Interim Report - Report No 265, June 1989

1. 518. The World Federation of Trade Unions (WFTU), the Miners' International
   • Federation (MIF), the Peruvian General Confederation of Labour (CGTP) and the
   • International Confederation of Free Trade Unions (ICFTU) presented complaints
   • against the Government of Peru alleging violations of freedom of association.
   • The WFTU sent two communications dated 9 November 1988 and 21 February 1989;
   • the ICFTU sent a communication dated 13 January 1989; the MIF sent a
   • communication dated 22 February 1989; and the CGTP sent a communication dated
2. 14 December 1988. The Government sent its observations in communications dated
3. 27 February and 13 March 1989, as regards Case No. 1478, and 12 April 1989, in
   • connection with Case No. 1484.
4. 519. 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 complainants' allegations

1. 520. In its communication of 9 November 1988, the WFTU alleges that on 13
2. October 1988 the Peruvian General Confederation of Labour (CGTP) organised a
3. demonstration in support of workers' demands for improvements in their
4. economic and social situation, which was brutally repressed by the police; 50
5. workers were injured and over 900 detained, including Pablo Checa, Deputy
6. General Secretary of the CGTP, Alberto Ramírez, Organising Secretary of the
7. CGTP, Pedro Huilca, General Secretary of the Construction Workers' Trade Union
8. Federation, and Alipio Centeno, General Secretary of the Light and Power
9. Workers' Federation. In addition, many persons participating in the
10. demonstration were beaten, including Senator Valentín Pacho, Vice-President of
11. the WFTU and General Secretary of the CGTP, and Ricardo Letts, a trade union
12. leader.
13. 521. In another communication of 21 February 1989 the WFTU alleges that on 9
14. February a peaceful meeting of approximately 3,000 peasants was brutally
15. repressed by the national police, and that 88 peasants were killed. Oscar
16. Delgado, a leader of the customs workers, disappeared, and Saúl Cantoral,
17. General Secretary of the National Federation of Mining, Iron and Steel Workers
18. of Peru (FNTMMSP) was murdered.
19. 522. In a communication of 22 February 1989 the Miners' International
20. Federation (MIF) alleges that in Lima on 13 February 1989 paramilitary squads
21. murdered Saúl Cantoral, General Secretary of the FNTMMSP, and Mrs. Consuelo
22. Garcéa, an adviser to the committees of miners' wives. Likewise, the
23. communication reports that Oscar Delgado, General Secretary of the Customs
24. Workers' Trade Union, disappeared on 14 December 1988, confirming the
25. allegations presented by the ICFTU in its communication of 13 February 1989.
26. The ICFTU communication adds that on 3 January 1989 the police broke into the
27. headquarters of its affiliate, the CTP, while the Executive Committee was
28. meeting for the purpose of calling a special trade union congress, and
29. detained Flavio Rojas, a trade unionist. The ICFTU adds that Mr. Rojas'
30. whereabouts are unknown.
31. 523. In its communication of 14 December 1988 the CGTP alleges the
32. infringement of the right to unionise and the right to strike by the
33. Government of Peru. The complainant alleges that the Government of Peru is
34. openly violating the provisions of Articles 1 and 3 of Convention No. 87 by
35. declaring illegal all strikes and work stoppages called by trade union
36. organisations in accordance with Peruvian legislation and pursuant to the will
37. of their members. The complainant also alleges that the Government has
38. submitted a Bill on industrial relations which, on the subject of the exericse
39. of the right to strike, expressly violates the principles and standards of
40. freedom of association. The complainant alleges that, as part of its policy to
41. intimidate and harass trade union organisations, the Government has formulated
42. a series of administrative provisions which constitute anti-trade union
43. discrimination, citing the following examples:
44. - Divisional Order No. 010-88-9DV-DEN in which the Ministry of Labour declared
45. contrary to law the notice to strike submitted by the CGTP; once the notice to
46. strike has been declared contrary to law, the strike, should it take place, is
47. inevitably declared unlawful;
48. Executive Award No. 015-88-1SD-NEC which upheld the 19 February 1988 decision
49. to declare unlawful the strike of workers belonging to the staff union of the
50. "El Nacional" daily;
51. - Municipal Resolution No. 497 which declared illegal the 48-hour strike
52. called by representatives of the municipal workers of Lima, dated 28 March
53. 1988;
54. - Divisional Order No. 022-88-DV-NEC of 28 June 1988, issued by the Ministry
55. of Labour, which declared illegal the strike voted by members of the
56. Construction Workers' Federation, a CGTP affiliate;
57. - Divisional Order No. 0107-88-7DV-DEN of 14 July 1988, issued by the Ministry
58. of Labour, which declared contrary to law the notice given by the CGTP for a
59. national 48-hour work stoppage;
60. - Executive Order No. 095-88-1SD-NEC of 19 July 1988, issued by the Ministry
61. of Labour, which upheld Divisional Order No. 048-88-1SD-NEC, which in turn
62. declared contrary to law the notice of a strike called by the FNTMMSP; -
63. Departmental Resolution No. 221-88-INAP/J of 18 July 1988 in which the
64. National Insitute for Public Administration (INAP) declared illegal the strike
65. called by the INAP Workers' Trade Union;
66. - Divisional Order No. 219-88-2DV-DEN of 11 October 1988 by which the Ministry
67. of Labour declared contrary to law the notice to strike presented by the CGTP.
