Rapport intérimaire - Rapport No. 362, Novembre 2011

Cas no 2816 (Pérou) - Date de la plainte: 22-SEPT.-10 - Clos

Allegations: The complainant organization alleges that the Office of the National Superintendent of the Tax Administration has committed acts violating trade union rights (illegal deductions for days of strike action; classification of certain activities as essential; lack of interest in dialogue with the trade union; unlawful transfer and initiation of disciplinary proceedings against trade union officials; etc.)

1. 1176. The complaint in this case is contained in a communication from the United Trade Union of SUNAT Employees (SINAUT SUNAT) dated 22 September 2010. SINAUT SUNAT presented new allegations in a communication of 26 November 2010. The Government sent its observations in communications dated 8 February and 3 May 2011.
2. 1177. 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. 1178. In its communication of 22 September 2010, the United Trade Union of the Office of the National Superintendent of the Tax Administration (SUNAT) Employees (SINAUT SUNAT) presents the present complaint concerning acts committed by the State of Peru through its institutions: (i) the Office of the National Superintendent of the Tax Administration (SUNAT); and (ii) the Ministry of Labour and Employment Promotion. The complainant organization alleges that SUNAT made unlawful deductions form wages on account of a strike held by members of SINAUT SUNAT. On 17 and 18 December 2009 the members of SINAUT SUNAT exercised their right to strike in accordance with the final decision of the Directorate for Dispute Prevention and Settlement of the Ministry of Labour and Employment Promotion, which had approved the declaration of the strike in Directorate Order No. 153-2009-MTPE/2/12.2 of 18 December 2009.
2. 1179. In the context of recognition of the lawfulness of industrial action, which has been explained previously, under section 77(b) of the consolidated text of the Collective Labour Relations Act, approved by Supreme Decree No. 010 2003-TR (TUO-LRCT), the only lawful deduction for days of strike action is the deduction from wages in proportion to the number of days of stoppage. However, SUNAT ordered the payment of wages for the month of December 2009 with a deduction in addition to the amount proportional to the two days of the strike; the extra deduction was in proportion to the compulsory day of rest – Sunday – and corresponds to the third week of December 2009, in which the stoppage was held. In addition, in the case of the workers who participated in the strike, SUNAT deducted more than the amount due for the employee fund (FESUNAT) and income tax (“fifth category”). This situation was confirmed and denounced by SINAUT SUNAT, which wrote a formal complaint to SUNAT in letter No. 025-2010/SINAUT SUNAT dated 29 March 2010, but despite the complaint, SUNAT has neither acknowledged nor rectified the unfair deduction.
3. 1180. The complainant organization states that the additional unlawful deductions made by SUNAT, being directly related to the exercise of the right to strike, involve serious infringements under Peruvian law of sections 24.4 and 25.17 of the Regulations made under the General Labour Inspection Act approved by Supreme Decree No. 019-2006-TR. These deductions clearly constitute reprisals against the legitimate exercise of the right to strike. The unlawful deductions described in this paragraph violate the freedom of association of SUNAT employees.
4. 1181. The complainant organization adds that the by-laws of SINAUT SUNAT, approved at its extraordinary general assembly on 24 January 2009, provide that the general assembly of members may decide to impose disciplinary penalties under section 14(f). Specifically, subsection (k) of the by-laws provides that a member of the trade union who does not abide by industrial action measures may, in addition to expulsion, be liable to a financial penalty if so decided by the general assembly. It should be pointed out that the by-laws were approved at an extraordinary general assembly of SINAUT SUNAT and presented to the Ministry of Labour and Employment Promotion, and have not elicited any observations from the labour authority or from SUNAT. In this context, and in accordance with the abovementioned provisions of the by-laws, when it decided to hold the strike on 17 and 18 December 2009 at an extraordinary general assembly on 5 December 2009, SINAUT SUNAT agreed to impose a financial penalty – a fine – on members who did not observe the strike.
5. 1182. Once the strike had ended, as some members of the union had not participated in it, the trade union informed SUNAT of the particulars of the workers who had been fined, so that it could make the necessary payroll deductions. However, as may be seen from letter No. 180-2010 dated 16 April 2010 from the National Directorate of Human Resources to SINAUT SUNAT, SUNAT decided not to deduct the fines levied on the workers who had not participated in the strike held on 17 and 18 December 2009. The decision was based on the fact that, in the view of the representatives of SUNAT, the labour legislation did not provide for such an obligation on the employer. However, it should be borne in mind that the deductions do not involve any expense for the employer, since: (i) they do not require any additional payment; and (ii) they do not call for any analysis, evaluation or verification of data, since the information on the penalties and deductions was provided in full by the trade union. In addition, making the deductions would mean: (i) recognition of the observance of the agreements of SINAUT SUNAT; (ii) recognition of the enforcement power of the trade union with regard to its members, in accordance with its by-laws; and, in this case in particular, (iii) recognition of the observance of the lawful exercise of the right to strike.
6. 1183. The complainant organization considers that the decision not to deduct the fines levied on workers for not having participated in the strike is a deliberate measure intended to discourage the free exercise of the constitutional right to strike agreed on by the members of the trade union, in violation of article 28 of the Constitution, in which the State recognizes the right to strike.
