Labour Relations (Public Service) Convention, 1978 (No. 151) - Peru (RATIFICATION: 1980)

CMNT_TITLE

The Committee notes the observations of the Single Trade Union of Workers of the Judiciary–Lima–Peru of 2015, as well as the Government's response in this regard. The Committee also notes the Government's reply to the observations of the General Confederation of Workers of Peru of 2014.

Articles 4 and 5 of the Convention. Protection against anti-union discrimination and interference. Noting that section 52 of the General Regulations of Civil Service Act (LSC) No. 30057 (Supreme Decree No. 040-2014-PCM) only explicitly provided that termination of employment for anti-union reasons shall be invalid, the Committee requested the Government to provide information on the legal consequences and penalties applicable for other anti-union acts which have the effect of prejudicing public employees in their employment (such as transfer, demotion, etc.). The Committee notes the Government's indication that it is reasonable to infer from a reading of section 52 of the General Regulations that civil servants enjoy protection against any act of discrimination likely to prejudice freedom of association in relation to their employment, in a broad manner, and that section 53 of the General Regulations provides that trade union organizations enjoy adequate protection against acts of interference by any public body. The Government indicates that, in case of acts of interference, the civil servants or trade union organizations concerned are required to apply to the Human Resources Office to follow the regular procedure in accordance with the disciplinary regime and sanctioning procedure regulated by the Civil Service Act and its General Regulations. The Committee notes the trade union federations’ indications that: (i) the Civil Service Act and its Regulations lack specific references to a trade union immunity or to enhanced protection of workers and in particular of their representatives in the exercise of their trade union rights; (ii) this lack of protection is more evident following the repeal by the State Sector Collective Bargaining Act No. 31188, published on 2 May 2021, of section 40 of the Civil Service Act, which provided for the supplementary application of the Collective Labour Relations Act (LRCT), which does provide for a trade union immunity; (iii) there is no provision for any administrative authority to investigate infringements and require the cessation of anti-union conduct; and (iv) given that the labour inspectorate is unable to intervene because its inspection and sanctioning powers are limited to the private sector, SERVIR's technical reports guide the decisions of public bodies on the basis of interpretations contrary to the principles of freedom of association. Recalling the need, in accordance with the Convention, to ensure adequate protection against all acts of discrimination against public employees by reason of their trade union membership or activities, as well as against interference by the public authorities, the Committee requests the Government to take the necessary measures to ensure the adoption of legal provisions providing for sufficiently effective and dissuasive sanctions for acts of anti-union discrimination as well as acts of interference against trade union organizations of public servants.

Application of the Convention in practice. Having noted the allegations that workers engaged under administrative service contracts (CAS) were unable to exercise the trade union rights recognized by law due to the permanent employment instability which characterizes their contractual situation, the Committee requested the Government to engage in dialogue on this subject with the trade union organizations of the public sector and to report the outcome. The Committee notes the Government's indication that: (i) Act No. 31131 establishing provisions to eradicate discrimination in public sector schemes, published on 9 March 2021, prohibited administrative service contracts and provided that workers engaged under this scheme should be incorporated into the scheme of Legislative Decree No. 728 (Labour Productivity and Competitiveness Act) and Legislative Decree No. 276 (Act establishing the basic rules for the civil service and remuneration in the public sector); (ii) workers engaged as of 10 December 2021 who were under the administrative service contracts scheme have open-ended contracts, provided that they have participated in a public competition for a permanent position. However, it will be possible to engage staff under administrative service contracts on a fixed-term basis for substitute or temporary work; and (iii) a number of trade unions represent this group of workers and in the negotiations held in the context of Act No. 31188, administrative service contracts workers were represented. The Committee notes the indications of the trade union federations that: (i) while Act No. 31131 established the open-ended nature of administrative service contracts, a new form of temporary and irregular employment, known as third-party contracts, is on the rise; and (ii) in 2020, more than 127,000 persons were recruited under service contracts and, in most cases, these are employment relationships under the guise of third-party contracts in which workers cannot exercise their trade union rights as they are retaliated against through the non-renewal of their contracts. While welcoming the legislative measures taken in relation to administrative service contracts, noting these concerns, the Committee requests the Government to submit the matter of protection against anti-union discrimination of public employees working in the State administration who are not on open-ended contracts to in-depth consultations with the representative organizations of the public sector. The Committee requests the Government to provide information on these discussions and their outcome.

