Interim Report - Report No 310, June 1998

Case No 1906 (Peru) - Complaint date: 20-SEP-96 - Closed

Allegations: Restrictions to the right to collective bargaining (construction sector) -- anti-union persecution

1. 545. The Committee last examined this case at its November 1997 meeting (see 308th Report, paras. 597-609, approved by the Governing Body at its 270th Session (November 1997)). In a communication dated 2 October 1997 the Federation of Construction Workers of Peru (FTCCP) sent additional information. The Government sent its observations in a communication dated 27 February 1998.
2. 546. 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. Previous examination of the case

1. 547. In its previous examination of the case, with respect to allegations concerning the anti-union persecution of three trade union officers of the Federation of Construction Workers of Peru (FTCCP) who had been sentenced to two years' imprisonment by a judicial body, and to restrictions to the right to collective bargaining included in a provision of Bill No. 2266, the Committee made the following recommendations (see 308th Report, para. 609(a) and (b)):
2. With regard to the allegations concerning the sentencing on 2 October 1997 to two years' imprisonment of the trade union officers of the Federation of Construction Workers of Peru (FTCCP), José Luis Risco Montalván, Mario Huaman Rivera and Víctor Herrera Rubiños, the Committee requests the Government to forward its observations on this matter.
3. As regards the fifth provisional regulation of Bill No. 2266 which prevents collective bargaining in the construction industry at the construction project level prior to the lapse of six months from the full start of construction work, the Committee requests the Government to keep it informed of the final approval of the new draft bill which according to the Government removes such limitation, and to ensure that the collective bargaining parties are entitled to negotiate at all levels.
4. B. Additional information from the Federation of Construction Workers of Peru (FTCCP)
5. 548. In a communication dated 2 October 1997, the Federation of Construction Workers of Peru (FTCCP) stated that the Sixth Judicial Chamber of the Superior Court of Lima had informed it of the decision of the court of last resort to uphold the sentence of two years' imprisonment for breach of the peace as the result of a demonstration held at the Congress of the Republic on 27 November 1991. The trade union officers included in this sentence are: José Luis Risco Montalván, Mario Huaman Rivera, Víctor Herrera Rubiños and 30 other workers. This illegal and unjust sentence is a further violation of freedom of association, the Constitution and the state of law, and a threat and warning to try to curb growing union and popular protests.
6. C. The Government's reply
7. 549. In its communication dated 27 February 1998, the Government refers to the allegation concerning the persecution of Mr. José Luis Risco Montalván, Mr. Mario Huaman Rivera and Mr. Víctor Herrera Rubiños, trade union officers of the Federation of Construction Workers of Peru, and more specifically the lawsuit against them for causing serious disturbances in November 1991, which resulted, according to the complainants' allegations of 2 October 1997, in them being sentenced to two years' imprisonment. The Government states that this is not a matter of persecution against trade union officers at all; it is a matter of a criminal lawsuit with its basis in the serious disturbances that occurred in November 1991, acts which led the competent legal body to impose the sentence of two years' imprisonment on the officers involved. The Government adds that the complainant organization does not attach a copy of the judicial decision in which their sentence is imposed to its allegations dated 2 October, meaning that the scope of said decision cannot be analysed. Notwithstanding this fact, the Government indicates that the complainant organization has been imprecise in saying that a "sentence of two years' imprisonment" was imposed. The Penal Code makes no reference to the sentence of imprisonment, but instead to a custodial penalty which, as it does not exceed four years, is not a sentence that involves forcible detention for those sentenced but only imposes on them certain rules of conduct.
8. 550. With respect to Bill No. 2266, the Government states that the substitute draft Industrial Relations Bill overrides Bill No. 2266. Moreover, the Government indicates that the draft bill contains input from the National Confederation of Private Employers' Institutions, the General Confederation of Workers of Peru, the Ministry of Labour and Social Mobility, as well as observations by the International Labour Organization relating to unionization and collective bargaining, and that it is currently being debated by the Congress of the Republic.

