNT), the Trade Unions International of Food, Tobacco, Hotel and Allied Industries Workers, the National Federation of Miring and Metallurgical Workers of Peru, and the Union of Workers of the Commercial Services Enterprise S.A. "Serener". The Government sent its observations in a letter dated 15 November 1977.
  100. 100 At its meeting in February 1978, having examined the allegations and the Government's reply, the Committee pointed out that the case referred mainly to the general strike organised on 19 July 1977 by the General Confederation of Workers of Peru (CGTP), the National Confederation of Workers (CNT) and various other Peruvian organisations. The action had resulted in the deaths of a number of workers in clashes with the forces of order, the arrest of trade union leaders and members, the dismissal of large numbers of workers under special regulations adopted by the Government, and the occupation of trade union premises.
  101. 101 The Committee observed that the strike had taken place while the country was in a state of emergency, a situation during which collective work stoppages were forbidden. The Government justified this general ban on strikes by the need to overcome the economic crisis prevailing in the country. The Committee pointed out, as it had done in other cases, that since a general prohibition of strikes was an important restriction of one of the essential means by which workers and their organisations could promote and defend their occupational interests, such a prohibition could be open to criticism unless it had been imposed exclusively as a transitory measure in a situation of acute national emergency. The Committee observed that the state of emergency had been declared in 1976 and that the national strike was declared one year later, in July 1977, for a duration of only 24 hours. Furthermore, both the state of emergency and the strike prohibition resulting from it were rescinded shortly afterwards, on 29 August 1977.
  102. 102 The Committee also observed that the Government and the complainants had defined the aims of the strike differently. While for the Government the movement had had a clearly political purpose, it gave no details as to how it could be described as a political strike. In contrast, the complainants had emphasised the occupational and trade union character of the action. The Committee noted in this respect that the strike notices sent by the organising Confederations protested against the Government's economic policy and the rise in prices, and claimed wage increases. Moreover, the Government itself had recognised that it had had to adopt austerity measures under its economic policy. The Committee pointed out that in a similar case, concerning a general 24-hour strike in support of claims some of which were clearly of an occupational nature, it had recalled that the prohibition of strikes designed to coerce the Government, if they were not occupational in character, did not constitute an infringement of freedom of association, and that strikes of a purely political nature did not fall within the scope of the principles of freedom of association. Nevertheless the Committee considered that workers and their organisations should be able, when necessary, to express any dissatisfaction they might feel with regard to economic and social matters affecting the interests of their members, provided such action was confined to an expression of protest. The Committee added, however, that it was important that movements of this kind should not be such as to disturb the peace or lead to violence.
  103. 103 With regard to the deaths of workers during clashes with the forces of order, according to the Government the responsibility lay with agitators. The Committee recalled that in a number of cases in the past in which dispersal of public meetings or demonstrations by the police had involved loss of life, the Committee had attached great importance to the circumstances being fully investigated by an immediate and impartial inquiry and to a regular legal procedure being followed to determine the justification and responsibility for the action taken by the police.
  104. 104 As regards the arrest of trade union militants and leaders, according to the Government these measures were not due to the occupational or trade union activities of the persons concerned but were provoked by their disruption of public order and their attacks on the safety of persons and property. In its reply of 14 November 1977, the Government stated that no trade union leader was being held on account of his trade union activities. Nevertheless, the Committee observed that according to some of the complainant organisations the arrested trade unionists had still not been brought to trial although some of them had been released, including the General Secretaries of the CGTP and CNT. In these circumstances, while noting with interest that some of the trade unionists had been released, the Committee asked the Government to indicate whether some of the trade unionists who had been arrested during the strike of 19 July 1977 were still under arrest and whether they were to be brought before a court. In any case, the Committee emphasised that the massive arrest of strikers entailed a serious risk of abuse and a serious threat to freedom of association.
  105. 105 According to the national Federation of mining and Metallurgical porkers, a number of trade union leaders had been arrested, sought by the police or deported but the Federation does not specify whether these measures were connected with the strike of 19 July 1977. Since the Government did not reply on this point, the Committee requested it to submit its observations.
  106. 106 With regard to the expulsion measure, which according tot he WCL and the CLAT had been dictated against Luis Hernández, the General Secretary of the Trade Union Council of Andean workers, the Government stated in general terms that he had been involved in subversive activities. As will be seen below, one of the complainant organisations raised this matter in greater detail in Case No. 906.