68. 524. The CGTP states that the Government invokes three kinds of arguments in
69. support of its bans: (1) That the workers' decision to strike "is unlawful
70. because it is not based on legitimate labour interests, but on other motives".
71. The determination of such "motives" is a prerogative which the authorities
72. have illegally assumed. Provisions in force concerning the exercise of the
73. right to strike (Presidential Decree No. 017 of 2 November 1962) only require
74. workers and their organisations to notify the labour authorities of their
75. intention to strike at least 72 hours in advance, indicating the date and time
76. of the strike vote, the number of workers voting and the number of workers in
77. the trade union or enterprise concerned (section 3 of Presidential Decree No.
78. 017). (2) That a strike cannot be used as "a means of pressure with respect to
79. demands for which legal regulations in force prescribe compulsory recourse to
80. specific procedures". (3) That if the striking workers "consider that there
81. has been failure to comply with, or an infraction of, legal provisions or
82. labour agreements, they have ready access to courts of law for redress". In
83. these circumstances it is virtually impossible to call a lawful strike in
84. Peru. Moreover, the complainant states that by issuing orders and decrees
85. which declare strikes unlawful, the Ministry of Labour and the National
86. Institute for Public Administration explicitly threaten to charge workers who
87. participate in such strikes with offences that are punishable by dismissal.
88. Likewise, the CGTP alleges that Presidential Decree No. 002-88-TR was one of a
89. number of measures taken by the Government to render illegal the CGTP's call
90. for a general strike on 28 January 1988; this Presidential Decree provided
91. that deductions would not be made from the wages of workers who chose not to
92. strike, but who arrived at work late owing to the strike. By means of other
93. provisions the Government has "rewarded" workers who ignored the call to
94. strike with special payments. As an example, the complainant encloses a copy
95. of Presidential Decree No. 127-88-PCM of 13 October 1988. Trade union autonomy
96. of Presidential Decree No. 127-88-PCM of 13 October 1988.
97. Trade union autonomy and privilege
98. 525. The CGTP alleges that the Government is guilty of serious offences
99. against trade union autonomy and privilege, pointing in particular to the
100. following facts:
101. a) the violent disruption of trade union meetings. In September 1988 the
102. authorities detained trade union leaders and workers of Servicio Industrial de
103. la Marina (SIMA), a state enterprise, while they were mobilising to demand the
104. full respect of their rights to collective bargaining and job security;
105. b) the search of trade union offices, the ensuing damage to the premises and
106. furnishings, and the confiscation of trade union property. Following the
107. general strike of 13 October 1988 called by the CGTP in support of demands for
108. higher wages to compensate for the rising cost of living, unqualified
109. guarantees of job security and the respect of trade union and labour rights,
110. the police sought to conduct a search of the CGTP office (located at Plaza 2
111. de Mayo, No. 48, Suite No. 204, in Lima), and dowsed it with a dye, teargas
112. and opened fire, causing physical damage and injuring persons inside the
113. building;
114. c) the detention of trade union leaders and workers owing to their trade
115. union activities. On 13 October 1988 police forces conducted a violent search
116. of the offices of the Light and Power Workers' Federation, a CGTP affiliate.
