Definitive Report - Report No 403, June 2023

Case No 3245 (Peru) - Complaint date: 18-AUG-16 - Closed

Allegations: Improper fixing, through regulations, of the level of collective bargaining and of the trade union authority responsible for naming the representatives granted union leave in the public education sector

1. 377. The complaint is contained in a communication from the Single Union of Education Workers of Lima (SUTE Lima) and the National Grass-Roots Union Committee of the Single Union of Peruvian Education Workers dated 13 August 2016, and in a communication from the Single Union of Education Workers of the Ayacucho Region (SUTE Ayacucho) and the Single Union of Education Workers of Huamanga Province (SUTE Huamanga) dated 18 August 2016. The Single Union of Education Workers of the Tacna Region (SUTEP Tacna) sent communications relating to the complaint on 1 May and 26 November 2019, and the National Federation of Education Workers of Peru (FENATE PERU) sent a communication dated 25 May 2020 in which it endorsed and supported the information submitted by SUTEP Tacna.
2. 378. The Government sent its observations in a communication dated 6 July 2017.
3. 379. 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 allegations

1. 380. In their communications, the complainant organizations SUTE Lima, SUTE Ayacucho, SUTE Huamanga and SUTEP Tacna, which are four regional organizations belonging to the Single Union of Peruvian Education Workers (SUTEP), call into question two provisions of the Teaching Reform Act Regulations (RLRM), which were amended by Supreme Decree No. 13-2016 MINEDU and which, according to the complainants, violate the freedom of association and right to collective bargaining of the regional education sector organizations for the following reasons:
   • (i) article 194.2 of the RLRM grants the secretary-general of the national union education workers or the national federation of teachers, as appropriate, the authority to accredit regional representatives for the purpose of granting paid leave. This same provision establishes that each regional education directorate is responsible for granting paid leave to two representatives of the grass-roots education union or teachers’ union duly included on the Register of Trade Unions of Public Servants (ROSSP). The complainants believe that this allocation of powers by the RLRM to the secretary-general of SUTEP is excessive and conflicts with the rights of trade union representation held by the regional SUTEs duly included on the register. The complainants add that no authorization from the national executive committee was required for the registration of their regional directorates – which demonstrates that, under the protection of freedom of association, accreditation at the national level is not necessary. They believe that this provision of the regulations turns the national executive committee of SUTEP – with which they can have significant disagreements – into a union monopoly, and so it should not be given such accreditation in any way.
   • (ii) article 207-A b) of the RLRM only permits collective bargaining between the national trade union and the Ministry of Education. This provision defines a collective agreement as an agreement made between the Ministry and the national union of education workers or national federation of teachers with majority representation (which is SUTEP). This definition denies regional trade unions (the regional SUTEs) the opportunity to represent their members by negotiating with regional governments. The complainants believe that reserving this power for the national union does serious harm to the regional SUTEs, which do not necessarily agree with the list of claims presented by SUTEP. The regional SUTEs believe that their leaders were elected specifically for the purpose of participating in collective bargaining with the Ministry of Education or with other relevant national or regional authorities.
2. 381. The complainants emphasize that these regional trade unions have the right to represent their members to the authorities and recall in this regard that numerous regional trade unions have been established in the country, which have legal status and have been registered with the Ministry of Labour and Employment Promotion. They believe that these provisions restrict their rights of representation and their freedom of association. They allege that they should be able to participate in collective bargaining and determine which of their representatives are granted union leave.
3. 382. In addition, SUTEP Tacna alleges that the anti-union practices by SUTEP towards the regional trade unions are ferocious and that this was demonstrated by an administrative appeal lodged in 2014 in which it requested to cancel the registration of SUTEP Tacna. SUTEP Tacna also makes reference to the request to cancel the registration of other regional trade unions.

