Interim Report - Report No 214, March 1982

Case No 1049 (Peru) - Complaint date: 04-JUN-81 - Closed

1. 629. The General Confederation of Workers of Peru (CGTP) presented its complaint in a communication dated 4 June 1981. The Government replied in a communication dated 22 December 1981.
2. 630. Peru has ratified both the Freedom of Association and Protection of the Eight to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98)

A. Allegations of the complainant

1. 631. The CGTP alleges that the application of Legislative Decree No. 46 ("Anti-terrorist Act") has resulted in the unleashing of violent repression against left-wing party militants, and especially against the workers' movement and social organisations. The CGTP states that Roberto Rojas Grajeda, CGTP regional secretary, and Magno Fernández, a trade unionist, are under arrest, the latter since 15 January 1981 - the date of the national strike called by the CGTP. According to the complainant, they have been libellously and falsely accused of engaging in terrorist activities, without the authorities producing any proof whatsoever.
2. 632. The CGTP adds that, resorting to dangerous methods of intimidation, the Government authorised the initiation of legal proceedings against 25 CGTP officials in the 17th district court and that a warrant had been issued for their arrest. The complainant states that, because of the subsequent public outcry against this decision, they had not actually been arrested although until the case is dropped the threat of detention continues to exist for use against the workers should they exercise their right to protest against the economic policy and anti-worker repression pursued by the present Government.
3. 633. The CGTP further alleges that Decree No. 22126 of the Military Government, which provides for a three-year trial period before a worker acquires stability of employment and imposes serious restrictions on the exercise of trade union rights, is still in force.
4. 634. Finally, the complainant raises the question of the reinstatement of the union officials and workers who were dismissed in application of Decree 010-77-T", expresses objections to a proposed Bill governing the right to strike and claims that it was prevented from participating in the 67th Session of the International Labour Conference as the official representative of the Peruvian workers.

B. The Government's reply

1. 635. In its communication dated 22 December 1981, the Government states that, according to a report by the examining magistrate of the 17th district court, legal proceedings have been initiated against Magno Fernández Zegarra and other persons for disturbing the peace, bodily assault and damaging the property of the State, the Construction Development Bank and others. The Government adds that the proceedings began with a provisional warrant of arrest for the persons "not present in court" and "of no known address"; this order affected only Magno Fernández Zegarra, who was already under arrest, the remainder being simply summoned to appear in court. Moreover, continues the Government, the magistrate's report states that in the course of the proceedings it was entirely unknown that the persons concerned were CGTP officials until it was discovered from a judicial police memorandum that that was the case of some of those charged; it is therefore untrue that the steps taken were intended as a repressive measure against the workers, as the complainant alleges. Finally, the Government indicates that the proceedings have been extended for 60 days, by which time the juridical status of the persons being held without trial must be clarified.
2. 636. The Government further states that the complainant's assertion that Legislative Decree No. 22126 affects stability of employment is false, since Peru's legislation on the subject is particularly advanced and defines stable employment as the irrevocable right of a worker to remain in his employment so long as he is not found guilty of a serious fault, thereby guaranteeing the lasting nature of the labour relationship. The Government adds that Legislative Decree No. 22126 not only does not impose any restrictions on trade union activities but lays down explicitly in section 33 that trade union officials shall enjoy stability of employment, even where they have not completed three years of service with the same employer, unless they have been guilty of a serious fault.
3. 637. Finally, as to the reinstatement of the union officials and workers who have been dismissed in application of Supreme Decree No. 010-77 of the Military Government, the Government states that the National Tripartite commission (in which the labour movement is represented by the CGTP) was requested to examine and settle those cases; the Commission, which has now completed its task, will accordingly submit a report to the Congress of the Republic with an account of its findings.

C. The Committee's conclusions

1. 638. With regard to the allegation concerning the initiation of legal proceedings against CGTP officials or members and the arrest of some of them, the Committee notes the Government's statements, and particularly its observation that, when legal proceedings began against Magno Fernández Zegarra and others for disturbing the peace, bodily assault and causing damage, only a provisional warrant of arrest was issued for Fernández Zegarra (who was already under arrest) as one of those "not present in court" and "of no known address", while the remainder were summoned to appear in court. The Committee also notes that, according to the Government, it was only discovered subsequently that some of the persons concerned were CGTP officials and that the juridical status of those being held without trial must be clarified by the end of the proceedings, which have been extended by 60 days. Not possessing sufficient information to reach definitive conclusions, the Committee feels obliged to draw the Government's attention to the fact that persons should not be held in custody for longer than is strictly necessary and to the importance which it attaches to the principle of prompt and fair trial by an independent and impartial judiciary. It requests the Government to inform it of the findings of the legal proceedings initiated against Magno Fernández Zegarra, Roberto Rojas Grajeda and the other CGTP members and officials, indicating the charges against them, their legal situation in the proceedings and any measures that have been or may be taken to deprive them of their freedom.
2. 639. As regards the alleged restrictions on the exercise of trade union rights under Decree No. 22126, the Committee, after examining the text of the Decree, considers that it is not open to objection from the standpoint of the principles of freedom of association. In these circumstances, and particularly in view of the fact that section 33 of Decree No. 22126 affords union officials protection against dismissal and that the complainant does not indicate whether the provisions of the Decree were in practice interpreted in a manner contrary to the rights and guarantees established in the Conventions relating to freedom of association, the Committee considers that this aspect of the case does not call for further examination.
3. 640. As regards the reinstatement of the union officials and workers who have been dismissed in application of supreme Decree 010-77-TR and the substance of the proposed Bill governing the right to strike, the Committee wishes to recall that it has already examined these allegations in the context of other cases and would refer to the conclusions it has reached on the subject.
4. 641. Finally, as regards the allegation that the CGTP was prevented by the Government from officially representing the Peruvian workers at the 67th session of the international Labour Conference, the Committee considers that it is not competent to express an opinion on the subject since Article 26.3 of the Standing orders of the international Labour Conference provides that the Credentials Committee appointed by the Conference "shall consider any objection concerning the nomination of any delegate or adviser". It should be pointed out in this respect that the CGTP did not submit any objection to the Credentials Committee at the 67th Session of the International Labour Conference.

The Committee's recommendations

1. 642. In these circumstances, the Committee recommends the Governing Body to approve this interim report, and in particular the following conclusions:
   • (a) with regard to the initiation of legal proceedings in the 17th district court against CGTP officials and members and the arrest of some of their number, the Committee, although it does not possess sufficient information to reach definitive conclusions, feels obliged to draw the Government's attention to the fact that persons should not be held in custody for longer than is strictly necessary and to the importance which it attaches to the principle of prompt and fair trial by an independent and impartial judiciary and to request the Government to inform it of the findings of the proceedings initiated against Magno Fernández Zegarra, Roberto Rojas Grajeda and the other CGTP officials and members, indicating the charges against them, their legal situation in the proceedings and any measures that have been or may be taken to deprive them of their freedom.
   • (b) with regard to the remaining allegations (restrictions on trade union rights under Decree No. 22126, reinstatement of the union officials and workers dismissed in application of Decree 010-77-TR, substance of the proposed Bill governing the right to strike and the refusal to allow the CGTP to represent the Peruvian workers officially at the 67th Session of the International Labour Conference), the Committee considers that they do not call for further examination.