CMNT_TITLE

The Committee notes the observations of the Coordination of Trade Union Federations of Peru (which brings together the General Confederation of Workers of Peru (CGTP), the Single Confederation of Workers of Peru (CUT-Perú), the Autonomous Workers' Confederation of Peru (CATP) and the Confederation of Workers of Peru (CTP)), received on 1 September 2022, which concern issues that the Committee examines in this comment. The Committee notes the Government’s reply in this respect.

Article 7 of the Convention. Participation of public employees’ organizations in the determination of their terms and conditions of employment. Having noted with concern that the Civil Service Act No. 30057 (LCS) of 2013 contained provisions that excluded any machinery for participation, including collective bargaining, in the determination of matters relating to wages or with financial implications throughout the public sector, the Committee requested the Government to take the necessary measures to bring the legislation into conformity with the Convention, in order to ensure the existence, with regard to officials engaged in the administration of the State, of machinery for participation in the determination of their terms and conditions of employment, including remuneration and other subjects with financial implications. The Committee notes the Government’s indication that Act No. 31188 on collective bargaining in the public sector was published on 2 May 2021, which seeks to regulate the exercise of the right to collective bargaining of trade union organizations of state workers, and which includes all public employees engaged in the administration of the State. The Committee notes with satisfaction the adoption of the Act and observes that it:

• –establishes rules for the exercise of the right to collective bargaining in the public sector, and indicates that bargaining may comprise all types of work and employment conditions, including remuneration and other work conditions with financial implications, and any aspect relating to relations between employers and workers, and relations between employers’ and workers’ organizations; and
• –repeals various sections of the LCS, including sections 42, 43 and 44, which completely excluded collective bargaining in the determination of matters relating to wages or with financial implications throughout the public sector.

The Committee notes the Government’s indication that: (i) Supreme Decree No. 008-2022-PCM approving guidelines for the implementation of Act No. 31188, was published on 20 January 2022; (ii) the Act on the public sector budget for the fiscal year 2022 recognizes the financial increase agreed collectively; and (iii) a centralized collective agreement for 2022-23 was signed on 30 June 2022, which established significant agreements in favour of all state workers (with the exception of public servants on special career paths in health and education, who will bargain at the decentralized level within the sectors). The Committee noted with satisfaction the signing of this collective agreement in its comment on the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

The Committee notes the indication of the trade union confederations that: (i) while the Act represents progress in the recognition and effectiveness of the financial negotiation of all types of employment conditions for public employees, difficulties relating to its application have been reported; (ii) even though the Act gives broad recognition to the right to collective bargaining, the Supreme Decree contains provisions that may affect collective bargaining, such as the possibility for employers to reject a list of demands if they consider that a trade union is not representative; (iii) public entities face the challenge of adopting effective measures to implement the Act, and, in this regard, the implementation of a national register of trade union membership to verify representativity remains pending; and (iv) the National Civil Service Authority (SERVIR) has issued binding decisions that contain a restrictive interpretation of the Act. The Committee notes the Government’s indication that, through its Executive Board, SERVIR aims to create and implement a space for trade union dialogue, to continuously and effectively address the demands of trade union organizations, by directing support and assistance to entities through the provision of creative and flexible solutions that bridge existing gaps and address labour demands, thus guaranteeing the optimization of services and products provided to the public. The Committee strongly encourages the Government to implement, within SERVIR, a space for dialogue in which the aforementioned concerns can be addressed, including the implementation of a reliable mechanism to verify trade union representativeness in collective bargaining. The Committee requests the Government to take the necessary measures to ensure that both the Act and the Supreme Decree are implemented in a manner that effectively guarantees, for all public employees engaged in the administration of the State who are covered by the Act, the full enjoyment and exercise of the rights recognized in these instruments and enshrined in the Convention. The Committee requests the Government to provide information on the impact of their application. The Committee also reminds the Government that the technical assistance of the Office is at its disposal.

