Report in which the committee requests to be kept informed of development - Report No 400, October 2022

Case No 3310 (Peru) - Complaint date: 25-AUG-17 - Closed

Allegations: The complainant organizations denounce systemic violations of the freedom of association of the members of two trade unions from the public sector, including the non-authorization of the deduction of trade union dues, disciplinary proceedings that led to suspensions and dismissals of members, non-compliance with a collective agreement and with an arbitration award, and the refusal to bargain collectively

1. 624. The complaint is contained in a communication from the General Confederation of Workers of Peru (CGTP), dated 25 August 2017, and in additional communications from the CGTP, dated 21 May 2018, the Federation of Workers in the Lighting and Power Industry of Peru, dated 20 February 2019, and the National Union of Workers of the Peruvian National Migration Authority (SINTRAMIG), dated 17 August 2020.
2. 625. The Government of Peru sent its observations on the allegations in communications dated 28 December 2017, 5 February, 18 September, 2 October, 12 and 30 November 2018, 30 April, 11 July 2019, 3 and 31 January, 2 December 2020, 4 January, 10 February, 8 June 2021 and 10 August 2022.
3. 626. 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 complainants’ allegations

1. 627. In its communication dated 25 August 2017, the CGTP alleges the existence of systemic violations of the freedom of association of the members of SINTRAMIG (previously called the “National Union of Public Servants of the National Migration Authority (SINSERPUBMIG)”), and denounces in particular: (i) the refusal by officials from the administration of the National Migration Authority (hereinafter “the Authority”) to authorize the payroll deduction of trade union dues; and (ii) disciplinary proceedings against the General Secretary, Mr Guillermo Huamán, members of the executive committee and all members of the trade union, as reprisals and punishment for having filed a complaint for corruption of officials before the First Provincial Public Prosecutor’s Office for Corporate Affairs specializing in corruption offences committed by officials.
2. 628. In its communication dated 17 August 2020, SINTRAMIG reiterates the allegations made by the CGTP in its communication dated 25 August 2017, and reports that: (i) the deduction of regular monthly union dues was recently initiated; (ii) following the disciplinary proceedings against its members, many workers were removed or suspended; and (iii) in 2019, a collective agreement was signed on the basis of a list of demands from 2018. However, the collective agreement was not fulfilled, and its implementation was distorted through the distribution of electronic food cards to members of another trade union in a discriminatory manner.
3. 629. SINTRAMIG also denounces that: (i) provincial public prosecutors are appointed on a provisional basis with the aim of initiating criminal proceedings against trade union leaders and members; and (ii) a list of demands submitted in 2019 remains unresolved despite being accepted for processing by the Ministry of Labour and Employment Promotion (MTPE) and the National Civil Service Authority (SERVIR).
4. 630. In its communication of 21 May 2018, the CGTP alleges the existence of systemic violations of the freedom of association of the members of the Arequipa Electricity Generating Enterprise SA (EGASA) Trade Union (hereinafter the “public enterprise union”), and denounces in particular the refusal by officials from the public enterprise to: (i) provide for payroll deductions of extraordinary trade union dues; and (ii) grant trade union facilities for travel and per daily expenses to members of the executive committee of the trade union in relation to organizational events held at the national level by the Federation of Workers in the Lighting and Power Industry of Peru. The CGTP also denounces the distorting of an arbitration award (optional arbitration) through which the collective bargaining procedure was completed in 2017, and which determined an increase in the basic wages of the members of the public enterprise trade union. It denounces in particular the incorporation into basic wages of collateral benefits (electrical-related risk, family benefits and shift differential pay) in order to distort the effects of the arbitration award. In this regard, the CGTP reports that the public enterprise union encouraged the filing of ordinary labour proceedings before the Ninth Labour Court of Arequipa in April 2017.
5. 631. In its communication dated 20 February 2019, the Federation of Workers in the Lighting and Power Industry of Peru provides additional evidence relating to the allegations of distortion of the 2017 arbitration award presented by the CGTP.

