Definitive Report - Report No 364, June 2012

1. 876. The complaint is contained in communications from the National Trade Union of Health Social Security Workers (SINACUT ESSALUD) dated 31 May 2010. The complainant trade union sent additional information in a communication dated 15 February 2011.
2. 877. The Government sent its observations in communications dated 25 October 2011 and 24 February 2012.
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 communications of 31 May 2010 and 15 February 2011, SINACUT ESSALUD, alleges that the National Health Social Security (ESSALUD), in letters dated 17 November 2009 and 30 April 2010, has without valid legal grounds, called into question the Legal Defence Officer of SINACUT ESSALUD, lawyer, Mr Luís Oswaldo Apéstegui Márquez, who is also an employee of ESSALUD and a public servant subject to public sector employment provisions, claiming: (1) that he is barred from acting as a lawyer for SINACUT and/or for its Deputy General Secretary, Mr Octavio Rojas Caballero, in proceedings generally involving government departments, including administrative procedures; and (2) that the national official in question signed the appeals in Case Nos 240 CEN-SINACUT-ESSALUD-2009 and 091 CEN SINACUT-ESSALUD-2010, dated 6 November 2009 and 14 April 2010 respectively, not only as SINACUT Legal Defence Officer, but also as the lawyer representing Mr Octavio Rojas Caballero, who is claiming a right in administrative procedures, even though representing a third party as a lawyer constitutes a violation of article 2(f) of Act No. 27588, “Act on Incompatibilities and Responsibilities of Public Employees and persons providing services to the State under any type of contractual arrangement”. In addition, ESSALUD calls for the trade union to rectify the situation within three days of the notification in letters Nos 5581-GCRH-OGA-ESSALUD-2009, dated 17 November 2009, and 1655-GAP-GCRH-OGA-ESSALUD-2010, dated 30 April 2010, by having its appeal signed by a lawyer who is not subject to any legal impediment to representing his/her client.
2. 880. The complainant trade union considers that ESSALUD is making its own specific, arbitrary and legally unfounded interpretations:
   • – it has wrongly extended the application of article 2(f) of Act No. 27588 to all public servants indiscriminately and without exception, which is incorrect on the grounds that two essential requirements must be met for its implementation: (1) that the persons to whom the impediment applies must be clearly defined in article 1 of Act No. 27588; and (2) that those same persons, in respect of business or private institutions, fall within the specific scope of public service;
   • – the standard exhaustively employed the word “proceedings”, namely for the purposes of legal interpretation, referring to civil or criminal proceedings (that is, referring to court procedural law), exclusively and in order to distinguish it from the word “procedure” used in administrative law to identify administrative proceedings, from which it can be concluded that Act No. 27588 excluded administrative procedures;
   • – it is under a misconception regarding the nature of representation. Mr Octavio Rojas Caballero, in his capacity as Deputy General Secretary and head of the administrative and management affairs of the trade union, did not sign Case Nos 240-CEN-SINACUT-ESSALUD-2009 and 091-CEN-SINACUT-ESSALUD-2010 in a personal capacity, but on behalf of the legal entity SINACUT ESSALUD, and in turn represents its members, thus he did not claim the right in administrative procedures for himself, but on behalf of the trade union and for a group of officials responsible for carrying out the statutory duty of implementing a national election process. It is therefore incorrect to state that the Legal Defence Officer signed the appeal as the lawyer representing the person Octavio Rojas, which would be defending an individual, and then to state that the professional provided such representation as a lawyer of a third party. Moreover, the lawyer and Legal Defence Officer acted within the scope of the powers conferred on him under the SINACUT statutes, that is on behalf of the members and of the organization that he represents and, in this specific case, in defence of the rights and interests of the trade union representatives commissioned to conduct the latest general elections, without such representation causing any harm to the employing institution (none of the information in its communications have indicated in what way or form it has been harmed).
