Effect given to the recommendations of the committee and the Governing Body - Report No 400, October 2022

Effect given to the recommendations of the committee and the Governing Body

1. 53. The Committee examined this case, which concerns restrictions imposed by the State Health Service on the exercise of the right to strike by nurses, at its October 2015 meeting [see 376th Report, paras 861–896]. On that occasion, the Committee made the following recommendations:
   • (a) The Committee again requests the Government to take steps to amend the legislation so that responsibility for declaring a strike illegal does not lie with the Government but with an impartial and independent body.
   • (b) Furthermore, the Committee suggests that the disagreements between the parties as to the number and duties of the public service workers in a minimum service should be settled by an independent body, such as, for example, the judicial authority.
   • (c) The Committee requests the Government to send its observations on the allegation concerning the refusal to grant trade union leave to union official Ms Marcela Guevara González.
2. 54. The Government submitted additional information in communications dated 25 April 2016, 3 and 21 September and 5 November 2018, and 8 June 2021. Concerning recommendation (a), the Government indicates that: (i) the entity responsible for ruling on the lawfulness of a strike in the private sector is the labour authority, at the national or regional level, in accordance with the rules set out in Supreme Decree No. 017-2012-TR; and (ii) in accordance with articles 86, 87 and 88 of the General Regulations of the Civil Service Act No. 30057, rulings on the lawfulness of a strike in the public sector fall within the competence of the Civil Service Support Commission; while the commission will consist of independent professionals, it has not yet been established, hence the Directorate-General of Labour is currently assuming these responsibilities. The Committee notes the information provided by the Government and trusts that the Civil Service Support Commission will be established promptly.
3. 55. Concerning recommendation (b), the Government reports that in 2018, the executive branch issued Supreme Decree No. 009-2018-TR governing the exercise of the right to strike and the communication of minimum services and the procedure for deviating from them, which was intended to have a positive impact on the determination of minimum services within the enterprise and, in the event that the right to strike is exercised, to provide greater legal certainty both to employers and to workers. The Committee observes that Supreme Decree No. 009 2018-TR amends articles 67 and 68 of the Regulations of the Collective Labour Relations Act and incorporates articles 68-A and 68-B concerning the communication of minimum services in the event of a strike and the procedure for deviating from them. The Committee further observes that the aforementioned articles of the Regulations of the Collective Labour Relations Act were subsequently amended by Supreme Decree No. 014-2022-TR, which was published on 24 July 2022, and that article 68 as amended establishes, inter alia, that: (i) to settle a disagreement on the minimum service level in essential public services, the labour administration may rely on the support of an independent body; and (ii) the labour administration shall settle any disagreements on the basis of the report of the independent body, the technical report submitted by the employer and the observations or reports submitted by the workers or trade union, and may seek the support of the labour inspectorate or other entities. While duly noting the amendments introduced by Supreme Decree No. 014-2022-TR, the Committee recalls once again that disagreements between the parties as to the number and duties of the workers should not only be examined, but also settled, by an independent body, such as the judicial authority, and trusts that any subsequent amendment will take the foregoing into account.
4. 56. Concerning recommendation (c), the Government informs the Committee that: (i) the State Health Service respects freedom of association and ensures that union leaders’ rights and prerogatives are exercised appropriately; and (ii) on 18 October 2016, Ms Marcela Guevara González left her position as Secretary of Social Welfare, Sport and Leisure of the National Union of State Health Service Nurses and does not sit on the current board. The Committee duly notes this information. On the basis of the above considerations, the Committee considers that this case is closed and will not pursue its examination.