Informe provisional - Informe núm. 172, Marzo 1978

Caso núm. 870 (Perú) - Fecha de presentación de la queja:: 31-ENE-77 - Cerrado

1. 307. In communications dated respectively 31 January, 3 February and 11 February 1977 the Peruvian General Confederation of Workers (CGTP), the Latin American Central of Workers (CLAT) and the World Confederation of Labour (WCL) presented complaints alleging the violation of trade union rights in Peru.
2. 308. The texts of these communications were transmitted to the Government, which sent observations in a communication dated 15 September 1977.
3. 309. 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. A. The complainants' allegations

1. 310. In its complaint the Peruvian General Confederation of Workers alleged that the Organisation Secretary of the Federation of Peruvian Metalworkers, Julián Sierra Corrales, had been exiled to Panama on 27 December 1976. This measure, stated the Confederation, had been taken after he had been imprisoned for over 100 days on a charge - which according to CGTP was false and arbitrary - of attempting to "sabotage increased production". This charge, brought by Mr. Sierra Corrales's employer, was not investigated under any form of administrative or judicial procedure.
2. 311. As for the CLAT, it stated, in its complaint, presented in the name of its affiliates, the Latin American Confederation of Communication Workers and the Sole Federation of Postal and Telecommunication Workers of Peru (FUTT), that Peruvian workers were passing through a difficult period and that the basic rights laid down in the national legislation and in international Conventions were being violated.
3. 312. According to CLAT, on 25 June 1976 the FUTT presented a statement of minimum claims to the Ministry of Transport and Communications. When their representations proved fruitless the workers decided to call a 24-hour strike for 17 December 1976. This was followed by severe repression, during which union officials and their wives were arrested, homes were searched and relatives subjected to humiliating and abusive treatment.
4. 313. These events, according to CLAT, forced the FUTT to call a general strike of unlimited duration. The Director-General of Communications undertook to resume discussions and to seek an agreement if the workers went back to work on 27 December 1976. Although the situation then returned to normal, not only was the agreement refused but all the trade union officials and many telecommunication workers were arbitrarily dismissed. The CLAT attached various documents in support of its statements, in particular lists of persons arrested (trade union officials and their relatives), nine of whom were still under arrest; a report on the health of the Organisation Secretary of the FUTT stating that he suffered from pains in the lumbar region and lower limbs during his arrest; bulletins from the Directorate of Posts and Telegraphs prohibiting meetings at the workplace and refusing leave of absence; and a list of 74 persons who had been dismissed for taking part in the strike (the list stated that the total number of those dismissed was about 100).
5. 314. Finally, the CLAT referred to Presidential Resolution No. 0007-77 TC/CO of 5 January 1977 - the text of which it provided - cancelling the registration of the following organisations: the Association of Peruvian Telegraphists and Radio Telegraphists, the National Association of Postmen and Post Office Workers of Peru, the Society of Postal Employees of Peru and the Association of Postal and Telegraph Office Drivers of Peru. The preamble to this resolution recalled that under section 49 of Act No. 11377 associations of workers in the public sector may not adopt the same forms of organisation and means of action as trade unions, nor may they resort to strikes or any other form of pressure in pursuit of their claims. Notwithstanding the provisions of the Act, the resolution went on to state, the associations mentioned set up a "sole federation of postal and telecommunication workers". Furthermore, continued the Presidential Resolution, the said associations had carried on violent agitation within the Directorate of Posts and Telegraphs, inciting the workers to paralyse a public service, which was a crime against the security of the State. For this reason the Resolution declared that the associations had lost the right to official recognition and declared them struck from the official register.
6. 315. The communication from the WCL contained allegations identical to those of the CLAT.
7. 316. In its reply, the Government stated that the situation to which the CLAT and the WCL referred concerned only the workers at the Directorate of Posts and Telegraphs and not those of the other public services in the telecommunications sector. The Government also indicated that there were no officially recognised trade union organisations within this Directorate. In accordance with section 49 of Act No. 11377 of 29 May 1950, workers in public bodies depending on the Central Government could organise for the purposes of cultural and sports activities or to form co-operatives or mutual aid societies. The workers of the Directorate of Posts and Telegraphs were thus organised in associations officially recognised under civil law.
