Report in which the committee requests to be kept informed of development - REPORT_NO360, June 2011

1. 944. The Committee last examined this complaint at its June 2010 meeting and on that occasion presented an interim report to the Governing Body [see the 357th Report, approved by the Governing Body at its 308th Session, paras 802–815].
2. 945. The Government sent its observations in a communication dated 7 February 2011.
3. 946. 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. 947. In its previous examination of the case, the Committee made the following recommendations [see the 357th Report, para. 815]:
   • (a) The Committee requests the Government to take steps to ensure that in future an independent body with the confidence of the parties involved, rather than the administrative authority, is responsible for declaring strikes illegal. The Committee requests the Government to keep it informed of any measures adopted in this regard.
   • (b) As regards the allegations regarding the dismissal of several union leaders and many trade union members in the mining sector following their participation in strikes that were declared illegal by the administrative labour authority, the Committee requests the Government to take the necessary measures to ensure that an investigation into those allegations is conducted without delay and, if it is found that the workers were dismissed solely because of their participation in the aforementioned strikes, to take the necessary measures to reinstate the 17 workers dismissed by the Southern Peru Copper Corporation and the nine workers dismissed by the mining company Barrik Misquichilca SA, with payment of the wages owed to them, or, if reinstatement is not possible, to take steps to ensure they receive full compensation which would constitute a sufficiently dissuasive sanction against anti-union dismissals. The Committee requests the Government to keep it informed in this regard.
   • (c) As regards the murders of Manuel Yupanqui and Jorge Huanaco Cutipa, the Committee expects that the investigation currently under way before the national police and the Public Prosecutor will yield specific results without delay and make it possible to identify those responsible. The Committee requests the Government to keep it informed in this regard.
   • (d) As regards the allegations regarding the arrest of trade union officials Pedro Candori and Claudio Boza Huanhuayo and trade union member Eloy Poma Canchari for their presumed involvement in the death of a police officer on 24 November 2008 during a roadblock operated by workers of the mining company Casapalca, the Committee requests the Government to send its observations on the matter without delay.
   • (e) The Committee calls the Governing Body’s attention to the extreme seriousness and urgent nature of this case.

B. The Government’s reply

1. 948. In its communication of 7 February 2011, the Government states with regard to the unionized workers dismissed by the Southern Peru Copper Corporation (SPCC) that through official communication No. 1236-2010-2JMI-PJ dated 16 December 2010, the Second Mixed Chamber of the Moquegua Higher Court stated that: (1) Guillermo César Palacios Castillo; (2) Juan José Valdivia Herrera; (3) Jorge Carlos Manchego Alcázar; (4) Jorge Fernando Cavaglia Stapleton; (5) José Tiburcio Lozada Huamna; (6) Juan Flavio Pinto Quispe; and (7) Jacinto Yataco Rejas, were reinstated on 19 October 2009. The reinstatement notice dated 19 October 2009 confirmed that the judicial reinstatement order had been implemented.
2. 949. The Government adds that:
   • – through official communication No. 1236-2010-2JMI-PJ dated 16 December 2010, the Mixed Chamber of Moquegua reported that the application for constitutional protection (amparo) lodged by: (1) Jaime Araníbar Araníbar; (2) Orlando Bailón Mamani; (3) Juan Aníbal Chui Choque; (4) César Miguel Delgado Fuentes; (5) Pelagio Espinoza Quiroga; (6) Luis Alfredo Hostia Mendoza; (7) Félix Octavio Marca Madueño; (8) Román Teodoro More Peña; (9) Alberto Salas Rivera; and (10) Adolfo Sosa Sairitupa, and the relevant case file, were referred to the Constitutional Court as the company had initiated its own constitutional grievance proceedings;
   • – as background to the circumstances referred to above, a copy of the ruling resulting from the hearing, dated 11 July 2009 and handed down by the Mixed Chamber of Moquegua, which partially upheld the ruling of 11 June 2009 that the request for amparo was justified in respect of the demand for reinstatement of: (1) Jaime Araníbar Araníbar; (2) Orlando Bailón Mamani; (3) Juan Aníbal Chui Choque; (4) César Miguel Delgado Fuentes; (5) Pelagio Espinoza Quiroga; (6) Luis Alfredo Hostia Mendoza; (7) Félix Octavio Marca Madueño; (8) Román Teodoro More Peña, (9) Alberto Salas Rivera; and (10) Adolfo Sosa Sairitupa, but rescinded the ruling in respect of the demand for payment of costs by the company is provided.
3. 950. As regards the unionized workers dismissed by the mining company Barrik Misquichilca SA, the Government indicates that in an unnumbered communication of 8 November 2010 the company states that:
   • – the proceedings to annul the dismissals and enforce payment of wages initiated by Isaac Godofredo Cueto Lagos against Barrik Misquichilca SA, set out in file No. 3912008, have been concluded; a copy is provided of Resolution No. 5 of 24 November 2008 by which the Tenth Labour Court of Lima approved the application to withdraw from the proceedings by Isaac Godofredo Cueto Lagos, as a result of which Mr Cueto concluded a court settlement with the company. As a result the proceedings were declared closed and the case was filed.
   • – the constitutional protection proceedings (amparo) initiated by the following former workers: (1) Cusipuma Ñañez, Jorge Abel; (2) Chirapo Mamani, Evaristo; (3) Mendoza Quispe, Javier Miguel; (4) Pachao Eyerbe, Alfredo Concepción; (5) Pérez Barreto, Juan Sebastián; (6) Romero Lucero, Roberto Martín; (7) Vílchez Torres, Didhier Alberto; and (8) Zaconett Quesquesana, Juan Pío, set out in file No. 49944-2008, are still pending a final ruling. A copy is provided of Resolution No. 5 of 22 April 2010, through which the Fifth Civil Chamber of Lima revoked the ruling upholding the amparo application and declared it to be irreceivable. Subsequently, the former workers in question initiated their own constitutional grievance proceedings to challenge the resolution. The case is currently still pending a ruling by the Constitutional Court.
4. 951. As regards the investigations carried out by the national police and the Public Prosecution Service into the killings of trade union members Jorge Huanaco Tutuca and Manuel Yupanqui Ramos, the Government indicates that official communication No. 514-2010-MTPE/2 sought information from the Ministry of the Interior and that the information provided will be communicated in good time to the ILO.
5. 952. As regards the order to detain trade union officials Pedro Candori and Claudio Boza Huanhuayo and union member Eloy Poma Canchan, the Government indicates that on 12 February 2010, the General Confederation of Workers of Peru (CGTP) made a complaint against the Peruvian State for violation of freedom of association of Pedro Candori and Claudio Boza Huanhuayo. In the complaint, the CGTP alleges that Mr Candori and Mr Boza were held in custody for presumed culpable homicide and sought their immediate release (Case No. 2771). The Government states in particular that:
   • – in an unnumbered resolution dated 25 March 2010, the 46th Court (for defendants in custody) of the Lima Higher Court of Justice ordered the modification of the detention order against Pedro Candori and Claudio Boza Huanhuayo, who were facing trial for an alleged offence against the life, body and health of another (culpable homicide of Captain Giuliano Carlo Villareal Lobatón). The order was replaced with a summons to appear in court, which ordered their immediate release from custody.
   • – through official communication No. 143-2010-46-FPPL-MP-FN, the provincial criminal prosecutor of Lima stated that on 11 June 2010 the 46th Criminal Court of Lima halted the case and ordered that it be filed, in response to the petition of the provincial prosecutor in order No. 72-2010 of 2 March 2010; and
   • – subsequently the other party appealed against the order to halt the proceedings. The case is currently pending a ruling by the Second Higher Criminal Chamber.