7. 1184. The complainant organization adds that SUNAT scheduled an internal competition to fill vacant managerial posts, and that the competition and its timetable coincided with the dates previously fixed for the strike called by the trade union. In an email sent on 12 November 2009, the National Directorate of Human Resources of SUNAT issued an internal vacancy announcement to cover certain managerial posts through a competition. According to the timetable set out in the paragraph entitled “Applications”, the dates fixed for the competition were the same two days as those on which the trade union had previously planned to hold the strike, 24 and 25 November 2009, as may be seen from the notification dated 9 November 2009 issued by the Lima-Callao Regional Directorate for Labour and Employment Promotion, and the administrative decision dated 11 November 2009 issued by the Subdirectorate for Collective Bargaining of the Ministry of Labour and Employment Promotion.
8. 1185. Given that the employer had already been informed of the date of the strike, it is obvious that its sudden decision to schedule an internal competition to fill vacant managerial posts was intended to discourage the holding of the strike – an illegal situation which is contrary to the abovementioned article 28 of the Constitution, in which the State recognizes the right to strike.
9. 1186. The complainant organization states that in letter No. 162-2010-SUNAT/2F0000 dated 26 March 2010, the National Directorate for Human Resources informed SINAUT SUNAT of the number and occupations of the workers needed to maintain essential minimum services in the event of a strike, supposedly in accordance with sections 78 and 82 of the TUO-LRCT. The complainant organization considers this communication to be blatantly illegal, given that the provisions cited by SUNAT are not even related to the service it provides, which is tax collection. Specifically, section 78 of the TUO-LRCT provides as follows: “Section 78. Tasks that are essential to the enterprise, the interruption of which would endanger persons, safety or property or prevent the immediate resumption of the normal activity of the enterprise once the strike is over shall be excluded from the suspension of activities.” The complainant organization considers that, in view of the nature of the service provided by SUNAT, the temporary and specific suspension of tax collection would in no case involve endangering persons, safety or property of the institution or prevent the immediate resumption of work. Clearly, the situation referred to in the abovementioned provision on essential services does not cover SUNAT, given the type of service it provides. As for section 83 of TUO-LRCT, it lists essential public services, specifying that such a classification shall only be made through a legal determination.
10. 1187. In this regard, given that sections 78 and 83 specify the essential activities and services giving rise to the obligation laid down in section 82 of the TUO-LRCT under which workers must “… guarantee the presence of the staff necessary to prevent a total interruption of work and ensure continuity of services and activities as required,” and given the fact that, again, tax collection is not included in any of the cases previously mentioned, the workers of SUNAT exercising their legitimate right to strike are not obliged to guarantee minimum services during industrial action, and therefore it is unlawful to designate the number and occupations of workers for that purpose. In this regard, SINAUT SUNAT sent letter No. 037-2010/SINAUT SUNAT dated 31 March 2010 to the National Directorate of Human Resources of SUNAT, in reply to letter
11. No. 162-2010-SUNAT/2F0000. As explained in the preceding paragraphs, it is obvious that by unlawfully notifying the union of the number and occupations of the workers supposedly necessary to maintain essential minimum services in the event of a strike, SUNAT intends to illegally restrict the right to strike of the members of SINAUT SUNAT, in violation of article 28 of the Constitution.
12. 1188. The complainant organization further alleges that SUNAT has withdrawn permission to use the institutional email system to communicate with the members of the union. According to the complainant, the representatives of SUNAT verbally authorized the use of the institutional email for communication with the members of the union, as indicated in the email sent at 5.08 p.m. on 12 April 2010 by Ms Paola Aliaga (general secretary of SINAUT SINAT) to Mr Ricardo Toma Oyama (deputy director for internal revenue of SUNAT). This is evidenced by emails sent by SINAUT SUNAT representatives to communicate among themselves, with SUNAT representatives and with union members on purely trade union matters. These communications were official and open, and did not warrant any sanction whatsoever, as is clear from the authorization to use the institutional email for communication with union members.
13. 1189. However, states the complainant organization, SUNAT decided for no apparent reason to withdraw permission for communication between the trade union and its members, suddenly saying that the institutional email system was to be used only for work-related purposes, as may be seen from the email sent on 10 April 2010 at 6.19 p.m. Similarly, SUNAT restricted the use of institutional email accounts assigned to union officials, as explained in the email sent at 6.26 p.m. on 13 August 2010 by the communications and public relations secretary of SINAUT SUNAT to the union’s general secretary and from the restricted email sent on 4 March 2010 at 1.43 p.m. to a group of members of SINAUT SINAT. The restricted email sent to a group of members of SINAUT SINAT (totalling 1,490) could not be delivered to 946 members, which means that an email must be sent “several times to a smaller number of addressees”, as explained in the last part of the email itself. This restriction was imposed on all of the officials of SINAUT SUNAT.
14. 1190. Lastly, in letter No. 150-2010-SUNAT/2F3000 dated 7 September 2010, the department of personnel management of SUNAT issued an express and definitive prohibition on the use of institutional email, including a ban on the use of email for purely trade union purposes. This decision was taken precisely a time when the list of demands presented by SINAUT SUNAT for the period 2010-11 was being negotiated, as may be seen from the following: (i) the list of demands itself, presented by SINAUT SUNAT on 3 March 2010; (ii) the record of the opening session of direct bargaining on the list of demands for 2010–11, dated 22 April 2010; (iii) the record of the conciliation procedure dated 11 June 2010; (iv) the record of the conciliation procedure dated 24 June 2010; (v) the record of the conciliation procedure dated 12 July 2010; (vi) the record of the conciliation procedure dated 22 July 2010; (vii) the record of the conciliation procedure dated 10 August 2010; (viii) the record of the conciliation procedure dated 19 August 2010; (ix) the record of the conciliation procedure dated 1 September 2010; and (x) the record of the conciliation procedure dated 8 September 2010; this being a period when the members of the bargaining committee needed to communicate with the other members of the union to inform them of the agreements reached, hold consultations and receive suggestions in order to take decisions representing the intentions of all of the members.