The Committee is raising other matters in a request addressed directly to the Government.

CMNT_TITLE

The Committee notes the observations by the General Confederation of Workers of Peru (CGTP), received on 22 September 2014, concerning the following points relating to the Civil Service Act, No. 30057: (i) the exclusion from the guarantees afforded by the Convention of excessively broad categories of state workers by section 40 of the Act; (ii) the failure of the Act to recognize trade union rights, and the absence of an administrative authority that can investigate violations and order the cessation of anti-union acts; and (iii) the absence of consultation with representative trade union organizations in the formulation of the Act and its regulations. The Committee requests the Government to provide its comments on these matters.

Article 4 of the Convention. Protection against anti-union discrimination. The Committee notes that section 52 of the General Regulations issued under the Civil Service Act, No. 30057 (Supreme Decree No. 040-2014-PCM), provides that civil servants shall enjoy protection against any act of discrimination likely to prejudice freedom of association in relation to their employment, that the employment of a public servant may not be conditional on their membership, non membership or renunciation of membership, and they shall not be obliged to become members of a union, nor be prevented from doing so, and that termination of their employment based on such grounds shall be declared invalid. Noting that section 52 of the General Regulations only explicitly provides that termination of employment for anti-union reasons shall be invalid, the Committee requests the Government to provide information on the legal consequences and penalties applicable for other anti-union acts which have the effect of prejudicing public employees in their employment (such as transfer, demotion, etc.).

Application of the Convention in practice. The Committee notes the Government’s reply to the observations made in 2009 by the CGTP, the Single Confederation of Workers, the Autonomous Confederation of Workers of Peru and the National Coordination of Contract Workers of the Ministry of Health concerning the exercise of the trade union rights of public workers engaged under administrative service contracts (CAS). The Committee notes the Government’s indication that, under the terms of the new Civil Service Act, the trade union rights are recognized of all public servants, with the exception of public officials, directors in the public service and employees in confidential positions. In this respect, the Committee also notes the observations made by the Confederation of Workers of Peru (CTP), received on 29 August 2014, indicating that workers engaged under CAS are unable to exercise the trade union rights recognized in the Act due to the permanent employment instability which characterizes their contractual situation and the deep-rooted vulnerability that they suffer in relation to their hierarchical superiors. The Committee requests the Government to engage in dialogue on this subject with the trade union organizations of the public sector and to report the outcome.

CMNT_TITLE

Article 7 of the Convention. Participation of public employees’ organizations in the determination of their terms and conditions of employment. The Committee notes the observations of the Confederation of Workers of Peru (CTP), the Autonomous Workers’ Federation of Peru (CATP) and the General Confederation of Workers of Peru (CGTP) regarding the Civil Service Act, No. 30057 of 4 July 2013, which were received, respectively, on 29 August, 1 September and 22 September 2014. The CATP and the CGTP indicate that Act No. 30057, as well as the country’s budgetary laws, deny public employees the right to collective bargaining and to participate in the determination of their remuneration and in other subjects with financial implications.

The Committee notes the Government’s indication in its report that: (i) in a report dated 4 February 2014, the Office of the People’s Ombudsman concluded that sections 42, 43 and 44 of Act No. 30057 have an unjustified impact on the right to collective bargaining; and (ii) in a ruling of 22 May 2014, the Constitutional Court, although there was no majority to find in favour of the appeal against the constitutionality of Act No. 30057, urged the Congress of the Republic, on the basis of the Convention, to adopt legislation establishing a mechanism allowing genuine dialogue between public employees and the public administration on remuneration.