117. This Federation had been conducting a general, open-ended strike in support of
118. the demands which it had presented to ELECTROPERU, a state enterprise, during
119. the course of collective bargaining. On this occasion the police mistreated
120. and detained several national leaders of the CGTP and other federations,
121. including Pablo Checa Ledesma, Deputy General Secretary of the CGTP, Alberto
122. Ramírez Hernández, Organising Secretary of the CGTP, Alipio Centeno Romani,
123. Vice-President of the CGTP and General Secretary of the Construction Workers'
124. Federation, Jaime Villaseca Zeballos, Secretary for the northern region of the
125. Light and Power Workers' Federation, Grover Angues Peña, Secretary for
126. External Affairs of the Integrated Electrical System Trade Union, as well as
127. other trade union leaders and trade unionists, falsely accusing them of
128. disturbing the peace and posing a threat to public safety, in an effort to
129. link them with terrorists and subversive elements. They were subsequently
130. released when the charges were proved groundless and the detentions arbitrary;
131. d) interference in the organisation and realisation of trade union
132. demonstrations, the refusal to issue the corresponding authorisations, and the
133. violent assault on demonstrating trade unionists. On 21 October 1988 members
134. of Peru's Criminal Investigation Department and police force searched the
135. trade union offices of the FNTMMSP while its Executive Council was meeting to
136. discuss the negotiation of demands and the general open-ended strike which had
137. started on 17 October, in response to the refusal of the National Mining
138. Corporation to negotiate with the Federation. Twenty persons were detained,
139. including some of the Federation's national leaders and advisers, and charged
140. with disturbing the peace and posing a threat to public safety, in an effort
141. to link them with subversive elements. They were subsequently released when it
142. was shown that they were totally innocent. Moreover, the police forces seized
143. various documents belonging to the Federation as well as a mimeograph used for
144. the production of trade union publications, and damaged furniture and property
145. in the trade union office;
146. e) on 7 November 1988 Mario Pizarro Rubio, President of the Circle of Chiefs
147. and Officials of the State Water and Sewer Service Company (SEDAPAL), was
148. detained. Mr. Pizarro Rubio is a member of the trade union of the
149. above-mentioned enterprise, which in turn is an affiliate of the National
150. Water and Sewerage Workers' Federation (FENTAP), an affiliate of the CGTP. He
151. was turned over to the anti-terrorist branch of Peru's Criminal Investigation
152. Department with a view to discrediting him as a subversive; he was, however,
153. released on 9 November and cleared of all charges.
154. 526. The detention of trade union leaders and workers in the mining, banking,
155. textile and other sectors has continued, in response to their promotion of and
156. participation in meetings and demonstrations held to demand the full respect
157. of their individual and collective rights. In all these cases, the police has
158. invoked the state of emergency declared in various parts of the country by
159. Presidential Decree No. 032-88-IN. This Decree, declared in accordance with
160. article 231, paragraph
161. a)of the Constitution, suspends the civil liberties set out in article 2,
162. paragraphs 7, 9, 10 and 20, clause
163. g) of the Constitution, namely, protection against illegal searches, free
164. choice of place of residence, freedom of movement within the national
165. territory, freedom to hold peaceful meetings without prior authorisation, and
166. prohibition of detention without a court order, except in cases of
167. apprehension in flagrante delito, on the assumption that meetings held on
168. trade union premises have as their object the planning of criminal activities
169. linked to subversive acts, and on the assumption that the trade union
170. organisations concerned had decided to disrupt the peace and threaten public
171. safety. However, in all cases it was fully shown that the searches,
172. detentions, seizures and physical attacks on trade union leaders and members
173. were completely unrelated to the reasons which led the State to declare the
174. state of emergency. It was also clearly shown that there was no evidence of
175. criminal activity as defined in the Penal Code, and that on the contrary, the
176. authorities had violated fundamental individual and collective rights and
177. freedoms.
178. 527. The complainant alleges that none of the above-mentioned searches or
179. detentions were preceded by requisitions or denunciations alleging the
180. commission of criminal acts. Moreover, the subsequent investigations showed
181. clearly that the persons who had been detained had not engaged in any criminal
182. activity; indeed, they were released even before the judicial authorities were
183. able to consider the writs of habeas corpus presented by leaders of the trade
184. union organisations concerned. Furthermore, the measures adopted by the
185. Government in the above-mentioned cases are unrelated to the reasons which led
186. it to declare the state of emergency by means of Presidential Decree No.
187. 032-88-IN, in accordance with Presidential Decree No. 002-86-IN, both of which
188. based the state of emergency on the increase of violent crimes in Lima and
189. Callao and the need for exceptional measures to restore law and order. It was
190. abundantly clear that these legal provisions refer to the activities of armed
191. subversive groups, and in no way to the trade union activities of workers.
192. 528. The complainant also states that it was fully shown that there were no
193. valid grounds for the arguments presented by police authorities in support of
194. their searches of and attacks on trade union offices, the detention of trade
195. union leaders and workers, and the seizure of property and materials; on the
196. other hand, there is considerable evidence to show that these actions were
197. consciously designed to interfere with, limit and obstruct the exercise of
198. trade union rights and freedoms. For example, all police interventions
199. mentioned above took place while workers were exercising their trade union
200. rights: attending meetings at their respective trade union offices, exercising
201. the right to strike, or demonstrating publicly in defence of their rights and
202. interests, without any evidence, much less proof, that any of these trade
203. unionists intended to commit or had actually committed a crime. The political
204. will to curtail trade union activity is also evidenced in the statements of
205. police authorities and political figures who stated that "they had orders to
206. detain all persons belonging to the Federation, since these trade union
207. activities were causing chaos in the country ...".
