Report in which the committee requests to be kept informed of development - Report No 357, June 2010

Case No 2687 (Peru) - Complaint date: 13-NOV-08 - Closed

Allegations: Refusal to register a trade union of public cleaning workers

1. 876. The complaint is contained in a communication from the Autonomous Confederation of Peruvian Workers (CATP) dated 13 November 2008.
2. 877. The Government sent its observations in a communication dated 20 November 2009.
3. 878. 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 complainant’s allegations

1. 879. In its communication dated 13 November 2008, the CATP alleges that its affiliate, the Coronel Portillo Municipal Services Workers’ Trade Union (SMSER–MPCP), was established on 27 January 2008 at a meeting held in Pucallpa and attended by 72 public cleaners (42 men and 32 women) of Coronel Portillo Municipality.
2. 880. On 18 March 2008, the general secretary of the trade union filed an application for trade union registration with the Ucayali Regional Directorate for Labour and Employment Promotion (DRTPE), attaching the documents required under Supreme Decree No. 0032004-TR, although section 2(3) of the Decree provides that registration is a purely formal act which is automatically carried out on submission of the required documents (a copy of the founding document, a list of the members of the elected executive committee, a copy of the by-laws approved by the assembly, and a complete list of members, duly identified). Despite this, the DRTPE refused registration of the union by Subdirectorate Order No. 0132008-DRTPE-SD-NC-RG-UC of 24 March 2008, essentially on the following grounds: (a) the application did not specify whether the workers were subject to public or private sector labour law (Legislative Decree No. 276 or Legislative Decree No. 728); and (b) the members of the trade union were recruited by Coronel Portillo Municipality under non-personal service contracts (SNP), which are governed by the Civil Code (service provision), and are not subject to either public or private sector labour law.
3. 881. On 31 March 2008, the general secretary of the SMSER–MPCP lodged an appeal against Subdirectorate Order No. 013-2008-DRTPE-SD-NC-RG-UC. By Directorate Decision No. 025-2008-DRTPE-DPSC-D of 29 April 2008, the next hierarchical level revoked the appealed decision and ordered the Subdirectorate for General Registration to register and recognize the appellant trade union. Subsequently, by regional Directorate Decision No. 029-2008-GRU-DRTPE-UCAYALI-D of 4 June 2008, the Regional Director for Labour and Employment Promotion, citing section 202 of Act No. 27444, decided ex officio to declare Directorate Decision No. 0252008-DRTPE-DPSC-D null and void, in violation of the constitutional right to organize and impairing freedom of association, which is enshrined in the Constitution and ILO Conventions Nos 87 and 98, ratified by the State of Peru.
4. 882. The complainant states that the head of the Subdirectorate for General Registration and Certification failed to take account of the fact that the union members include workers with over three, five and seven years’ continuous employment, who are subject to fixed working hours and are subordinate to and dependent on their employer (Coronel Portillo Municipality). According to the complainant, the abovementioned official did not take into account the inspection carried out by the Subdirectorate for Inspections (attached to the complaint) which recognized the existence of an employment relationship between the union members and Coronel Portillo Municipality. This is thus an attempt by the Regional Labour Directorate of the Ucayali regional government to fraudulently conceal the employment nature of the union members’ relationship. Moreover, the non-personal service contracts between Coronel Portillo Municipality and the union members were converted as of 29 June 2008 to administrative service contracts, a contractual arrangement governed by Legislative Decree No. 1057. This is a special contractual arrangement applicable to any public body that is subject to Legislative Decree No. 276, the Framework Act on the civil service and remuneration in the public sector (which is the case of Coronel Portillo Municipality) and other regulations governing special branches of the civil service.
5. 883. The complainant states further that the restriction on freedom of association described above violates the provisions of Convention No. 87 and article 28 of the Constitution, which provides that the State guarantees freedom of association and promotes collective bargaining; article 42 of the Constitution recognizes the right of public servants to organize. In addition, article 23 of the Constitution states that “no employment relationship may limit the exercise of constitutional rights, or disregard or degrade the worker’s dignity”, and article 2(2) recognizes the right to equality before the law, specifying that “no one shall be discriminated against on grounds of origin, race, sex, language, religion, opinion, economic status or any other grounds”.

