Informe provisional - Informe núm. 177, Junio 1978

1. 279. The following organisations sent communications containing allegations of violations of trade union rights in Peru on the dates indicated below: World Federation of Trade Unions (21 and 26 July, 2 August, 17 October 1977); World Confederation of Labour (19, 22 and 28 July, 10 August 1977); Permanent Congress of Trade Union Unity of Central American Workers (CPUSTAL) (28 July 1977); Latin American Central of Workers (22 July 1977); General Confederation of Workers of Peru (CGTP) and National Confederation of Workers (CNT) (22 July 1977); Trade Unions International of Food, Tobacco, Hotel and Allied Industries Workers (12 August, 26 September, 20 October 1977); National Federation of Mining and Metallurgical Workers of Peru (24 October 1977); Union of Workers of the commercial Services Enterprise SA "Sermer" (31 October 1977). The Government sent its comments in a communication of 14 November 1977.
2. 280. Peru has ratified the Freedom of Association and the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. Allegations of complainants

1. 281. The allegations presented by the various complainant organisations mainly concern the general strike organised in Peru on 19 July 1977 and its consequences for the trade union organisations, their leaders and their active members.
2. 282. A number of the complainant organisations stated that the general strike had been called in protest against rising prices and for the purpose of obtaining wage increases. The General Confederation of Workers of Peru (CGTP) and the National Confederation of Workers (CNT) explain in this connection that the Government adopted an economic recovery programme in June 1976. This programme provided among other things for the abolition of subsidies on food products, an increase in the price of fuel, a reduction in public expenditure and a wage freeze. According to these complainant organisations the Government wished to impose this programme under the "state of emergency" which was in force in the country, and under which strikes were forbidden. The trade union organisations rigorously rejected this economic programme. The general discontent resulting from this policy and from various other measures (Decree No. 011.76 TR permitting the dismissal of workers who held up production; arrests and deportations of trade union leaders), provoked a number of reactions from the trade unions. Large demonstrations held in the main cities of Peru were put down by the police, and Workers were killed, injured or arrested.
3. 283. In Lima the legally recognised trade union organisations, including three Confederations - CGTP, CNT and the central of Workers of the Peruvian Revolution (CTRP)(Lima section) and a number of autonomous federations - called a general 24-hour protest strike on 19 July 1977. This movement was organised, stated the complainants and in particular CLAT, when all legal and technical means of redress had been exhausted and no satisfactory reply had been given by the authorities. According to the complainants the workers gave massive support to the strike and behaved in a disciplined and organised manner. Generally speaking, it was peaceful despite clashes outside the city between the navy and the inhabitants of the suburbs.
4. 284. The CNT and the CLAT pointed out in this connection that the clashes in question had caused the deaths of six workers. The CGTP and the CNT for their part alleged that seven persons had lost their lives and that a number had been injured.
5. 285. All the complainant organisations referred to the numerous arrests of trade union leaders and active members which had taken place on the occasion of the general strike. The CNT stated in its communication of 10 August 1977 that the number of workers arrested was 1,500. The CNT and the CLAT referred to the arrests made before the calling of the strike (on 15 July 1977) of Luis Hernández, General Secretary of the Trade Union Council of Andean Workers, a sub-regional organisation of the CLAT and the CNT for the countries of the Andean group. The CLAT stated that this trade union leader had been extradited to Venezuela. The General Secretary of the CGTP, Eduardo Castillo, had been arrested on 18 July as he was leaving the headquarters of his organisation for discussions with the authorities at a meeting to which he had been called by a military leader. The following day, the General Secretary of the CNT, Victor Sánchez Zapata, was arrested in his turn. Many other leaders of the CGTP, the CNT, the CTRP, federations and first-degree organisations had also been detained. According to the WFTU, the Ministry of the Interior had announced its intention to take legal action against the leaders of the organisations participating in the strike. The WFTU also stated that among those arrested were workers in the mines in the centre and the south of the country as well as in the industrial zones of Lima. In its communication of 17 October 1977, the WFTU stated that the general secretaries of the CGTP and the CNT had been released but that other leaders and workers remained under arrest.