B. The Government’s reply

1. 632. In its communications of 28 December 2017 and 5 February 2018, the Government forwards the observations of the Authority concerning the allegations made against it by the CGTP. With regard to the authorization of the payroll deduction of trade union dues, the Authority indicates that SINTRAMIG failed to address the observations that it provided concerning: (i) the submission of the account number in the name of the trade union (and not in the name of Mr Huamán) for the payment of the withheld deductions; and (ii) proof of the legal representation of the trade union, duly registered in the Trade Union Registry managed by the MTPE. Consequently, it was unable to proceed with the deduction and payment of the trade union dues, in accordance with Supreme Decree No. 003–2017–TR. Regarding the disciplinary proceedings against SINTRAMIG members, the Authority states that they are in response to alleged violations of the Internal Regulations for Civil Servants and related rules, and that they are not on the grounds of the exercise of trade union rights.
2. 633. In its communication of 12 November 2018, the Government provides information on developments in the disciplinary proceedings against Mr Huamán and the members of the SINTRAMIG executive committee. It indicates that: (i) 13 disciplinary proceedings were conducted, including 7 against Mr Huamán; (ii) out of those 7 proceedings, 3 resulted in a penalty being issued; and (iii) the 6 proceedings against the other members of the executive committee resulted in a decision to exonerate those subject to the proceedings. In its communication of 11 July 2019, the Government indicates that Mr Huamán lodged appeals against the disciplinary decisions before the Civil Service Tribunal, and that: (i) one was declared unfounded, as the Tribunal maintained a six-month suspension of Mr Huamán for insulting two employees from the Authority; (ii) one was upheld, as the Tribunal rescinded a six-month suspension of Mr Huamán for insulting the General Manager and another worker from the Authority; and (iii) in one, the Tribunal declared null and void the disciplinary decision owing to a violation of due administrative process.
3. 634. In its communication of 30 April 2019, the Government indicates that, in a letter dated 9 March 2018, SINTRAMIG communicated its institutional account number to enable the payment of trade union dues. It maintains that all payments deducted since November 2017 in the form of trade union dues have been made.
4. 635. In its communication of 4 January 2021, the Government forwards the observations of the Authority concerning the allegations made against it by SINTRAMIG. Regarding the collective agreement concluded in 2019 (in force for the period 2019–20), it states that: (i) all the clauses have been implemented; (ii) the provision of food was replaced by the distribution of electronic food cards for staff who were already receiving food, in accordance with the collective agreement; and (iii) Mr Huamán filed appeals with several bodies on the grounds of alleged non-compliance with the collective agreement by the Authority, which were rejected.
5. 636. Concerning the list of demands made in 2019 (submitted for the period 2021–22), the Authority indicates that, to date, regular meetings have been held with SINTRAMIG to address issues specific to its members, but that pursuant to the third supplementary transitional provision of Emergency Decree No. 014-2020, during the fiscal year 2020, lists of demands could only be submitted by trade unions of public sector bodies that did not have or had not initiated any collective bargaining that included economic conditions in 2016, 2017, 2018 and 2019.
6. 637. The Authority furthermore rejects the allegations regarding the appointment of the provincial public prosecutors, underlining that each state body is governed by its own functional autonomy. In this regard, the Government indicates, in its communication dated 10 February 2021, that the Eleventh Provincial Criminal Prosecutor’s Office received a complaint against Mr Huamán and other persons for the offence of breach of public confidence, provided for in section 427 of the Criminal Code, and that it has made inquiries in order to ascertain whether the alleged facts are true.
7. 638. Regarding the administrative disciplinary proceedings, the Authority indicates that the Technical Secretariat for Administrative Disciplinary Proceedings is responsible for the investigation and initiation of administrative proceedings for approximately 1,200 workers, including both SINTRAMIG members and non-members, and that it is in charge of over 300 files based on objective facts, which are supported by evidence and which are in accordance with the regulations established by the SERVIR.
8. 639. In its communication dated 8 June 2021, the Government indicates that the administrative disciplinary procedures against SINTRAMIG members led to the dismissal of three workers (who are not trade union leaders) and to the imposition of suspensions of between five days and six months for three other workers, including Mr Huamán. It indicates that the three dismissed workers filed appeals with the Civil Service Tribunal and that those appeals were declared unfounded. The Government also reports that a monitoring exercise, which was carried out at the Authority by SERVIR following a complaint by SINTRAMIG, concluded that the body had not engaged in anti-union conduct in removing the aforementioned workers. In its communication of 10 August 2022, the Government forwards additional observations by the Authority, which indicates that the suspended workers have been reinstated and that, to date, there are no pending administrative disciplinary procedures against those workers or against any SINTRAMIG leader.
9. 640. In its communications of 18 September 2018 and 11 July 2019, the Government provides the observations of the public enterprise on the allegations made against it by the CGTP. The public enterprise denies the allegations, emphasizing that they have not been corroborated by any means of evidence. It indicates that: (i) it is a public enterprise that must comply with the guidelines established by the State; (ii) all the requests submitted by the public enterprise union concerning deductions of ordinary or extraordinary trade union dues have been duly addressed, and that there are no pending requests or claims in this regard; and (iii) it pays for travel for up to three times a year and daily expenses for two days per person at each opportunity, in order for members of the trade union’s executive committee to attend the events organized by the Federation of Workers in the Lighting and Power Industry of Peru.
10. 641. With regard to the arbitration award concerning the collective bargaining in 2017, the public enterprise states that it has strictly complied with the terms of the arbitration award, which establish that it must grant a general increase of 100 Peruvian sols on the basic remuneration of workers belonging to the trade union up to the limit or ceiling of the wage scale corresponding to each occupational category. The public enterprise also maintains that family benefits are being paid in accordance with the terms established, but that it will strictly abide by the decisions of the judicial authority in relation to the legal proceedings in the Ninth Labour Court of Arequipa, following the appeal filed by the public enterprise union.
11. 642. The Government also states, in its communication of 31 January 2020, that the National Labour Inspection Authority (SUNAFIL) conducted inspections in the public enterprise and did not find any violation of the social and labour legislation pertaining to the matters denounced by the CGTP (remuneration, labour discrimination for union-related reasons, collective relations).

