Rapport intérimaire - Rapport No. 278, Juin 1991

Cas no 1527 (Pérou) - Date de la plainte: 05-AVR. -90 - Clos

1. 221. The complaint of the National Federation of Miners, Metalworkers and Steelworkers of Peru (FNTMMSP) is contained in a communication of 5 April 1990. The Government sent its observations on this case in a communication dated 12 February 1991.
2. 222. 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. 223. The National Federation of Miners, Metalworkers and Steelworkers of Peru (FNTMMSP) presents a complaint of alleged violation of Conventions Nos. 87 and 98. It states that a list of demands was submitted on 8 May 1988 for negotiation with the National Mining and Petroleum Company of Peru and its associated companies and with the Government (Ministry of Labour). The procedure was repeated, with some variations, in 1989 and the National Company refused to bargain on both occasions. The complainant claims that the enterprises in this sector are maintaining an anti-worker stance, mainly by refusing to discuss the miners' national list of claims submitted in 1988, which covers very general points relating to miners, steelworkers and metalworkers but not issues specific to each category of workers as alleged by the enterprise.
2. 224. The complainant points out that the mining industry has made a profit out of exploiting the workers in this sector, as salaries have been kept low and the workers' living conditions have deteriorated over the last 15 years; benefits have been reduced or left unpaid; occupational diseases have not been recognised, treated or prevented and mines and metallurgical and steel plants have not been adapted to improve the working environment and prevent contamination, occupational hazards, noise, etc.
3. 225. The complainant alleges further that, recognising that these are problems which are difficult to solve and need a great deal of time, it has focused its demands on a single point: a wage increase. It adds that this demand has not been met although the enterprises in this sector are not facing an economic deficit, in view of high metal prices and the tax relief and favourable exchange rate accorded by the Government; from 1980 to 1987 wages were cut by 30 per cent, and the minimum wage for miners is currently no more than US$70 per month, with an inflation rate of 2,775.3 per cent in 1989. In such a situation, a worker has to work 12 to 16 hours a day to compensate for the high cost of living, on a three-shift day, despite the fact that the legislation provides for an eight-hour day.
4. 226. The complainant also refers to the repression to which trade unionists have been subjected, in particular the murder of the following trade unionists since 1988:
   • Miners' union of Date of murder
5. 1. Macario Egoavil Casapalca 01. 05.88 2. Francisca Quispe de Gaspar Austria Duvaz 21. 07.88 3. Oscar Común Huamancaja Tamboraque 10.08.88 4. Florencio Coronel Metalúrgicos-La Oroya 17.10.88 5. 8lejandro Patiño Morococha 18.10.88 6. Víctor López Oviedo Toquepala 01. 12.88 7. Saúl Cantoral Huamaní* Hierro Perú 13.02.89 8. Consuelo García* Filomenas 13.02.89 9. Seferino Requis Pasco-Centromín Perú 02.03.89 10. Hugo Alderete Yauricocha-Centromín Perú 23.03.89 11. Juan Salinas Chumpe-Centromín Perú 23.03.89 12. Oscar Torres Chumpe-Centromín Perú 23.03.89 13. Antonio Cajachagua Morococha-Centromín Perú 08.05.89 14. Evaristo Clemente Yauricocha-Centromín Perú 18.05.89 15. Santiago Lizana Acha Julcani 08.10.89 16. Manuel Guerrero Villegas Hierro Perú 09.10.89 17. Alberto García Pariona Morococha-Centromín Perú 26.10.89 18. Timoteo Caparachin San Vicente de Chanchamayo 05.11. 89 19. Paul Valenzuela Pasco-Centromín Perú 10.11. 89
   • * The murders of Saúl Cantoral Huamaní and Consuelo García were the subject of a complaint to the Committee (Cases Nos. 1478 and 1484).
6. 227. The complainant also alleges the detention of Víctor Taipe Zúñiga, president of the National Federation of Miners, Metalworkers and Steelworkers of Peru, on 20 November 1989, who is now in prison and shows signs of ill-treatment; the detention and illegal imprisonment in the Marcavalle barracks of the workers Edgar Bujaico, Martín Mucha Aliaga, Edgar Julián Mauricio, Abdón Acuña Asto, Oscar Pariona Clemente, Santos Apolinario Núñez, Celestino Villena Blas, Braulio Zegarra García, Félix Quispe Balbín and Juan Anccasi Damián. The complainant points out that these persons were taken from their homes during the night and held captive by the armed forces; for some time they were given neither food nor water. The persons detained have been humiliated and tortured and some of them show signs of burns and injuries caused by electric shocks. The persons detained were released on 28 November 1990, except for Martín Mucha Aliaga, against whom a criminal charge was brought. The complainant observes that these detentions are based on a policy of counter-insurrection under the state of emergency laws.