  107. 107 With regard to the dismissals which followed the strike of 19 July 1977, the Committee observed that these were decided upon under exceptional regulations which allowed undertakings to cancel the contracts of employment of persons behind the movement. The Ministry of Labour had carried out an investigation to ascertain whether the regulations had been observed. Apparently, the Committee stated, a large number of workers had lost their jobs in this way. In these circumstances, the Committee considered that the question arose whether the dismissals had involved only the organisers of the strike or whether many workers had been dismissed simply for having taken part in it. It seemed that the Government had found evidence of a large number of cases of unjustified dismissal.
  108. 108 The Committee recalled that in other cases of massive dismissals following strikes, it had considered that such measures involved serious risks of abuse and a serious threat to freedom of association. On these occasions it had also held the view that the development of labour relations could be impaired as a result of an inflexible attitude being adopted in the application of excessively severe sanctions to workers who participated in strike action.
  109. 109 With regard to the occupation of trade union premises by the forces of order, the Government had indicated that these measures were temporary and were taken for preventive reasons. On this point the Committee recalled that in the resolution concerning trade union rights and their relation to civil liberties, adopted at the 54th (1970) Session of the International Labour Conference, the latter had considered that the right to protection of trade union property was one of the civil liberties essential for the normal exercise of trade union rights.
  110. 110 The Committee also pointed out that one of the complaints referred to various decrees that had been promulgated from 1975 on for the purpose of regulating collective bargaining. The aim of these decrees was to fix wage ceilings, to limit claims to wage increases (excluding claims concerning conditions of work) and, lastly, to extend the validity of the collective agreements in force. Later on, Legislative Decree No. 21899 of 2 August 1977 abolished the restriction on wage increases. Under this Legislative Decree, collective agreements, administrative labour resolutions and arbitration awards can provide for a general wage increase on the basis of an economic and financial assessment of the undertaking, though they could not deal with other points.
  111. 111 The Committee indicated that it was fully aware that, in certain circumstances, governments might consider that there were times when the economic situation of a country called for the adoption of stabilisation measures rendering it impossible for wage rates to be determined by free collective bargaining. Nevertheless, the Committee considered that such restrictions should be exceptions. The Committee also considered that trade union organisations should have the opportunity to negotiate conditions of employment. Consequently, the Committee stated, the major objective of the Government should be the restoration of free collective bargaining. The Committee drew the attention of the Committee of Experts on the Application of Conventions and Recommendations to this aspect of the case.
  112. 112 The National Federation of Mining and Metallurgical workers had presented allegations relating to the refusal to recognise trade union organisations of public employees and to the nor.-recognition of the representative character of other organisations (the National Federation of Mining and Metallurgical workers and the Peruvian Fishermen's Federation). As regards the situation of organisations of public employees and of the Fishermen's Federation, the Committee referred to the conclusions it had reached when examining other cases concerning Peru recalling, in particular, that it had invited the Government to adopt measures with a view to recognising the free exercise of the right to organise of all workers in the public sector.
  113. 113 In these circumstances, at its 205th Session (February-March 1978), the Governing Body took the following decisions, recommended by the Committee in paragraph 312 of its 177th Report:
       • (a) to draw the attention of the Government to the principles and considerations set forth above in connection with the general strike of 19 July 1977 and, in particular, to the principle according to which workers and their organisations should be allowed, when necessary, to express any dissatisfaction they may feel with regard to economic and social questions affecting their interests, provided such action is confined to an expression of protest which is not such as to disrupt public order or to lead to acts of violence;
       • (b) to note with interest that certain trade unionists had been released, in particular the General Secretaries of the CGTP and the CWT;
       • (c) to request the Government to indicate whether an inquiry had been conducted into the deaths of workers during clashes with the police and, if so, to communicate the results; to indicate whether certain trade unionists arrested during the strike of 19 July 1977 were still being held and whether they would be brought before the courts; to communicate its observations on the measures of arrest, search and deportation adopted against trade union leaders;
       • (d) to point out to the Government that it would be desirable for it to re-examine the situation of all the dismissed workers with a view to their reinstatement;
       • (e) to draw the attention of the Government to the principles and considerations set forth above concerning collective bargaining, pointing out that a major objective should be to restore free collective bargaining, and to draw the attention of the Committee of Experts on the Application of Conventions and Recommendations to this aspect of the case; and
       • (f) to request the Government to communicate its observations regarding the allegations concerning the non-recognition of the representative character of the National Federation of Mining and Metallurgical Workers.
  114. At its sessions in May and November 1978, the Committee postponed its examination of the case since it had not received the further information requested from the Government.