6. 286. The Trade Unions International of Food, Tobacco, Hotel and Allied Industries Workers, stated that over 150 leaders in the food and drink sector had been arrested. Among them is Silverio Velásquez, Chairman of the Federation of Mineral Water and Allied Workers of Peru and Chairman of the Latin American Confederation of Food Workers. In its communication of 20 October 1977 the complainant organisation stated that these trade union leaders had been released but that they were awaiting judgement.
7. 287. The National Federation of Mining and Metallurgical Workers also referred to the arrest and deportation of trade union leaders. According to this organisation the only crime they had committed was to represent and defend the rights and interests of the workers. The complainant did not say whether or not the measures had been taken in connection with the strike of 19 July 1977. The following persons were also mentioned as having been arrested; César Barrera Bazán, General Secretary of SUTEP; Agustin Ponce Núnez, General Secretary of the Breweries Federation; Victor Diaz Arcelles, Secretary of the Mines Federation of Centromin; Cornelio Rivera Trinidad, General Secretary of the Federation of Mines and Metallurgy of Central Peru; José Escudo Torres, General Secretary of the Federation of the Building, Construction Materials and Allied Industries, and Jésus Martinez Lajos, General Secretary of the Workers Union of Toquepala. José Sono and Luis Martinez, officials of the Nylon Workers Union, were wanted by the authorities. The following officials had been deported: Victor Cuadros Paredes, General Secretary of the National Federation of Mining and Metallurgical Workers; Julian Sierra Corrales, Organisation Secretary of the Federation of Metallurgical Industry Workers, and Hugo Blanco, official of the Peruvian Peasant Confederation.
8. 288. The complainant organisations also alleged that trade union premises, specifically those of the CGTP, the CNT, the CTRP and Book Federation, were occupied by the police.
9. 289. A number of complaints denounced the promulgation of the Government of Presidential Decree No. 010.77 TR on 22 July 1977. This Decree allows enterprises in the public and private sectors to break the labour contracts of the trade union leaders responsible for the national strike of 19 July for a period of 15 days. According to the National Federation of Mining and Metallurgical Workers of Peru the adoption of the Decree in question followed on other provisions adopted since the launching of the economic recovery plan in June 1976. Thus, the Government passed on 13 August 1976, Presidential Decree No. 011.76 TR which forbade all work stoppages during the state of emergency and authorised undertakings to rescind the labour contracts of those who disregarded this prohibition. The Legislative Decrees adopted in 1976 had also suspended the right to stability of employment in a number of sectors: press undertakings (Legislative Decree No. 2146 of 16 March 1976); fisheries sector (Legislative Decree No. 21450); undertakings belonging to "Editora Peru" (Legislative Decree No. 21452 of 23 March 1976); mines sector (Legislative Decree No. 21462 of 6 March 1976). The National Federation of Mining and Metallurgical Workers also stated that the Presidential Decree No. 010.77 TR permitting the dismissal of those responsible for the general strike of 19 July, claimed to derive its authority for doing so from a higher source, namely Legislative Decree No. 18471, which guarantees the right to stability of employment. The Presidential Decree also infringed the principle of non-retroactivity of the law, since it punished by dismissal acts committed before its promulgation.
10. 290. As regards the application of the Legislative Decree, the WFTU reported in its communication of 2 August 1977 that according to the Peruvian press 713 trade union leaders and active members had been dismissed. The Ministry of Industry and Tourism was said to have dismissed 51 trade union leaders working in state enterprises. Similar measures had been adopted following a strike called on 25 July by the workers of the Centromin state undertaking. Sixteen workers accused of having organised the strike had been dismissed. In its communication of 17 October 1977, the WFTU estimates the number of workers dismissed under this Decree at 4,000.
11. 291. The Trade Unions International of Food, Tobacco, Hotel and Allied Industries Workers noted that over 1,500 workers and trade union leaders in the food sector were without work. Among those dismissed was the General Secretary of the Federation of Mineral Water and Allied Workers of Peru, Silverio Velasquez. The Union of Workers of the Commercial Services Enterprise SA "Sermer" provided a list of 13 workers of this undertaking who had been dismissed.
