Rapport définitif - Rapport No. 272, Juin 1990

1. 101. In a communication dated 27 June 1989 the World Confederation of Organisations of the Teaching Profession (WCOTP) presented a complaint against the Government of Peru alleging violations of trade union rights.
2. 102. 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).
3. 103. At its February 1990 meeting the Committee expressed its regret that in spite of the time that had passed since the complaint concerning this case was presented, and in spite of the seriousness of the allegations, the observations and information requested from the Government had not yet been received. The Government later sent its observations in a communication dated 27 March 1990.

A. The complainant's allegations

1. 104. In its communication dated 27 June 1989 the WCOTP presents a complaint on behalf of its affiliate, the Single Union of Educational Workers of Peru (SUTEP). In its communication the WCOTP indicates that the material situation of Peruvian teachers is miserable and that it is deteriorating continuously. Due to this situation 40,000 teachers have left their profession and have had to be replaced by unqualified persons. Teachers' wages are falling steadily as a result of the inflation which is characteristic of Peru. The authorities set up a joint committee as a result of various efforts by SUTEP to obtain better wages.
2. 105. The WCOTP indicates that in 1987 a president of the arbitration tribunal was appointed to settle the conflict as SUTEP and the authorities had not been able to reach a wage agreement. On 27 January 1988 SUTEP sent a communication to the Ministry of Education in which it expressed its concern at having not yet been summoned before the arbitration tribunal in spite of the fact that the agreements should have come into force on 1 January 1988. On 6 April 1988 SUTEP sent a reminder to the Ministry of Education which remained unanswered, and therefore SUTEP's leaders submitted the matter to its national congress which met on 29 and 30 April 1988. At this congress it was decided to call an indefinite national strike as from 8 June 1988, this decision being communicated to the authorities in a letter dated 3 June 1988.
3. 106. On 7 June 1988 the Ministry of Education lodged an appeal at the court of first instance requesting an order to suspend the strike called by SUTEP, citing the right to education in support of its request. The judge ordered the suspension of SUTEP's strike, on a day that the whole of the Ministry of Justice's staff was on strike. On 7 June SUTEP appealed this decision, providing evidence that the decision to go on strike had in fact been taken at the trade union congress on 29 and 30 April. SUTEP presented a complaint dated 10 June to the head of the supervisory body of the legal authorities as it considered that there were irregularities in the procedure followed by the judge of first instance.
4. 107. The WCOTP states that in a ruling dated 1 July 1988 the judge who had ordered the suspension of SUTEP's strike finally pronounced on the actual subject of the complaint, citing the right to education in order to declare the strike call "null and void". On 5 July SUTEP appealed against this decision and on the same day the Ministry of Education denounced SUTEP for having ignored the judge's decision on the strike. SUTEP appealed once again on 2 September 1988 insisting on the fact that the authorities had not dealt with the claims they presented in 1987. On 18 October the Public Ministry confirmed the initial court decisions and declared that the strike was in violation of the right to education and culture inherent in human beings and confirmed in article 2 of the Constitution, and detrimental to elementary and secondary pupils of the country. The judge ordered the publication of the decision in the official gazette and sentenced SUTEP's leaders to pay costs, in spite of the proceedings to quash the decision which they initiated on 2 December 1988.
5. 108. Moreover, the WCOTP continues, on 15 March 1989 the representative of the Ministry of Education sent a letter to the judge responsible for the case requesting him to demand compensation of 5,000,000,000 intis from SUTEP's executive board for the parents of the pupils who were not admitted to university as a result of the strike. In his final decision on 31 March 1989 the judge ordered SUTEP to pay compensation of 100,000,000 intis.
6. 109. The WCOTP indicates that if one considers the level of the wages of Peruvian teachers (less than Sw.frs.150 per month) it is obvious that the repressive measure of sentencing SUTEP to pay compensation is intended to destroy the organisation by confiscating all its assets, which is a disguised manner of suppressing freedom of association.
7. 110. Lastly, the communication states that on 9 August 1989 the Ministry of Education took another measure aiming to restrict de facto the right to strike, by granting various advantages to those teachers who did not participate in the strike, in particular by granting them an increase of 10 points on their progression up the wage scale. The communication adds that at present the atmosphere is very tense in Peru; in one case this manifested itself in death threats, in February 1989, addressed to the Secretary-General of SUTEP, Olmedo Auris Melgar. The WCOTP ends by requesting measures to be taken by the ILO in order that negotiations be re-established, the right to strike be respected, the judge's order to pay compensation be suspended and the protection of trade union leaders be guaranteed, in particular that of the Secretary-General of SUTEP.