B. The Government's reply

1. 228. In its communication dated 12 February 1991 the Government points out, as regards the national list of demands submitted by the FNTMMSP, that according to a General Labour Directorate report, in 1988, 1989 and 1990 this Federation submitted lists of demands concerning wage increases and working conditions generally applicable to miners, metalworkers and steelworkers, independently of the lists of demands which might be discussed and negotiated in each workplace.
2. 229. The Government explains that these national-level lists of demands resulted in the following: Presidential Decree No. 098-88-PCM and Ministerial Resolution No. 323-88-TR were issued in response to the national list of demands of 1988. These legislative provisions recognised the right of the workers represented by the Federation to bargain collectively at branch level and a bargaining commission was set up for this purpose; however, the 11th Civil Court of Lima, which had received petitions from various employers for protection of their constitutional rights (amparo), ordered that the above-mentioned legislative provisions be suspended and that the Ministry of Labour and Social Advancement abstain from any measure running counter to this decision. In these circumstances the national list of demands could not be negotiated pending a final ruling of the judiciary. The Government further explains that in 1989 the Federation submitted a second list of demands, this time under article 54 of the Constitution and Presidential Decree No. 006-71-TR, which was initially accepted, but once again petitions for amparo were submitted to the 8th Civil Court of Lima, with the same results as the previous year.
3. 230. The Government states further that with the promulgation of Act No. 25222, which provides for the right of second-level trade union organisations to conclude agreements and engage in collective bargaining by branch of activity, the FNTMMSP submitted its 1990 national list of demands on the basis of this legislation, with the result that it was accepted by the labour administration authority. However, the 8th Civil Court of Lima informed the Ministry of Labour that the order to refrain from negotiating any list of demands submitted by this Federation was still in force.
4. 231. In its communication the Government observes that it is clear from the explanations given that the complaint in question is unfounded, since the Government, through the Ministry of Labour and Social Advancement, has accepted the lists of demands presented by the complainant Federation. The Government points out that it is the judiciary which will take the final decision, and in this procedure the Attorney-General upholds the defence of the State as regards the validity of the legislative provisions enacted and the measures taken by the Ministry of Labour and Social Advancement.
5. 232. The Government's communication refers to the reduction of benefits, occupational diseases, hazards and working environment, etc., and observes that article 57 of the Constitution recognises that the rights of workers may not be waived and that the exercise thereof is guaranteed; any agreement to the contrary is null and void. In addition, section 48 of Presidential Decree No. 006-71-TR of 29 November 1971 provides that a collective agreement or decision which stipulates, to the workers' disadvantage, lesser rights than those laid down in the laws and regulations shall be null and void. Lastly, Legislative Decree No. 568, the organic law on labour and social advancement, and Presidential Decrees Nos. 006-82-TR of 30 May 1982 and 003-83-TR of 18 February 1983 provide for summary proceedings in the event of infringement by an employer of the provisions of labour legislation or collective agreements. The Government states that, consequently, it has not committed any infringement regarding this aspect of the complaint and, on the contrary, has enacted express provisions guaranteeing the rights of workers that may not be waived and ensuring procedures for presenting complaints in the event of non-compliance. The Government states further that provisions have been enacted on occupational diseases and the working environment in mines and that bodies have been set up to ensure the application of, and compliance with, these provisions.
6. 233. The Government refers in its communication to the wage reductions in 1980 to 1987 and 1988, 1989 and 1990, and points out that these occurred before the present Government took office on 28 July 1990. It states further that it is true that the remuneration of workers in general, including miners, has decreased. However, as a fundamental aspect of the economic stabilisation programme, it is envisaged to bring wages gradually back up to their previous level, and important steps have been taken in this direction in the mining sector through collective bargaining or by direct agreement, and income levels for this group of workers can be said to be higher than in other sectors.
7. 234. As regards the detention and torture of workers by the armed forces and the murder of 19 workers, the Government states in its communication that on 4 May 1990 a note was sent to the Ministry of the Interior urgently requesting information on these allegations. The reply was sent in Note No. 2416-IN-Sq of 27 November 1990, which contains the following: the police headquarters of the 8th Police District (VIII-RPNP-Huancayo) stated on 19 June 1990 that the various dates (in 1989 and 1990) on which strikes were held by miners employed in CENTROMIN-Perú-Base La Oroya, the Peruvian national police (PNP-PG) proceeded to maintain public order and security of the installations in this mining centre, without any confrontations occurring with the workers; it is not known whether military forces at the Marcavalle Base detained any trade union leaders.
8. 235. The Government states further that the police headquarters of the 9th Police District (IX-RPNP-ICA) informed it on 9 August 1990 that no arbitrary detentions of trade union leaders had been registered in this jurisdiction, still less had there been any report of disappearances of such leaders; it was pointed out that it had not been possible to date to identify those responsible for the murders of the miners' leader Saúl Cantoral Huamani and of Manuel Guerrero Villegas, a worker employed in the Hierro Perú enterprise. In addition, the Prefecture of the 11th Police District (XI-RPNP-Arequipa) reported on 30 October 1990 that no trade union complaints of violations of trade union freedoms had been registered in the jurisdictions of Arequipa and Mequegua; it also stated regarding the death of trade union leader Víctor López Oviedo in December 1988 that he died as the result of being run over by a hit-and-run driver.

