Report in which the committee requests to be kept informed of development - Report No 349, March 2008

Case No 2532 (Peru) - Complaint date: 30-OCT-06 - Closed

Allegations: The complainant organization alleges that the social security authorities withheld the use of facilities which it had been using and that the administrative authority failed to adopt any position on the matter

1. 1157. The complaint is contained in a communication from the National Trade Union of Health Social Security Workers (SINACUT EsSalud) dated 30 October 2006.
2. 1158. The Government sent its observations by communications dated 26 October 2007 and 3 March 2008.
3. 1159. Peru has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and the Labour Relations (Public Service) Convention, 1978 (No. 151).

A. The complainant’s allegations

1. 1160. In its communication dated 30 October 2006, SINACUT EsSalud stated that, pursuant to section 122 of DS (Supreme Decree) No. 005-90-PCM and section 9 of DS No. 026-82-JUS, it had been freely exercising its right to use meeting facilities on the ninth floor (which has an auditorium plus rooms 1 and 2) and the tenth floor (which has halls A, B and C) of the Lima building located at Jr Domingo Cueto No. 120 and Av. Arenales No. 1402 in the Jesús María district of the Province and department of Lima, Peru. The union used the facilities to hold meetings of its National Executive Council (CEN), general assemblies of delegates and meetings of members, peacefully and as mandated by its regulations, and in accordance with its organizational and administrative role, i.e. for the election of its representatives and for managerial and executive activities. The union alleges that, in May 2005, the deputy services and transport manager and the assets and services manager, who were responsible for the administration of the said facilities, expressed their displeasure at the exercise of the legitimate right to use these facilities. As officials who had recently joined EsSalud from the private sector, not having followed a career in the administrative service, they found it strange that unionized workers of their own institution should meet on its premises. They attempted to avoid taking responsibility by delaying the processing of the request, arguing that the prior opinion of the Central Human Resources Office was required before the union’s request to use the facilities could be met. They also declared that the aforementioned office had to state its position if the person making the request was also indicated as being the beneficiary of the entitlement.
2. 1161. The complainant states that the Central Human Resources Office of EsSalud declared, by means of letter No. 2704-GCRH-EsSalud-2005 of 15 June 2005, that it was not responsible for adopting a position with regard to the request made by SINACUT, as it came within the competence of the Assets and Services Office to issue the formal authorization for using the facilities of the institution. Moreover, by letter No. 2721-GCRH-EsSalud-2005 of 15 June 2005, it stated that Mr Octavio Rojas Caballero is the General Secretary of SINACUT EsSalud, as shown by the attached registration record. It adds that SINACUT, by means of notice No. 234-CEN-SINACUT-EsSalud-2005 of 2 August 2005, formalized its request to reserve hall A and room 2 for 18, 25 and 31 August 2005 and 6 September 2005, respectively. Regrettably, the institution persisted with its delaying tactics and its failure to grant the requested facilities. The trade union therefore had no alternative but to express its disquiet at being deprived of the facilities requested for 25 August and 6 September 2005, considering its request to have been refused and putting on record that it considered its rights to have been violated, as it had been prevented from holding its meetings despite the fact that these had been scheduled in advance.
3. 1162. On 7 September 2005, SINACUT made a reservation for hall A and room 2 for 4, 11 and 18 October 2005 and 25 October 2005, respectively. This request to use the facilities was also rejected. Seeking to improve the existing climate, the union asked for the necessary arrangements to be made, given that a meeting of union leaders at national level had already been convened, taking into account that the reservation was made giving due notice for 4 October 2005. Furthermore, it enclosed the printout of the email of 30 September 2005 and circular letter No. 006-CEN-SINACUT-EsSalud-2005 of 29 September 2005 as proof that the communications concerning its management meeting of 4 October 2005 had been made. Replying to this request, the Assets and Services Office claimed, by means of letter No. 1754-GPyS-GDAO-ESSALUD-2005, that for the moment it was not possible to meet the request as the rooms on the ninth floor were occupied, in accordance with the reservations made giving due notice. However, it did not mention that for 4 October 2005 a reservation had not been made for any of the rooms on the ninth floor but rather for hall A on the tenth floor. On 10 October 2005, SINACUT again requested the competent authority to take the necessary steps to enable the facilities to be used on 11 October 2005, in accordance with the communication made with due notice. Despite the request, no steps were taken. On 12 October 2005, the union told the Assets and Services Office of its disquiet at being deprived of the use of hall A on the tenth floor of the Lima building, which had been reserved for 11 October 2005. The union considered its request to have been refused and its rights to have been infringed, as it had been prevented from holding the scheduled CEN meeting. The Assets and Services Office replied that section 9 of DS No. 026-82-JUS does not impose an obligation and that the union would understand the institution giving priority to its own development, using its facilities at headquarters. It also pointed out that the meeting rooms at the Lima building were reserved