B. The Government’s reply

1. 383. In its communication of 13 July 2017, the Government provides the following observations from the relevant authorities, in response to the allegations made:
   • (i) The Teaching Reform Act (LRM) and its Regulations (RLRM) recognize the union of education workers at the national level, a position held by SUTEP (which is included on the ROSSP), although it also has grass-roots or regional trade unions.
   • (ii) According to what is established in article 194 of the RLRM (as amended by Supreme Decree No. 13-2016 MINEDU, which the complainants are calling into question), trade union representation leave is granted to: (a) eight members of the executive committee of the teaching union or federation set up to defend the rights and interests of teachers at a national level; and to (b) two grass-roots representatives of the union for each regional education directorate nationally. The secretary-general of the union at the national level is the person responsible for accrediting regional representatives for the purpose of granting paid leave. As a result, education sector bodies are obliged to grant union representation leave both to the national leaders of SUTEP and to those from grass-roots unions (regional, provincial, etc.) and in both cases they must be duly included on the ROSSP.
   • (iii) With regard to collective bargaining, the Ministry of Education does not negotiate with grass-roots unions or regional teaching unions. With a view to guaranteeing the defence of the teachers’ interests, the aforementioned Supreme Decree provides that collective bargaining is undertaken between the Ministry of Education and the union or federation that has an absolute majority of teachers as members (50 per cent plus one of the unionized teachers at the national level). This provision is in line with the "most representative union system" and provides an interim solution to trade union plurality: equal treatment of trade unions and strengthening the effectiveness of the protection of workers’ interests.
   • (iv) This system does not entail discrimination against minority unions, but rather better standardization and active channelling of petitions, claims or proposals that could represent minority unions through a majority union. SUTEP is made up of different sections or grass-roots unions, including the regional SUTE organizations. These grass-roots unions, by virtue of the principle of union leadership, are subject to the provisions of the SUTEP authorities and the regulations of its Statute. In addition, each regional SUTE organization is responsible for electing its own representatives and for accrediting them with the authorities accordingly. Those SUTEs are part of the organic structure of SUTEP, which means they are represented by it in the collective bargaining processes and are able to channel their claims that way.