C. The Committee’s conclusions

1. 643. The Committee notes that, in the present case, the complainant organizations allege the existence of systematic violations of the freedom of association of the members of two public sector trade unions. The Committee notes the complainant organizations denounce in particular: (i) the refusal to authorize the deduction of trade union dues, disciplinary proceedings that resulted in suspensions and dismissals, the non-compliance with a collective agreement and the refusal to bargain collectively by the Authority; and (ii) the refusal to provide for the deduction of trade union dues and to grant facilities for travel and daily expenses, and the non-compliance with an arbitration award by a public electricity enterprise. The Committee notes that the two public entities deny the aforementioned allegations and that the Government states that there is no violation of trade union rights, as reportedly demonstrated by a series of administrative and judicial decisions.
2. 644. Concerning the allegations made by the CGTP that the Authority did not authorize payroll deductions of the trade union dues of SINTRAMIG members, the Committee notes that the Authority states that it was not able to proceed with the deductions as SINTRAMIG did not address its observations on the need to provide an institutional account number and proof of its legal representation. It also notes the Government’s indications that, in March 2018, SINTRAMIG forwarded its account number, and that all the deductions since November 2017 have been paid. Noting that the start of the deduction of trade union dues was confirmed by SINTRAMIG in a subsequent communication, the Committee will not pursue the examination of this aspect of the case.
3. 645. Regarding the alleged disciplinary processes against SINTRAMIG leaders and members, the Committee notes the complainant organizations’ allegations that administrative procedures were initiated against all members of the trade union as reprisals for having filed a complaint for corruption of officials, and that these procedures resulted in suspensions and dismissals. The Committee also notes the information provided by the Government in this regard, according to which: (i) a series of administrative proceedings were initiated against SINTRAMIG members, including seven against its General Secretary, Mr Huamán, and six against other members of the executive committee of the trade union; (ii) while the other members of the executive board were exonerated, Mr Huamán and two members were suspended, and three other members were dismissed; (iii) appeals filed by the dismissed workers were declared unfounded by the Civil Service Tribunal; and (iv) a monitoring exercise carried out at the Authority by SERVIR concluded that the Authority had not engaged in anti-union conduct in relation to the dismissals. The Committee also notes that, according to the Authority, the administrative disciplinary proceedings were in response to alleged violations of the Internal Regulations for Civil Servants and other related rules, and were not on the grounds of the exercise of trade union rights. The Committee duly notes the decisions issued by the Civil Service Tribunal and the result of the monitoring exercise carried out by SERVIR in relation to the dismissed workers. The Committee observes at the same time that a significant number of disciplinary proceedings were initiated against the General Secretary and members of the executive committee of SINTRAMIG and against members of the trade union. While not all the proceedings resulted in penalties, the Committee observes that the Authority did not deny the allegation that all SINTRAMIG members had reportedly been subject to disciplinary proceedings at some point. In this regard, the Committee recalls that it drew attention to the fact that initiating administrative proceedings against union officials without sufficient grounds might have an intimidating effect on union officials [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 1102]. In light of the above, the Committee encourages the Government to take measures to foster a climate of trust and the development of harmonious industrial relations between the Authority and SINTRAMIG.
4. 646. Concerning the allegation that the provincial public prosecutors are appointed on a provisional basis in order to initiate criminal proceedings against SINTRAMIG members, the Committee notes that the Authority underlines that each state body is governed autonomously. It also notes the Government’s indication that the Eleventh Provincial Criminal Prosecutor’s Office received a complaint against Mr Huamán in his capacity as General Secretary of SINTRAMIG and other persons for the alleged offence of breach of public trust. Observing that it has not been provided with any details on the specific facts that gave rise to the aforementioned criminal complaint, the Committee recalls that, while persons engaged in trade union activities or holding trade union office cannot claim immunity in respect of the ordinary criminal law, the arrest of, and criminal charges brought against, trade unionists may only be based on legal requirements that in themselves do not infringe the principles of freedom of association [see Compilation, para. 133]. The Committee trusts that, in the context of the examination of the criminal complaint against Mr Huamán, the competent authorities will fully take into account freedom of association. The Committee requests the Government to keep it informed of the outcome of the examination and of any decision taken in that regard.