C. The Committee's conclusions

1. 236. The Committee observes that the allegations presented in this case refer to the murder of 19 trade unionists in the mining, metal and steel sectors since 1988; the detention since 20 November 1989 and subsequent physical ill-treatment of the president of the complainant Federation; the illegal detention and torture by the armed forces of ten workers, all but one of whom were later released; and the refusal of the National Mining and Petroleum Company to discuss and negotiate a national-level list of demands on the living and working conditions of the workers employed in the sectors represented by the FNTMMSP.
2. 237. As regards the murder of trade unionists since 1988, in particular the 19 referred to in the allegations, the Committee wishes to reiterate its deep concern at these serious acts of violence affecting the trade union movement in Peru. It regrets that, over a period of three years, the competent authorities have not been able to identify those responsible for the deaths of trade union leaders Saúl Cantoral and Víctor López Oviedo. The Committee recalls that a climate of violence such as that surrounding the murder or disappearance of trade union leaders constitutes a serious obstacle to the exercise of trade union rights; such acts require severe measures to be taken by the authorities, such as the setting up of an independent judicial inquiry to ascertain the facts in full, determine responsibilities, punish those responsible and prevent the repetition of such crimes. (See, for example, 236th Report, Case No. 1192 (Philippines), para. 299.) The Committee therefore requests the Government to inform it without delay whether an inquiry has been opened into the murder of the 19 trade unionists referred to in the complaint and, if so, of the outcome of any such inquiry.
3. 238. As regards the detention, physical ill-treatment and torture of the president of the FNTMMSP and of ten workers in the Marcavalle Military Base, the Committee observes from the information supplied by the complainant organisation that these arrests occurred in the context of a counter-insurgency policy and in pursuance of state of emergency laws. It also notes the Government's information to the effect that in Huancayo, during the miners' strikes held in 1989 and 1990, police proceeded to maintain public order and security of the installations, without any confrontations with the workers occurring, but that it is not known whether military forces from the Marcavalle Military Base detained any trade union leaders. In this respect, while the Committee is aware of the difficulties facing the Government in certain areas, it recalls that governments should give precise instructions and apply effective sanctions where cases of ill-treatment are found, so as to ensure that no detainee is subjected to such treatment. The Committee has also emphasised the importance that should be attached to the principle laid down in the International Covenant on Civil and Political Rights according to which all persons deprived of their liberty must be treated with humanity and with respect for the inherent dignity of the human person.
4. 239. In the present case, the complainant gives an account of the physical ill-treatment and injuries suffered by the detainees, some of whom were tortured. The Government, for its part, states that it is unaware of whether trade union leaders were detained. The Committee urges the Government to open an independent judicial inquiry into the events which occurred in the Marcavalle Military Base and, if these allegations are found to be substantiated, to take steps to ensure that the authorities concerned have appropriate instructions to eliminate the danger which such practices imply for trade union activities. The Committee requests the Government to inform it of the charges brought against the trade unionist Martín Mucha Aliaga and whether judicial proceedings have been instituted in this respect.
5. 240. As regards the allegation concerning the refusal of the National Mining and Petroleum Company of Peru to discuss and negotiate a national list of demands presented by the FNTMMSP on a number of occasions, the Committee notes that the Government issued legislative provisions recognising the right of the workers represented by the Federation to bargain collectively, but cannot but regret that for three consecutive years (1988, 1989 and 1990) the implementation of these legal provisions to initiate bargaining was prevented by various employers submitting petitions. It requests the Government to inform it of the final judicial decision concerning the petitions for amparo with respect to the legislative provisions recognising the right of collective bargaining for workers in the mining sector, and to facilitate and effectively promote collective bargaining in this sector of the economy.

The Committee's recommendations

1. 241. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a)As regards the murder of trade unionists since 1988, in particular the 19 deaths referred to in these allegations, the Committee reiterates its deep concern over these serious acts of violence which affect the trade union movement in Peru. It urges the Government to set up an independent judicial inquiry in order fully to ascertain the facts and circumstances in which these murders occurred, and thus, as far as possible, determine reponsibilities, punish those responsible and prevent the repetition of such actions. It requests the Government to inform it without delay whether an inquiry has been opened into the murder of these trade unionists and, if so, of the results of such inquiry.
   • (b)As regards the detention, physical ill-treatment and torture of the president of the FNTMMSP and ten workers, the Committee urges the Government to open an independent judicial inquiry into the events which occurred at the Marcavalle Military Base and, if the allegations are found to be substantiated, to take steps to ensure that the authorities concerned have appropriate instructions to eliminate the danger which such practices imply for trade union activities. The Committee also requests the Govenment to inform it of the charges brought against the trade unionist Martín Mucha Aliaga and whether judicial proceedings have been instituted.
   • (c)As regards the refusal of the National Mining and Petroleum Company of Peru to discuss and negotiate a national-level list of demands presented by the FNTMMSP on a number of occasions, the Committee regrets that for three consecutive years there was no bargaining and requests the Government to send it the text of the final judicial decision concerning the appeals under way with respect to the collective bargaining rights of workers in the mining and petroleum sectors.
   • (d)The Committee asks the Government to facilitate and effectively promote collective bargaining in these sectors of the economy and to keep it informed of any progress in this respect.