15. 1191. The complainant organization adds that SUNAT has displayed an evident lack of interest in communicating with SINAUT SUNAT. The representatives of the union have attempted to meet with representatives of the employer in order to resolve, through direct coordination, the difficulties faced by the workers of SUNAT, which they express through the union. However, SUNAT has not taken an interest in holding the meetings requested, displaying an evident lack of interest in resolving the difficulties faced by its workers and expressed through the union. Moreover, states the complainant, SUNAT refuses to grant the trade union the facilities necessary to enable it to function normally (such as additional trade union leave, leave to attend events, recognition of trade union immunity of the members of the executive committee, delegates, deputy delegates and coordinators, access to SUNAT premises to communicate with members, provision of an office for the trade union in the institution, installation of an email account for the union, and authorization of the use of certain SUNAT premises and equipment for trade union activities, authorization to distribute information on SUNAT premises).
16. 1192. The complainant organization adds that SUNAT has violated the trade union immunity of the deputy general secretary of SINAUT SUNAT. On 23 October 2009 issued an unexpected order for the removal of Mr Edmóstines Montoya Jara, deputy general secretary of SINAUT SUNAT, from his post as professional supervisor of the Ad Hoc Public Prosecutor’s Office of SUNAT, transferring him to the post of resolution auditor in Division III of the Complaints Department of the Office of Major National Taxpayers of SUNAT, which is at a lower grade (the Ministry of Labour and Employment Promotion, in violation report No. 2482-2009-MTPE/2/12.3 of 2 December 2009 and a subsequent subdirectorate decision, recognized unfair treatment to the detriment of the deputy general secretary of SINAUT SUNAT, sanctioned SUNAT for the violations and warned it to change its unlawful conduct; however, SUNAT has not done this to date). The complainant organization states further that SUNAT has taken retaliatory action against the organizing secretary of SINAUT SUNAT, Mr Pedro Ángel Chilet Paz, deputy general secretary of SINAUT SUNAT-TI. The latter filed judicial proceedings against SUNAT, requesting that his wages be adjusted to that of other employees in the institution performing the same duties, which involves restoring his wages, also affecting his social benefits. As a result, SUNAT instituted disciplinary proceedings against Mr Chilet Paz, alleging that he was guilty of misconduct for having submitted in his court proceedings copies of payslips of SUNAT employees performing the same duties but earning higher pay. The proceedings initiated by SUNAT are intended as an act of retaliation against the worker for his activity as a union representative, for his participation in collective bargaining for the period 201011 and for having instituted legal proceedings against his employer to obtain his employment entitlements that have not been recognized (the Ministry of Labour and Employment Promotion, in violation report No. 1458-2010-MTPE/2/12.3 of 22 July 2010, recognized unfair treatment to the detriment of the secretary of SINAUT SUNAT and proposed the imposition of a penalty for the violations committed, but there has been no change in the unlawful situation).
17. 1193. The complainant organization states that SUNAT has committed the following unlawful acts against the general secretary of SINAUT SUNAT: (a) unlawful caution to Ms Paola Aliaga Huatuco to comply with her working hours, despite the fact that her post is not subject to supervision, according to the employer itself; and (b) disproportionate evaluation and appraisal of Ms Paola Aliaga Huatuco’s performance during the period from January to December 2009. In addition, SUNAT issued unlawful written warnings in the form of cautions to union representatives in the Cajamarca office (Mr Manuel Oswaldo Solano Dávila and Mr Eleodoro Américo Paredes Fabián) and to the union representative in the Piura office (Mr Yovanni Javier Nava Larnia was sanctioned by the SUNAT personnel department in memorandum No. 312-2010-SUNAT/2F3000 of 9 March 2010 for having sent an email on 23 November 2009 from his institutional email account assigned by SUNAT). The personnel department considered that the sending of that email constituted a sanctionable disciplinary offence and therefore issued a caution to the worker asking him to abide by the rules on IT and email security.
18. 1194. The complainant organization also alleges violations of freedom of association in the form of action taken by the Ministry of Labour and Employment Promotion against SINAUT SUNAT. The union had planned a strike to be held on 24 and 25 November 2009. Its decision was prompted by SUNAT’s evident unwillingness to reach agreement on the list of demands for the period 2008–09. In order to exercise its right to strike lawfully, the union notified the Ministry of Labour and Employment Promotion of its decision in accordance with section 72 et seq. of the TUO-LRCT. These communications were handled under file No. 210704-2008-MTPE/2/12.210 (procedure for declaration of a strike), in which only SINAUT SUNAT was a party. In an administrative decision dated 11 November 2009, the Subdirectorate for Collective Bargaining of the Ministry of Labour and Employment Promotion acknowledged the trade union notification and approved the strike notice.
