Definitive Report - Report No 286, March 1993

Case No 1663 (Peru) - Complaint date: 14-MAY-92 - Closed

1. 128. The complaint is contained in communications from the Unitary Trade Union of Workers in the Ministry of Labour and Social Advancement (SUTMIT) dated 14 May and 7 August 1992. The Government sent its observations in a communication dated 9 October 1992.
2. 129. Peru has ratified the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87), and the Right to Organize and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant's allegations

1. 130. In its communications dated 14 May and 7 August 1992, the complainant alleges that by a ministerial decision of 23 April 1992 the new Minister of Labour and Social Advancement applied a punishment of six months' suspension without pay against Messrs. Alvaro Coles Calonge, Florencio Solis García, Omar Campos Garcés and Medardo Flores Gutiérrez (leaders of the Unitary Trade Union of Workers in the Ministry of Labour and Social Advancement) on the grounds of the alleged offence of defamation and slander against the former Vice-Minister of Labour and Social Advancement. The complainant organization states that these accusations are totally false and that their purpose is to eliminate the trade union organizations. It adds that the former Vice-Minister is currently charged with unlawful appropriation of funds.
2. 131. Finally, the complainant organization adds that the new authorities at the Ministry of Labour and Social Advancement have failed to set up a joint committee to discuss the list of complaints presented by the trade union.

B. The Government's reply

1. 132. In its communication dated 9 October 1992 the Government states that in December 1991 and February 1992 the four trade union leaders referred to by the complainant trade union issued communiqués and distributed leaflets of an offensive nature against the former Vice-Minister of Labour and other officials of the Ministry, the text of which contained, inter alia, the following statements against the authorities:
   • ... reject the domineering and arbitrary impositions of the Prime Minister and his corrupt senior officials, who, if there is any justice in the country, will one day end up behind bars in the Lurigancho Prison;
   • ... made up of incompetent individuals of doubtful morality, and illegally presided over by an improvised front man for the Ministry's Secretary-General - Jorge Lira - at the express order of the Minister;
   • ... unscrupulous individuals who, in the course of their lumpen meanderings and moral laxity, have succeeded in inflicting serious misdeeds upon the sector that, sooner or later, they will have to pay for in jail ...;
   • ... manipulated by Rabines (former Vice-Minister of Labour and Social Advancement) himself together with his front men in order to favour an immoral bunch of the same ilk as he ...;
   • ... the most incompetent, immoral and recently brought to the very bounds of legality by Rabines (former Vice-Minister of Labour and Social Advancement), Acostas, Liras, De los Rios and their lumpen cohort ...;
   • ... and the corrupt authorities of the Portfolio, headed, among other immoral individuals, by Rabines (former Vice-Minister of Labour and Social Advancement), Acostas, Liras, De los Rios ...;
   • ... the said Rabines (former Vice-Minister of Labour and Social Advancement), who, were it not for his Machiavellian behaviour, would not be employed even as a collector of offal in the pork butcheries of Lima ...;
   • ... stay the criminal hand of this Rabines (former Vice-Minister of Labour and Social Advancement) ...;
   • ... if Prime Minister De los Heros (President of the Council of Ministers and Minister of Labour and Social Advancement) has nothing to do with the trail of mischief left by the lumpen Rabines (former Vice-Minister of Labour and Social Advancement), such as his string of underhand and immoral dealings and criminal remarks ... .
2. 133. The Government states that these events gave rise to a summary inquiry by the Inspectorate General, which determined that the provisions of the General Act on public service had been infringed. Furthermore, the Directorate General of the Legal Advice Office of the Ministry of Labour and Social Advancement expressed the view that the language used in the leaflets distributed by the trade union leaders in question constitutes a serious act of indiscipline and an offence to their superiors in office, damaging the honour and discrediting the work of the Ministry's officials. Against this background, the Standing Committee on Disciplinary Administrative Proceedings of the Ministry of Labour and Social Advancement, comprising one representative from the Ministry, the Ministry's director of personnel and a workers' representative, recommended the opening of disciplinary administrative proceedings, in the course of which it was established that the accused had, as stated in the reports submitted by the police and the Inspectorate General, distributed insulting and defamatory leaflets which damaged the honour of officials and authorities at the highest level of the Ministry of Labour and Social Advancement. The same committee also stated that in their deposition the accused in no way retracted the content of the leaflets, which bears no relationship to the alleged list of complaints.
3. 134. The Government states that after the corresponding punishment had been applied, the four trade union leaders began once again to distribute leaflets of an offensive nature against the Government, the Minister of Labour and Social Advancement and other senior officials (for example, one of those leaflets states the following: "Endorsing the corruption headed by Rabines Ripalda (former Vice-Minister of Labour and Social Advancement), Augusto Antonioli (Minister of Labour) is now punishing the most exemplary and worthy members of the SUTMIT family"; "Authoritarianism and immorality will continue to hold sway with the 'golpista' (participant in a coup d'état) Antonioli (Minister of Labour)."). Finally, the Government states that the State Public Prosecutor charged the four members of the governing board of SUTMIT with the alleged offences of violence, resisting authority, defamation, slander and insults. This case is currently being dealt with by Lima's Provincial Criminal Prosecutor.

