Interim Report - Report No 355, November 2009

Case No 2661 (Peru) - Complaint date: 26-JUN-08 - Closed

Allegations: The complainant organizations allege refusal to grant union leave and the subsequent dismissal of a trade union official; furthermore, the complainants also object to a number of legislative provisions which, in their view, violate the principles of freedom of association

1. 1053. The complaints are contained in communications from the Union of Agricultural Public Sector Workers (SUTSA), dated 26 June 2008, and the Federation of Trade Unions of Agricultural Public Sector Workers (FESUTSA), dated 4 October 2008. The SUTSA submitted additional information in communications dated 16 July and 28 August 2008.
2. 1054. The Government sent its observations in communications dated 25 February and 2 November 2009.
3. 1055. 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. The complainants’ allegations

1. 1056. In their communications of 26 June, 16 July and 28 August 2008, the SUTSA states that, following a strike in 1988, a collective bargaining agreement was signed with the senior management of the Ministry of Agriculture and that, pursuant to this agreement, the Ministry issued Ministerial Resolution No. 393-88-AG on granting union leave to national executive committee officials and SUTSA departmental officials. The SUTSA indicates that, under the provisions of that Ministerial Resolution, the regional agricultural authorities, and particularly the Junín authority, granted union leave to Mr Offer Fernando Ñaupari Galarza, the general secretary of the SUTSA national executive committee, for the period 3 April 2005 to 2 April 2007. It adds that in accordance with the mandate of the National Plenary Assembly of February 2007, it was unanimously agreed upon to extend the mandate of the national executive committee for the period 3 April 2007 to 2 April 2008. However, when a request was submitted to the Regional Directorate of Agriculture in Junín to extend union leave for the official in question, the request was denied in Decision No. 089-2007-DRA/J-OAJ of 20 April 2007. An appeal was lodged against that decision. The SUTSA indicates that the decision against which the appeal was lodged referred to disciplinary measures imposed on the trade union official in question (in its view, incorrectly, as the incident had already been dealt with).
2. 1057. The SUTSA alleges that the Regional Director of Agriculture in Junín continued his anti-union harassment. On 3 January 2008, he ordered the union official in question, who performs his trade union duties in Junín, to report to his workplace at the Agricultural Office in San Martín de Pangoa in Satipo province. The SUTSA adds that, having failed to destabilize the trade union organization, the Regional Director ordered the withholding of Mr Ñaupari Galarza’s wages for the months of May and June 2008 and accused him of a disciplinary offence for failing to report to work at the Agricultural Office in San Martín de Pangoa. The complainant alleges that, on 23 June 2008, the trade union official was informed of his dismissal through Resolution No. 185-2008-DRA-OAJ/J, issued by the Regional Directorate of Agriculture.
3. 1058. In its communication of 4 October 2008, the FESUTSA alleges that the following items of legislation enacted by the current Government violate the principles of freedom of association: Legislative Decree No. 1023, which establishes the National Civil Service Authority and has, in the complainant’s opinion, been used to justify non-recognition and exclusion of the trade union representatives from the board that is responsible for planning and formulating human resource policies; Legislative Decree No. 1024, which establishes and governs the terms of service of public service managers and, in the complainant’s view, does not provide for the right to organize, take strike action or engage in collective bargaining; Legislative Decree No. 1025, which established without the participation of trade union representatives the rules for training and performance in the public sector; Legislative Decree No. 1026, which establishes a special optional system for regional and local governments and which, according to the complainant, attempts to destroy trade unionism by eliminating the right to job security; Directorial Resolution No. 1159-2005-MTC/11 (concerning attendance and working hours of staff at the Ministry of Transport and Communications) which, in the complainant’s view, restricts union officials’ freedom to carry out their trade union duties; Regional Executive Ruling No. 000480-2008-GR- JUNÍN (concerning attendance and working time of staff employed by the regional government in Junín) which, in the complainant’s opinion, restricts trade union activity and prevents any union activity on official premises; and Legislative Decree No. 1067, which governs the State’s recruitment system and, in the complainant’s opinion, does not provide for the right to organize. The FESUTSA alleges that the Government is facilitating mass dismissals in the public sector resulting in the dismantling and demise of trade unions.