19. 1195. However, SUNAT unaccountably lodged an appeal against that decision, despite the fact that it was not a party in that administrative procedure, since the purpose of notifying the labour authority of a strike is to enable it to verify the legality of the strike, and therefore the employer is not involved in the procedure. There is no precedent allowing an employer to oppose the declaration of the authority that has noted that the strike notice has met the legal requirements for its validity. Subsequently, and even more unaccountably, the Subdirectorate for Collective Bargaining of the Ministry of Labour and Employment Promotion issued an administrative decision dated 17 November 2009 allowing the appeal that had been unduly submitted and in reply, ordered the referral of file No. 210704-2008-MTPE/2/12.210 to the Directorate for Dispute Prevention and Resolution of the Ministry of Labour and Employment Promotion.
20. 1196. This decision, which is clearly unjustified, was upheld by the Directorate for Dispute Prevention and Resolution of the Ministry of Labour and Employment Promotion, which responded to the unlawful appeal by issuing directorate order No. 142-2009-MTPE/2/12.2 of 19 November 2009 revoking the administrative decision of 11 November 2009 approving the declaration of the strike and amending it to withdraw its approval. Faced with this situation, the union filed an appeal for review against directorate order No. 1422009-MTPE/2/12.2 of 19 November 2009; however, the appeal was unjustifiably rejected in a decision of 23 November 2009, without indicating the reasons for the decision. The labour administrative authority did not consider that SUNAT was not a party in the administrative procedure. The employer – in this case, SUNAT – is not a party in the administrative procedure for the declaration of a strike, since it is not the holder of the right in question and does not instigate the individual or collective exercise of this right; neither does it have any right or legitimate interest that may be affected by the lawful exercise of a constitutional right such as the right to strike.
21. 1197. The complainant organization states that the labour administrative authority was mistaken in considering that the procedure for the declaration of a strike is a trilateral procedure. The General Administrative Procedure Act, No. 27444, provides for two types of procedure: ordinary and trilateral procedures. The latter is covered in Chapter I of Title IV, referring to special procedures. It should be pointed out, however, that trilateral procedures are not covered in the Collective Labour Relations Act, and thus the procedure for the declaration of a strike is an ordinary procedure, in which the trade union is the only party and the only one that can legitimately challenge decisions issued by the labour administrative authority.
22. 1198. In the light of the above, the complainant organization considers that the administrative decisions issued by the Subdirectorate for Collective Bargaining of the Ministry of Labour and Employment Promotion in response to the appeal lodged by SUNAT involve acts of interference in trade union activity and hence a violation of the freedom of association of the members of SINAUT SUNAT. The union has requested verification of the legitimacy of the decisions, but no definitive decision has been issued on this request. SINAUT SUNAT requested the head of the institutional oversight body of the Ministry of Labour and Employment Promotion to verify the legality of the administrative decisions. The request for verification was submitted on 14 December 2009 and, in response to letter No. 509-2009-MTPE/8 of 16 December 2009 it was forwarded to the Lima-Callao Regional Directorate of Labour and Employment Promotion of the Ministry of Labour and Employment Promotion, a higher-level body than the Subdirectorate for Collective Bargaining and the Directorate for Dispute Prevention and Settlement. However, the Lima-Callao Regional Directorate of Labour and Employment Promotion of the Ministry of Labour and Employment Promotion has still not issued a decision.
23. 1199. In its communication of 26 November 2010, the complainant organization alleges that SUNAT has instituted disciplinary proceedings against union representatives. It states that Ms María Covarrubias is a SUNAT employee and Defence Secretary of the union, as may be seen from letter No. 091 2009/SINAUT SUNAT of 6 July 2009. The complainant organization states that SUNAT has instituted labour disciplinary proceedings against Ms Covarrubias for alleged misuse of email. The complainant organization alleges that since the establishment of SINAUT SUNAT (2008) the union has been using the institutional email system for trade union purposes, in order to communicate with members on different matters of interest to the union, without any opposition from the employer. What is more, SUNAT has been using the institutional email to communicate with its employees on various matters relating to the trade union activity of SINAUT SUNAT. The employer, SUNAT, also used the email system to communicate with officials of the trade union.
24. 1200. According to the complainant organization, over more than two years of existence of the trade union, the employer has not made any comments on the use of the institutional email system for trade union purposes. What is more, the employer itself used the system to communicate on trade union matters and to communicate with trade union officials. On 5 October 2010 the Defence Secretary, in the exercise of her right to freedom of association, sent the following via the SUNAT email system: (1) an email to several addressees, including the head of the welfare division, concerning an issue related to interns and youth training, regarding the handling of the deductions for their meals taken in the cafeteria; and (2) report No. 003-2010-SG to a group of members, concerning action taken by SINAUT SUNAT on matters relating to a request for arbitration, presentation of a new complaint to the ILO on anti-union practices, the process of enforcement of a ruling and leave compensation.
25. 1201. On 15 October 2010, the head of personnel of the National Directorate of Human Resources of SUNAT, in electronic memorandum No. 248-2010-SF3000, notified the Defence Secretary of the following: “It has come to our knowledge through an email of one of our employees (who received it via a successive chain of messages to different addressees) that on 5 October 2010 you used the institutional email system for non-work-related purposes, dealing with personal matters during working hours, contrary to section 38(n) and (u) of the Staff Regulations, as well as section 39, which prohibits the use of an email account assigned by the institution for purposes unrelated to assigned duties, and paragraph VI(1) of Circular No. 006-2008, which states that office email is an IT tool provided by SUNAT to its employees exclusively for the performance of their duties, it being prohibited to use it for non-work-related purposes, under paragraph VII(3.1) of the abovementioned circular; your are requested during this inquiry phase to provide a report on the above facts within three working days from the date following that of receipt of this message”. According to the complainant organization, no evidence in support of this accusation was included with the message.