3. 881. The complainant trade union states that Act No. 27588 has two primary objectives: (1) to prevent persons who have worked for or still work for the State, with specific duties, and who, due to the character or nature of their role or the services they provide, have had access to privileged or relevant information, from using or disclosing matters or information which are deemed in law to be secret or confidential; and (2) in the event there are situations of conflicts of interest that may harm the State, it seeks to prevent those same persons from disclosing or using any information which, in the absence of express legal restrictions, might be privileged because of its relevance, and using it to their advantage or that of third parties and to the disadvantage or detriment of the State or third parties.
4. 882. Furthermore, Act No. 27588 also establishes the prohibitions and incompatibilities applicable to public officials and servants, calling for the fulfilment of a basic requirement, that is that the persons to whom the prohibitions apply are set forth in article 1 of its regulatory framework. However, among other prohibitions, in the provisions of article 2(f) it is stipulated that the persons referred to in article 1, in respect of business or private institutions falling within the specific scope of their public duties, must not act as lawyers, proxies, advisers, sponsors, experts or arbitrators of individuals in any proceedings they may have pending before the courts with the same State department in which they serve, while they are still in office or carrying out the duties conferred on them. It also stipulates that the prohibitions will remain in force in the specific cases or matters in which they are directly involved.
5. 883. The complainant trade union also states that in article 16 of Supreme Decree No. 003-82-PCM, the Government further expanded article 4 of the Supreme Decree. It also gave greater insight into the provisions of article 122 of Supreme Decree No. 005-90-PCM, establishing the regulatory power to specify the remit and working practices of trade union officials in the defence of the rights and interests of members, including reference in the statutes to the ability to determine the composition and powers of the governing board; henceforth, legislation gave the statutes the “standard-setting basis” to regulate the roles and powers of each component of the governing board, meaning in our case that the Legal Defence Officer is responsible for “representing in all matters relating to the defence of the rights and interests of members and the trade union organization itself”. In addition, the trade union’s Legal Defence Officer does not have a leadership role, neither is he a senior official, nor do his duties allow him access to privileged information; similarly, he has no decision-making powers, nor is he in a position of trust or leadership. Thus, in ESSALUD’s classification of posts he appears in the “professional” occupational group rather than in the “executive” occupational group.
6. 884. The complainant trade union alleges that ESSALUD intends for the national official Luís Oswaldo Apéstegui Márquez to abandon his obligation to continue fulfilling his statutory role as Legal Defence Officer and in turn to force him to terminate the legal support he has been providing in his capacity as lawyer for the defence and representation of the trade union organization on behalf of its members, be they ordinary members or appointed or elected union representatives. Such coercive measures used by ESSALUD are not only evidence of blatant interference and a restriction of the right to defence, but are also contrary to an equally fundamental principle, which is the right of freedom of association, since one of the main reasons for forming trade union organizations is to take on the defence of the rights and interests of their members.
7. 885. In the light of the foregoing, SINACUT has rejected the coercive measures of ESSALUD, objecting to the withdrawal of the respective appeals signed by the lawyer and Legal Defence Officer of SINACUT.

