Report in which the committee requests to be kept informed of development - Report No 358, November 2010

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; they also object to a number of legislative provisions which, in their view, violate the principles of freedom of association

1. 781. The Committee examined this case at its November 2009 meeting, when it submitted an interim report to the Governing Body [see 355th Report, paras 1053–1067, approved by the Governing Body at its 306th Session (November 2009)].
2. 782. The Government forwarded its new observations in a communication dated 20 October 2010.
3. 783. 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. Previous examination of the case

1. 784. In its previous examination of the case at its November 2009 meeting, the Committee made the following recommendation on the issues that were still pending [see 355th Report, para. 1067]:
   • (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.

B. The Government’s reply

1. 785. In its communication dated 20 October 2010, the Government states that the National Civil Service Authority has provided information indicating that: (1) legislation challenged by the complainant is intended to modernize the State and its effectiveness; and (2) contrary to the complainant’s assertion – the general legislation on trade union rights, including rights to collective bargaining and to strike, applies to the civil servants concerned because the criticized legislation does not regulate these issues and does not mention trade union rights. On the other hand, there are no grounds to affirm that the laws challenged by the complainant restrict the participation of workers’ representatives before the adoption of standards or taking measures. Regarding this aspect of human resources, article 3 of Supreme Decree No. 009-2010-PCM applies.
2. 786. Finally, concerning information requested with regard to the judicial proceedings concerning the dismissal of the General Secretary of the national executive committee of the Union of Agricultural Public Sector Workers (SUTSA), Mr Offer Fernando Ñaupari Galarza, the Government indicates that the Transitional Labour Court of Huancayo declared the request presented by this trade union leader inadmissible. The Government also indicates that it will forward a copy of the decision. Regarding the appeal, filed by the same trade union leader on the non-recognition of trade union leave, it was rejected by various courts including the Constitutional Court.