208. 529. The CGTP makes reference to the Industrial Relations Bill, alleging that
209. it expressly violates the principles of free negotiation and contractual
210. autonomy by providing for a first stage of direct negotiations in which
211. workers and employers have a period of 30 days in which to reach agreement on
212. the terms of a collective agreement. Where they fail to reach an agreement,
213. contested issues are to be resolved by the labour authorities, whose decision
214. is unappealable and binding. Moreover, the complainant states that this Bill
215. is incompatible with Conventions Nos. 87 and 98 in that it defines compulsory
216. modalities for collective bargaining, such as laying down the levels of
217. negotiation, the duration of agreements, etc.
218. 530. The CGTP also refers to Presidential Decree No. 041-88-TR which
219. established ceilings on wage increases agreed to in collective agreements, as
220. well as those set by administrative decision or arbitration awards. In this
221. connection the complainant alleges that this measure limited the collective
222. autonomy of the negotiating parties; moreover, in accordance with national
223. legislation, the State's role should be confined to guaranteeing the right to
224. collective bargaining and ensuring that procedures exist for the peaceful
225. settlement of labour disputes, intervening only when the parties fail to reach
226. an agreement within the context of specific instances of collective
227. bargaining. The complainant alleges that Presidential Decree No.041-88-TR was
228. promulgated at a time when the Government was implementing a number of
229. economic measures which pushed inflation up to 114.5 per cent in September
230. 1988. According to the CGTP, this makes it clear that the Government's actions
231. were not based on criteria of social justice and the general interest, because
232. these measures have had negative repercussions for most of the population and
233. inflation was expected to reach 2,000 per cent by the end of 1988, and 39,000
234. per cent in 1989. The above-mentioned Presidential Decree has been repealed,
235. but the complainant none the less requests that the Committee on Freedom of
236. Association give its opinion on it since the Decree was a reflection of the
237. Government's labour policy.
238. 531. Lastly, in view of the serious and systematic violations of the
239. principles of freedom of association and in view of the gravity of the current
240. situation, the CGTP requests the Committee to send a special commission to
241. Peru to investigate immediately the most critical aspects of the situation of
242. Peruvian workers.
243. B. The Government's reply
244. 532. In a communication of 9 February 1989 the Government sent its
245. observations on the allegations presented by the WFTU concerning the National
246. Day of Protest organised by the CGTP on 13 October 1988. In this connection,
247. the Government states that the demonstration was peaceful, but that there were
248. isolated instances of confrontations between workers and the police and that a
249. number of persons were detained for disturbing the peace and for resisting the
250. national police. In any case, after the persons concerned were identified and
251. questioned, they were immediately released. The Government adds that the
252. Ministry of the Interior has been requested to furnish additional information,
253. as this matter lies within its competence. Moreover, the Government states
254. that it respects the normal and peaceful operations of trade union
255. organisations and their leaders, in accordance with current labour legislation
256. and international Conventions. It points out that the police intervene only
257. when it is necessary to control excesses which threaten law and order and are
258. unrelated to legitimate trade union activities.
259. 533. In its communication of 13 March 1989 the Government sends detailed
260. information concerning the allegations presented by the CGTP. In the light of
261. the additional information obtained from the General Labour Relations Office,
262. it concludes that the CGTP's allegations concern three major issues:
263. a) the violation of the right to strike in Peru;
264. b) a challenge to the Industrial Relations Bill, with specific reference to
265. the right to collective bargaining and the right to strike;
266. c) the arbitrary detention of trade union leaders and the violation of their
267. civil liberties.
268. 534. In this connection the Government states that, as acknowledged by the
269. complainants themselves, the Peruvian Government recognises and respects the
270. various international instruments on discrimination, such as the Universal
271. Declaration of Human Rights, the International Covenant on Economic, Social
272. and Cultural Rights, the International Covenant on Civil and Political Rights,
273. as well as Conventions Nos. 87 and 98.
274. 535. The Government states, that in view of these undertakings, article 54 of
275. Peru's Constitution expressly provides for the right to collective bargaining
276. as follows: "collective labour agreements between workers and employers have
277. the force of law for the parties. The State guarantees the right to collective
278. bargaining. The law stipulates the procedures for the peaceful settlement of
279. labour disputes. State intervention shall only be resorted to and shall be
280. final where the parties fail to reach an agreement." Article 55 guarantees
281. workers the right to strike to be exercised in accordance with the law.
282. Therefore, and in conformity with the provisions of article 55, the Government
283. categorically states that it is not true that all strikes in Peru are declared
284. illegal, as alleged by the complainants. It should be added that the exercise
285. of the right to strike, by its very nature, is a legitimate means for applying
286. pressure on the employer, provided the strike meets the requirements
287. established by law. There are many strikes which are not declared illegal; on
288. the contrary, provided they comply with the requirements set forth in
289. Presidential Decree No. 017 of 2 November 1962, strikes are recognised as
290. valid by the labour authorities in the following cases:
291. (1) When the strike is a response to the employer's manifest failure to abide
292. by legal provisions or collective agreements (failure to pay wages, bonuses
293. and other clearly established benefits).
