Informe provisional - Informe núm. 281, Marzo 1992

1. 463. The complaint is contained in a communication of the World Confederation of Organisations of the Teaching Profession (WCOTP) of 20 August 1991. The Government replied in communications of 30 October 1991 and 20 January 1992.
2. 464. 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. 465. In its communication of 20 August 1991, the World Confederation of Organisations of the Teaching Profession (WCOTP) alleges that on 7 March 1991 the Single Peruvian Education Workers' Trade Union (SUTEP) submitted a set of demands on working conditions of teachers to the Ministry of Education, which refused to discuss the issue and enter into bargaining with the trade union. The WCOTP states that the monthly wage of teachers is less then US$70, even though the Constitution provides that 20 per cent of the State's budget should be allocated to education. In these circumstances, on 6 April 1991 the SUTEP called an open-ended strike in the whole education sector for the purpose of bringing the authorities to the bargaining table; the strike began on 8 May and was followed by a majority of teachers.
2. 466. The WCOTP adds that on 13 July 1991 the Government unilaterally granted a ridiculously small wage increase by means of Executive Decree No. 154-91-EF; on 22 July the Government declared a state of emergency in the Ministry of Education and its regional services (Executive Decree No. 0015-19-ED) and suspended all teachers who had not returned to work by 20 July (Executive Decree No. 0016-91-ED); on 5 August 1991 the Government declared illegal the open-ended strike called by the SUTEP and ordered all striking teachers to return to work within 5 days, stating that those who failed to do so would be considered to have resigned, and instructed the regional authorities to take all necessary measures to fill the ensuing vacancies.
3. 467. Likewise, the WCOTP alleges that there has been a series of murders, arrests and acts of violence against teachers belonging to the SUTEP since the beginning of the strike, claiming that efforts to repress the strike have resulted in 2,000 temporary arrests, 20 disappearances and 14 murders. For example, on 17 May 1991 seven teachers were arrested by the army in the Province of Ayacucho, and the bodies of five of these persons were discovered later in a common grave. In the Province of Ucayali-Pucallpa the following teachers disappeared: Marcelino Navarro Pezo, Leopoldo Navarro Díaz and Luis Torres Camilo; in the Province of Huancavelica, teacher Ardon Pariona also disappeared. Teachers Betty Panaifo, Nicolás Lavajo and Moisés Teneiro were shoved out of a helicopter in flight (one of the survivors, who was found hanging from a tree, reported these facts). In the Province of Pucará Puno the following were murdered: Porfirio Suni (13 May 1991), Pablo Mamani Marchena and Germán Macedo (24 May 1991). On 30 May the leaders of the SUTEP, accompanied by three members of parliament and eight other members of the trade union, were crossing the Plaza de Armas in Lima, on their way to the presidential palace where they hoped to request a meeting with the wife of President Fujimori, to request that she plead the case of the teachers. The police intervened and without reason or explanation savagely assaulted this peaceful group of teachers' delegates, mistreating and arresting José Ramos Bosmediano, General Secretary of the SUTEP, Soledad Lozano Costa, Deputy General Secretary, and Olmedo Auris Melgar, officer for international relations (Mr. Auris Melgar lost consciousness as a result of blows suffered at the hands of the police and the use of tear-gas).

B. The Government's reply

1. 468. In its communications of 30 October 1991 and 20 January 1992 the Government states that the complainant's allegation to the effect that the Ministry of Education refused to bargain and consider the demands submitted by the Single Peruvian Education Workers' Trade Union (SUTEP) in 1991 is groundless, in as much as the Ministry set up committees to deal with this trade union organisation by means of Ministerial Resolutions Nos. 111-19 of 8 February 1991, and 533-91-ED of 7 May 1991 (copies enclosed). As evidence of compliance with the agreements resulting from direct negotiations with the SUTEP, the Government encloses copies of the following resolutions: Ministerial Resolution No. 840-91-ED, of 5 July 1991, which aims at speeding up the judicial liquidation proceedings of the former teachers' cooperatives; and Ministerial Resolution No. 761-91-ED, of 18 June 1991, which grants bonuses on a geographical basis to teaching personnel in accordance with item 11 of SUTEP's 1991 list of demands.
2. 469. The Government also states that the right of teachers to strike was fully respected by the Ministry of Education, which paid wages in full during the months of May and June, even though all teachers were on strike; it adds that the strike was undoubtedly of a political nature.
3. 470. The Government adds that given the meagre resources of the public treasury and the economic and financial crisis which the Peruvian state is experiencing, the Government did everything it could to grant an increase in remuneration by means of Executive Decree No. 154-91-EF of 13 July 1991; this increase was refused in advance by the trade union leaders, who refused to accept any explanation on the material impossibility of granting larger increases.
4. 471. The Government states that the emergency situation referred to in Executive Decrees Nos. 0015-91-ED and 0016-91-ED, is explained by the fact that by 20 July 1991, in other words after the first semester of the 1991 school year, there had been only 15 days of class for all students in the country, and it was necessary to safeguard the public interest and salvage the school year. On the one hand there was the right to strike of 200,000 state teachers, and on the other hand the right to education of 8 million students from among the poorest elements of the population, who cannot afford private education, bringing into play the universally recognised legal principle that "the right of some ends where the right of others begins".
5. 472. The Government considers inadmissible or inacceptable the claim of the complainant organisation and the SUTEP to the effect that freedom of association has been seriously undermined. In this connection the Government attaches a copy of resolutions which grant paid leave for the exercise of trade union activities to the national leaders of the SUTEP, in accordance with the provisions of section 80 of the regulations issued under the Education Act.
6. 473. Lastly, the Government states that the Ministry of Education has not followed a policy of ordering the repression or arrest of "striking" teachers; if any teacher has been detained by police or military authorities for disturbing the peace, for having committed violent acts against individuals or public or private institutions, or for events which have taken place in the so-called emergency zones, it is a question of individual responsibility, and such persons have the right to file for relief in court.