C. The Committee’s conclusions

1. 787. The Committee recalls that in the present case the allegations concern: (1) obstacles in granting union leave to a trade union official and his subsequent dismissal, and (2) the violation of the principles of freedom of association by a number of legislative provisions.
2. 788. Regarding the first allegation, the Committee noted the Government’s statement that it was awaiting information that it had requested from the judicial authority regarding the dismissal of Mr Offer Fernando Ñaupari Galarza, General Secretary of the national executive committee of the Union of Agricultural Public Sector Workers (SUTSA). The Committee notes the Government’s statement that the Transitional Labour Court declared the appeal filed by the abovementioned trade union leader inadmissible and that it will forward a copy of the decision. Regarding the appeal, filed by the same union leader on the non-recognition of trade union leave, it was rejected by various courts including the Constitutional Court.
3. 789. Regarding the allegations of the Federation of Trade Union of Agricultural Public Sector Workers (FESUTSA) raising 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 the information from the National Civil Service Authority transmitted by the Government. The Committee will examine the relevant legislative provisions below in light of this information.
4. 790. The Committee notes the allegation that Legislative Decree No. 1023 establishing the National Civil Service Authority does not provide for trade union representation on its executive board. It observes that the Authority is responsible, inter alia, for “planning and formulating human resources policies in the civil service, organizing the performance and distribution of work, etc.” (article 10(a) of the aforementioned decree). Similarly, the principal functions of the executive board are “to establish standards by means of general resolutions and directives and to approve overall policy” (article 16(a) and (b) of the decree). On this point, the complainant organization alleges that Decree No. 1025 approving the training and performance standards for the civil service contains no provision for the presence of union representatives. The Committee confirms that the decree does not refer to any consultation of union representatives in connection with the training and assessment of personnel in the service of the State. The Committee notes that in its response, the Government indicates that under Supreme Decree No. 009-2010-PCM to develop the Plan for development of people at the service of the State, the competent authority must integrate a committee comprising a representative of senior management, a representative of the office responsible for budget, a representative of the office of human resources and a staff representative elected by it.
5. 791. The Committee stresses how important it is that national human resources policies in the public service, including vocational training arrangements, be drawn up in consultation with the most representative trade union organizations. It has previously emphasized the importance it attaches to the promotion of dialogue and consultations on matters of mutual interest between the public authorities and the most representative occupational organizations of the sector involved [see Digest, op. cit., para. 1067]. The Committee suggests that the Government initiate a dialogue with the most representative organizations of the public sector on the possible establishment of consultation machinery. It requests the Government to keep it informed on the subject.
6. 792. The Committee notes the allegation that Legislative Decree No. 1024, which establishes and governs the terms of reference of managers in the public service, does not provide for the right to organize, take strike action or engage in collective bargaining. The Committee notes the information provided by the National Civil Service Authority according to which the legislative decree does not regulate the rights of workers covered by it, precisely because these workers are subject to general legislation applicable to public servants, including as regards the rights of collective bargaining and strike. It observes that article 24 of the Civil Service Act (Legislative Decree No. 276) stipulates that “the rights of civil servants shall include (ll) the establishment of trade unions in accordance with the law and (m) the power to take strike action as determined by the law”. Furthermore, articles 120 and 122 of the regulations issued under that Act (Supreme Decree No. 005-90-PCM) provide for the right for civil servants to join trade unions and for union leaders to be their legal representatives. It is the Committee’s understanding that the Civil Service Act applies also to managers in the public service, and it requests the Government to clarify the matter.
7. 793. The Committee notes the allegation that Legislative Decree No. 1026, which provides for special optional arrangements for regional and local governments wishing to modernize their entire institutional procedures, is designed so as to eliminate the institution of trade unions by doing away with the right to stable employment. The Committee observes that, under its second heading, the said decree provides for the possibility of transferring human resources from the national to the regional government as part of a process of decentralization. The Committee recalls that transfers of employees for reasons unconnected with their trade union affiliation of activities are not covered by Article 1 of Convention No. 98. The Committee also observes that, according to the Government, workers covered by Decree No. 1026 are also subject to general legislation (which contains provisions and penalties for anti-union discrimination).
8. 794. The Committee also notes the allegation that Executive Resolution No. 1159-2005-MTC/11 governing the assistance and continuance of personnel of the Ministry of Transport and Regional Executive Resolution No. 000480-2008-GR-JUNIN governing the assistance and continuance of government employees of Junín restrict the freedom of action of union leaders in the performance of their union duties. On the subject of leave for purposes of union representation, the Committee notes that both resolutions stipulate that duly justified leave in the course of a month may not exceed one working day, save in cases of urgent and clearly established need (articles 58 and 36, respectively). It is the Committee’s understanding that these resolutions modify the previous system of union leave, as claimed by the complainant organization, and that this is an issue that could be resolved in the framework of collective bargaining. The Committee refers to Article 6 of Convention No. 151, which has been ratified by Peru, which states: “1. 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. 2. The granting of such facilities shall not impair the efficient operation of the administration or service concerned.” The Committee calls on the Government to initiate a dialogue in order to seek a negotiated solution to the problem of trade union leave, bearing in mind that, in certain major public bodies, restricting such leave to one day a month is perhaps not sufficient to allow union representatives to carry out their functions properly.
9. 795. Furthermore, regarding the allegation that regional Executive Resolution No. 000480-2008-GR-JUNIN prohibits all forms of trade union activity within the premises of the institution, the Committee notes that the complainant organization draws attention to the first article of Chapter VIII, which prohibits the conduct by civil servants of activities that are unrelated to their duties during or outside the working day within the premises of the institution and stipulates that any festivities that may be planned must be held outside normal working hours for attending to the public. The Committee notes the Government’s statements that the officials concerned are subject to general legislation on trade union rights. The Committee requests the Government to indicate whether the provision mentioned by the complainant organization entails a ban on the conduct of union activities at the place of work even when they have been authorized by the employer or are provided for in collective agreements.
10. 796. Regarding the last allegation, to the effect that Legislative Decree No. 1057 governing special arrangements for the administrative service contract system does not allow for the right to organize, the Committee observes that the complainant organization merely mentions the fact. However, the Committee points out that the fact that the decree does not refer to the right to organize does not mean that civil servants recruited under these arrangements are denied this right. The Committee observes that the Government’s reply does not specifically refer to this issue. It recalls that the matter is under examination by the authorities, as noted in the conclusions reached by the Committee in Case No. 2687:
    • The Committee notes the Government’s reply to the effect that in March and October 2009 it requested the Secretariat for Public Administration of the Prime Minister’s Office and the National Civil Service Authority to give an opinion on the possibility and feasibility of recognizing the right to freedom of association for individuals employed under the administrative service contract system. The Committee notes that, according to the Government, the authorities convened a meeting on this matter for 21 April 2009 between representatives of the Secretariat for Public Administration of the Prime Minister’s Office, the National Civil Service Authority and the Ministry of Labour and Employment Promotion. The Committee observes that the Government does not state whether this meeting took place and, if so, what the outcome was. … The Committee regrets that the examination of the question of the right to organize for persons employed under the administrative service contract system has not been resolved to date, despite the fact that the complaint was presented in November 2008. [See 357th Report, Case No. 2687 (Peru), paras 885 and 890.]
    • The Committee firmly expects that the authorities will very soon resolve this matter and requests the Government to keep it informed in this respect.

The Committee's recommendations

1. 797. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee suggests that the Government initiate a dialogue with the most representative occupational organizations of the public sector on the possible establishment of consultation machinery with regard to the human resources policy. The Committee requests the Government to keep it informed on the subject.
   • (b) The Committee calls on the Government to initiate a dialogue in order to seek a negotiated solution to the problem of trade union leave, bearing in mind that, in certain major public bodies, restricting such leave to one day a month is perhaps not sufficient to allow union representatives to carry out their functions properly.
   • (c) The Committee requests the Government to indicate whether the first article of Chapter VIII of regional Executive Resolution No. 000480-2008-GR-JUNIN entails a ban on the conduct of union activities at the place of work even when they have been authorized by the employer or are provided for in collective agreements.
   • (d) The Committee firmly expects that the authorities will very soon resolve the matter of the right of personnel employed under the administrative service contract system to join trade unions, and it requests the Government to keep it informed of developments.