The Committee notes that the budgetary laws for the public sector for the financial years 2013 and 2014 (Act No. 29951 and Act No. 30114) prohibit the adjustment, increase or establishment of any form of income for public sector workers, through whatever procedure. The Committee also notes that section 42 of Act No. 30057 explicitly provides that civil servants shall be entitled to request improvements in their non-financial terms and conditions, including changes in conditions of work or conditions of employment, in accordance with the budgetary and infrastructural possibilities of the institution and the nature of the functions discharged. Finally, the Committee notes that section 43 of the Act defines the terms and conditions of work or employment which may be subject to negotiation, such as holidays, leave, training, uniforms, the working environment and in general all those which facilitate the activities of civil servants, and that section 44(b) provides that, during the course of negotiations, counter proposals or proposals by the institution relating to economic compensation shall have no legal basis.

The Committee notes with concern that the legislative provisions referred to above exclude any machinery for participation, including collective bargaining, in the determination of matters relating to wages or with financial implications throughout the public sector, which is in violation of Article 7 of the Convention which, by referring to negotiation or the participation of public employees’ organizations in the determination of terms and conditions of employment, includes their financial aspects.

Recalling the Government’s specific obligations under the terms of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), with regard to the right of collective bargaining of public employees who are not engaged in the administration of the State, the Committee requests the Government to take the necessary measures to bring the legislation into conformity with Articles 4 and 6 of Convention No. 98 in relation to collective bargaining on wage matters with the organizations representing that category of public employees, and with Convention No. 151, in order to ensure the existence with regard to officials engaged in the administration of the State, of machinery for participation in the determination of their terms and conditions of employment, including remuneration and other subjects with financial implications. The Committee requests the Government to report any developments in this respect and reminds it that it may have recourse to the technical assistance of the Office.

The Committee is raising other matters in a request addressed directly to the Government.

CMNT_TITLE

Application of the Convention in practice

1. The Committee notes the Government’s reply to the comments of 7 April 2006 by the National Union of Public Employees of the Armed Forces (SINEP-FFAA) concerning the delay in entering the organization in the trade union register. The Committee takes due note of the Government’s statement that the organization was entered in the Register on 3 May 2006.

2. The Committee notes the comments submitted by the General Confederation of Workers of Peru (CGTP) referring to Supreme Decree No. 001-2007 which reduces the amount of trade union leave with pay in the public education sector, in disregard of pre-established agreements, and Supreme Decree No. 11-2007 to amend the Regulations to the Act on the teaching profession and to reduce the representation of SUTEP in the Standing Committee on Administrative Proceedings.

The Committee notes the Government’s reply to the effect that: (1) since trade union leave is not regulated in the regime governing public employment, the rules of the Act on collective labour relations likewise apply to that sector; consequently, the leave may amount to 30 calendar days a year, unless there is an agreement to the contrary; (2) there has been no breach of any ratified Conventions or of any collective agreement in force, but a nationwide priority training plan has been established for the purpose of raising standards of teaching in public establishments and social expenditure, which has made it necessary to reduce the amount of time off with pay; (3) Article 6 of the Convention establishes that facilities must be granted, but that they must not impair the efficient operation of the administration or service concerned. The Committee takes note of this information. It asks the Government to ensure that consultations are held prior to any decision affecting trade union rights, even where existing collective agreements contain no clauses on the subject covered by such decisions.

3. With regard to the reduction of SUTEP’s representation in the Standing Committee on Administrative Proceedings, the Committee observes that the Government has not commented on this matter and that there is not sufficient information to determine how representative SUTEP is. In these circumstances, the Committee requests the Government to ascertain that the number of members representing SUTEP in the Standing Committee on Administrative Proceedings is commensurate with its representativeness.

4. The Committee also notes the comments made by the General Confederation of Workers of Peru (CGTP), the Single Confederation of Workers of Peru (CUT), the Autonomous Confederation of Workers of Peru and the National Coordination of Contract Workers of the Ministry of Health, which refer to the adoption, without prior consultation, of Legislative Decree No. 1057 establishing the Administrative Services Contract (CAS), which allows subordinate workers in state entities to be hired under temporary contracts, renewable at the discretion of the public authority. The above organizations indicate that such an arrangement overlooks the right of association of these workers. Since the Committee has received no reply from the Government, it requests it to ensure the exercise of the trade union rights of these workers, and to report on the matter.

5. Lastly, the Committee observes that the CGTP’s comments refer to legal texts addressed in the Committee’s observation on Convention No. 87.