294. (2) When the strike takes place during collective bargaining, in either the
295. direct negotiation or conciliation stage, and is used as a legitimate means of
296. applying pressure on the employer.
297. (3) In general, when there are sufficient grounds for calling a strike against
298. a given employer.
299. On the other hand, strikes are declared illegal in the following cases:
300. (1) When there is failure to comply with the requirements set forth in section
301. 3 of Presidential Decree No. 017, such as the requirement to notify the
302. authorities of the strike at least 72 hours in advance, stating the hour when
303. the strike was voted and the number of workers belonging to the trade union.
304. (2) When the strike is declared after the direct negotiation or conciliation
305. stage, and therefore when the settlement of the demands rests with the labour
306. authorities, on the grounds that the strike cannot be used against the State,
307. but only as a means of bringing pressure to bear against the employer.
308. (3) When the strike takes place suddenly, in other words, without meeting the
309. minimum requirements established by law.
310. (4) When the strike concerns demands that should be handled through other
311. established procedures. In other words, strikes are not justified where there
312. are procedures to guarantee the resolution of individual or collective
313. demands.
314. (5) When the strike is directed against the Government, and is therefore
315. political in nature. As noted above, the right to strike is universally
316. recognised as a means by which the worker may defend his legitimate interests
317. vis-à-vis his employer, but not as a means of applying pressure against the
318. State; the suggestions, concerns and requirements of institutions and
319. organisations must be channelled through democratic machinery established by
320. the Constitution and legislation. This applies specifically to the general
321. strikes called by the CGTP in support of demands which should rather be raised
322. and debated within the Parliament or brought to the attention of the executive
323. branch through appropriate channels.
324. 536. As regards the public administration, strikes are isolated occurrences
325. to which recourse is had only after all other alternatives for settling a
326. dispute have been exhausted. Independently of the foregoing, however, it must
327. be recognised that Peru does not have fully adequate legislation concerning
328. the exercise of the right to strike, and that it falls to the legislative
329. branch to promulgate such legislation. It is precisely for this reason and in
330. accordance with constitutional requirements that a Bill on industrial
331. relations was formulated by a special committee which invited the
332. participation of workers, employers and others concerned. This committee held
333. meetings with the representatives of national employers' and workers'
334. organisations to hear their suggestions and comments, which are reflected in
335. the Bill. This Bill, which was drafted by the executive branch, is realistic
336. in its approach to collective bargaining and is based on Peru's national
337. experience of over 70 years of collective bargaining; it does not pretend to
338. introduce innovations which are alien to Peu's experience and which, in the
339. current difficult circumstances, could lead to greater disputes. Consideration
340. has also been given to statistical data, and every effort has been made to
341. ensure that the Bill's provisions are designed to promote direct agreement
342. between the parties. In fact, according to statistical information, it is
343. during the first stage of collective bargaining procedures (namely, direct
344. negotiations) that most demands are resolved. The labour authorities intervene
345. only after the breakdown of direct talks and at the request of the parties,
346. for they may submit the dispute either to voluntary arbitration or to the
347. labour authorities (section 22 of the Bill). Should the parties fail to reach
348. an agreement concerning this choice, either of them may within 48 hours
349. request the labour authorities to assume responsibility for the settlement of
350. the dispute. In other words, the labour authorities intervene only at the
351. request of the parties concerned, and with a view to facilitating the
352. settlement of labour disputes and responding to the demands of workers. In
353. both cases, whether the parties opt for voluntary arbitration or submit the
354. dispute to the labour authorities, an economic and labour study which will
355. guide the arbitration proceedings or the labour authority's examination of the
356. matter, is carried out by the Economy, Labour and Productivity Office, and
357. communicated to the parties. The Bill provides sufficient guarantees in the
358. form of machinery to appeal the arbitration award or the decision of the
359. labour authorities.
360. 537. The Bill defines a strike as a right of workers consisting in the
361. voluntary, collective and peaceful suspension of work; it states that strikes
362. may be called as from the direct negotiations stage of collective bargaining,
363. until such time as the dispute has been submitted for arbitration, and in
364. certain other circumstances when the employer refuses to comply with decisions
365. rendered or approved by the labour authorities. Moreover, the Bill provides
366. that the strike must have as its object the defence and promotion of the
367. interests and rights of workers, and the support of the just claims of other
368. workers, provided that these are in the same branch of economic activity. The
369. Bill defines the requirements for calling a strike: the strike must be
370. approved in a general assembly by a majority of the workers and the labour
371. authorities must be notified of the strike at least 72 hours in advance. The
372. Bill identifies cases in which strikes are to be declared illegal; for
373. instance, when they are carried out without complying with requirements
374. established by law, when they are called for purposes other than those
375. authorised by the law, and when striking workers engage in acts of violence
376. against the employer or property at their workplace. The Bill also regulates
377. the right to strike in essential services and provides that workers in such
378. services may exercise the right to strike provided they do not interrupt the
379. continuity of such services. Without prejudice to the foregoing general
380. description of the Bill, the Government states that the Bill is to be debated
381. in Parliament and may be further amended; the Bill does not seek to limit in
382. any way the right to strike. Lastly, it points out that the Bill is not on the
383. agenda of the special session of Congress, and the Government therefore
384. considers this challenge premature.
