Rapport définitif - Rapport No. 357, Juin 2010

Cas no 2688 (Pérou) - Date de la plainte: 29-OCT. -08 - Clos

Allegations: The National Federation of Judicial Employees of Peru (CEN–FNTPJ) alleges that: (1) the judicial authority, as the employer, refused to bargain with it; (2) despite having signed a settlement on 4 December 2007 (after a strike that had begun on 27 November), the judicial authority signed another settlement on 7 January 2008 with a group of unions which, although they are affiliated to the Federation, had decided to continue the strike; and (3) the judicial authority interfered in internal affairs of the union

1. 893. The complaint is contained in a communication from the National Federation of Judicial Employees of Peru (CEN–FNTPJ) dated 29 October 2008.
2. 894. The Government sent its observations in communications dated 25 February and 25 May 2010.
3. 895. 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. 896. The CEN–FNTPJ alleges that the judicial authority refused to set up a joint committee to hold formal discussions on the lists of demands presented in 2007 and 2008, but that after the national strike that lasted from 27 November to 4 December 2007, a settlement was signed between the union and the judicial authority, ending the strike and settling some of the complainant’s demands. The complainant adds, however, that on 7 January 2008, the director of human resources development of the judicial authority interfered in the internal affairs of the Federation by signing a second settlement, which also provided for benefits, with certain affiliates of the Federation that had decided to go on with the strike, despite the fact that they did not have trade union status, and disregarding the representativity of the complainant Federation.
2. 897. The complainant further alleges that the judicial authority interfered in the federation’s internal affairs by attempting to influence the appointment of the worker members of the joint committee approved by Decision No. 268-2007-P/PJ (according to the complainant, the judicial authority is trying to get a member of the Single Trade Union of Judiciary Employees, Lima Section (SUTRAPOJ–LIMA) on the committee) and, by appointing a parallel joint committee by Decision No. 197-2008-P/PJ of 19 September 2008, to negotiate a list of demands for 2008–09 presented by the SUTRAPOJ–LIMA, a primary organization affiliated to the Federation, despite the existence of the other joint committee approved by Decision No. 268-2007-P/PJ.

B. The Government’s reply

1. 898. The Government in its communications states that the judiciary has been asked to provide information on the allegations, but has not sent its observations.
2. 899. As regards the alleged refusal to bargain collectively, the Government states that the Federation presented the collective agreement for 2007–08, signed on 20 December 2007 with the judicial authority, which was registered on 10 January 2008 under No. 006-2008. As regards the list of demands for 2008–09, the Government states that the Subdirectorate for Collective Bargaining, by Subdirectorate Decision No. 023-2008-MTPE/12.210 of 2 April 2008, disqualified itself from handling the list of demands on the grounds that it related to workers who were subject to public and private sector labour law. The decision was upheld by the administrative authority in the second instance, and the procedure was shelved. The Government explains that, although previously there was no regulation on the possibility of the administrative authority handling procedures involving collective bargaining by mixed trade unions (whose members are subject to both public and private sector labour law), it can no longer refuse to examine lists of demands presented by mixed unions, pursuant to national Directive No. 002-2009-MTPE/211.1 of 17 February 2009, issued by the National Directorate for Labour Relations. In order to guarantee the right to collective bargaining, the administrative authority will have to request the applicant trade union to limit the scope of bargaining to workers subject to private sector labour law. The Federation is currently negotiating the list of demands for 2009–10.
3. 900. As regards the allegation that the judicial authority had signed a second settlement, equivalent to a collective agreement, with a group of workers who did not have representative status, the Government points out that this was in fact a dispute settlement agreement signed with the members of primary organizations affiliated to the Federation which were continuing the strike despite the fact that a settlement had been signed by the Federation on 4 December 2007. The Government explains that if it were indeed a collective agreement, it would have had to be registered with the competent administrative authority, which was not the case.
4. 901. As regards the allegations relating to interference by the judicial authority in the composition of the joint committee, by requesting that it include a member of a primary organization, and to the establishment of a parallel joint committee by Decision No. 197-2008-P/PJ to negotiate a list of demands for 2008–09, with the aim of undermining the Federation, the Government states that the State of Peru does not allow acts detrimental to trade union autonomy and freedom of association, and adds that the administrative authority disqualified itself from handling the list of demands for 2008–09 presented by the SUTRAPOJ–LIMA and that no appeal had been lodged against that decision. The Government further states that the judicial authority did not negotiate any collective agreement with that primary organization, and that no procedure was initiated for the presentation of a list of demands.