26. 1202. The complainant organization adds that the inquiry against the Defence Secretary occurred precisely at a time when, in the exercise of her duties under the union by-laws, she raised certain concerns to several managers of the National Directorate for Human Resources and/or executives of SUNAT, explaining the standpoint of the trade union on various issues of interest to the union. The union therefore considers that this manoeuvre against a member of the current executive committee constitutes an act of intimidation and harassment of the union representative concerned.
27. 1203. The complainant organization adds that on 5 October 2010, the current communication and public relations secretary, Mr Jorge Carrillo Vértiz, sent report No. 003-2010-SG to a group of union members, informing them of action taken by the union leadership in defence of the union and its members, in accordance with the usual practice normally accepted by the employer, i.e. via institutional email. On 26 October 2010, the personnel director of the National Directorate for Human Resources of SUNAT sent the communications and public relations secretary electronic memorandum No. 249-2010-2F3000, in which he was accused of having used the institutional email system on 5 October 2010 for non-work-related purposes, dealing with personal matters during working hours, and was therefore requested to submit a report on the matters described within three days. It should be pointed out that no evidence was included in support of the accusations made. Nonetheless, on 27 October 2010 the abovementioned employee attempted to remedy this by sending Mr Jorge Carrillo Vértiz memorandum
28. No. 1138-2010-SUNAT/2F3000 with a copy of the email dated 5 October, as well as the allegedly forwarded mails, in an attachment and giving him three days to submit the requested report.
29. 1204. According to the complainant organization, these disciplinary proceedings against the communication and public relations secretary and the Defence Secretary were prompted by the sending of an email to a group of union members informing them of action taken by SINAUT SUNAT in defence of workers’ rights, such as the filing of amparo proceedings to reach a settlement on the list of demands for 2008–09 through arbitration; the presentation of a new complaint to the ILO concerning anti-union practices; the status of the execution of a Constitutional Court ruling ordering the standardization of remuneration of all SUNAT employees; and developments in the labour inspectorate with regard to compensation for delayed use of annual leave entitlement. However, it is especially important to mention that the email also informed members that complaints against officials of the National Directorate of Human Resources (including the director of personnel, Ms Miriam Díaz Colmenares) had been filed with the internal oversight body, the Office of the Comptroller General of the Republic and Congress for repeated noncompliance with social and labour legislation. This makes it all the more obvious that the disciplinary proceedings initiated by SUNAT, referred to in the present complaint, in fact constitute a flagrant act of retaliation for the exercise of our activity in defence of our trade union rights, since the official who instituted them is one of the persons against whom our trade union has filed a complaint.

B. The Government’s reply

1. 1205. In its communication of 8 February 2011, referring to SINAUT SUNAT’s allegations, the Government reports that SUNAT states the following:
   • – Unlawful deduction from wages on account of the strike held by members of SINAUT SUNAT. Section 77(b) of Supreme Decree No. 010-2003-TR approving the consolidated text of the Collective Labour Relations Act (TUO-LRCT) provides that the effects of a strike include suspension of all the obligations of an individual contract, including that of paying remuneration. Therefore the deduction in this case should have been made only for the two days not worked, in accordance with section 3 of Legislative Decree No. 713, read together with section 3 of the implementing regulations, approved by Supreme Decree No. 012-92-TR. In response to letter No. 180-2010 sent by SINAUT SUNAT, SUNAT has reviewed each of the cases referred to in the complaint, which cover 1,132 workers, in order to determine the amounts deducted and verify the items under which they were deducted and the sums to be reimbursed; this task was completed in October this year. The reimbursement of the amounts deducted for the Sunday began in November. Thus it cannot be said that there was no response to the communication sent by SINAUT SUNAT, since the necessary verification has been carried out.
   • – Failure to deduct fines imposed on workers by the trade union for not having participated in the strike. SUNAT states that it respects the sanctity of the wages of its employees, and therefore did not deduct the amounts of the fines imposed by the trade union on the workers who did not observe the strike on 17 and 18 December 2009, as there is no legal basis for doing so, since section 28 of Legislative Decree No. 0102003-TR approving the TUO-LRCT provides that the employer is only obliged to deduct from remuneration the statutory ordinary and extraordinary trade union dues of its unionized workers at the request of their trade unions and with the worker’s written consent. The General National Budget System Act provides that “The uniform payroll system may only be affected by the deductions stipulated by law, by court order or other items accepted by the official or retiree, with the approval of the Director-General of Administration or the person acting as his replacement”. Accordingly, SINAUT SUNAT was informed by letter No. 180-2010-SUNAT/2F0000 that SUNAT is not obliged to deduct fines imposed by the trade union on its members, or contributions arising from particular relationships it may establish.
   • – SUNAT scheduled an internal competition to fill vacant managerial posts, the timetable of which coincided with the dates previously fixed for the strike. SUNAT states that on 17 April 2009 “Guidelines for filling vacant managerial posts” were approved, in view of the fact that there were managerial posts to be filled; as of that date, preparations were made to carry out the selection procedures to fill the vacancies. SUNAT’s activity and procedures are carried out in a structured and planned manner, and therefore cannot anticipate potential events. Thus, in memorandum No. 345 2009-SUNAT/2F0000 of 28 September 2009, a proposal for filling the vacancies was sent to the Deputy National Superintendent for Internal Revenue. This communication predates the date on which SINAUT SUNAT decided, in an extraordinary general assembly on 24 October 2009, to hold the strike.