for various scheduled events for the remainder of the year and therefore it was not possible to grant permission for their use at the present time. It recommended the union to make arrangements to conduct its activities outside headquarters. SINACUT challenged this communication, considering it prejudicial and contrary to the internal regulations of the union. By notice No. 313-CEN-SINACUT-EsSalud-2005 of 24 October 2005, it declared that the entitlement to facilities was an inalienable part of trade union rights and law, and it therefore had a legitimate right to use the facilities of EsSalud for its meetings as part of the union’s organizational, administrative and managerial activities. Moreover, it pointed out that its rights were protected by section 9 of DS No. 026-82-JUS and section 122 of DS No. 005-90-DCM, regulations which had a restrictive and binding character, i.e. laying down provisions regardless of the wishes of the parties concerned, thus imposing the obligation on the authority to take steps to permit the exercise of such a right. Given that the facilities are essential, inalienable resources which must be made available to the workers’ representatives to guarantee the continuing activity and existence of the trade unions, it considers that the deprivation, denial or disruption thereof constitutes an act of interference which is damaging to its functioning or management, all of which violates the fundamental right, in both human and labour terms, of freedom of association.
4. 1163. The complainant organization states that the Central Human Resources Office of EsSalud made a pronouncement by means of letter No. 5911-GCRH-EsSalud-2005 with regard to the advisory opinion issued by the Assets and Services Office. In the aforementioned document, with reference to the facilities, it states briefly that the matter is not specifically regulated and that it should be settled according to what is reasonable; if any group of workers wishes to use the facilities, due notice should be given, taking account of the scheduling established by the institution for its official events. This could be interpreted as meaning: provided that the trade union makes its reservation in advance, further to incurring expenditure in connection with convening the meeting and the presence of the participants, prior to any official event requiring the same facilities. As was the case on a previous occasion, it also pretended that reservations had been made for official events, whereas in fact the facilities were not being used. The complainant adds that because the procedures for expediting the appeal lodged on 24 October 2004 had been frozen, SINACUT addressed notice No. 014-CEN-SINACUT-EsSalud-2006 dated 11 January 2006 to the Assets and Services Office, requesting it to duly expedite the procedures and submit the facts of the matter to the hierarchical superior in the form of writs, in accordance with the administrative procedure regulated by Act No. 27444 and in observance of the principle of legality, guaranteeing the exercise of the constitutional right of defence and the plurality of instances. Since December 2005 the case has been frozen, which implies that the competent authority has still not resolved the merits of the issue which was brought before it. Furthermore, SINACUT has continued to be deprived of its right to use the facilities of EsSalud for more than a year (from August 2005 to the present time). The complainant organization considers that this constitutes a violation of ILO Conventions Nos 87, 98 and 151.
5. 1164. The complainant also affirms that, to ensure that facilities, materials and rooms for holding meetings on the premises of the employer are available to trade unions and to safeguard the normal and efficient running of union activities, the Government of Peru adopted section 9 of Supreme Decree No. 026-82-JUS, which states that (union) general assemblies shall be held on government department premises, and both general assemblies and ordinary meetings shall be held outside working hours. The Government also adopted section 122 of DS No. 005-90-PCM, which states that trade unions shall represent their members in the matters laid down by the respective law, and their leaders shall enjoy facilities to act as legal representatives. It should also be noted that the Government placed limits on the scope of the public authority, stipulating that the State must refrain from any act likely to coerce, restrict or jeopardize the right of freedom of association. Section 6 of DS No. 003-82-PCM, implementing ILO Convention No. 151, states that the public authority shall refrain from any act likely to restrict or impede the exercise of the right to organize, or from intervening in the establishment, organization or administration of trade unions. Trade union organizations of public servants shall enjoy complete independence vis-à-vis the public authorities and shall not form part of government administrative structures. Moreover, it should be emphasized that, apart from the fact that the provision of meeting facilities is not prohibited by any part of national law, observance of the international Convention and the specific implementing regulations is essential, given their normative status laid down in article 51 of the Political Constitution of Peru and as a source of law in the national legislation, since failure to recognize the existence of such a prerogative would imply a clear lack of compliance with ILO Convention No. 151, DS No. 026-82-JUS and DS No. 005-90-PCM. Finally, account has to be taken of the fact that the right to use meeting facilities is irrevocable and inalienable, since the rescinding or deprivation thereof would also mean jeopardizing the fundamental human and labour right of freedom of association, bearing in mind that the attitude of anti-union discrimination on the part of the public authority severely restricts or limits the exercise of trade union activity.