8. 317. These associations, which did not enjoy the status of trade unions, had since 1971, stated the Government, committed acts incompatible with their legal status. In 1974 they had united to form the "Sole Front of Telecommunication and Postal Workers". Following a congress, they set up the "Sole Federation of Telecommunication and Postal Workers" in 1975 and organised work stoppages in the public postal and telecommunications services. Thus, in June 1975, a strike for two weeks was called without heed for the serious consequences which it would have for the community. Such acts were, stated the Government, unlawful since the associations in question were carrying on activities which were forbidden by their legal status. Furthermore, they constituted crimes involving the initiation of penal proceedings before the Court of Military Justice in accordance with section 144 of Legislative Decree No. 19020 (General Telecommunications Act), which defines such work stoppages as sabotage. Nevertheless, continued the Government, the workers at the Directorate of Posts and Telegraphs implicated in these criminal acts had benefited from measures of amnesty.
9. 318. Referring more specifically to the facts mentioned by the complainants the Government confirmed that, on 25 June 1976, the Sole Federation of Telecommunication and Postal Workers had submitted a statement of minimum claims. This document, stated the Government, contained claims which were incompatible with the conditions of employment of public workers of the Central Government. The Ministry of Transport and Communications therefore pronounced that the statement was not open to negotiation. In order, however, that consultation should be maintained at all levels, the Director of Posts and Telegraphs had, in a letter of 7 October 1976, informed the presidents of the associations that the claims concerning certain questions, namely the granting of fellowships, the rationalisation of work, life insurance, training and recognition of length of service, would be satisfied. The question of wages would be examined in due course within the framework of the wage policy which the Government was to establish for the public sector in the next budget.
10. 319. Between 1 and 10 December 1976 the higher authorities of the Ministry of Transport and Communications maintained contacts and discussions with the presidents of the four associations with a view to seeking a solution, but the negotiations were blocked because of the intransigence of the workers. The senior director of the Ministry told the representatives of the organisations that economic claims were determined by the laws relating to the budget and to wages for the financial year 1977. The Minister personally expressed this standpoint to the workers on 10 December 1976.
11. 320. On 15 December 1976 the Federation sent the Minister a communication giving him a 48-hour period in which to meet the minimum claims contained in the statement. The Minister decided to return this communication, as he considered that it was irreceivable as to its substance and impertinent as to its form. The organisations then decided to call, on 18 December 1976, a strike of indeterminate duration of the workers of the Directorate of Posts and Telegraphs, with the manifest intention of causing chaos and sabotaging the measures to redress the economy. This was done in obedience to the instructions of political agitators with radical leanings. Stressing the important role of posts and telecommunications the Government stated that the majority of postal and telegraph workers were aware of their responsibilities and did not obey the call to strike. The leaders of the organisations threatened those who went to work and even assaulted them. In many cases correspondence was lost or destroyed. In these circumstances the Director at the Ministry of Transport and Communications authorised the dismissal of the guilty parties and demanded the arrest of 26 workers who had been identified. Subsequently the Minister of the Interior was asked to release them. Since then nobody had been held in custody on account of these events.
12. 321. Nevertheless, in view of the damage caused and the serious problems to which its conciliatory attitude had given rise, the Government adopted Presidential Resolution No. 0002/77 TC/CO of 5 February 1977, cancelling the registration of the associations of postal and telegraph workers for exceeding the limits of their status and functions.
13. 322. In conclusion, the Government stated that the complaint was unfounded, since the authorities at no time impeded the free exercise of trade union activities. They had confined themselves to calling a halt to the unlawful and criminal acts perpetrated by groups of workers by cancelling the registration of the associations which had distorted their aims. The Government likewise affirmed that the postal and telegraph workers had been dismissed and arrested not because of their trade union activities but by virtue of criminal acts against public order, safety and the property of other workers, and against the community as a whole.