C. The Committee’s conclusions

1. 902. The Committee observes that, in this case, the CEN-FNTPJ alleges that: (1) the judicial authority, as the employer, refused to bargain with it; (2) despite having signed a settlement with the Federation on 4 December 2007 (after a strike that began on 27 November), the judicial authority signed another settlement on 7 January 2008 with a group of unions which, although they are affiliated to the Federation, had decided to continue the strike; and (3) the judicial authority interfered by: (a) responding favourably to efforts by a trade union (SUTRAPOJ–LIMA) to include a representative of that union on the joint committee between the judicial authority and the CEN–FNTPJ approved by Decision No. 268-2007-P/PJ of 3 December 2007 (specifically, by requesting that a member of SUTRAPOJ–LIMA be included in the joint committee, which the Federation refused); and (b) appointing a parallel joint committee by Decision No. 197-2008-P/PJ of 19 September 2008 to negotiate a list of demands presented by SUTRAPOJ–LIMA, despite the existence of the other joint committee. In this regard, the Committee observes, first, that it may be inferred from the allegations and the Government’s reply that the allegations refer to an existing internal dispute between the Federation and a primary organization affiliated to it.
2. 903. As regards the alleged refusal to bargain collectively, the Government reports on the setting up of joint committees and that: (1) the collective agreement for 2007–08 signed on 20 December 2007 between the Federation and the judicial authority was registered on 10 January 2008 under No. 006-2008; (2) as regards the list of demands for 2008–09, the Subdirectorate for Collective Bargaining disqualified itself from handling that list as it referred to workers who were subject to public and private sector labour law and it was not competent to issue an opinion on the matter; that decision was upheld by the administrative authority in the second instance, and the procedure was shelved; and (3) the Federation is currently negotiating the list of demands for 2009–10, at the direct bargaining stage. The Committee takes due note of this information.
3. 904. As regards the allegation that a dispute settlement agreement was signed on 7 January 2008, with primary trade unions affiliated to the Federation, despite the existence of a settlement signed on 4 December 2007 with the Federation, the Committee notes that the Government states that this was, in fact, an agreement to end the dispute, signed by the primary organizations affiliated to the Federation, which had continued the strike despite its having been suspended by the Federation, and was not registered with the administrative authority as a collective agreement. In this regard, the Committee considers that the authorities cannot be blamed for taking steps to reach agreements to end a strike in an essential service such as the judiciary, although the signatory trade union – as in the present case – did not follow the instructions of its Federation and decided to continue the strike. In these circumstances, given that the Federation has not provided information indicating that internal procedures have been initiated against the primary organization pursuant to the trade union by-laws or that legal action for damages has been brought, and considering that the situation is one of conflict between trade unions, the Committee will not continue its examination of these allegations.
4. 905. As regards the allegations of interference by the judicial authority in the internal affairs of the Federation by appointing a joint committee between the judicial authority and SUTRAPOJ–LIMA in addition to the joint committee between the authority and the CEN–FNTPJ, the Committee notes that the Government states that: (1) the State of Peru does not allow acts detrimental to trade union autonomy and freedom of association; (2) the administrative authority disqualified itself from handling the list of demands for 2008–09 presented by SUTRAPOJ–LIMA and no appeal was lodged against that decision; and (3) the judicial authority did not negotiate a collective agreement with that primary organization, and no procedure has been initiated for the presentation of a list of demands.
5. 906. The Committee observes that it appears from the documentation sent by the complainant that another joint committee was indeed set up by Decision No. 197-2008-P/PJ and that the reasons given in the decision for appointing the new committee are the Federation’s refusal to allow the inclusion in the previous joint committee (Decision No. 268-2007-P/PJ) of a member of SUTRAPOJ–LIMA (whose membership, according to the decision, comprises a majority of workers in the judicial authority). According to the decision, in the light of the internal dispute between the Federation and the primary organization, explicitly recognized in the decision, a joint committee was set up to negotiate the list of demands presented by the primary organization, which, according to the Government, was never signed.
6. 907. The Committee considers that the measures adopted by the authorities – namely, setting up two joint committees as two lists of demands were presented (although the one presented by SUTRAPOJ–LIMA was not negotiated in the end, and did not lead to the signing of a collective agreement) by two trade union organizations at different levels, belonging to a sector providing an essential service – were taken in the context of an inter-union conflict between the CEN–FNTPJ and SUTRAPOJ–LIMA, but were obviously motivated by the authorities’ desire to maintain social peace and ensure the provision of that essential service. The Committee, therefore, considers that this does not constitute reproachable conduct by the employer, as SUTRAPOJ–LIMA does not appear to be dependent on the employer but rather to be taking a strong stance in defence of its demands. In these circumstances, again in view of the fact that these allegations arose in the context of an internal dispute between trade unions, the Committee will not pursue its examination of these allegations.

The Committee's recommendations

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