B. The Government’s reply

1. 1165. In its communication of 26 October 2007, the Government indicates that there is a lack of understanding between the parties in relation to the application of the regulations referred to by the complainant organization concerning the use of premises for union activities, observing that there is constant disagreement between the institution and its workers. The documentation attached by the Central Human Resources Office of EsSalud by means of letter No. 5911-GCRH-EsSalud-2005 shows that the issue is not specifically regulated and has to be settled on the basis of what is reasonable. This means that the union members need to reserve the facilities in advance – taking account of the schedule that the institution has established for its official events – in order to be able to hold its meetings without any unforeseen obstacles.
2. 1166. The Government also states that the members of the union do not accept that position and voice their concern that the damaging situation can arise where the union reserves one of the institution meeting rooms in advance, but the institution then suspends the reservation prior to the event in order to hold an event of its own. The Government points out that the purpose of the regulations referred to by the complainant organization, as the text thereof shows, is to guarantee the appropriate use of public authority premises, ensuring the provision and continuity of public services and the efficient functioning of the administration. Hence it considers that use of public authority premises by the unions should be subject to the hours which do not interrupt the performance of the institution’s own activities. Thus, if an adverse situation arises for the employer, this has to constitute grounds for refusing to grant the use of the facilities, as the normal functioning of the public activities might be disrupted. Finally, the Government indicates that a communication (No. 163-2008-MTPE/91) has been sent to the President of EsSalud requesting him to provide information on the measures taken by the institution to give effect to the requirements of Conventions Nos 87, 98 and 151 in respect of the premises where trade union meetings will take place at EsSalud.

C. The Committee’s conclusions

1. 1167. The Committee observes that in the present case the complainant organization alleges that the health social security authorities refused to grant the use of facilities (meeting rooms) which it had been using, and that although it lodged an appeal against the decision with the Assets and Services Office of the institution in October 2004, the latter did not process the appeal or submit it to the hierarchical superior. The complainant organization alleges that this decision by the institution violates the terms of ILO Conventions Nos 87, 98 and 151, and constitutes an act of interference designed to impair its functioning and administration, as well as violating internal regulations which guarantee that the trade unions can hold their general assemblies on the government department premises.
2. 1168. In this respect, the Committee notes the Government’s statement to the effect that: (1) there is a lack of understanding between the parties as regards the application of the regulations mentioned by the complainant organization concerning the use of the premises for union activities and there is constant disagreement in this respect between the institution and the workers; (2) the purpose of the regulations on this matter is to guarantee the appropriate use of public authority premises, ensuring the provision and continuity of public services and the efficient functioning of the administration; (3) the use of the public authority premises by the trade unions must be subject to the hours which do not interrupt the performance of the institution’s own activities; and (4) the Minister of Labour and Promotion of Employment has sent a communication to the President of EsSalud requesting information on the measures taken by the said institution to give effect to the requirements of Conventions Nos 87, 98 and 151 with regard to the premises where trade union meetings will be held at EsSalud.
3. 1169. The Committee recalls that, when examining similar allegations, it emphasized that the right to hold meetings is essential for workers’ organizations to be able to pursue their activities and that it is for employers and workers’ organizations to agree on the modalities for exercising this right, and that the Labour Relations (Public Service) Convention, 1978 (No. 151), lays down in Article 6 that “such facilities shall be afforded to the representatives of recognized public employees’ organizations as may be appropriate in order to enable them to carry out their functions promptly and efficiently, both during and outside their hours of work” and that “the granting of such facilities shall not impair the efficient operation of the administration or service concerned” [see 332nd Report, Case No. 2223, Argentina, para. 246]. The Committee therefore requests the Government to ensure that the legal provisions relating to the use of premises for union activities are observed, and also invites the parties to conduct negotiations with a view to reaching an agreement on arrangements for exercising the right to hold meetings, including deciding the venue for trade union meetings. The Committee requests the Government to keep it informed in this respect.

The Committee's recommendations

1. 1170. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
   • Recalling that the right to hold meetings is essential for workers’ organizations to be able to pursue their activities and that it is for employers and workers’ organizations to agree on the modalities for exercising this right and that the Labour Relations (Public Service) Convention, 1978 (No. 151) – ratified by Peru – lays down in Article 6 that “such facilities shall be afforded to the representatives of recognized public employees’ organizations as may be appropriate in order to enable them to carry out their functions promptly and efficiently, both during and outside their hours of work” and that “the granting of such facilities shall not impair the efficient operation of the administration or service concerned”, the Committee requests the Government to ensure that the legal provisions relating to the use of premises for union activities are observed, and also invites SINACUT EsSalud and the health social security authorities to conduct negotiations with a view to reaching an agreement on arrangements for exercising the right to hold meetings, including deciding the venue for trade union meetings. The Committee requests the Government to keep it informed in this respect.