5. 647. Concerning the alleged non-compliance with a collective agreement concluded in 2019 (for the period 2019–20), the Committee notes that SINTRAMIG reports the discriminatory distribution of electronic food cards, while the Authority states that, according to the collective agreement, this measure was only targeted at workers who already received food. The Committee also notes the Authority’s indication that Mr Huamán denounced the failure to comply with the collective agreement before several courts and that all his petitions were rejected. Noting the diverging opinions expressed by SINTRAMIG and the Authority on the scope of the clauses of the collective agreement concerning food, the Committee recalls that it previously considered that disputes arising out of the interpretation of a collective agreement should be submitted to an appropriate procedure for settlement established either by agreement between the parties or by laws or regulations as may be appropriate under national conditions [see 383rd Report, Case No. 3081, para. 431]. The Committee therefore considers that this conflict should be resolved through the appropriate national mechanisms or before the competent national judicial authorities.
6. 648. Concerning the alleged refusal by the Authority to bargain collectively, the Committee notes SINTRAMIG’s allegation that a list of demands submitted in 2019 (for the period 2021–22) remains unresolved despite having been accepted for processing by the MTPE and SERVIR. It also notes the Authority’s indication that regular meetings are held with SINTRAMIG, but that according to the third supplementary provision of Emergency Decree No. 014-2020, adopted on 22 January 2020, only trade unions of public sector bodies that did not have or had not initiated any collective bargaining that included economic conditions in 2016, 2017, 2018 and 2019 were able to submit their list of demands in the fiscal year 2020. However, the Committee observes from publicly available information that: (i) Act No. 31114, adopted on 22 January 2021, repealed the Emergency Decree No. 014-2020; and (ii) on 30 April 2021, Act No. 31188 on collective bargaining in the public sector was adopted. In this context, the Committee trusts that the Government will take the necessary measures to ensure that the members of SINTRAMIG are able to fully exercise their right to collective bargaining with a view to renewing the agreement signed in 2019 with the Authority.
7. 649. Regarding the allegations of the CGTP that the public enterprise refused to provide for the deduction of the trade union dues of the members of the public enterprise union and to grant travel and daily expenses to leaders of the trade union for events organized by the Federation of Workers in the Lighting and Power Industry of Peru, the Committee notes the public enterprise’s indication that: (i) all the requests submitted by the trade union regarding deductions of trade union dues were duly addressed; and (ii) it paid for travel for two leaders of the trade union for up to three times per year and the daily expenses for two days per person at each opportunity in order for them to attend the aforementioned events. The Committee recalls that the withdrawal of the check-off facility, which could lead to financial difficulties for trade union organizations, is not conducive to the development of harmonious relations and should therefore be avoided [see Compilation, para. 690]. It furthermore recalls that, in accordance with the Workers’ Representatives Recommendation, 1971 (No. 143), workers’ representatives should be afforded the necessary time off, without loss of pay or social and fringe benefits, for attending trade union meetings, training courses, seminars, congresses and conferences, and the appropriate facilities in order to carry out their functions promptly and effectively, provided that the granting of such facilities does not impair the efficient operation of the undertaking concerned. Noting, on one hand, the general nature of the allegations and, on the other, the conflicting versions of the CGTP and the public enterprise, the Committee invites the Government to ensure that the deduction of the trade union dues of the members of the public enterprise union, and the possibility for the trade union leaders to attend the events organized by the Federation of Workers in the Lighting and Power Industry of Peru, are addressed on the basis of the criteria outlined above.
8. 650. Concerning the alleged non-compliance with the 2017 arbitration award, the Committee notes the CGTP’s allegation that: (i) the public enterprise included collateral benefits, such as family benefits, in the basic wages to distort the effects of the planned wage increase; and (ii) the public enterprise union filed ordinary labour proceedings before the Ninth Labour Court of Arequipa in this regard. The Committee notes that the public enterprise maintains that it has strictly complied with the terms of the arbitration award, but that it will respect the decision of the judicial authority in relation with the proceedings filed by the trade union. Noting the appeal filed by the public enterprise union and recalling its abovementioned analysis on the differences of interpretation of collective agreements, the Committee invites the parties to continue to have recourse to the competent judicial authorities at the national level to resolve this dispute.

The Committee’s recommendations

1. 651. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee trusts that, in the context of the examination of the criminal complaint against Mr Huamán, the competent authorities will fully take into account freedom of association. The Committee requests the Government to keep it informed of the outcome of the examination and of any decision taken in that regard.
   • (b) The Committee trusts that the Government will take the necessary measures to ensure that the members of SINTRAMIG are able to fully exercise their right to collective bargaining, with a view to renewing the agreement signed in 2019 with the Authority.