12. 292. In its complaint the National Federation of Mining and Metallurgical Workers made other allegations, mainly regarding the right to collective bargaining. On this point the complainant organisation referred to Legislative Decree No. 21202 of 26 June 1975 to institute "maximum wages". On 19 January 1976 the Government promulgated Legislative Decree No. 21394 which limited workers' claims to demands for wage increases. Thanks to the action of the workers, Legislative Decree No. 21427 was adopted one month later; this Decree, which remained in force until 31 December 1976, authorised claims relating to working conditions provided that they were designed to facilitate work and improve the protection of the worker on the job. Despite this restrictive clause the workers managed to conclude agreements improving their conditions of work. Nevertheless these agreements were counselled by the administrative authorities. Following the adoption of the economic recovery plan, Legislative Decree No. 21531 was promulgated; this extended the validity of agreements from one year to 18 months and suspended automatic readjustments to pay during 1977. Although Legislative Decrees Nos. 21866 and 21899 subsequently abolished certain restrictions (maximum wages) and granted certain advantages, they did not, according to the complainant organisation, make up for the drastic rise in the cost of living.
13. 293. The National Federation of Mining and Metallurgical workers also complained of refusals to recognise independent trade union organisations or associations of officials (sole union of educational workers, maritime industrial service, military uniforms, post and telecommunications, social security); the indefinite delay in the procedures for recognising trade unions; and failure to recognise the representative ness of independent trade union organisations (National Federation of Mining and Metallurgical Workers, Federation of Peruvian Fishermen).

B. Reply of the Government

1. 294. In its reply the Government first gave a picture of the economic and social situation in the country. Under the economic programme for 1977 it had been necessary, it explained, to take certain austerity measures in the field of public expenditure in order to reduce the budgetary deficit and inflationary pressures. Furthermore, in order to compensate for the reduction in the purchasing power of workers in the public and private sectors, successive wage increases had been instituted by decree, taking account of the country's economic and financial capacity and the economic stability programme. In addition, in order not to paralyse production at a time when the country needed all its material and human resources to overcome the crisis, the Government promulgated Legislative Decree No. 011.76.TR prohibiting for the duration of the state of emergency all forms of collective work stoppages such as go-slows and strikes, including strikes of short duration. The legal and administrative provisions governing such matters would come back into force once a normal situation had been re-established in the country. The Legislative Decree authorised employers to break labour contracts of workers infringing these provisions. Likewise, employers who provoked work stoppages in undertakings would be liable to the maximum fines provided for by the law.
2. 295. Following the adoption of these measures, continued the Government, the executives of some trade union Confederation (CGTP and CNT), in response to anti-patriotic instructions from foreign organisations, had decided to declare a general strike on 19 July 1977. This decision had been supported neither by the affiliates of these Confederations nor by the workers. The leadership of the Confederations then embarked on a reign of intimidation and, on the day of the strike, prevented the workers from moving around freely by setting up road-blocks and stoning and burning public transport vehicles. The police were obliged to intervene to maintain order, and the premises of the Confederations had to be occupied as they were serving as bases for groups of agitators.
3. 296. As regards the arrest of trade union leaders, the Government stated that after the strike was called it had summoned the General Secretaries of CGTP and CNT to a meeting. No force had been employed against them. The General Secretary of the Council of Andean Workers, Luis Hernández, of Venezuelan nationality, who had entered Peru for contacts with the Council's affiliate organisations, was arrested at Cuzco while engaged in political agitation. He was taken to Lima, from where he left for Caracas on 20 July 1977.
4. 297. For the reasons given above, the strike was partially successful and had serious repercussions on the national economy. Nevertheless, the highest cost was in human lives, for which the agitators were directly responsible. Since the purpose of the strike was clearly political, the Government was obliged to promulgate Presidential Decree No. 010.77.TR which authorised public and private enterprises to dismiss within a period of 15 days workers who were proved to have been ring-leaders in the strike. It was not the Government's intention either to undermine stability of employment or to caution the abusive application of the Decree. This being so, the Ministry of Labour had been asked to make a thorough investigation of all the dismissals in order to ascertain whether they had been carried out in agreements with the spirit and the letter of the Decree. In cases where there was proof that the dismissals had been unjustified, orders had been issued for the immediate reinstatement of the persons concerned and the enterprises had been severely punished. Furthermore, under Presidential Decree No. 011.77.TR, undertakings in the private sector which had dismissed workers had been obliged within 30 days to engage a number of workers at least equal to the number of workers dismissed and to report on the matter to the Ministry of Labour. Identical measures were adopted for the public sector under Legislative Decree No. 21902.