   • – SUNAT took it upon itself to designate part of its activities as essential services, unlawfully requesting its employees, in the event of a strike, to guarantee the presence of the necessary staff to prevent the interruption of its activities. SUNAT states that letter No. 162-2010-SUNAT/2F0000, which it sent to SINAUT SUNAT to inform it of the occupations and number of workers necessary to maintain essential minimum services, was not intended to restrict the workers’ constitutional right to strike, as the letter was based on section 78 of Supreme Decree No. 010-2003-TR, the Collective Labour Relations Act, and on section 67 of Supreme Decree No. 011-92-TR, the Regulations issued under the Collective Labour Relations Act – provisions which set out two cases of exceptions to stoppages. One of these consists of essential public services, which are specifically listed, and which do not cover the tax administration; the second case, which includes work essential to the enterprise, the interruption of which would endanger persons, safety or property or prevent the immediate resumption of the normal activity of the enterprise once the strike has ended, does cover the services of the tax administration; in view of the nature of its functions and of the fact that tax and customs procedures are subject to statutory time limits, it is essential to guarantee the continuity of services to that end.
   • – SUNAT withdrew permission to use the institutional email system for communications of trade union members. SUNAT states that at no time did it authorize the use of email for purposes other than those strictly related to work, as laid down in sections 38(u) and 39(g) of the SUNAT Staff Regulations. Moreover, it states that in Circular No. 006-2008 of 11 March 2008 it set out rules governing the email system, stipulating that it is an official means of communication and information exchange provided to employees, who should use it exclusively for the performance of their duties, in accordance with section 5.6 of the general provisions of Departmental Decision No. 088-2003-INEI, approving Directive No. 005-2003-INEI on “Rules for the use of email in public administration bodies”, a copy of which is attached. Letter No. 150-2010-SUNAT/2F3000 sent by the Department of Personnel Management to the general secretary of the trade union is a reminder on the appropriate use of email, as is clear from paragraph 4 of the letter, which reads as follows: “You are reminded that this organization has established rules for the use of institutional email, of which all staff members are aware...”; it thus does not constitute a revocation, since, as pointed out above, there was never any authorization to use the email system for purposes other than those laid down in the abovementioned rules.
   • – SUNAT has displayed an evident unwillingness to communicate with SINAUT SUNAT. SUNAT states that this assertion is unfounded, since it has held a number of meetings with SINAUT SUNAT representatives, such as those held by the National Superintendent of SUNAT on 9 and 20 April 2010, in which it heard union officials Paola Aliaga Huatuco and Edmóstines Montoya Jara, as well as meetings held on 27 January 2010 and 18 February 2010 with the Deputy National Superintendent for Internal Revenue, and meetings with the National Director of Human Resources on 24 March 2010 and 4 November 2010. In addition, constant efforts are being made to maintain a positive industrial relations climate, and in seeking solutions at both individual and collective levels.
   • – SUNAT refuses to grant the trade union the facilities necessary to enable SINAUT SUNAT to function normally. Trade union leave: SUNAT states that section 32 of the consolidated text of the Collective Labour Relations Act, approved by Supreme Decree No. 010-2003-TR, provides that the employer is obliged to grant leave to attend events that are mandatory for union officials, up to a limit of 30 calendar days per calendar year and per official; SUNAT has thus met the requirement by granting the following trade union leave: in 2009 and 2010: general secretary, 32 days in 2009 (exceeding the leave by two days) and 21 days in 2010; Defence Secretary, 28 days in 2009 and 21 days in 2010.
   • Use of offices: as regards facilities consisting in the use of infrastructure, equipment and other items, SUNAT states that it has over 7,000 employees, and the facilities and equipment it has barely cover its needs; it even rents premises in order to perform its functions optimally and provide better working conditions to its employees, who are aware of this. Moreover, at no time did SUNAT restrict access of union officials to any SUNAT premises; it should be borne in mind that SUNAT carries out most of its work with taxpayers and the public during a continuous workday of at least eight hours, and authorization of meetings of unionized employees is granted on condition that it does not affect service and the normal functioning of the institution.
   • – SUNAT has clearly violated the trade union immunity of the deputy general secretary of SINAUT SUNAT. SUNAT states that under section 36(g) of its Staff Regulations, it has the right to order detachments and/or any other staff movements in order to optimize the institution’s performance of its functions. Like any other employer, by virtue of its managerial prerogative, SUNAT exercises the right of “ius variandi”, i.e. the power of the employer to change the time, place and manner of performance of the work; accordingly, it ordered the employee’s transfer to the Complaints Department of the Office of Major National Taxpayers through personnel action No. 009064, and on the same date, his rotation through personnel action No. 00707 to Complaints Division III-IPCN, in which he is currently working, and which is located in the same building as the Ad Hoc Public Prosecutor’s Office of SUNAT, in which Mr Montoya previously worked. There has thus been no reduction in his pay or grade, as attested by the copies of payslips attached. In conclusion, it is pointed out that the trade union protection known as trade union immunity of the union official was not infringed, as his activity as a union official was not affected in any way.