C. The Committee’s conclusions

1. 953. The Committee takes note of the Government’s observations.
   • Recommendation (a)
2. 954. The Committee had recalled that responsibility for declaring a strike illegal should not lie with the Government, but with an independent body which has the confidence of the parties involved [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 628], and requested the Government to adopt measures to ensure that in future, an independent body which would have the confidence of the parties involved, rather than the administrative authority, would be responsible for declaring strikes illegal; the Committee requested the Government to keep it informed of any measures adopted in that regard. The Committee notes that the Government supplies no information in that regard. The Committee reiterates its previous recommendations, and once again requests the Government to indicate what are the legal basis on which the Ministry of Labour may declare a strike illegal.
   • Recommendation (b)
3. 955. As regards the allegations regarding the dismissal of several union leaders and many trade union members (named in the complaint) in the mining sector (17 at one company and nine at another) following their participation in strikes that were declared illegal by the administrative labour authority, the Committee notes with interest the Government’s information to the effect that as regards the SPCC, seven workers who had been dismissed were reinstated on 19 October 2009. The Committee also notes with interest that as regards the other ten workers dismissed from the same company, the Government states that: on 11 July 2009, the Mixed Chamber of Moquegua partially confirmed the ruling of 11 June 2009 which upheld the application for constitutional protection (amparo) and ordered the reinstatement of the workers; and (2) on 13 December 2010, the Mixed Chamber of Moquegua stated that the request for amparo submitted by the workers and the case file were referred to the Constitutional Court, as the company had been allowed to initiate proceedings of its own for constitutional grievance. The Committee expects that the Constitutional Court will hand down a ruling quickly, and requests the Government to ensure that the order is given effect without delay. The Committee requests the Government to keep it informed in this regard.
4. 956. As regards the dismissal of nine workers at the mining enterprise Barrik Misquichilca SA, the Committee notes the Government’s indication that the company has stated that: (1) the proceedings to annul dismissal and ensure payment of wages initiated by Isaac Godofredo Cueto Lagos against the company have been concluded thanks to a court settlement; and (2) the constitutional protection (amparo) proceedings initiated by eight workers are still pending a ruling. The Committee expects that the judicial authority will give a ruling shortly, and requests the Government to keep it informed in this regard.
   • Recommendation (c)
5. 957. As regards the murders of union members Manuel Yupanqui and Jorge Huanaco Cutipa, concerning which the Committee had taken note of the investigations that were under way before the national police and the Public Prosecutor, the Committee notes the Government’s indication according to which it has requested information from the Ministry of the Interior. The Committee recalls that the absence of any ruling constitutes de facto impunity which exacerbates the climate of violence and insecurity and is extremely prejudicial to trade union activities. The Committee deeply regrets that the Government is unable to state that the investigations have resulted in the arrest of those responsible for the killings, and requests the Government to keep it informed in this regard.
   • Recommendation (d)
6. 958. As regards the allegations regarding the detention of trade union officials Pedro Candori and Claudio Boza Huanhuayo and trade union member Eloy Poma Canchari for their presumed involvement in the death of a police officer on 24 November 2008 during a roadblock operated by workers of the mining company Casapalca, the Committee notes the Government’s indication that the allegations in question have been made in the context of Case No. 2771 [see the 359th Report, Case No. 2771]. Taking this information into account, the Committee will continue its examination of the allegations in the framework of that case.