Effect given to the recommendations of the committee and the Governing Body - Report No 358, November 2010

Effect given to the recommendations of the Committee and the Governing Body

1. 83. The Committee last examined this case at its March 2010 meeting, when it made the following recommendations regarding alleged acts of anti-union discrimination by the San Martín Mining Company SA [see 356th Report, para. 126]:
   • The Committee notes the Government’s information. The Committee again notes with regret the delay in the proceedings relating to the dismissal of the union official Mr José Arenaza Lander as a result of the appeals against the judicial orders for reinstatement, and expresses the hope that a ruling will be issued in the very near future. The Committee requests the Government to send its observations on the most recent communication of the complainant organization relating to the Supreme Court of Justice’s ruling on 11 January 2010, which resulted in the revocation of preceding judicial decisions that had ordered reinstatement, and to indicate why the judicial order for the provisional reinstatement of Mr César Augusto Elías García had not been complied with. The Committee also requests the Government to reply to the new allegations from the CATP dated 18 July 2009, concerning acts of violence against union official Mr César Augusto Elías García and indicate the outcome of the criminal complaint lodged by this official against the alleged assaults, as described in the attachments to the present complaint.
2. 84. In a communication dated 30 April 2010, the Government states that, in a communication dated 15 January 2010, the Supreme Court of Justice informed it of the status of César Augusto Elías García’s appeal for his dismissal to be revoked and for the benefits due to him to be paid. It adds that, in communications dated 26 January and 24 February 2010, the complainant organization, the Autonomous Confederation of Peruvian Workers (CATP), sent it a copy of the decision and information on the action that the CATP had taken. The Government states that the information supplied makes the following points: (1) the Provisional Chamber of Constitutional and Social Law of the Supreme Court of Justice, in its ruling of 22 December 2009, upheld the appeal lodged by the company and therefore revoked the decision concerned; and (2) in the light of the ruling against him, César Augusto Elías García on 15 February 2010, presented a request for legal protection against the said ruling to the Tenth Constitutional Court, where the decision whether or not to consider the request is still pending. In a communication dated 20 October 2010, the Government states that the trade union leader César Augusto Garcia has lodged an appeal against the adverse judicial decisions. Similarly, the trade union leader José Arenaza Lander has lodged an appeal against the adverse first-instance judicial decision.
3. 85. With regard to the proceedings relating to the dismissal of union leader José Arenaza Lander as a result of the appeals that were lodged against the court order that he be reinstated, the Committee notes that the Government indicates that he has lodged an appeal against the adverse decision of the court of the first instance. The Committee reiterates its previous recommendations and requests the Government to keep it informed of the status of the proceedings and to send it a copy of the appeal ruling when it is handed down.
4. 86. With regard to the dismissal and reinstatement of César Augusto Elías García, the Committee recalls that in its previous examination of the case, it requested the Government to inform it of the reasons preventing the immediate reinstatement of the union leader concerned, since his reinstatement had been ordered by court decision (resolution of the Seventh Labour Court of the Higher Court of Justice, confirmed by a resolution of the First Chamber of the Higher Court of Justice of Lima). The Committee notes the Government’s statement that on 15 February 2010, César Augusto Elías García presented a request to the Tenth Constitutional Court for legal protection against the ruling handed down by the Provisional Chamber of Constitutional and Social Law of the Supreme Court of Justice on 22 December 2009, in which it upheld the appeal lodged by the company and therefore revoked the decision concerned, and that the decision of the Tenth Constitutional Court whether or not to consider that request, is still pending. The Committee takes note that the Government indicates that César Augusto Elías García has lodged an appeal against the adverse judicial decisions. The Committee requests the Government to keep it informed of developments regarding the requests for judicial protection and to send it a copy of the relevant rulings and judicial decisions when they are handed down.
5. 87. With regard to the CATP’s allegations of 18 June 2009, concerning acts of violence against union leader César Augusto Elías García and the outcome of the penal complaint lodged by him in connection with the events, the Committee regrets that the Government has provided no information on the subject. It therefore urges the Government to send its observations on the allegation and to indicate the outcome of the penal complaint lodged by the union leader in connection with the aggression against him.