B. B. The Committee's conclusions

1. 323. The Committee notes that the present case refers on the one hand to the exile of a trade union official and on the other hand to the withdrawal of registration from organisations of postal and telecommunication workers and the arrest and dismissal of union officials and workers in this sector of activity.
2. 324. The Committee notes that the Government has provided no observations as regards the exile of Mr. Julián Sierra Corrales, leader of the Federation of Peruvian Metalworkers. In general, the Committee wishes to recall the importance which it attaches to the fact that in cases of exile of trade unionists, such measures are accompanied by full legal safeguards and are not the result of legitimate trade union activities on the part of those concerned. In order to be able to reach conclusions on the substance of the matter the Committee would like to receive the comments of the Government on this allegation.
3. 325. As regards the cancellation of registration of four associations of workers in the posts and telecommunications sector the Committee notes that, according to the Government, these associations did not possess the status of trade union organisations and their activities were incompatible with their legal status as established by Act No. 11377 of 29 May 1950. The Committee has taken note of the Act in question, and in particular of section 49, which is worded as follows:
   • Employees of public bodies may form associations only in the fields of culture, sports, mutual aid or co-operatives. The said associations may not adopt the title of trade union or organise themselves on the same lines as trade unions, nor may they adopt the same means of action as such bodies or resort to strikes or other means of pressure in pursuit of their claims.
4. 326. The Committee notes that under these provisions workers in public bodies are prohibited from forming trade unions. The Committee feels obliged to point out the incompatibility between these provisions of Peruvian legislation and the principle laid down in Article 2 of Convention No. 87, ratified by Peru, according to which workers, without distinction whatsoever, including workers in public bodies, shall have the right to establish and join organisations of their own choosing. According to Article 10 of the Convention, the term "organisation" means any organisation of workers for furthering and defending their interests. In this connection the Committee observes that the Committee of Experts on the Application of Conventions and Recommendations has for some years commented on the denial of trade union rights in the public service and state undertakings in Peru. It nevertheless appears that the organisations concerned in the present case were already engaging in certain activities of a trade union nature in practice. The Committee considers that legitimate trade union activities should be recognised by the law throughout the public sector in conformity with Convention No. 87. Finally, the Committee wishes to recall the principle set forth in Article 4 of the Convention, namely that workers' organisations shall not be liable to be dissolved or suspended by administrative authority.
5. 327. As regards the arrest and dismissal of union officials and workers in the posts and telecommunications sector the Committee notes that these measures were taken as a result of the strike called by their organisations. Under Peruvian legislation (Legislative Decree No. 19020, section 144), any participation in an illegal strike of the public telecommunications and broadcasting services, or any incitement or appeal to participate in such strike, is held to be sabotage and is subject to military jurisdiction with a penalty of 1 to 10 years' imprisonment. In addition, the Government alleges that acts of violence were committed upon workers who refused to strike.
6. 328. The Committee has always considered that recognition of trade unions in the public service does not necessarily imply the right to strike. It has recognised that the right to strike may be restricted, or even prohibited, in the public service or in essential services where a strike might result in serious public hardship, Nevertheless, where strikes are restricted or prohibited in essential services or in the public service, adequate guarantees should be ensured to safeguard the interests of the workers thus deprived of an essential means of defending their occupational interests. Restrictions should be accompanied by adequate, impartial and speedy conciliation and arbitration procedures in which the parties can take part at every stage, and in which the awards are binding on both parties in all cases.
7. 329. The Committee notes that the workers who had been arrested have now been released. As regards the dismissals, the Committee wishes to point out, as it has done in several other cases, that the development of labour relations could be impaired as a result of an inflexible attitude being adopted in the application of excessively severe sanctions to workers who participate in strike action. In the present case, the Committee feels that it would be useful if the Government were to re-examine the situation of the dismissed workers as a result of the dispute in the posts and telecommunications sector.

The Committee's recommendations

1. 330. In these circumstances, the Committee recommends the Governing Body:
   • (a) as regards the exile of Mr. Julián Sierra Corrales, to request the Government to send its observations;
   • (b) as regards the labour dispute in the posts and telecommunications sector:
   • (i) to draw the attention of the Government to the importance which it attaches to the principles and considerations set forth in paragraph 326 above, and in particular to Article 2 of Convention No. 87, ratified by Peru, according to which workers, without distinction whatsoever, including workers in public bodies, have the right to establish organisations of their own choosing;
   • (ii) to urge the Government to take steps to ensure recognition of the free exercise of trade union rights for all workers in the public sector;
   • (iii) to point out that restrictions on the right to strike in the public service and in essential services should be accompanied by adequate, impartial and speedy conciliation and arbitration procedures in which the parties can take part at every stage, and in which the awards are binding on both parties;
   • (c) as regards the measures of arrest and dismissal:
   • (i) to note with interest that the persons who were arrested have now been released;
   • (ii) to draw attention to the considerations set forth in paragraph 329 above, and to suggest that the Government should contemplate re-examining the situation of the dismissed workers;
   • (d) to take note of the present interim report.