C. The Committee's conclusions

1. 474. The Committee notes that the allegations presented by the complainant organisation refer to: (1) the authorities' refusal to negotiate the demands of teaching personnel submitted by the SUTEP; (2) the Government's declaration that the strike undertaken by teachers on 8 May 1991 was illegal, and its threats to dismiss teachers who did not return to work; (3) several murders, disappearances, arrests and threats to the physical integrity of teacher trade unionists during the strike.
2. 475. As regards the alleged refusal of the authorities to negotiate the demands presented by the SUTEP, the Committee takes note of the content of the resolutions of the Ministry of Education to which the Government refers, which call for the establishment of a high-level committee for labour matters (composed of government officials) (February 1991) and of a bilateral committee for direct talks between the Ministry of Education and the SUTEP (May 1991). The Committee also takes note that although agreement was not reached on all SUTEP's demands (the complainant organisation states, for example, that the Government did grant a ridiculously small wage increase by decree), Ministerial Resolutions Nos. 761-91-ED, of 18 June 1991 and 840-91-ED, of 5 July 1991, give effect to agreements reached in direct negotiations between the Ministry of Education and the SUTEP on certain specific points ("bonuses on a geographical basis" and "the judicial liquidation of the former teachers' cooperatives"). In these circumstances, the Committee must conclude that, contrary to the allegations, the Government did enter into negotiations with the SUTEP.
3. 476. As regards the Government's declaration of the strike as illegal (8 May 1991) and its order that teachers return to work under threat of dismissal, the Committee notes that Decree No. 017-91-ED, of 5 August 1991, does declare illegal the strike called by the SUTEP and provides for the reinstatement of teachers until 9 August 1991, stipulating that teachers who do not return to work will be terminated for abandoning their posts (previously, Executive Decrees Nos. 0015-91-ED and 0016-91-ED had declared "a state of emergency" in the education sector and ordered the suspension of teachers who had not returned to work by 20 July 1991). The Committee notes in this respect that the Government emphasises that in the first semester of 1991 there had been only 15 days of classes, and that the right to strike of 200,000 teachers was counter-balanced by the right to education of 8 million students.
4. 477. In this connection, the Committee is aware of the serious situation described by the Government in the education sector. Nevertheless, the Committee points out that the strike was declared illegal by a decision adopted by the Government, by virtue of a decree signed, among others, by the Ministry of Education, in other words, by one of the parties to the collective dispute between this Ministry and the SUTEP. On this point, the Committee considers that the responsibility for declaring a strike illegal should lie not with the Government, but with an independent body, such as the courts. The Committee therefore requests the Government to take measures to ensure that legislation entrusts to an independent body, such as the courts, responsibility for ruling on the legality or illegality of a strike. In addition, the Committee draws the attention of the Government to the fact that teaching is not an essential service in the strict sense of the term, and that teachers should therefore be able to exercise the right to strike in conditions that are in accordance with the principles of freedom of association.
5. 478. As regards the remaining allegations (murders, disappearances, temporary arrests, and attempts against the physical integrity of teacher trade unionists during the strike), the Committee deplores that the Government has merely made a general statement to the effect that the Ministry of Education does not have a policy of ordering the repression or detention of any striking teacher, and that if any teacher has been arrested for disturbing the peace, he or she may file for relief in court. The Committee expresses its deep concern at the seriousness of the allegations, and urges the Government to respond to these allegations in detail, stating whether there has been a judicial investigation for the purpose of clarifying the facts, identifying those responsible, and punishing the guilty, particularly in respect of the five teachers who died following their arrests.