5. 298. In conclusion the Government stated that:
   • - the strike held on 19 July 1977 was illegal and caused serious damage to the national economy;
   • - the intervention of the forces of order had been due to the need to prevent and check abuses committed by the agitators;
   • - trade union premises had been temporarily occupied as a preventive measures;
   • - the arrests of some workers had not been due to their trade union or occupational activities but had been provoked by their flagrant attacks on public order or against the safety of the lives and property of individuals;
   • - no trade union leaders or workers were at present being detained on account of their trade union activities;
   • - the extradition of Luis Hernández had been ordered because he was engaging in subversive activities;
   • - the promulgation of Presidential Decree No. 010.77.TR had been a transitional measure designed to check sabotage to production at a time of national crisis;
   • - measures had been taken to guarantee the workers' rights and to prevent abuses on the part of the employers.

C. Conclusions of the Committee

1. 299. The present case concerns essentially the general strike organised on 19 July 1977 by CGTP, CNT and various other Peruvian trade union organisations. The action resulted in the deaths of certain workers during clashes with the forces of order, the arrest of trade union leaders and militants, the dismissal of large numbers of workers under special regulations adopted by the Government, and the occupation of trade union premises.
2. 300. The Committee notes that strikes took place while the country was in a "state of emergency", during which collective work stoppages had been forbidden. This made the strike illegal under the national legislation. The Government justifies this general strike prohibition by the need to find a remedy to the country's present economic crisis. In this connection the Committee considers that, since a general prohibition of strikes is an important restriction of one of the essential means by which the workers and their organisations can promote and defend their occupational interests, such a prohibition would only be justified if imposed in a situation of acute national emergency and even then only as a transitory measure. In this connection the Committee notes that the state of emergency was declared in 1976, while the national strike was called one year later, in July 1977, for a duration of 24 hours only. Moreover, both the state of emergency and the strike prohibition resulting from it were ended a short while later, on 29 August 1977.
3. 301. The Committee also observes that the objectives of the strike are defined differently by the Government and the complainants. For the Government the designs pursued by the organisers of the movement were clearly political. The Committee remarks, however, that the Government supplies no particulars which would enable the strike to be categorised as a political one. The complainants, on the other hand, insist on its occupational and trade union nature. The Committee notes in this connection that the strike notices signed by the organising Confederations protest against the Government's economic policy and the rise in prices, and claim wage increases. In addition, the Government itself recognises that it had been obliged austerity measures under its economic policy. The Committee has had occasion in the past to deal with a similar case concerning a general strike of 24 hours in support of claims certain of which were patently of an occupational nature. The Committee recalled that the prohibition of strikes designed to coerce the Government, if they are not occupational in character, does not constitute an infringement of freedom of association, and that strikes of a purely political nature do not fall within the scope of the principles of freedom of association. Nevertheless, the Committee considered that workers and their organisations should be allowed to express, if they so wished, any feelings they may have as concerns economic and social matters affecting their interests, so long as such action consists merely in the expression of a protest. The Committee must, however, add that it is important that movements of this kind are not such as to result in acts of violence.
4. 302. As regards the deaths of workers during clashes with the forces of order, the Committee notes that, according to the Government, the responsibility lies with agitators. The Government does not, however, supply particulars of the circumstances in which these events took place. The Committee recalls in this connection that in a number of cases in the paste in which dispersal of public meetings or demonstrations by the police have involved loss of life, the Committee has attached great importance to the circumstances being fully investigated by an immediate and impartial inquiry and to the regular legal procedure being followed to determine the justification and responsibility for the action taken by the police. The Committee would like to know whether such an inquiry has been undertaken and, if so, to learn its result.