B. The Government’s reply

1. 1059. In its communication of 26 February 2009, concerning the allegation that Mr Offer Fernando Ñaupari Galarza, the General Secretary of the SUTSA national executive committee, was dismissed from his workplace despite the extension of his union mandate by the 18th SUTSA National Plenary Assembly, held in Lima on 28 and 29 May 2008, and that an appeal against the dismissal was subsequently lodged with the relevant judicial authority whose decision is still pending, the Government indicates that the case involves contested facts relating to the actions of the administrative authorities, namely the Regional Directorate of Agriculture in Junín and the Junín Regional Government. In view of the fact that the allegations are being examined by the judicial authorities, the Government refrains from commenting on the case.
2. 1060. The Government indicates that it does not have sufficient information to allow it to express a definite opinion on the case. Furthermore, the Government does not have the observations which should be provided by the representatives of the organizations against which the allegations have been made, and who have received a copy of the relevant documents but have yet to examine them. As a result, the request has been reiterated and the outcome will be reported in due course. According to the Government, the various documents presented by the complainant to date purport to show that, although Mr Offer Fernando Ñaupari Galarza remained an official trade union representative between 2 April 2007 and the date of his dismissal under the terms of Regional Directorate of Agriculture Resolution No. 185-2008-DRA-OAJ/ of 23 June 2008, his employer nonetheless refused to grant him the necessary facilities to perform his union duties, arguing that there was no valid legal basis for granting union leave. The issue which will clearly need to be resolved by a court.
3. 1061. The Government maintains that trade union officials belonging to representative organizations, whether private or public, are supposed to enjoy adequate guarantees of freedom of association in the exercise of their representative duties, and those guarantees include the right to request and be granted union leave in accordance with the applicable legislation and regulations of the body responsible for granting such leave. Essentially, the complaint questions the actions of officials in the Regional Agricultural Directorate in Junín, against whom complaints have been filed as a result of their persistent harassment of and discrimination against the authorized representative and General Secretary of the SUTSA national executive committee. That Directorate both systematically denied the union leave required to carry out the duties of the union officials post to which he had been elected and management ultimately dismissed him under the terms of Agricultural Resolution No. 285-2008-DRA-OAJDRA/J of 23 July 2008 on the basis of incorrect information, even though the official was acting wholly within his trade union mandate and in a manner consistent with the terms of the Labour Authority registration certificate. The Government states that it does not currently possess information on the state of the proceedings to overturn the official’s dismissal, and informs the Committee that it will request this information and send it in due course.
4. 1062. Finally, the Government indicates that, in letter 1150-2008-P-CSJJU/PJ, the President of the Supreme Court in Junín provided information regarding the various legal proceedings initiated by Mr Offer Fernando Ñaupari Galarza against the Regional Director of Agriculture in Junín and the Junín Regional Government. The Government stresses that this information is insufficient to clarify certain key aspects of this case, namely whether Mr Offer Fernando Ñaupari Galarza continued to perform his lawful trade union duties on days when he was allegedly absent without leave, and whether the systematic refusal of the Junín Regional Directorate of Agriculture and the Regional Government to grant him the union leave, needed to carry out the trade union work he had been elected to do, actually constituted acts of hostility, harassment, and obstruction of trade union activity. The judicial authority will ultimately have to determine the issue when it hands down its ruling. The Government will inform the Committee of that ruling in due course. In its communication of 2 November 2009, the Government states that it is waiting for the requested information from the judicial authority about the dismissal process for Mr Offer Fernando Ñaupari Galarza and is waiting for the information requested from the National Civil Service Authority about the legal provisions raised in the complaint.

C. The Committee’s conclusions

1. 1063. The Committee observes that the SUTSA alleges that the Regional Directorate of Agriculture in Junín has repeatedly refused to grant union leave to Mr Offer Fernando Ñaupari Galarza, the General Secretary of the SUTSA national executive committee, and ultimately dismissed him, even though the National Plenary Assembly of the SUTSA had approved the extension of his union mandate.
2. 1064. In this regard, the Committee notes that according to the Government: (1) the allegations refer to certain disputed actions by both the Regional Directorate of Agriculture in Junín and the Junín Regional Government; (2) to date, the Government has received neither the information it requires to give a definitive opinion, nor the replies of the organizations against which allegations have been made, and to which the background documents have been sent; (3) an appeal against the dismissal has been lodged with the judicial authority and, at this time, the court’s decision is still pending; and (4) the President of the Supreme Court of Justice in Junín has provided information on a number of legal proceedings initiated by Mr Offer Fernando Ñaupari Galarza against the Regional Directorate of Agriculture in Junín and the Junín Regional Government. However, this information is insufficient to clarify whether the allegations actually constituted acts of hostility, harassment, and obstruction of union activity, an issue which the judicial authorities must determine.
3. 1065. The Committee recalls that one of the fundamental principles of freedom of association is that workers should enjoy adequate protection against all acts of anti-union discrimination in respect of their employment, such as dismissal, demotion, transfer or other prejudicial measures. This protection is particularly desirable in the case of trade union officials because, in order to be able to independently perform their trade union duties, they should have a guarantee that they will not be prejudiced due to the mandate which they hold from their trade unions. The Committee considers that the guarantee of such protection in the case of trade union officials is also necessary in order to ensure that effect is given to the fundamental principle that workers’ organizations shall have the right to elect their representatives in full freedom [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 799]. Under these circumstances, and in view of the fact that the allegations date from July 2008, the Committee hopes that the judicial authority will give a ruling in the near future concerning the dismissal of Mr Offer Fernando Ñaupari Galarza, General Secretary of the national executive committee of the SUTSA, and requests the Government to keep it informed in this regard and to inform it of the outcome of any other legal proceedings relating to this allegation.
4. 1066. Lastly, the Committee urges the Government to communicate without delay its observations on the allegations made by the FESUTSA, which has raised objections to a number of legislative provisions which, in its view, violate the principles of freedom of association and facilitate mass dismissals in the public sector resulting in the dismantling and demise of trade unions. The Committee notes that the Government, in its most recent communication, indicates that it is waiting for information from the National Civil Service Authority.

The Committee's recommendations

1. 1067. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee trusts that the judicial authority will give a ruling in the near future on the dismissal of Mr Offer Fernando Ñaupari Galarza, the General Secretary of the SUTSA national executive committee, and requests the Government to keep it informed in this regard, and to inform it of the outcome of any other legal proceedings relating to this allegation.
   • (b) The Committee urges the Government to communicate without delay its observations on the allegations made by the FESUTSA, which has raised objections to a number of legislative provisions which, in its view, violate the principles of freedom of association and facilitate mass dismissals in the public sector resulting in the dismantling and demise of trade unions.