CMNT_TITLE

The Committee notes the comments of 7 April 2006 by the National Union of Public Employees of the Armed Forces (SINEP-FFAA). The Committee plans to consider the comments in examining Peru’s application of Convention No. 87.

CMNT_TITLE

The Committee takes note of the Government’s report.

The Committee recalls that in its previous direct request it criticized Supreme Decree No. 044-97-PCM of 18 September 1997, by which the right of public servants to request deduction at source of their union dues is subject to presentation by the worker of a simple letter of intent to the offices designated for this purpose by the corresponding public sector body, such authorization being renewable annually. The Committee notes with satisfaction the Government’s statement that the abovementioned Decree has been repealed by Supreme Decree No. 114-2002-PCM, published on 25 October 2002, that the new regulation provides that check-off of trade union dues by the employer requires the worker’s express authorization which will be deemed permanent unless there is an express statement otherwise by the worker concerned, and that such authorization requires a clear statement of consent, submitted to the employer either directly by the worker or by the trade union.

The Committee further observes that the Social Security Medical Association of Peru (AMSSOP) has sent comments on the application of the Convention in a communication of 22 June 2004. The Committee will consider these comments in its examination of Peru’s application of Convention No. 98.

CMNT_TITLE

The Committee notes the Government's report and the information it supplied regarding the comments by the Single Trade Union of Technical and Allied Workers of the Peruvian Institute of Social Security (SUTAEIPSS).

The Committee observes that SUTAEIPSS objects to Presidential Decree No. 044-97-PCM of 18 September 1997, highlighting that it was issued without prior consultation with trade unions, and makes the right of public servants to request deduction at source of their union contributions subject to presentation by the worker of a simple letter to the offices designated for this purpose by the corresponding public sector body, an authorization which must be renewed annually. According to the SUTAEIPSS, deductions had previously been regulated by collective bargaining and this system has been undermined by the Decree in question.

The Committee observes that the Government does not refer in its report to the Decree to which SUTAEIPSS objects. The Committee recalls that the requirement for a worker to renew annually the authorization to deduct union dues should not be imposed by law unless it has been subject to collective bargaining or agreement between the union and the member, in conformity with the union statutes, and without interference by the authorities. The Committee asks the Government to take measures to amend the Decree accordingly.

CMNT_TITLE

See the comments on the right to organise of public servants made under Convention No. 87, as follows:

- the prohibition of the re-election of the officers of a public servants' union immediately following the end of their term of office (section 16(2) of Presidential Decree No. 003-82/PCM);

- the prohibition of public servants' federations and confederations from forming part of organisations representing other categories of workers (section 19 of Presidential Decree No. 003-82/PCM);

- the need to change the requirement of belonging to the enterprise for election to trade union office (Presidential Decree No. 001 of 15 January 1963); and

- the need to amend section 6 of Presidential Decree No. 009 of 1961 prohibiting trade unions from engaging in political activities as institutions.

CMNT_TITLE

See the comments on the right to organise of public servants under Convention No. 87, as follows:

With reference to its previous comments, the Committee notes the information supplied by the Government in its report and the discussions that took place in the Conference Committee in 1990. It also notes with satisfaction the adoption of Presidential Decree No. 076-90-TR of 19 December 1990, which simplifies the registration procedures for trade unions and the conditions for the establishment of federations and confederations, makes trade union pluralism possible and sets out the right to organise of casual self-employed workers.

The Committee nevertheless recalls that its comments have referred for several years to the prohibition of the re-election of the officers of the public servants' union immediately following the end of their term of office (section 16(2) of Presidential Decree No. 003-82-PCM), the prohibition of public servants' federations and confederations from forming part of organisations representing other categories of workers (section 19, Presidential Decree No. 003-82-PCM), the necessity of changing the requirement of over 50 per cent of workers for the creation of a union, either of manual or of non-manual workers or a mixed union of manual and non-manual workers (section 11 of Presidential Decree No. 009 of 3 May 1961, as amended by section 1 of Presidential Decree No. 021 of 21 December 1962), the necessity of changing the requirement of belonging to the enterprise for election to trade union office (Presidential Decree No. 001 of 15 January 1963), and the necessity of amending section 6 of Presidential Decree No. 009 of 1961 prohibiting trade unions from engaging in political activities as institutions.

