Rapport intérimaire - Rapport No. 357, Juin 2010

1. 802. The Committee last examined this complaint at its November 2009 meeting and on that occasion presented an interim report to the Governing Body [see 355th Report, approved by the Governing Body at its 306th Session, paragraphs 1068 to 1092].
2. 803. The Government sent its observations in communications dated 2 and 17 November 2009, and 25 May 2010.
3. 804. 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. 805. In its previous examination of the case, the Committee made the following recommendations [see 355th Report, para. 1092]:
2. (a) The Committee requests the Government to take measures to ensure that, in the future, responsibility for declaring a strike illegal will not lie with the Government but with a body independent of the parties in which they have confidence, and to indicate the basis upon which the Ministry of Labour declared the strike illegal.
3. (b) With regard to the dismissal of several union leaders and many trade union members (named in the complaint) in the mining sector following their participation in strikes that were declared illegal by the administrative labour authority, the Committee requests the Government to carry out an investigation without delay to determine the reasons for the dismissals, and, if it is found that they took place as a result of legitimate trade union activities, to take the necessary measures to reinstate the workers in their jobs. The Committee requests the Government to keep it informed in this regard.
4. (c) With regard to the alleged murder of trade union members Mr Manuel Yupanqui and Mr Jorge Huanaco Cutipa on 9 and 22 July 2008, the Committee notes that, according to the complainant organization, the Public Prosecutor of Tayabamba Province, in the Department of La Libertad, is carrying out an investigation, and trusts that this investigation will make it possible to shed light, at the earliest date, on the facts and the circumstances in which such murders occurred and in this way determine where responsibilities lie, punish the guilty parties and prevent the recurrence of similar acts. The Committee requests the Government to keep it informed in this regard.
5. (d) The Committee requests the Government to provide its observations on the complainant organization’s new allegations of 29 September 2009.
6. In its communication of 29 September 2009, the complainant organization alleges the arrest and detention of trade union officials Pedro Candori and Claudio Boza Huanhuayo and of union member Eloy Poma Canchari on the grounds of their suspected involvement in the death of a police officer on 24 November 2008 during a roadblock operated by workers of the mining company Casapalca.
7. B. The Government’s reply
8. 806. In its communications of 2 and 17 November 2009, and 25 May 2010, the Government sent the following observations.
9. 807. As regards the declaration that the strikes were illegal, the Government refers to the circumstances in which the strikes were held and the various administrative authority decisions to the effect that they were illegal.
10. 808. As regards the dismissals of a number of trade union officials and many union members in the mining sector following their participation in strikes that were declared illegal by the labour administrative authority, the Government states that with regard to the dismissal of 17 workers by the Southern Peru Copper Corporation and the dismissal of nine workers by Minera Barrik Misquichilca SA, despite the various out of court meetings convened by the National Labour Relations Directorate, the parties failed to come to an agreement, and it will thus be for the judicial authorities to rule on the measures adopted. As regards the dismissal of four trade union officials by the mining company Los Quenuales SA, the company voluntarily agreed to re-hire the four dismissed workers.
11. 809. As regards the alleged murders of union members Manuel Yupanqui and Jorge Huanaco Cutipa on 9 and 22 July 2008, the Government states that according to information provided by the National Police, Manuel Jesús Yupanqui Ramos died on 12 July 2008, while Jorge Luis Huanaco Cutipa was seriously injured, during a confrontation between mine workers and the police. A number of police officers were also injured. According to the police it has not been possible to date to identify those responsible for these acts.

C. The Committee’s conclusions

1. 810. The Committee takes note of the Government’s observations.
2. 811. As regards recommendation (a) the Committee observes that the Government, while referring to a number of different rulings that the strikes were illegal, sends no information on the legal basis on which the Ministry of Labour may declare a strike illegal. In this regard, the Committee recalls once again 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]. Under these circumstances, the Committee requests the Government to adopt measures to ensure that in future an independent body which has 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.
3. 812. As regards recommendation (b) concerning the dismissal of several union leaders and many trade union members (named in the complaint) in the mining sector following their participation in strikes that were declared illegal by the administrative labour authority, the Committee notes the Government’s statements to the effect that as regards the dismissal of 17 workers by the Southern Peru Copper Corporation and the dismissal of nine workers by the mining company Barrik Misquichilca SA, a number of meetings were convened by the National Labour Relations Directorate but the parties failed to come to an agreement and it will thus be for the judicial authorities to rule on issues relating to the measures adopted. As regards the dismissal of four trade union officials by the mining company Los Quenuales SA, the company voluntarily agreed to re-hire the four dismissed workers. In this regard, the Committee observes that, according to the allegations and the Government’s reply, the dismissals were due to the absence of the workers from their workplaces as a result of their participation in the strikes of 30 April and 5 November 2007 and 30 June 2008, which were declared illegal by the administrative authority. The Committee has in the past considered that when trade unionists or union leaders are dismissed for having exercised the right to strike, the Committee can only conclude that they have been punished for their trade union activities and have been discriminated against [see Digest, op. cit., para. 662]. Under these circumstances, the Committee requests the Government to take the necessary measures to ensure that an investigation is conducted without delay into these allegations and, if it is found that the workers were dismissed solely because of their participation in the strikes referred to, 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 the necessary measures to ensure that 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.
4. 813. As regards recommendation (c), concerning the alleged murder of trade union members Manuel Yupanqui and Jorge Huanaco Cutipa, the Committee notes the Government’s statements to the effect that according to the information provided by the National Police, Manuel Jesús Yupanqui Ramos lost his life in a confrontation between mine workers and the police on 12 July 2008, while Jorge Luis Huanaco Cutipa suffered serious injury. According to the available information, Mr Cutipa died on 24 July in the clinic. The police adds that to date it has not been possible to identify the person(s) responsible for this act. In this regard, the Committee recalls that in the event of assaults on the physical or moral integrity of individuals, the Committee has considered that an independent judicial inquiry should be instituted immediately with a view to fully clarifying the facts, determining responsibility, punishing those responsible and preventing the repetition of such acts [see Digest, op cit., para. 50]. Under these circumstances, noting that in its previous examination of the case, the Committee noted also that the Public Prosecutor of Tayabamba Province had begun an investigation into this affair, the Committee expects that the investigations currently under way will yield specific results without delay and make it possible to identify those responsible for these acts. The Committee requests the Government to keep it informed in that regard.
5. 814. As regards the most recent allegations concerning the detention of trade union officials Pedro Candori and Claudio Boza Huanhuayo and 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, noting that the Government has not sent its observations on the matter, requests it to do so without delay.