385. 538. As regards the detention of trade union leaders, the Government repeats
386. that it is necessary to protect the public order from violence which sometimes
387. hides behind claims of trade union rights. Without prejudice to the foregoing,
388. the Government adds that it has requested the Ministry of the Interior to
389. investigate the allegations that the national police has acted arbitrarily and
390. violently on a number of occasions in connection with trade union action and
391. strikes, and will send further information to the ILO. Lastly, the Government
392. considers that the CGTP allegations that Peru does not respect trade union
393. rights, are inaccurate and premature, and distort the true picture.
394. 539. In its communication of 12 April 1989 the Government confirms reports
395. which have appeared in a number of newspapers to the effect that the national
396. police has undertaken an investigation into the whereabouts of Oscar Delgado,
397. a leader of the Customs Workers' Trade Union. The Ministry of the Interior has
398. set up a special team to inquire as to the whereabouts of this missing trade
399. union leader, whose disappearance has provoked strikes by a number of trade
400. union organisations and the Intersectoral Confederation of State Employees
401. (CITE), and is a source of concern for the Government. It should be noted that
402. the Ministry of the Interior - which has competence in this area - has stated
403. that Mr. Delgado is not being detained in any state institution, and that his
404. case is being handled as that of a missing person. The Ministry of the
405. Interior has been requested to furnish additional information. As regards
406. Flavio Rojas, the Government confirms media reports that there was a dispute
407. regarding the leadership of the CTP between Flavio Rojas and Bernardino
408. Céspedes, both of whom claimed to hold the office of general secretary; Mr.
409. Rojas filed an action for relief which is now before the courts where the
410. matter will be settled since the Ministry of Labour, in accordance with
411. international Conventions, is not interfering in this case. The claim that Mr.
412. Rojas' whereabouts are unknown is inaccurate, inasmuch as he enjoys the full
413. exercise of his civil and trade union rights.

C. The Committee's conclusions

1. 540. The Committee notes that the allegations in these cases refer to the
   • violent repression by the police of a protest demonstration held in support of
   • workers' demands for better economic and social conditions, which was
   • organised by the CGTP on 13 October 1988, to the injury of 50 workers and the
   • detention of over 900 (including Pablo Checa, Deputy General Secretary of the
   • CGTP, Alberto Ramírez, Organising Secretary of the CGTP, Pablo Huilca, General
   • Secretary of the Construction Workers' Trade Union Federation, and Alipio
   • Centeno, General Secretary of the Light and Power Workers' Federation; injured
   • trade unionists included Senator Valentín Pacho, Vice-President of the WFTU
   • and General Secretary of the CGTP, and trade union leader Ricardo Letts); to
   • the violent repression by police forces on 9 February 1989 of the peaceful
   • meeting of peasants, which led to the death of 88 peasants and the
   • disappearance of Oscar Delgado, a leader of the Customs Workers' Trade Union,
   • and to the murder of Saúl Cantoral, General Secretary of the National Mining,
   • Iron and Steel Workers' Federation, and Consuelo Garcéa, an adviser to the
   • committees of miners' wives on 13 February 1989 in Lima. Other allegations
   • refer to the infringement by the Government of trade union rights and the
   • right to strike; the violation of Convention No. 87 when the Government
   • declared illegal all strikes and work stoppages called by trade union
   • organisations in accordance with current legislation; certain provisions of a
   • Bill on industrial relations, whose section on the right to strike is contrary
   • to the principles and standards of freedom of association and free collective
   • bargaining; violations of trade union autonomy and immunity; the violent
   • interruption of trade union meetings, the search of trade union premises and
   • damage to trade union property; the arbitrary detention of trade union leaders
   • owing to their trade union activities; interference in the organisation and
   • realisation of trade union demonstrations, the refusal to grant the
   • corresponding authorisations, and the violent assault upon demonstrating trade
   • unionists. The pretext for all of these actions has been a state of emergency.
   • Lastly, the allegations refer to the detention of trade union leader Flavio
   • Rojas on 3 January 1989, after the police broke into the CTP trade union
   • offices during a meeting of its executive committee.
