Report in which the committee requests to be kept informed of development - Report No 300, November 1995

Case No 1804 (Peru) - Complaint date: 28-SEP-94 - Closed

Allegations: Refusal to bargain collectively and to grant trade union leave of absence

1. 313. The complaint in this case is contained in a communication from Education International (EI) dated 28 September 1994. Subsequently, the EI submitted new allegations in a communication dated 2 November 1994.
2. 314. Due to the absence of a reply from the Government regarding the allegations, the Committee has had to defer twice the examination of this case. At its June 1995 meeting, the Committee drew the Government's attention to the fact that, in accordance with the procedural rules set out in paragraph 17 of its 127th Report, approved by the Governing Body at its 184th Session (November 1991), it would present a report on the substance of this case at its next meeting, even if the observations or information requested had not been received in due time (see 299th Report, approved by the Governing Body at its 263rd Session (June 1995), para. 8). To date, no information has been received from the Government.
3. 315. Peru has ratified the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87), and the Right to Organize and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant's allegations

1. 316. In its communication of 28 September 1994, Education International (EI) alleges that the Single Trade Union of Teaching Personnel of Peru (SUTEP) has been denied the right to bargain collectively since the authorities of the Ministry of Education refuse to discuss a list of claims submitted by this trade union organization on 16 March 1994 (the list of claims refers to the remuneration of primary schoolteachers and workers in the education sector; the working and service conditions of secondary schoolteachers; the working conditions of educational professionals; trade union rights; and requests on behalf of students and heads of families). The complainant organization states that the authorities' refusal to take part in discussions leaves the trade union with no other option but to resort to collective action to ensure that discussions begin - and not to have recourse to it as a last resort before a breakdown in discussions.
2. 317. In its communication of 2 November 1994, the EI states that Nicolás Olmedo Auris Melgar was elected Secretary of International Affairs of the SUTEP by the secondary schoolteachers and is also a member of the executive board of Educational International. The complainant organization points out that in accordance with section 80 of the regulations contained in the Act pertaining to the teaching profession of 1992, the SUTEP requested that Mr. Melgar be granted one of the trade union leaves of absence provided for in the secondary education sector but that the Government refused to grant such a leave on the grounds that the trade union position he held was not specifically spelled out in section 80 of the above-mentioned regulations. The complainant organization states that the Government had already granted Mr. Melgar trade union leave in 1989. The complainant adds that the SUTEP appealed against the Government's decision to refuse trade union leave but that this appeal was turned down; it also stated that the Government had granted 23 trade union leaves of absence to elected representatives of the SUTEP (the SUTEP is authorized to have 24 leaves of absence for elected representatives) and that the only leave of absence refused was that of Mr. Melgar. Finally, the complainant organization states that the refusal to grant trade union leave of absence to an elected representative of the SUTEP constitutes interference in the trade union's administration, given that the SUTEP had decided that the position to which Mr. Melgar had been elected was necessary for the smooth running of the trade union. (The complainant organization encloses a considerable amount of documentation with its communications, including the text of section 80 of the regulations under the Act pertaining to the teaching profession of 1992, the ministerial resolutions under which the request for trade union leave of absence is stated to be inadmissible, the text of the appeal against this resolution and the text of the decision taken by the authorities in January 1990 granting leave of absence to Mr. Melgar in his capacity as Secretary of International Relations.)

B. The Committee's conclusions

1. 318. Firstly, the Committee deeply regrets that the Government has not communicated the observations requested on the allegations brought against it, despite the time which has elapsed since the presentation of the complaint and despite the fact that it was invited to make comments and observations on several occasions, including by means of an urgent appeal.
2. 319. Under these circumstances, and in accordance with the applicable rule of procedure (see para. 17 of the 127th Report, approved by the Governing Body at its 184th Session (November 1971)), the Committee finds itself obliged to submit a report on the substance of this case even without the information it had hoped to receive from the Government.
3. 320. The Committee reminds the Government that the purpose of the whole procedure is to ensure respect for trade union rights, both in law and in fact. The Committee is convinced that while this procedure protects governments against unreasonable accusations, they must for their part recognize the importance of formulating detailed and factual replies concerning the substance of the allegations brought against them in order to permit an objective examination (see First Report, para. 31, approved by the Governing Body in March 1952).
4. 321. The Committee notes that the allegations refer to the refusal of the authorities of the Ministry of Education to discuss a list of claims submitted by the Single Trade Union of Teaching Personnel of Peru (SUTEP) and the refusal to grant trade union leave of absence to the SUTEP's Secretary of International Affairs.
5. 322. Concerning the refusal of the authorities to discuss a list of claims submitted by the SUTEP, the Committee recalls that teaching personnel should enjoy the right of collective bargaining. Similarly, the Committee feels bound to point out in view of the fact that true and constructive collective bargaining is necessary to establish and maintain a relationship of confidence between the parties, it is important that both employers - including the State in its capacity as employer - and trade unions bargain collectively in good faith, trying their utmost to reach an agreement, which presupposes that there is no unjustified delay in the discussions. Under these circumstances, the Committee requests the Government to take measures to bring the parties together and facilitate discussions between the SUTEP and the Ministry of Education.
6. 323. As regards the authorities' refusal to grant trade union leave of absence to the SUTEP's Secretary of International Affairs, Nicolás Olmedo Auris Melgar, the Committee notes that the documentation enclosed by the trade union organizations reveals that: (1) in 1990 the Ministry of Education granted Mr. Melgar, who held the position of Secretary of International Affairs, the trade union leave of absence he requested; (2) in March 1994, the SUTEP once again requested that Mr. Melgar be granted trade union leave of absence; and (3) in April and August 1994 the authorities of the Ministry of Education declared that the request for trade union leave of absence was inadmissible on the grounds that:
   • in accordance with section 80 of the regulations contained in the Act pertaining to the teaching profession, teachers representing their trade union shall be entitled to leave of absence with pay throughout the period of their term of office whey they have been appointed Secretary-General, Deputy Secretary-General, Organizational Secretary, Secretary of Pedagogical Affairs, Secretary of Defence, Secretary of Economy, Secretary of the Interior, Secretary of Press and Propaganda, in so far as these are at the level of the national executive committee; as there is no position for which the appellant was elected, i.e. Secretary of International Affairs, it is irrelevant to grant the trade union leave of absence requested.
7. 324. In this respect, the Committee notes that section 80 of the regulations contained in the Act pertaining to the teaching profession stipulates in the last part of paragraph (a) that in addition to the persons carrying out the responsibilities mentioned by the Government, "four representatives of each of the educational levels in question" are also entitled to leave of absence with pay. In these circumstances, noting that under section 80 of the Act pertaining to the teaching profession Mr. Auris Melgar may be entitled to trade union leave of absence and taking into account that in 1990 the authorities of the Ministry of Education authorized him to take this leave, the Committee requests the Government to take measures to ensure that the trade union official in question be granted the trade union leave of absence requested and to keep it informed in this respect.

The Committee's recommendations

1. 325. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government to take measures to bring the parties together and facilitate discussions between the SUTEP and the Ministry of Education.
   • (b) The Committee requests the Government to take measures to grant the trade union official of SUTEP, Nicolás Olmedo Auris Melgar, the trade union leave of absence requested and to keep it informed in this respect.