B. The Government's reply

1. 111. In a communication dated 27 March 1990 the Government states that there are no restrictions on the right to strike and that it is a right which is recognised in the Peruvian Constitution. Moreover, collective bargaining has never been interferred with as in Peru collective agreements are legally binding on the parties where no other legal provisions have been made, in accordance with article 54 of the Constitution and other related standards.
2. 112. The Government indicates that the right to strike has always been respected above all in the case of public employees, that it is a constitutional right, and that it is governed by Supreme Decree No. 010-83-PCM. Whilst it is true that people have the right to strike, it should be remembered that this right is subject to certain legal limitations.
3. 113. The Government also indicates that the courts penalised SUTEP in civil proceedings by an action for amparo (enforcement of constitutional rights) requiring its executive board to pay compensation and costs to the Ministry of Education and to the parents of the pupils affected by not having received education during the 1988 school year. The judgement is definitive and has not been appealed against, only its execution remains, which is inexorable, for if it is not executed the Ministry of Education will be committing the offence of prevarication.
4. 114. Regarding the death threats addressed to the Secretary-General of SUTEP, Mr. Olmedo Auris Melgar, the Government's communication indicates that these threats do not exist, and that this would appear to be obvious from the fact that more than a year has passed since the alleged threat and Mr. Auris Melgar is still enjoying perfect health and freedom. Moreover, this gentlemen, like all other Peruvian citizens, has the unrestricted right to request guarantees from the authorities.

C. The Committee's conclusions

1. 115. The Committee observes that the allegations refer to restrictions on the right to strike of teachers by means of legal proceedings and financial rewards to non-strikers, to the sentencing of SUTEP's leaderships to pay compensation to the parents of those pupils who were unable to enter university as a result of the strike, and to the death threats addressed to the Secretary-General of SUTEP, Mr. Olmedo Auris Melgar.
2. 116. The Committee observes that SUTEP took the decision to call a strike as a result of not having reached a wage agreement with the authorities and as efforts at conciliation failed because they were not convened by the presiding judge at the arbitration tribunal. The Committee reiterates that it has always held the right to strike to be one of the fundamental rights of workers and their organisations; it is one of the essential means through which they may promote and defend their occupational interests (see Digest of decisions and principles of the Freedom of Association Committee, third edition, 1985, paras. 362 and 363).
3. 117. With respect to the court decision maintaining that SUTEP's call to strike is a violation of the right to education, and regarding the order to pay compensation to the parents of pupils affected by the strike, the Committee recalls that the right to strike can only be restricted and even prohibited in the public service (public employees being those who act as agents of the public authority) or in the essential services in the strict sense of the term (i.e. those services whose interruption would endanger the life, personal safety or health of the whole or part of the population) (see, for example, 236th Report of the Committee, Case No. 1140 (Colombia) para. 144). However, the Committee considers that workers in education are not covered by the definition of essential services or of the public service exercising the powers of public authority (see in this connection 230th Report, Case No. 1173 (Canada/British Colombia), para. 577). Therefore the Committee requests the Government to take the necessary measures to allow teachers to exercise freely the right to strike.
4. 118. Concerning the measures applied by the Ministry of Education to compensate the teachers who did not participate in the strike by granting wage increments, the Committee considers that such discriminatory practices constitute a major obstacle to the right of trade unionists to organise their activities.
5. 119. Regarding the death threats addressed in February 1989 to Olmedo Auris Melgar, the Secretary-General of SUTEP, the Committee recalls that a truly free and independent trade union movement can only develop in an atmosphere free of violence and uncertainty. It requests the Government to carry out investigations in order to discover the origin of these threats and to guarantee the safety of the trade union leader.