   • – SUNAT has taken retaliatory action against the organizing secretary of SINAUT SUNAT. SUNAT states that the disciplinary proceedings against Mr Pedro Chilet Paz were instituted in response to a letter from Mr José Cerna Díaz, a SUNAT employee, who stated that he had learned that his payslips had been used without his permission in judicial proceedings for standardization of earnings instituted against SUNAT. Accordingly, the National Office of Human Resources was asked to confirm the information. In addition, in memorandum No. 100-2010/2O0000-SUNAT, the Regional Office forwarded to the National Office of Human Resources the letters sent by employees Fernando Campos Valdivia and Víctor Aníbal Zúñiga Loayza stating that they had not provided payslips to any plaintiff or authorized their use for the investigations in the case. In this context, an inquiry was initiated to determine whether an employee could access information relating to another employee without authorization and, specifically, to investigate access to the payslips of the abovementioned employees and, should someone be found to be responsible, to take the applicable disciplinary measures. Based on the preliminary inquiries, according to information from the Office of the Public Prosecutor, it was found that the payslips in question had been included in the file of the judicial proceedings initiated by Mr Pedro Chilet Paz, and hence electronic memorandum No. 00100-2010-2F3000 and memorandum No. 698-2010-SUNAT/2F3000 were sent to him. As a result, after evaluating and reviewing the documents and information, the inquiry found that the matters at issue did not constitute a violation of or non-compliance with the Staff Regulations, and therefore the case was closed, as notified in electronic memorandum No. 227-2010-2F3000.
   • – SUNAT has committed unlawful acts against the general secretary of SINAUT SUNAT: (a) unlawfully cautioning Ms Paola Aliaga Huatuco to abide by working hours, despite the fact that her post is not subject to supervision, according to the employer itself. SUNAT states that decision No. 067-2006-SUNAT issued rules on working hours, including provisions on staff who are not subject to direct supervision. In addition, under section 5 of the consolidated text of the Act on working time, working hours and overtime, approved by Supreme Decree No. 007-2002-TR, “maximum hours of work do not apply to managerial staff, staff who are not subject to direct supervision and those working intermittently on call, or as caretakers or guards”. As a result, these workers are not entitled to overtime pay, since they do not have normal maximum hours of work. This is the context in which SUNAT includes, among others, staff performing supervisory duties, as in the case of Ms Aliaga, in the category of staff not subject to direct supervision, as their duties are performed partly or entirely outside the workplace, so that they may or may not record the time at which they come to work, and plan their daily work activities, which may be changed according to the circumstances. Workers who are not subject to supervision are assigned a portfolio of tasks that have to be carried out over an eight-hour workday (fixed working hours) so that the employer receives the expected results. That said, the abovementioned rules do not exempt them from the performance of their assigned duties, and it is therefore justified to caution employees not subject to direct supervision to perform their assigned duties, which thus does not constitute a hostile act against the worker, as SUNAT must exercise its managerial prerogative, through its representatives and within the legal framework of the tasks performed and assigned, bearing in mind that for staff who are not subject to direct supervision this prerogative is limited and subject to conditions. The orders issued must thus refer to the work being done or be inherently related to that work, and therefore must be obeyed by staff within the purview of the managerial prerogative; (b) disproportionate evaluation and appraisal of the performance of Ms Paola Aliaga Huatuco during the period from January to December 2009. SUNAT maintains that the performance evaluation of Ms Paola Aliaga Huatuco was carried out in accordance with the Rules on annual performance evaluation, based on objective criteria and in the light of evaluation factors and levels of competence for each one. The evaluation factors are: (i) technical and functional knowledge; (ii) organization of work; (iii) communication; (iv) work attitude. Ms Aliaga’s performance evaluation for 2009 was as follows: technical and functional knowledge – B; organization of work – C; communication – B; and work attitude – C. SUNAT adds that in view of Ms Paola Aliaga Huatuco’s disagreement and in accordance with the procedure laid down in the abovementioned Rules, an appeals board was set up, which reviewed and evaluated the arguments and evidence presented. The investigation was completed on 23 July 2010 and Ms Aliaga was informed of the result on 25 August 2010: the appeal was declared receivable in part and the grade C for the “organization of work” factor upheld. It is thus not correct to assert that the reason for Ms Aliaga’s negative evaluation was her activity as a trade union official, as the evaluation was based on objective criteria and the procedure followed for her evaluation and subsequent review on appeal was that laid down in the Staff Regulations of the institution.
   • – SUNAT issued unlawful written warnings in the form of cautions to union representatives in the Cajamarca office. SUNAT states that the cautions were issued to Mr Manuel Oswaldo Solano Dávila and Mr Eleodoro Américo Paredes Fabián in response to a communication which they sent to the Chamber of Commerce and Industry of Cajamarca containing untrue assertions detrimental to SUNAT’s image, as it taxed executives of the institution with mismanagement and moral and ethical decline, and with having been singled out for pay rises and appointed for subjective reasons. The Code of Ethics approved by decision No. 161-2009/SUNAT advocates, among other institutional values, integrity requiring each of us to act consistently with the principles and action of the institution, by maintaining an honest, service-oriented conduct and preserving the good image of a public servant, endeavouring at all times to ensure that our private lives and behaviour are consistent with that image. The assertions made by Mr Solano Dávila and Mr Paredes Fabián were untrue, as the executive bonus by no means constitutes a privilege, but reflects a sound policy that has existed since 2005; accordingly, the abovementioned persons were cautioned to abstain in future from making unfounded assertions affecting SUNAT’s image. SUNAT adds that a “caution” by no means constitutes a disciplinary measure, as section 48 of the Staff Regulations provides that the disciplinary penalties applicable to employees are: verbal warning, written warning, suspension of one to 30 days and dismissal or removal from office; the “caution” is thus a call to attention that may be used by managers in the exercise of their managerial prerogative to correct conduct which, in the light of the circumstances, does not constitute misconduct warranting disciplinary action, and is therefore not entered in the personnel file, as provided in the procedure for cautioning employees, a copy of which is attached.