5. 303. As regards the arrest of trade union militants and leaders, the Committee notes that, 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 attacks on the safety of persons and property. It also notes that, still according to the Government, no trade union leaders are at present being held on account of their trade union activities. Nevertheless, the Committee observes that certain complainant organisations have stated that the arrested trade unionists are awaiting judgement, although a number of them have been released, including the General Secretaries of the CGTP and the CNT. In these circumstances, while noting with interest that some of the trade unionists have been released, the Committee would like to Government to indicate whether certain of the trade unionists arrested during the strike of 19 July 1977 are still under arrest and whether they will be brought before the courts. The Committee would, however, like to stress that massive arrest of strikers involves serious risk of abuse and serious threats to freedom of association.
6. 304. One of the complainant organisations, the National Federation of Mining and Metallurgical Workers, mentions that certain trade union leaders have been arrested, are wanted by the police or have been deported, without stating whether these measures were connected with the strike of 19 July 1977. Since the Government has not replied on this point, the Committee would like it to transmit its observations.
7. 305. Regarding the extradition of Luis Hernández, General Secretary of the Trade Union Council of Andean Workers, the Government indicate in a general way that he was engaged in subversive activities. The Committee would like the Government to supply particulars of the activities carried out in Peru by the trade union leader in question and which led to his extradition.
8. 306. The dismissals which followed the strike of 19 July 1977 were pronounced under exceptional regulations which allowed undertakings to annul the employment contracts of the ring-leaders of the movement. The Ministry of Labour conducted an inquiry with a view to ascertaining whether the regulations had been observed. It appears that a very large number of workers lost their jobs. In these circumstances it may be asked whether the dismissals affected only the organisers and instigators of the strike or whether large numbers of workers were not dismissed merely for taking part in it. It would appear that according to the information provided the Government discovered a large number of cases of unjustified dismissal.
9. 307. The Committee has already examined a number of cases of massive dismissals following strikes and has considered that such measures involve serious risks of abuse and serious threats to freedom of association. It has also held the view that, on such occasions, 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 participate in strike action. In view of these considerations and those set forth in paragraph 301 regarding protest action by the workers, the Committee feels that it would be desirable for the Government to take measures to re-examine the situation of all the dismissed workers with a view to their reinstatement.
10. 308. Regarding the occupation of trade union premises by the forces of order, the Government indicates that these measures were temporary and were taken preventively. On this point the Committee wishes to recall that in the Resolution concerning trade union rights and their relation to civil liberties adopted at its 54th Session (1970), the International Labour Conference considered that the right to protection of trade union property is one of the civil liberties essential for the normal exercise of trade union rights.
11. 309. One of the complaints referred to various decrees promulgated since 1975 for the purpose of regulating collective bargaining. The aim of these decrees was to fix wage ceilings to limit claims to demands for wage increases and exclude claims relating to conditions of work and finally to extend validity of the collective agreements in force. Subsequently Legislative Decree No. 21899 of 2 August 1977 abolished the establishment of a ceiling for wage increases. Under this Legislative Decree collective agreements, administrative labour resolutions and arbitration awards may provide for a general wage increase on the basis of an economic and financial evaluation of the undertaking, but may not deal with other points.
12. 310. The Committee is fully aware that, in certain circumstances, governments may consider that the economic situation in their country may at times call for stabilisation measures which make it impossible for the wage rates to be freely fixed by collective bargaining. The Committee nevertheless feels that such restrictions should constitute exceptional measures. The Committee also holds the view that trade union organisations should have the opportunity to negotiate conditions of employment. In these circumstances the Committee considers that a major objective of the Government should be the restoration of free collective bargaining. The Committee also wishes to draw the attention of the Committee of Experts on the Application of Conventions and Recommendations to this aspect of the case.
13. 311. The National Federation of Mining and Metallurgical Workers presented allegations relating to the refusal to recognise trade union organisations of officials and through the non-recognition of the representative ness of other organisations (National Federation of Mining and Metallurgical Workers, Federation of Peruvian Fishermen). The Committee has already dealt in recent cases with allegations relating to the situation of organisations of officials and the Federation of Peruvian Fishermen. In each of these cases it reached interim conclusions at its session in November 1977.1 In particular, the Committee recommended the Governing Body to urge the Government to take steps to ensure recognition of the free exercise of trade union rights for all workers in the public sector. Consequently, the Committee would like the Government to send its observations regarding the recognition of the representative ness of the other organisation mentioned by the complainant, namely the National Federation of Mining and Metallurgical Workers.