• Further information communicated by the Government
  114. 114 In its communication of 15 January 1979, the Government states that at the present time no trade union leader is under arrest, being tried or due to be deported because of activities connected with the strike on 19 July 1977 or because of any other stoppage, strike or demonstration of a trade union nature. The Government adds that it is not its policy to punish such activities and states that when the forces of law and order intervened it was in order to check the excesses of political agitators making attacks on persons and property, stoning or setting fire to public transport vehicles, commercial premises, libraries and communal centres, or setting up road blocks with glass, nails and tree branches in order to prevent the population from going normally to its places of work and even going so far as to attack physically those who refused to take part in their activities.
  115. 115 The Government states that faced with these incidents it adopted a number of remedial measures since the situation was on the brink of a serious national crisis. It also states that, nevertheless, since it is against repression of any kind, it promulgated Legislative Decree No. 22241, of 18 July 1976, whereby all those awaiting trial in connection with these events were pardoned. The Government has submitted the text of the Legislative Decree, section 1 of which grants an amnesty and general pardon to all citizens and members of the armed forces sentenced or awaiting trial before the ordinary or military courts on the grounds of political or social activities, restoring to them the rights they had lost. Section 2 provides that the authorities must release the persons concerned immediately, while section 3 entrusts the Ministries of Foreign Affairs and of the interior with taking the necessary steps to authorise the return to the country of any persons in exile for political or social reasons. The Government also submits the text of various decrees dealing with wage adjustments and other related matters.
  116. 116 In its letter of 25 January 1979, the Government states that the National Federation of Mining and Metallurgical workers is registered at the Ministry of Labour by means of a resolution dated 5 June 1972, stating that it has 16 affiliated unions. The Government adds that the Federation now enjoys all the trade union rights, including the right to strike, granted to similar organisations under Peruvian law.
• Case No. 906
  120. 120 The complaint presented in this case is contained in a letter from the Latin American Central of Workers (CLAT), dated 15 May 1978, containing specific allegations concerning the expulsion from Peru by the authorities of Luis Hernández, a trade union leader of Venezuelan nationality (see paragraph 106 above). The complaint was transmitted to the Government, which furnished its observations thereon in a letter of 15 January 1979.
  121. 121 The CLAT submits the text of a resolution of the Ministry of the interior, dated 21 March 1978, ordering the expulsion of Mr. Hernández "for clandestine entry, illegal stay in the country and for activities against national security". The CLAT maintains that these charges are totally false since the person concerned entered the country at the international airport of Lima on 12 December 1977, with a visa valid for 90 days issued by the Consulate-General of Peru in Venezuela. The CLAT encloses a photocopy of the page in the passport on which the visa appears and adds that Mr. Hernández was expelled on 24 January 1978, that is to say 47 days before the visa expired. The CLAT states that, contrary to the terms of the resolution, Mr. Hernández devoted his activities entirely to the formalities required for the legal registration of the Andean Institute for Social studies (in accordance with the recommendation made by the Peruvian Minister of the Interior to a Committee from the CLAT and the World Confederation of Labour (WCL) which had visited the country), to his duties as General Secretary of the Trade Union Council of Andean porkers (which has offices in Lima), to the co-ordination of this body with the authorities of the Cartagena Agreement and the Simón Rodriguez Convention (a labour agreement between Andean countries) and to attending meetings of the Economic and Social Advisory Committee as a representative of the Andean countries. The CLAT concludes by requesting that the Government rescind its expulsion order.
  122. 122 In its reply to these allegations, the Government states that the expulsion of Mr. Hernández was due to his non-trade-union activities and to the political agitation in which he engaged in the country. It adds that, as indicated in the complaint, he was allowed to enter the country to carry out his work as General Secretary of the Trade Union Council of Andean workers, which shows the support given by the Government to trade union activities. According to the Government, it would be incongruous if it first recommended and authorised trade union type activities, only to change its mind and to prevent them from being carried out immediately afterwards.
  123. 123 The Government states that what really happened is very different. As is well known, it continues, Peru has come through an acute economic and financial crisis in the last two years which has inevitably had repercussions on the workers' incomes. Consequently, the Government has applied a policy of wage regulation, granting cost-of-living allowances. The Government states that this situation was taken advantage of by minority groups of political agitators whose activities to slow down production by means of stoppages, strikes and sabotage, were designed to undermine the stability of the Government. Mr. Hernández was deported from Peru, the Government continues, because he was caught engaging in political agitation (in Cuzco), organising protest meetings and trying to bring about a work stoppage, all of which was completely divorced from the purpose for which he was in the country as a foreigner who had absolutely no right to become involved in such activities. Lastly, the Government states that the mistake made by the authorities in declaring in the resolution that Mr. Hernández had entered the country clandestinely was due to the fact that, possibly for fear that his passport would be retained, he had failed to present it on the pretext that he had come without it. Subsequently, the Ministry of Foreign Affairs ascertained that this was untrue.
