Report in which the committee requests to be kept informed of development - REPORT_NO362, November 2011

1. 1318. The complaint is contained in a communication from the Confederation of Workers of Peru (CTP) dated 7 December 2010.
2. 1319. The Government sent its observations in a communication dated 3 May 2011.
3. 1320. 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. The complainant’s allegations

1. 1321. In its communication dated 7 December 2010, the CTP alleges that, on 29 January 2007, the Trade Union of Miners, Metal Workers and Allied Workers of the Contractors of Atacocha Mining Company, submitted a draft collective agreement for the period 2007–08 to the subdirectorate for collective bargaining of the city of Cerro de Pasco for the contractors of Atacocha Mining Company, in order to start direct bargaining with the union bargaining committee, led by union officials, Mr Tito Matos Galarza and Mr Jesús Gavino Ventura, among others. However, the enterprises’ unwillingness to bargain prompted the workers, in a general assembly held on 18 April 2007, to adopt an agreement to hold an open-ended general strike starting on 30 April 2007.
2. 1322. Nevertheless, adds the complainant organization, the union officials travelled from their town to the capital, Lima, to request the National Directorate for Labour Relations of the Ministry of Labour and Employment Promotion to call meetings with the enterprise. Meetings were held on 18 March, 8 May, 8 June and 9 July 2007, at which the enterprise undertook, in the interests of industrial peace, to intercede with the contractors, asking them to hire the workers and to refrain from retaliatory action against them. Instead, however, the General Secretary of the union, Mr Tito Matos Galarza, was dismissed without citing objective grounds or serious misconduct and without observing statutory trade union immunity. In these circumstances, on 19 March 2008, the dismissed workers and officials (these are not mentioned by name, but the attachments to the complaint list the names of union officials, Epifanio Julián Villavicencio, Jesús Eugenio Gavino and Arturo Garpán Elescano) held a work stoppage in protest and a peaceful demonstration in order to denounce the dismissals publicly. In this context, the national Peruvian police intervened, and in their report accused the protestors of offences against public security in the form of attacks on means of public transport and offences against property in the form of damage to the detriment of the State and of the abovementioned enterprise. Based on the report, charges were brought by the Public Prosecutor’s Office (Attorney General’s Office), and the examining judge ordered the arrest of General Secretary Tito Alfredo Matos Galarza, who was immediately remanded in custody on 21 March 2008 with the aim of depriving the union of leadership and leaving its members defenceless.
3. 1323. The complainant organization states that on 14 May 2008, 55 days after his arrest, the judge handling the case revoked the detention order issued when the investigation was opened against Mr Tito Alfredo Matos Galarza, replacing it with an order for house arrest [comparecencia restringida] requiring him to observe certain rules of conduct.
4. 1324. According to the complainant organization, the criminalization of protest action is increasingly being used against workers who organize in trade unions to demand observance of fundamental principles at work, better wages and working conditions. The union official has thus now been subjected to a restriction on his freedom, and is at risk of being arrested again, as a ruling has not yet been handed down.
5. 1325. As regards the judicial proceedings for nullity of the dismissal of the union officials, the complainant trade union states that these have been closed and that the workers are now on the street without a job, the State having failed to protect them.

B. The Government’s reply

1. 1326. In its communication dated 3 May 2011, referring to the criminal proceedings against Mr Tito Alfredo Matos Galarza, the Government states that according to the Public Prosecutor’s Office (Office of the Attorney-General), in case No. 2008-142 against Tito Alfredo Matos Galarza, the First Specialized Penal Court of Pasco has handed down a ruling acquitting Mr Tito Alfredo Matos Galarza of the public prosecutor’s charge of breach of the peace in the form of rioting detrimental to the State and the Atacocha Mining Company. However, he has been convicted of the offence against public security in the form of an attack on means of public transport to the detriment of the State and the Atacocha Mining Company, and given a sentence of four years’ imprisonment and additional penalties provided for in the law, the sentence being suspended on condition that he observe certain minimum rules of conduct. The Government adds that in view of the above, the outcome of the criminal proceedings cannot be linked to anti-union practices on the part of the State, given the separation of powers, in which laws and regulations are observed.
2. 1327. As regards the judicial actions brought by Mr Tito Alfredo Matos Galarza, the Government states that on 2 May 2007, the union official filed amparo (protection of constitutional rights) proceedings with the First Civil Chamber of the Superior Court of Justice of Lima, in Case No. 02755-2010-PA/TC, against Atacocha Mining Company and the contractor Opermin SAC, requesting that he and other union officials be reinstated and included on the payroll of the defendant enterprise, Atacocha Mining Company SA. On 30 September 2009, the First Specialized Constitutional Court of Lima declared the action to be unfounded on the grounds that the employment relationship had ended with the expiry of the term of the contract. Finally, in a ruling handed down on 27 September 2010, the Constitutional Court declared the amparo action to be irreceivable on the grounds that there was a specific procedural remedy which was equally satisfactory for the protection of the constitutional right that had been allegedly infringed, and which included an evidence phase necessary to clarify the matters in dispute between the parties.
3. 1328. The Government points out that the complaint presented by the complainant does not mention the other union officials allegedly dismissed, although the attachments enclosed with the complaint include three judicial decisions handed down in proceedings instituted by Epifanio Julián Villavicencio (Case No. 183425-2007-00158 before the 25th Labour Court of Lima), Jesús Eugenio Gavino (Case No. 183429-2007-386 before the 29th Labour Court of Lima) and Arturo Gaspar Elescano (Case No. 183412-2007-152 before the Tenth Labour Court of Lima), all against the abovementioned enterprise, and all for nullity of dismissal. These decisions explain that the proceedings in question were closed for reasons that were solely the responsibility of the plaintiffs, who had not rectified their complaints in due time.
4. 1329. The Government states further that, in line with the sectoral policy of bringing the parties closer to alternative means of settling labour disputes, the Ministry of Labour and Employment Promotion summoned the abovementioned enterprise and the contractors to meetings out of court to discuss, among other topics, the case of former employees Mr Epifanio Julián Villavicencio Ramírez, Mr Jesús Eugenio Gavino Ventura and Mr Arturo Gaspar Elescano (all trade union officials according to the official documentation sent with the complaint). An agreement was reached on 9 July 2007, in which the enterprise undertook to present these persons to the AESA enterprise. Accordingly, the relevant documents are being sent to the enterprise in question, to the AESA enterprise and to the Directorate-General for Labour requesting them for information on the agreement signed.
5. 1330. It is clear from the above, states the Government, that it is not true that the Peruvian State disregards workers’ collective rights; on the contrary, through its action, it ensures unrestricted observance of freedom of association and workers’ collective rights in general.