Trade union rights of public servants

1. With regard to the question of the prohibition of re-electing trade union officers for the trade unions of public servants immediately after the end of their term of office (section 16(2) of Presidential Decree No. 003-82-PCM), the Government indicates that this provision was adopted with the objective of guiding trade union organisations of public servants towards real democratisation, and that they have adopted this system, which has been accepted by their members and is set out in their own statutes. The Government adds that the necessary co-ordination will be ensured so that the required changes can be made at the appropriate time. The Committee notes this information and requests the Government to repeal this prohibition and to leave the power to decide in such cases to the members of the trade unions when they draw up their own statutes.

As regards the prohibition of the affiliation of federations and confederations of public servants to organisations which cover other categories of workers (section 19 of Presidential Decree No. 003-82-PCM), the Government indicates that the validity of this prohibition lies in the fact that the solution of labour disputes in the public sector takes place through its own procedures and that the participation of other trade union organisations, which are not confined to public servants, would not be reasonable since there is a difference in industrial relations between the public and the private sector.

The Committee notes the Government's observations but is bound to recall the recommendations that it made previously in this connection and once again requests the Government to indicate the measures that have been taken so that federations and confederations of public servants can freely join the federations and confederations of their choosing, at least at the level of higher organisations (see paragraphs 78 and 126 of the 1983 General Survey on Freedom of Association and Collective Bargaining).

Right of workers to establish unions of their own choosing

3. With regard to the requirement that over 50 per cent of workers are needed to establish a trade union of manual workers, non-manual workers or a mixed trade union (section 11 of Presidential Decree No. 009 of 1961), the Committee notes with interest that section 5 of Presidential Decree No. 076-90-TR sets a minimum of 20 workers for the establishment of a first-level or basic trade union, and that, in the event of a plurality of first-level or basic trade unions, each trade union shall be the sole representative of its members (section 11(a)).

The Committee requests the Government to inform it whether these provisions (section 11 of Presidential Decree No. 009 of 1961 and sections 5 and 11(a) of Presidential Decree No. 076-90-TR) are mutually complementary or whether, in the event of section 11 of Presidential Decree No. 009 remaining in force, one of these provisions overrides the other.

The right of workers to elect their representatives in full freedom

4. With regard to the necessity of belonging to the enterprise to hold trade union office (Presidential Decree No. 001 of 15 January 1963), the Government indicated that the obligation to belong to the occupation had been eliminated from the General Labour Bill.

The Committee trusts once again that this new provision will be adopted in the near future so as to eliminate any obstacle to the right of workers to elect their representatives in full freedom, in accordance with Article 3 of the Convention.

Prohibition on trade unions from engaging in political activities

5. With regard to the prohibition of trade unions from engaging in political activities as institutions, by virtue of section 6 of Presidential Decree No. 009 of 1961, the Committee noted the Government's statement that this prohibition applied to trade unions and not to their individual members. The Government indicated that by their nature trade union organisations had the objective of defending the rights of the workers strictly within the field of labour and that, as trade union organisations, they did not have the mandate to represent workers at the political level, although that did not mean that they were prohibited from expressing their opinions publicly on questions concerning the policy of the State regarding the interests and rights of their members.

While noting this information, the Committee once again draws the Government's attention to the need to amend the legislation in order to guarantee trade union organisations the possibility of expressing their opinions publicly on questions of general interest, including "political" questions in the broad sense of the word so that, for example, they must be able to express their views publicly on a government's economic and social policy, since the fundamental objective of the trade union movement is to ensure the development of the social and economic well-being of all workers.

The Committee notes on the other hand that the Government has not transmitted its observations in reply to the matters raised by the Committee in its previous direct requests. The Committee must address another direct request to the Government concerning the restrictions on the right to strike still contained in the law.

The Committee trusts that the Government will take the necessary measures to bring the whole of its legislation into full conformity with the Convention as soon as possible.