D. The Committee's conclusions

1. 551. The Committee observes that the allegations that had remained pending in its previous examination of the case referred to the sentence of two years' imprisonment imposed on the trade union officers of the Federation of Construction Workers of Peru (FTCCP) Mr. José Luis Risco Montalván, Mr. Mario Huaman Rivera and Mr. Víctor Herrera Rubiños. The Committee also observes that it had requested the Government to keep it informed about the final approval of the new draft bill to amend the Industrial Relations Act which, according to the Government, eliminated certain restrictions to collective bargaining that were stipulated in Bill No. 2266.
2. 552. With respect to the sentence the judicial body imposed on trade union officers Mr. José Luis Risco Montalván, Mr. Mario Huaman Rivera and Mr. Víctor Herrera Rubiños, the Committee observes the FTCCP's statement that the Supreme Court of Lima upheld the sentence of two years' imprisonment imposed on the trade union officers mentioned, as well as on 30 other trade unionists, for breach of the peace for having participated in a demonstration at the Congress of the Republic on 27 November 1991. In this connection, the Committee notes the Government's statement that a custodial penalty of two years was imposed on the grounds of the serious disturbances that occurred in November 1991, and that given that the sentence does not exceed four years it would not imply "forcible detention" for those sentenced, but instead the imposition of certain rules of conduct.
3. 553. The Committee observes that the versions given by the complainant organizations and the Government concerning the facts that led to the sentencing of the trade union officers and trade unionists differ. While the complainant organizations state that the sentences were imposed for breach of the peace for having held a demonstration at the Congress of the Republic, the Government indicates that the criminal proceedings were instituted because of serious disturbances that had occurred, but does not indicate what those disturbances entailed or their consequences (e.g. physical assault, physical injury, destruction of personal property or real estate, etc.) or whether the persons concerned were directly involved in these disturbances. Given this situation, in order to be able to give an informed opinion about these allegations, the Committee requests the Government to send it, as soon as possible, a copy of the decisions handed down in the various courts. The Committee also requests the Government to provide more information about the "rules of conduct" imposed on the trade union officers and trade unionists under their sentences.
4. 554. As regards the allegation concerning restrictions to collective bargaining in the construction sector as a result of Bill No. 2266, the Committee notes the Government's statement that the draft bill to amend the Industrial Relations Act overrides Bill No. 2266 and thus eliminates the provision criticized by the complainant organization that barred collective bargaining in the construction industry at the construction project level until six months had elapsed from the full start of construction work. Moreover, the Committee notes the Government's statement that the new draft bill contains input from the National Confederation of Private Employers' Institutions, the General Confederation of Workers of Peru and the Ministry of Labour and Social Mobility, and the observations of the International Labour Organization in respect of unionization and collective bargaining. Lastly, the Committee observes that the complainant organizations have not objected in this case to the amending draft bill referred to by the Government.
5. 555. In any event, the Committee observes that for many years the Committee of Experts on the Application of Conventions and Recommendations has been formulating observations requesting the Government to take measures to amend its legislation, including the Industrial Relations Act, to bring it into line with the provisions of Conventions Nos. 87 and 98. The Committee also observes that the Committee of Experts has already taken note of the draft bill to amend the Industrial Relations Act, having observed that the bill does not encompass all the necessary amendments proposed (see the 1998 Report of the Committee of Experts, Part 1A, pp. 189, 190, 254 and 255). This being the case, the Committee requests the Government to guarantee that the new draft bill to amend the Industrial Relations Act is fully in conformity with Conventions Nos. 87 and 98, in particular, as concerns the restrictions on collective bargaining raised in this case. The Committee requests the Government to keep it informed of the developments in respect of the status of this draft bill before the Congress. The Committee draws this aspect of the case to the attention of the Committee of Experts on the Application of Conventions and Recommendations.

The Committee's recommendations

1. 556. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • a. As regards the sentence imposed by a judicial body on trade union officers Mr. José Luis Risco Montalván, Mr. Mario Huaman Rivera and Mr. Víctor Herrera Rubiños (currently released from prison) and on 30 other trade unionists, to enable it to give an informed opinion the Committee requests the Government to send it, as soon as possible, a copy of the decisions handed down in the various courts. The Committee also requests the Government to provide more information concerning the "rules of conduct" to be imposed on the trade union officers and trade unionists under the sentence.
   • b. The Committee requests the Government to guarantee that the new draft bill to amend the Industrial Relations Act is fully in conformity with Conventions Nos. 87 and 98, in particular as concerns the restrictions on collective bargaining raised in this case.
   • c. The Committee requests the Government to keep it informed of the developments in respect of the status of this draft bill before the Congress. The Committee draws this aspect of the case to the attention of the Committee of Experts on the Application of Conventions and Recommendations.