Definitive Report - Report No 384, March 2018

Case No 3174 (Peru) - Complaint date: 29-SEP-15 - Closed

Allegation: The complainant organization alleges that the administration of the judiciary is ignoring its instructions to transfer the contributions of its members to its economic and financial secretary

1. 455. The complaint is contained in a communication from the National Federation of Judicial Employees of Peru (FNTPJ) dated 29 September 2015.
2. 456. The Government sent its observations in a communication dated 25 July 2016.
3. 457. 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 allegation

1. 458. In its communication dated 29 September 2015, the complainant organization alleges that the administration of the judiciary (hereafter, “the employing administration”) is ignoring its instructions to transfer the contributions of its members to its economic and financial secretary, Mr Cristhian Gertrudis Guerrero Arias, thus putting the organization’s survival at risk. The complainant organization explains that members’ dues had been paid in the same way since the organization’s establishment and that the employing administration had always transferred them to the economic and financial secretary of the serving executive board.
2. 459. The complainant organization nevertheless indicates that, at the end of 2014, a faction led by Mr William Nicho Alor opposing the appointment of Mr Max Roger Ruiz Rivera, who had been officially elected General Secretary for a term of office from 23 September 2013 to 22 September 2015, declared itself the General Secretariat of the FNTPJ allegedly by removing him from office with a resolution that was not authentic. This created political turmoil within the union, but did not divest him of the powers and functions that he had held as General Secretary since the beginning of his term of office.
3. 460. The complainant organization indicates that, against this backdrop of political turmoil, as of February 2015 the employing administration decided initially not to transfer the contributions and to withhold them, and then later to transfer them to the FNTPJ rather than to the economic and financial secretary. It did this despite knowing that the FNTPJ, as a union, does not carry out any commercial or other corporate activity that would require a taxpayers’ registry number (RUC), so it cannot collect the dues when they are transferred in that way. The complainant organization draws attention to the numerous communications sent by its General Secretary between March and July 2015, including a notarized letter dated 4 June 2015, in which it called for the reinstatement of the previous practice, namely, the transfer of its dues to the economic and financial secretary of the serving executive board. The complainant organization states that the employing administration ignored these communications, not only by failing to respond, but also by continuing not to transfer the contributions to the economic and financial secretary. It also indicates that it has not been granted a meeting with the president of the judiciary to explain its position regarding the collection of its dues.
4. 461. Lastly, the complainant organization finds the employing administration’s conduct to constitute a substantial alteration of its executive administrative relations that substantially affects its performance, restricting and impeding freedom of association.