C. The Committee’s conclusions

1. 1331. The Committee observes that in the present case the complainant organization alleges, firstly, the dismissal of union officials Mr Tito Matos Galarza, Mr Epifanio Julián Villacicencio, Mr Jesús Eugenio Gavino Ventura and Mr Arturo Gaspar Elescano, on account of a strike held in April 2007, prompted by the unwillingness of the contractors of Atacocha Mining Company to engage in collective bargaining with the Trade Union of Miners, Metal Workers and Allied Workers of the Contractors of Atacocha Mining Company. According to the complainant organization, the judicial proceedings relating to these dismissals have been closed.
2. 1332. The Committee notes the Government’s statements confirming that the judicial proceedings for nullity of dismissal filed by these union officials were closed for reasons that were solely the responsibility of the plaintiffs, who had not rectified their complaints in due time (it appears from the rulings sent by the Government that the Constitutional Court considered, in regard to the claim filed by the plaintiffs, that it was not that Court, but the ordinary jurisdiction, which should determine whether the complaint should be filed against Atacocha Mining Company or against one of its contractors). The Committee notes the information provided by the Government concerning the meetings held in July 2007 between the Ministry of Labour and Atacocha Mining Company SA in order to settle the collective dispute, at which it was agreed that Mr Villavicencio, Mr Gabino and Mr Elescano would be “presented” by the enterprise to the AESA enterprise (a decision handed down by the Constitutional Court on 15 December 2010, attached by the Government with its reply, states that the plaintiffs refer to an “agreement on their reinstatement”). The Committee notes that the Government states further that it has written to the abovementioned enterprises and to the Directorate-General for Labour concerning the implementation of the agreement that was signed. Accordingly, the Committee awaits this information. The Committee notes that it appears from the record of the agreement provided by the complainant organization and the decisions of the Constitutional Court that this agreement did not cover Mr Tito Alfredo Matos Galarza.
3. 1333. As regards the alleged detention (55 days in pre-trial detention) of, and criminal proceedings against, Mr Tito Alfredo Matos Galarza, General Secretary of the trade union, after allegedly holding a protest strike and a peaceful demonstration in March 2008 in protest against the dismissals in 2007 alleged in this case, the Committee notes that the Government states that Mr Tito Alfredo Matos Galarza was acquitted by the judicial authority of the charge of breach of the peace in the form of rioting detrimental to the State and the abovementioned enterprise, but was convicted of the offence against public security in the form of an attack on means of public transport, and that he was sentenced to four years’ imprisonment and the penalties prescribed by the law, the sentence being suspended on condition that he observe minimum rules of conduct. The ruling handed down by the court of first instance, enclosed with the Government’s reply cites, as evidence the verified fact that he had placed stones on an access road to the plant and had incited workers to take over the installations of the enterprise, so that they had continuously blocked access to the plant, using violence; it also lists the damage caused to property. With regards to the acts of violence and damage caused to property to which the Government refers, the Committee recalls that the principles of freedom of association do not protect abuses consisting of criminal acts while exercising the right to strike, and that in cases of strike movements, the authorities should resort to the use of force only in grave situations where law and order is seriously threatened [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, paras 644 and 667]. While noting that the sentence was suspended, the Committee requests the Government to indicate whether this trade union official has lodged a judicial appeal against this ruling and, if so, requests the Government to keep it informed of the outcome. The Committee also requests the Government to indicate whether this union official has instituted judicial proceedings concerning his dismissal in 2007.