C. The Committee’s conclusions

1. 384. The Committee observes that in the present case, first presented by four regional trade unions from the education sector belonging to the national trade union SUTEP, it is alleged that it is contrary to freedom of association and collective bargaining to determine by means of Regulations which trade union authority appoints the regional representatives of the education union or teachers’ union that are granted paid leave and which level of the trade union structure is able to collectively bargain in the public education system.
2. 385. The complainant organizations from the education sector, SUTE Lima, SUTE Ayacucho, SUTE Huamanga and SUTEP Tacna, believe that articles 194.2 and 207-A b) of the RLRM, as amended by Supreme Decree No. 13-2016, limit freedom of association: (i) by granting the secretary-general of SUTEP the authority to determine which representatives of the regional SUTEs will be granted paid leave, even though they have their own leaders and autonomy; and (ii) by restricting the opportunity for collective bargaining at the national level (with SUTEP as the majority union), excluding the capacity of grass-roots unions, such as the regional SUTE organizations, to bargain collectively. In addition, the Committee takes note that the complaint also makes reference to specific situations of conflict between SUTEP and several of its regional unions, such that the national trade union is alleged to have requested the cancellation of the registration of several of its regional organizations
3. 386. The Committee also notes the Government’s reply to the allegations relating to the contents of the RLRM. The Committee notes that the Government states in this regard that: (i) the secretary-general of the union at the national level is the person responsible for accrediting the regional representatives for the purpose of granting paid leave and as a result, the education sector bodies are obliged to grant union representation leave both to the national leaders of SUTEP and to those from grass-roots unions (regional, provincial, etc.); (ii) the existing system, while permitting union pluralism, grants the authority to negotiate to the most representative trade union at the national level (SUTEP) and this strengthens the defence of the workers’ interests; (iii) for this reason, the Ministry of Education does not negotiate with grass-roots unions or regional teaching unions; and (iv) grass-roots unions, such as the regional SUTE organizations, are part of the organic structure of SUTEP, so it can channel their petitions and appointments, and can represent them in collective bargaining processes.
4. 387. Observing that different aspects of the present complaint indicate the existence of conflicts between several of the regional constituent groups of SUTEP and the national leadership, the Committee first wishes to recall that conflicts within a trade union lie outside the competence of the Committee and should be resolved by the parties themselves or by recourse to the judicial authority or an independent arbitrator [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 1622].
5. 388. With regard to trade union leave, the Committee recognizes that, depending on the approach to the law and labour relations in each country, different procedures can be established to give effect to the facilities granted to trade union representatives. With regard to this specific case, the Committee takes note of the complainants’ allegations that the regulations grant the central body of the teaching union the authority to name which regional representatives are granted leave, even though the regional branches of that union are included as such on the register of trade unions, they have their own legal status and, furthermore, they should be in a position to choose for themselves which of their members will receive trade union leave. The Committee also notes the Government’s reply, according to which the regulations permit the granting of union leave to both the central and regional bodies of the teaching unions.
6. 389. The Committee observes that, since the complaint was submitted, Supreme Decree No. 1-2020 has been issued, which amended article 194.2 of the RLRM on trade union representation leave. The Committee observes in this regard that the amended version of article 194.2 of the RLRM: (i) on the one hand, considers the possibility that several representative trade union organizations exist in the education sector, at both the central and regional levels, and on the other hand, considers the possibility that the sector’s regional unions either do or not belong to a national organization; and (ii) provides that a maximum of three trade union leaves are granted in each region, rather than two, as established by Supreme Decree No. 13-2016. The Committee nonetheless observes that the revised regulations continue to grant the central body of the representative unions in the field of education the authority to accredit the representatives of the regional unions receiving regional union leave before the Regional Education Directorate, when those regional unions are part of a national organization.
7. 390. The Committee recalls that in previous cases it has considered that the regulation of procedures and methods for the election of trade union officials is primarily to be governed by the trade unions’ rules themselves. The fundamental idea of Article 3 of Convention No. 87 is that workers and employers may decide for themselves the rules which should govern the administration of their organizations and the elections which are held therein [see Compilation para. 592]. In line with the above, the Committee invites the Government, in full consultation with the representative trade unions in the sector, to consider how to revise the current regulations such that it is the organizations of education workers themselves that determine the internal mechanisms by which the representatives that will receive union leave are named. The Committee refers the legislative aspects of this case to the Committee of Experts on the Application of Conventions and Recommendations.
8. 391. With regard to the level of collective bargaining, the Committee firstly recalls that it has considered that, while the public authorities have the right to decide whether they will negotiate at the regional or national level, the workers, whether negotiating at the regional or national level, should be entitled to choose the organization which shall represent them in the negotiations [see Compilation, para. 1370]. Secondly, the Committee observes that, since the complaint was submitted, the rules applicable to collective bargaining in the public service have been amended by the adoption in 2021 of Act No. 31188 on Collective Bargaining in the Public Sector and by the adoption in 2022 of Supreme Decree No. 008-2022-PCM, which establishes guidelines for the application of Act No. 31188, and that those standards also address collective bargaining in the public education sector. The Committee observes in that regard that: (i) article 5.b of Act No. 31188 defines the decentralized level of collective bargaining in the public sector as that which is carried out at the sectoral and territorial level, and within each public body, or at the level deemed suitable by the trade union organizations; and (ii) the second supplementary repeal provision in Supreme Decree No. 008-2022-PCM expressly repeals articles 207-A and 207-B of the RLRM, which are the subject of this case. In light of the foregoing, the Committee will not pursue its examination of this allegation.

The Committee’s recommendations

1. 392. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee invites the Government, in full consultation with the representative trade unions in the sector, to consider how to revise the current regulations such that it is the organizations of education workers themselves that determine the internal mechanisms by which the representatives that will receive union leave are named.
   • (b) The Committee considers that this case does not call for further examination and is closed, and refers the legislative aspects of the case to the Committee of Experts on the Application of Conventions and Recommendations.