C. The Committee's conclusions

1. 135. With regard to the allegation concerning the six-month suspension without pay of the four SUTMIT trade union leaders, the Committee observes that that period of suspension has now ended and notes that its imposition was, according to the Government, due to the trade union leaders in question having issued and distributed communiqués and leaflets of an offensive nature against officials of the Ministry of Labour and Social Advancement, which gave rise to administrative proceedings resulting in the suspension.
2. 136. The Committee also notes that, according to the Government, the four trade union leaders subsequently recommenced the publication and distribution of offensive communiqués and leaflets, whereupon the State Public Prosecutor brought criminal proceedings against the four trade union leaders on the grounds of slander, abuse and other offences, the case being currently before Lima's Provincial Criminal Prosecutor.
3. 137. In this connection, the Committee emphasizes that although "the right to express opinions through the press or otherwise is an essential aspect of trade union rights" (Digest of decisions and principles of the Freedom of Association Committee, 3rd edition, 1985, para. 172), "in expressing their opinions trade union organisations should respect the limits of propriety and refrain from the use of insulting language" (see 254th Report of the Committee, Case No. 1400, para. 198, approved by the Governing Body at its 239th Session (February-March 1988)).
4. 138. In view of the language used by the trade union leaders, as reproduced in the Government's reply, the Committee concludes that the trade union leaders in question appear to have gone beyond what has been considered reasonable criticism on the part of a trade union.
5. 139. However, with a view to re-establishing harmonious labour relations within the Ministry, the Committee expresses the hope that the Government will draw the attention of the Provincial Prosecutor to the fact that the four union leaders have already received a disciplinary sanction of six months' suspension from work.
6. 140. With regard to the allegation concerning the Government's refusal to set up a joint committee to discuss the list of complaints presented by the trade union, the Committee notes that the Government has not indicated the reasons why it did not set up such a committee. The Committee therefore requests the Government to take steps to set up a joint committee for the purpose of discussing the list of complaints duly presented by the trade union.

The Committee's recommendations

1. 141. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) the Committee concludes that the four trade union leaders to whom a disciplinary sanction was applied in the form of six months' suspension from work for excessive language in their criticisms appear to have gone beyond what has been considered reasonable criticism on the part of a trade union. However, the Committee expresses the hope that the Government will draw the attention of the Provincial Prosecutor to the fact that they have already received a disciplinary sanction of six months' suspension from work; and
   • (b) the Committee requests the Government to take steps to set up a joint committee to negotiate the list of complaints duly presented by the trade union.