  124. 124 The Committee notes that there is no discrepancy between what is stated by the complainant organisation and by the Government with regard to the purpose for which Mr. Hernández was allowed to enter the country. Such duties, of a clearly trade union nature, constitute the normal participation of trade union organisations in regional bodies with headquarters in Peru and included, moreover, the registration of an institute for social studies, also of a regional character, apparently so that this institute could operate in Peru. The Government states that it considers such activities to be legitimate and in accordance with its own policy.

B. B. The Committee's conclusions

• Case No. 884
• Conclusions of the Committee
  117. 117 The Committee already reached final conclusions, when it last examined the case, on various substantive questions dealt with in the allegations. It nevertheless considers it desirable for the Government to keep it informed of the measures adopted to reconsider the reinstatement of workers who were dismissed as a result of the strike on 19 July 1977, and to re-establish free collective bargaining.
  118. 118 On the basis of the Government's reply to the requests for further information which were sent to it, the Committee notes with interest that at the present time no trade union leader is under arrest or awaiting trial or deported for reasons connected with the general strike of 19 July 1977 or connected with other trade union activities. Likewise, the Committee notes the measure of amnesty and general pardon decreed by the Government and affecting all civilian or military personnel who were awaiting trial or had been sentenced as a result of the said events or other similar events of a political or social nature. In view of its all-embracing terms, this measure seems to cover all those who were implicated in unlawful acts committed during the above-mentioned events, putting an end to all the ensuing legal proceedings. In these circumstances, while still deploring the fact that the events in question led to the deaths of workers, the Committee considers that there would be no point in continuing its examination of these allegations.
  119. 119 Lastly, the Committee notes the Government's statement to the effect that the National Federation of Mining and Metallurgical Workers continues to be recognised by the Government and enjoys the same rights as other organisations.
• Case No. 906
  125. 125 In examining measures taken against leaders of international trade union organisations, the Committee has had occasion in the past, including in another case relating to Peru, to state that international trade union solidarity is one of the basic objectives of any trade union movement and that one of the corollaries of the right to affiliate with international trade union organisations is the right of the national organisations to enjoy all the advantages resulting from their affiliation. Nevertheless, the Committee added, the granting of such advantages must not conflict with the law, it being understood that the law should not be such as to render any such affiliation meaningless. At the same time, the Committee pointed out that any Government had the right to take the necessary measures to maintain public order. In the present case, the Committee considers that in view of his functions as trade union representative on regional co-operation bodies, the contacts that Mr. Hernández made with national trade union organisations should also be considered as legitimate trade union activities, provided they complied with the principles set out above. In this latter respect, the Committee notes the discrepancy between the statements of the complainant organisation, according to which Mr. Hernández had devoted all his activities in Peru to his work connected with regional bodies, and the statements of the Government according to which, at a time of social tension, he engaged in political agitation and promoted strikes, in complete disregard of his status as a foreign visitor. In these circumstances, the Committee wishes to point out the general advisability, in the interests of good relations between the authorities and international trade union organisations, of the representatives of the latter organisations enjoying adequate opportunities to justify themselves when they are accused of having gone beyond the bounds of legality in carrying out their trade union tasks. In the present case, nevertheless, according to the Government's statement, at the time of ordering the expulsion, the authorities involved in the matter were misled regarding the legal presence in their country of Mr. Hernández because he had not presented his passport.
  126. 126 In view of the information communicated by the complainants and by the Government, the Committee considers that it would be advisable to inform both parties of the principles and considerations contained in the preceding paragraph. Subject to this reservation, the Committee considers that the allegations call for no further examination.

The Committee's recommendations

1. 127. In these circumstances, and with respect to both cases as a whole, the Committee recommends the Governing Body:
   • (a) to note with interest the further information communicated by the Government, according to which at the present time no trade union leader is under arrest for reasons connected with the general strike of 19 July 1977, nor in connection with other trade union activities;
   • (b) to note also the measure of amnesty and general pardon decreed by the Government and affecting all those being tried or having been sentenced in connection with the said strike, and to decide, in the circumstances, that there would be no point in continuing to examine this aspect of the case;
   • (c) to request the Government to keep the Committee informed of the steps taken to reconsider the situation of the workers who were dismissed as a result of the strike and to restore free collective bargaining;
   • (d) as regards the allegations concerning the expulsion from the country of the Venezuelan trade unionist, Luis Hernández, and in view of the information communicated by the complainants and by the Government, to decide that these allegations call for no further examination but to draw the attention of both parties to the principles and considerations set out in paragraph 125 above.