B. The Government’s reply

1. 884. In its communication of 20 November 2009, the Government states that, in order to formulate the Government’s position on the request considering the possibility, feasibility and effects of recognition of the right to freedom of association for persons employed under the administrative service contract system, the Ministry of Labour and Employment Promotion sent communication No. 254-2009-MTPE/9.1 of 30 March 2009, requesting information from the Secretariat for Public Administration of the Prime Minister’s Office, and communication No. 953-2009-MTPE/9.1 of 23 October 2009 to the National Civil Service Authority, asking for its opinion on the matter. It should be pointed out that special rules governing administrative service contracts were issued by Legislative Decree No. 1057 of 28 June 2008. This is a contractual arrangement used by the public administration, which falls exclusively within the remit of the State, between a public body and an individual providing services in an non-autonomous manner. This form of contract is governed by public law and provides only for the benefits and obligations stipulated in that legislation and the regulations made under it by Supreme Decree No. 075-2008-PCM.
2. 885. The Government states that the Secretariat for Public Administration of the Prime Minister’s Office is the body tasked with coordinating and managing the process of modernization of the public administration, and is competent to deal with the functioning and organization of the State. The National Civil Service Authority enjoys full autonomy, within the powers conferred on it by the Organic Act on the Executive Branch, in regulating, supervising and advising public bodies in their human resource management and in promoting long-term reform of the civil service; the technical opinion of both bodies is thus of vital importance.
3. 886. Lastly, the Government states that once it has received the information requested from the bodies mentioned above, it will state its position on the matter, of which the ILO will be informed in due time.
4. 887. The Government attaches a copy of a communication from the Ministry of Labour and Employment Promotion addressed to the executive president of the National Civil Service Authority requesting information on the problem of the right to organize of persons employed under non-personal service contracts (currently called “administrative service contracts”). In another communication, the Secretariat for Public Administration of the Prime Minister’s Office requested the president of the National Civil Service Authority to appoint a representative to discuss the possibility, feasibility and effects of recognition of the right to freedom of association for persons employed under administrative service contracts, given that, from a strictly legal standpoint and according to the definition contained in Legislative Decree No. 1057, the administrative service contract is a special arrangement under administrative law which falls within the exclusive remit of the State and is not subject to the Framework Act on the civil service, private sector labour law or other provisions on special branches of the civil service, as freedom of association is a right which only workers enjoy, under the Political Constitution of Peru itself. The communication also states that, considering that Legislative Decree No. 1057 was drafted and submitted by the Ministry of Labour and Employment Promotion, that is the body which is tasked with collective labour law, and that there is now a National Civil Service Authority, and bearing in mind that the reply that should be sent to the ILO will be the position of the State of Peru, a coordination meeting should be held before issuing any opinion on the matter. The communication states that the meeting will accordingly be held on Tuesday 21 April 2009 in the Prime Minister’s Office.

C. The Committee’s conclusions

1. 888. The Committee observes that in the present complaint the complainant objects to the decision of the Ministry of Labour of 24 March 2008 refusing to register the SMSERMPCP, an organization of public cleaners, on grounds that the application for registration did not specify the labour law system to which the workers belonged (public or private) and that the members of the trade union were recruited by the municipality under non-personal service contracts governed by the provisions of the Civil Code on service provision. According to the complainant, in an inspection report attached to the complaint the Directorate for Labour Inspection recognized the existence of an employment relationship between these workers and the municipality, and confirmed that the workers had been continuously employed for three, five or seven years, were subject to fixed working hours and were dependent on the municipality; since June 2008 these unionized workers’ contracts had been converted into administrative service contracts of public bodies, governed by Legislative Decree No. 1057. The complainant alleges that this is a case of attempted concealment of the employment nature of the relationship between the union members and the municipality.
2. 889. 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.
3. 890. 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. The Committee also notes with regret that the Government has not replied to the allegation that the decision of the Ministry of Labour refusing to register the union was an attempt to conceal the employment nature of the relationship between its members and the municipality. In this regard, the Committee takes note of a labour inspection report dated 25 April 2008, attached to the complaint, indicating that the public cleaners have fixed working hours and between one and ten years’ service; the same report states that “each worker carries out public cleaning tasks as a worker”.
4. 891. The Committee recalls that Convention No. 87 and, specifically, the right to establish organizations applies to all workers “without distinction whatsoever”, the only possible exception being the armed forces and the police, and that it therefore considers that the cleaners of Coronel Portillo Municipality should enjoy the guarantees provided for in the Convention. All workers, without distinction whatsoever, whether they are employed on a permanent basis, for a fixed term or as contract employees, should have the right to establish and join organizations of their own choosing [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 255]. The Committee therefore expects that the authorities will take full account of this principle in their ongoing examination of the right to organize of employees of public bodies employed under the administrative service contract system, and that the Government’s decision will be taken without delay and will enable the SMSER–MPCP to obtain registration. The Committee urges the Government to keep it informed in this regard.

The Committee's recommendations

1. 892. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
   • Recalling that the cleaners of Coronel Portillo Municipality should enjoy the guarantees provided for in Convention No. 87, and in particular the right to establish organizations, the Committee expects that the authorities will take full account of this principle in their ongoing examination of the right to organize of employees of public bodies employed under the administrative service contract system, and that the Government’s decision will be taken without delay and will enable the SMSER–MPCP to obtain registration. The Committee urges the Government to keep it informed in this regard.