B. The Government’s reply

1. 886. In its communications of 25 October 2011 and 24 February 2012, the Government states that in the complaint, the complainant organization accuses ESSALUD of unjustifiably calling into question its Legal Defence Officer, Mr Luís Oswaldo Apéstegui Márquez, who is also an employee of the institution in question and a public servant subject to public sector employment provisions, because of his role as a lawyer in the administrative procedures instituted by the Deputy Secretary General Mr Octavio Rojas Caballero; arguing that the first of the officials mentioned is barred from acting as a lawyer representing any trade union organization or its members in any proceedings in which the State department where he provides his services (including administrative procedures) is a party. It adds that ESSALUD requested that within three days of receipt of the respective aforementioned notification, the Deputy Secretary General of the trade union organization in question should rectify the situation by having the appeals signed by a lawyer who is not subject to any impediment to providing legal representation. It also follows from the arguments in the complaint that there would be no regulatory basis to prevent the aforementioned Legal Defence Officer from acting as the lawyer for SINACUT or any member, since Act No. 27588 and its regulations, adopted by Supreme Decree No. 019-2002-PCM, which regulates the regulatory framework on the prohibitions applicable to public officials and servants, stipulates as a prohibition acting – among other duties – as lawyers for individuals who have matters pending before the courts within the State department in which they serve, provided that some of the conditions provided for in article 1 of the aforementioned legislation (Note 1) are met (cases not featuring the aforementioned trade union official, who holds the occupational post of professional, does not handle privileged information and whose decisions are not crucial to decision-making on the institution’s actions).
2. 887. The Government reports the comments of ESSALUD on the complaint, which can be summarized as follows:
   • – ESSALUD observes that SINACUT states that the alleged violation had arisen as a result of the content of letter No. 1655-GAP-GCRH-OGA-ESSALUD-2010, which instructed the trade union to remedy the appeal filed against trade union leave granted in letters Nos 1187, 1185, 1219, 1188, 1221, and 1186-GCRH-ESSALUD-2010, through which trade union leave was granted to members of the national electoral committee and representatives of electoral subcommittees, in accordance with the provisions of directive No. 0013-GG-ESSALUD-2007, “Rules on granting trade union leave to the officials of administrative workers trade union organizations”;
   • – the aforementioned appeal had been authorized by the lawyer, Luís Apéstegui Márquez, who signed the documents not only in his capacity as SINACUT Legal Defence Officer, but as the lawyer for Octavio Rojas Caballero, which was prohibited under article 2(f) of Act No. 27588, stipulating that public servants are barred from acting as lawyers, proxies and sponsors of individuals in proceedings against the State department in which they serve during their term of office. The appeal filed was therefore returned to him so that he could remedy this omission in accordance with the provisions of article 211 of Act No. 27444, General Administrative Procedure Act; (Note 2)
   • – in the light of the foregoing, ESSALUD categorically rejects the arguments of the complaint made by SINACUT, as the institution respects freedom of association within the established legal boundaries and unfailingly demonstrates its openness to dialogue and willingness to grant the concessions needed to ensure that members have the respective trade union leave and conditions to carry out their trade union activities.
3. 888. The Government also reports the opinion issued by the National Civil Service Authority (SERVIR), governing body of the Human Resources Management Administrative System, on the incompatibility of public servants acting for individuals, resulting from the consultation undertaken on the issue by SINACUT itself. Specifically, in legal report No. 328-2010-SERVIR-GG-OAJ, dated 7 October 2010, the National Civil Service Authority supports the following arguments:
   • – In government institutions, public employees must observe certain rules of conduct to ensure professionalism and effectiveness when carrying out duties; rules which in some cases could reasonably affect the private activities of those persons.
   • Accordingly, the second paragraph of article 139 of the regulations of the Civil Service Career Act, adopted by Supreme Decree No. 005-090-PCM, provides that public officials and servants are barred from acting for or representing individual interests as lawyers, proxies, or arbitrators in judicial, administrative or arbitration proceedings in which the State and/or businesses owned directly or indirectly by the State are parties.
   • The general coverage of the prohibition ensures that it applies to all public servants, with no distinction made between those who are members of a trade union and those who are not, nor between members who hold a leadership position within those organizations and those who do not.
   • …
   • It is important to emphasize that this criterion does not affect freedom of association in general, nor the collective dimension of this right in particular, to the extent that it does not undermine the ability of trade unions to defend their members, and that it can be fully exercised through the comprehensive support provided to them by such organizations (institutionally) in the various disputes in which they are involved or, for example, through the representation provided by lawyers in that connection.
4. 889. The Government concludes that, in light of the foregoing, it can be stated that the complaint filed by SINACUT is unfounded, since ESSALUD adjusted its actions in line with the regulatory provisions in force, that is Act No. 27588, which is a law that provides for prohibitions and incompatibilities applicable to public officials and servants and persons providing services to the State under any type of contractual arrangement, and its regulations, adopted by Supreme Decree No. 019-2002-PCM, which in turn is interpreted in accordance with the provisions of Legislative Decree No. 276, Civil Service Career Act, and its regulations, adopted by Supreme Decree No. 005-090-PCM. In line with the opinion of the National Civil Service Authority that freedom of association does not represent an absolute right, it is correct to argue that it is incompatible for public servants and officials to act in a legal capacity against the interests of the institution in which they practise their profession, which is a reasonable measure and, moreover, it in no way affects their freedom of association, especially when there are alternative means through which members of the respective trade unions can exercise their right of defence.

C. The Committee’s conclusions

1. 890. The Committee observes that in the current complaint the complainant contests the decision of ESSALUD not to allow Mr Luis Oswaldo Apéstegui Márquez, Legal Defence Officer of the complainant trade union and public servant subject to public sector employment provisions, to act as the lawyer representing the Deputy Secretary General of the complainant trade union, Mr Octavio Rojas Caballero, in an administrative appeal, citing alleged legal inconsistencies and potential conflicts of interest. The complainant organization also questions the interpretation of the legal standards used by ESSALUD, with a series of arguments that are extensively detailed in the trade union’s allegations.
2. 891. The Committee notes the Government’s arguments highlighting that the complainant organization’s Legal Defence Officer could have used a lawyer who was not employed by ESSALUD, and the legality of ESSALUD’s decision. Specifically, the Government refers to the following provisions on incompatibilities of Act No. 27588, which are as follows:

   Article 1. Purpose of the act

   • The directors, officers, senior officials and members of advisory councils, administrative courts, commissions and other corporate bodies that have a State public role or duty, directors of public companies or State representatives on boards of directors, and consultants, officials or public servants with specific duties who, due to the character or nature of their role or the services that they provide, have had access to privileged or relevant information, or whose opinion has been crucial in decision-making, are bound to secrecy or confidentiality with regard to the matters or information which are deemed in law to be secret or confidential.
   • Neither may they disclose or use any information which, in the absence of legal restrictions, might be privileged due to its relevance, using it to their advantage or that of third parties and to the disadvantage or detriment of the State or third parties.
   • Any violation of the provisions of this article shall be deemed to be in breach of the principle of good faith and shall be punished by prohibiting the provision of services to the State, without prejudice to any administrative, civil and criminal penalties that might be incurred.

   Article 2. Prohibitions

   • The persons referred to in article 1 of this act, in respect of business or private institutions falling within the specific scope of their public duties, are subject to the following prohibitions:
     • (a) to provide any form of services to those institutions;
     • (b) to accept paid representations;
     • (c) to be a member of the board of directors;
     • (d) to acquire shares or holdings, directly or indirectly, in those institutions, their subsidiaries or those which could have a financial link;
     • (e) to enter into civil or commercial contracts with them;
     • (f) to act as lawyers, proxies, advisors, sponsors, experts or arbitrators of individuals in any proceedings they have pending before the courts with the same State department in which they provide their services, while they are still in office or carrying out the duties conferred on them; except when acting on their own behalf, or on behalf of their spouse, parents or children. The prohibitions shall remain in force in the specific cases or matters in which they had been directly involved.
   • The prohibitions remain in force until one year after the cessation or completion of the services provided under any type of contractual arrangement, be that due to resignation, cessation, dismissal or redundancy, expiration of the term of contract, or contract termination.
3. 892. Although it has considered the serious arguments of both the complainant organization and the Government on the interpretation of the legislation on incompatibilities in the public sector, the Committee wishes to state, however, that it does not have the authority to interpret the scope of the national legislation in question, which falls to the national competent authorities and ultimately the courts.
4. 893. The Committee considers that it is lawful for legislation to prevent conflicts of interests within public institutions and prohibit situations of corruption or use of privileged information, including stipulating incompatibilities in the exercise of certain duties by State employees.
5. 894. However, in the case in question, although neither the complaint nor the Government’s reply refer to specific conflicts of interest, the documents sent as an annex by the complainant organization contain a letter from ESSALUD, from which it emerges that the latter’s refusal to allow the union’s Legal Defence Officer to act as the lawyer representing the union’s Deputy Secretary General refers to an appeal against an administrative decision of ESSALUD refusing trade union leave to the latter. The first paragraph of the letter from ESSALUD, dated 17 November 2009, states the following:
   • I am addressing you with regard to the reference document through which an appeal was filed against letter No. 5132-GCRH-OGA-ESSALUD-2009 dated 20 October 2009, informing him that, having been granted trade union leave for the periods inclusive from 24 February to 2 March, 26–28 March and 13–17 April 2009, it was not possible to grant more trade union leave because he would exceed the days permitted pursuant to directive No. 0013-GG-ESSALUD-2007, “Rules on granting trade union leave to officials of administrative workers trade union organizations”.
6. 895. Hence, the Committee concludes that this case refers to strictly trade union issues and that the issue of a potential conflict of interest between two public employees or between ESSALUD and a public employee does not arise. The Committee thus emphasizes the principle of non-interference of public authorities in the functioning and activities of trade union organizations in accordance with their statutes, enshrined in Article 3 of Convention No. 87, and requests the Government to adopt measures to ensure that, as regards trade union issues, ESSALUD recognizes the right of trade union officials and members to be represented in administrative appeals by a lawyer of their choice, especially when that lawyer is a trade union official.

• Note 1: Article 1. Purpose of the act. [1] The directors, officers, senior officials and members of advisory councils, administrative courts, commissions and other corporate bodies that have a State public role or duty, directors of public companies or State representatives on boards of directors, and consultants, officials or public servants with specific duties who, due to the character or nature of their role or the services that they provide, [2] have had access to privileged or relevant information, or whose opinion has been crucial in decision-making, are bound to secrecy or confidentiality with regard to the matters or information which are deemed in law to be secret or confidential.”
• Note 2: “Article 211. Appeal requirements. The notice of appeal must state the action being appealed against and meet the other requirements stipulated in article 113 of this act. It must be authorized by a lawyer.”