B. The Government’s response

1. 462. In its communication dated 25 July 2016, the Government explains that the complaint presented by the complainant organization arose as the result of a conflict within that organization over who held the post of general secretary – the subject of a dispute between Mr Max Roger Ruiz Rivera and Mr William Nicho Alor.
2. 463. The Government indicates that, on 18 June 2015, the Office of the Legal Adviser of the general management of the judiciary, in the light of the uncertainty within the complainant organization regarding its representation and who was responsible for collecting the cheques used to pay union dues, assessed the possibility of making judicial deposits of the union contributions with a view to protecting the interests of affiliated workers, as provided for under section 64 of Act No. 29497 approving the New Procedural Labour Law.
3. 464. The Government indicates that, based on the Office of the Legal Adviser’s assessment, the Department for Human Resources and Well-Being of the judiciary issued a memorandum dated 6 July 2015, addressed to the sub-department of the Treasury, explaining that, as there was an internal dispute within the complainant organization, the recommendations of the Office of the Legal Adviser should be implemented. In other words, as the status of the representatives of the FNTPJ executive board remained uncertain, the possibility of judicially depositing the FNTPJ union dues so as to avoid any criminal proceedings being brought against the employing administration for unlawful appropriation or abuse of authority, should be examined. Consequently, the sub-department of the Treasury was requested to make the necessary arrangements with the Public Prosecutor of the judiciary to deposit the complainant organization’s dues with the competent judicial body. In response, the sub-department of the Treasury indicated that, from 5 August 2015, cheques that were to be issued to the FNTPJ would be issued to the Banco de la Nación (the Bank of the Nation) with a view to judicially depositing them with the duty labour court until the union representation dispute was resolved, and specified that at no point did it have the union members’ dues at its disposal.
4. 465. The Government indicates that shortly afterwards, on 26 August 2015, following receipt of memorandum no. 180-2015-CEN/FNTPJ-SG-MRRR submitted by the executive board of the FNTPJ and stating that the legal representation of the FNTPJ would continue to be provided by the General Secretary, Mr Max Roger Ruiz Rivera, until 22 September 2015, the Office of the Legal Adviser of the general management of the judiciary issued report No. 496-2015-OAL-GG/PJ stating that, as the issue of who held the post of general secretary of the complainant organization had been clarified, the cheques for union dues should no longer be judicially deposited.
5. 466. The Government further indicates that, as there is no existing provision or agreement between the employing administration and the complainant organization determining that the union dues must be paid to a particular individual, the Office of the Legal Adviser of the general management of the judiciary concluded that the cheques pertaining to those amounts must be made payable to the complainant organization and then transmitted to the duly authorized economic and financial secretary of that organization.
6. 467. The Government also emphasizes that the employing administration did not ignore the various communications from the complainant organization but rather it carried out coordination work, solicited legal opinions and sent internal communications. This led to the adoption of the recommendations issued by the Office of the Legal Adviser of the general management of the judiciary, which led initially to the union contributions being deposited with the competent judicial body and later to the cheques being made payable to the complainant organization to be forwarded to its economic and financial secretary.
7. 468. Lastly, the Government states, for the reasons given above, that the employing administration has not violated the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), that its actions have respected the principles and standards on that subject, and that its relationship with the complainant organization is smooth and continuous.

C. The Committee’s conclusions

1. 469. The Committee observes that, in the present case, the complainant organization alleges that the employing administration: (i) initially decided not to transfer the contributions of its members but rather to withhold them; and (ii) later decided to transfer them directly to the FNTPJ rather than to its economic and financial secretary.
2. 470. With regard to the withholding of union dues by the employing administration, the Committee notes the Government’s statement that, owing to a political dispute within the complainant organization, those dues were transferred to the Banco de la Nación (the Bank of the Nation) with a view to judicially depositing them with the duty labour court until the internal conflict regarding the representation of the complainant organization had been resolved, and that at no point did the administration have the union members’ dues at its disposal. The Committee recalls that in the case of internal dissention within one and the same trade union federation, by virtue of Article 3 of Convention No. 87, the only obligation of the Government is to refrain from any interference which would restrict the right of the workers’ and employers’ organizations to draw up their constitutions and rules, to elect their representatives in full freedom, to organize their administration and activities and to formulate their programmes, and to refrain from any interference which would impede the lawful exercise of that right [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 1117]. In the present case, observing that both the Government’s statement and the complainant organization’s allegations indicate that, because of a dispute over the executive management of the complainant organization as well as over who held the post of its economic and financial secretariat , the employing administration merely made judicial deposits of the union contributions for a limited period, without ever having those contributions at its disposal, and regularized the situation as soon as the issue of who held the post was clarified, the Committee considers that the principles of freedom of association were not violated. Consequently, the Committee will not pursue its examination of this allegation.
3. 471. Regarding the decision of the employing administration to transfer the contributions to the complainant organization, and not to its economic and financial secretary as was previously the case, the Committee notes that, according to the information provided by the Government, there is no provision or agreement between the employing administration and the complainant organization that determines that the contributions must be made payable to a particular person. That being the case, inasmuch as the cheques pertaining to the union dues were transferred to the complainant organization as soon as the issue of who held the post of economic and financial secretary had been clarified, and trusting, in the light of the difficulties alleged regarding the cashing in of the cheques made payable to the complainant organization, that the authorities will provide the necessary support to the complainant organization so that it can complete the necessary formalities to effectively receive the contributions in question, the Committee will not pursue its examination of this allegation.

The Committee’s recommendation

1. 472. In the light of its foregoing conclusions, the Committee invites the Governing Body to decide that this case does not call for further examination.