2. 541. As regards the allegation of the repression of a national day of protest
   • organised by the CGTP on 13 October 1988 in support of workers' social and
   • economic demands, the Committee takes note of the Government's statements to
   • the effect that this demonstration developed peacefully, and that there were
   • only isolated confrontations between workers and police forces which led to a
   • few detentions of those disturbing the peace and abusing the police. It notes
   • that those detained were released immediately after they had been identified
   • and questioned. In this connection, the Committee wishes to recall that the
   • detention of trade union leaders or members for legitimate trade union
   • activities, even for a short period of time, constitutes a violation of the
   • principles of freedom of association (see 236th Report, Case No. 1258 (El
   • Salvador), para. 521); likewise, it wishes to point out in general that the
   • use of the police forces of order during public demonstrations should be
   • limited to cases of genuine necessity (see 233rd Report, Case No. 1199 (Peru),
   • para. 576). The Committee requests the Government to forward to it information
   • requested from the Ministry of the Interior.
3. 542. As regards the allegation of police repression of a peaceful meeting of
   • peasants which led to the murders of 88 peasants and of Saúl Cantoral, General
   • Secretary of the National Mining, Iron and Steel Workers' Federation, and
   • Consuelo García, an adviser to the committees of miners' wives, the Committee
   • notes that the Government has not supplied information concerning these
   • allegations; it strongly deplores these acts of violence and recalls that a
   • climate of violence which leads to the murder or disappearance of trade union
   • leaders constitutes a serious obstacle to the exercise of trade union rights
   • and requires that the authorities take severe measures. Likewise, the
   • Committee recalls that it is particularly appropriate for the Government
   • concerned to set up an independent judicial inquiry to ascertain the facts,
   • determine responsibilities, punish those responsible and prevent the
   • repetition of such actions (see paras. 77 and 78 of the Digest of decisions
   • and principles of the Freedom of Association Committee, third edition). The
   • Committee requests the Government to indicate whether judicial investigations
   • have been opened and, if so, to keep it informed on the progress and outcome
   • of said inquiries.
4. 543. As regards the disappearance of customs workers' leader Mr. Oscar
   • Delgado, and the detention of CTP leader Flavio Rojas, the Committee notes the
   • information furnished by the Government to the effect that the Ministry of the
   • Interior has appointed a special team to determine the whereabouts of Mr.
   • Delgado, that this trade union leader is not being held in any state
   • institution, and that the allegations concerning Mr. Rojas' detention are
   • inaccurate inasmuch as he enjoys full exercise of his civil and trade union
   • rights. The Committee emphatically reiterates the principles set out in the
   • previous paragraph.
5. 544. As regards the allegations presented by the CGTP concerning practical
   • obstructions to the exercise of the right to strike, in the form of
   • administrative orders which in several cases have disallowed strikes owing to
   • inadequate notice or the sector of activity concerned, or to the Government's
   • claims that the strikes in question did not concern legitimate trade union
   • interests, or that strikes could not be used as a means of pressure with
   • respect to demands for which current legislation provides specific machinery,
   • or that trade unionists have other means of obtaining compliance with legal
   • provisions, the Committee notes the detailed information supplied by the
   • Government on the grounds for declaring strikes illegal, namely: when notice
   • of the strike is not given to the authorities at least 72 hours in advance,
   • stating the hour of the vote on the issue of the strike and the number of
   • workers in the union concerned; or when the strike takes place after the
   • period set aside for direct negotiations and conciliation, and the settlement
   • of the demands rests with the labour authorities, inasmuch as the strike may
   • not target the State but may only be used as a means of pressure against the
   • employer; or when it is a wildcat strike, in other words, where workers fail
   • to comply with minimum requirements for strikes; or when the strike concerns
   • demands which should properly be handled through other established procedures;
   • or when the strike targets the Government and is obviously politically
   • motivated. Likewise, the Committee notes that the Government recognises that
   • Peru does not have adequate legislation concerning the exercise of the right
   • to strike, and that a Bill on industrial relations is designed to remedy this
   • shortcoming by establishing that strikes must have as their object the defence
   • and promotion of the rights and interests of workers, or be in support of
   • demands of other workers, provided they are in the same branch of economic
   • activity; identifying the requirements for calling a strike; and regulating
   • strikes in the essential services. In this connection, the Committee wishes to
   • point out that it has always recognised the right to strike as a legitimate
   • means of action available to workers and their organisations to promote and
   • defend their economic and social interests. The Committee recalls that the
   • right to strike should not be limited solely to industrial disputes that are
   • likely to be resolved through the signing of a collective agreement: workers
   • and their organisations should be able to express in a broader context, if
   • necessary, their dissatisfaction as regards economic and social matters
   • affecting their members' interests, and conditions that have to be fulfilled
   • under the law in order to render a strike lawful should be reasonable and in
   • any event not such as to place a substantial limitation on the means of action
   • open to trade union organisations (see paras. 362, 377 and 388, Digest, op.
   • cit.).
6. 545. As regards the allegations that trade union rights and principles of
   • freedom of association have been violated (detentions, searches, the
   • interruption of meetings), the Committee notes the Government's statements to
   • the effect that trade union leaders have been detained owing to the need to
   • maintain public order. However, the Committee wishes to recall that searches
   • of trade union premises should be made only following the issue of a warrant
   • by the courts where there are reasonable grounds for supposing that evidence
   • exists on such premises material to prosecution for a penal offence and on
   • condition that the search be restricted to the purpose in respect of which the
   • warrant was issued (see 236th Report, Case No. 129 (El Salvador), para. 536).
   • Moreover, the Committee reiterates the principle that the detention, even for
   • a short period of time, of trade union leaders against whom no charges have
   • been brought inhibits the exercise of trade union rights. The non-interference
   • of governments in trade union meetings is an essential aspect of trade union
   • rights, and the authorities should abstain from any form of intervention which
   • may limit this right or obstruct its legal exercise, unless the exercise of
   • this right is liable to disrupt or threaten the peace. The Committee notes
   • that the Ministry of the Interior has been requested to undertake an
   • investigation in this connection, and that its report will be forwarded to the
   • ILO.
7. 546. As regards the Bill on industrial relations, which according to the
   • CGTP's allegations violates the principles of free negotiation, in the sense
   • that it provides that the administrative authority shall issue binding and
   • unappealable decisions concerning the demands in question where the parties
   • fail to reach an agreement on the same within a period of 30 days, the
   • Committee notes that section 23 of this Bill permits the labour authorities to
   • intervene at the request of one of the parties; likewise, the Committee notes
   • that sections 31, 32, 33 and 34 read as follows: Section 31: In the event that
   • both parties agree to submit the dispute to the decision of the labour
   • authority, or in the event of the contingency referred to in section 23, the
   • labour authority shall, after having examined the dispute, request the
   • specialised services of the Ministry of Labour and Social Welfare to initiate
   • conciliation proceedings between the parties, the duration of which shall not
   • exceed eight days. During such conciliation proceedings, if so requested by
   • both parties, the competent official may propose solutions which the parties
   • are free to accept, modify or reject. Section 32: Should the parties fail to
   • reach agreement in the conciliation proceedings, the labour authority shall
   • request the competent department of the Ministry of Labour and Social Welfare
   • to undertake the economic study. This study shall be communicated to the
   • parties, who shall be requested to comment on the same. Section 33: Once the
   • report and study referred to in the preceding section have been received, the
   • labour authority shall rule on the demands within a period of eight days. The
   • labour authority's decision shall be binding and not subject to appeal.
   • Section 34: At all times throughout these proceedings, the parties shall have
   • the right to meet on their own initiative, and to resort to any appropriate
   • means to ensure the peaceful settlement of the dispute.
8. 547. The Committee notes that the Government states that the administrative
   • authority intervenes only after direct negotiations have broken down and at
   • the request of the parties, since the parties have the option of submitting
   • the dispute to voluntary arbitration or to the decision of the labour
   • authority (section 22 of the Bill); in other words, the labour authority
   • intervenes only at the request of the parties and for the purpose of
   • facilitating a settlement of the dispute. In both cases, whether the parties
   • opt for voluntary arbitration or submit the dispute to a decision of the
   • labour authority, an economic and labour study is carried out to serve as a
   • basis for the arbitration award or the settlement of the dispute by the labour
   • authority; this study is entrusted to the Labour and Productivity Office, and
   • copies of the same are furnished to the parties. The Bill provides sufficient
   • guarantees for this procedure in the form of appeals for obtaining
   • clarifications or the reversal of the arbitration award or the labour
   • authority's resolution. Moreover, the Government states that the Bill has not
   • yet been adopted and is scheduled to be debated in Parliament, but that this
   • discussion of the Bill is premature inasmuch as it does not figure on the
   • agenda of the special session of Congress. In view of the allegations
   • presented by the CGTP concerning the Industrial Relations Bill, the
   • Government's observations and the provisions of sections 22, 23, 31, 32, 33
9. and 34, the Committee is of the opinion that the provisions of section 23,
   • which permit either party unilaterally to request the intervention of the
   • labour authority, may effectively undermine the right of workers to call a
   • strike, since section 40
     • a)states that "the strike may not be called after the dispute has been
   • submitted to the labour authority". This provision does not promote voluntary
   • collective bargaining, since one of the parties may undermine collective
   • bargaining by unilaterally entrusting the settlement of the dispute to the
   • labour authority, thereby suspending the right to strike.
10. 548. As regards Presidential Decree No. 041.88.TR of 26 October 1988, which
    • established ceilings for additional wage increases, the Committee notes that
    • according to the complainants and the Government, this Decree has been
    • repealed, and thus considers that this matter does not call for further
    • examination.