   • – SUNAT issued an unlawful written warning in the form of a caution to the union representative in the Piura office. SUNAT states that the caution was sent to Mr Yovanni Nava Lamia for having used the email system for purposes unrelated to his assigned duties, in violation of the rules on IT security, having confirmed that an email was sent on 23 November 2009 which was unrelated to his assigned duties. In addition, the SUNAT Staff Regulations provide that misuse of email constitutes a violation of section 39(g) of those Regulations; appropriate use of email is a requirement imposed on all SUNAT employees, irrespective of whether they are members of a trade union; the more so since the internal IT rules issued by SUNAT do not reflect an internal policy, but are in line with a national policy aimed at optimizing its use through rational utilization.
2. 1206. In its communication of 3 May 2011, referring to the positions of SUNAT and SINAUT SUNAT in regard to the alleged violations of freedom of association, the Government states that the State of Peru considers that collective labour rights are recognized in broad terms, mainly in article 28 and the fourth transitional provision of the Political Constitution of Peru, which provide as follows: “Article 28. The State recognizes the rights to form unions, to engage in collective bargaining, and to strike. It ensures their democratic exercise: (1) it guarantees freedom of association; (2) it fosters collective bargaining and promotes the peaceful settlement of labour disputes. Collective agreements are binding within the scope for which they were concluded; (3) it regulates the right to strike so that it will be exercised in keeping with the social interest. It defines its exceptions and limitations.” “Fourth final transitional provision: Rules relating to the rights and freedoms which the Constitution recognizes shall be interpreted in accordance with the Universal Declaration of Human Rights and with other relevant treaties and agreements ratified by Peru.”
3. 1207. Accordingly, the Ministry of Labour and Employment Promotion is committed to carrying out the administrative procedures within its remit in order to ensure observance of workers’ fundamental rights, including the right to freedom of association. In addition, the Government states that it has requested information from the Office of the National Superintendent of the Tax Administration (SUNAT) on the disciplinary proceedings initiated against trade union leaders for alleged misuse of institutional email. SUNAT provided the following information in letter No. 099-2011-SUNAT/1A0000 of 4 April:
   • – SUNAT has not authorized its staff or members of the trade union to use email for purposes other than those which are strictly work-related;
   • – the Staff Regulations approved by decision No. 235 2003/SUNAT provides as follows: section 38(u): obligation of workers “to comply with IT security rules and obligations on appropriate use of the Internet, software and email provided by SUNAT”; section 39(g): prohibition on “using email accounts assigned by the institution for purposes other than assigned duties”. According to the workers’ obligations and prohibitions laid down by the abovementioned Staff Regulations, these are mandatory for all workers, both unionized and non-unionized;
   • – the Staff Regulations of SUNAT are linked to the provisions of departmental decision No. 088-2003-INEI approving directive No. 005-2003-INEI on “Rules for the use of email in public administration bodies”, section 5.6 of the general provisions of which provides that: “Email accounts for staff of public institutions shall be used for activities related to the performance of their duties in the institution.”
4. 1208. The Government adds that, without prejudice to the foregoing, it should be pointed out that, in order to verify the new allegations of the United Trade Union of SUNAT Employees, an inspection will be ordered in this matter. The Government states that it has administrative procedures designed to guarantee freedom of association and foster collective bargaining, as well as promoting means of peaceful settlement of labour disputes; this is evidenced, through the action it has taken, by its unrestricted observance of freedom of association and workers’ collective rights in general.

C. The Committee’s conclusions

1. 1209. The Committee observes that in this case the complainant organization alleges that the Office of the National Superintendent of the Tax Administration (SUNAT) has committed acts violating trade union rights: unlawful deductions (in addition to the days of the strike) for having participated in a strike; failure to deduct from workers’ wages fines imposed by the union for not having participated in a strike; scheduling of an internal competition to fill vacancies, the timetable of which coincides with the dates previously fixed for the strike; designating part of its activities as essential, requiring its employees, in the event of a strike, to guarantee the presence of staff to prevent the interruption of its activities; displaying an evident unwillingness to communicate with the trade union; refusal to grant facilities to the trade union to enable it to function normally; transfer of a union official, issuance of unlawful warnings in the form of cautions and disciplinary proceedings against trade union representatives (in particular, the general secretary and other officials). In addition, the Committee observes that the complainant organization objects to the fact that the labour administrative authority authorized SUNAT to express its views on the declaration of a strike on 24 and 25 November 2009.
2. 1210. As regards the alleged unlawful deductions (in addition to the days of the strike) for participation in a strike, the Committee notes that the Government states that: (1) the deduction in this case should have been made only for the two days not worked, in accordance with section 3 of Legislative Decree No. 713, and SUNAT, in response to a letter from the trade union, has reviewed each of the cases referred to in the complaint, which cover 1,132 workers, in order to determine the amounts deducted and the sums to be reimbursed; (2) this task was completed in October 2011, and the reimbursement of the amounts deducted began in November. In the light of this information, the Committee will not pursue its examination of these allegations.
3. 1211. As regards the allegation that SUNAT did not deduct from employees’ wages the fines imposed by the trade union for not having participated in the strike, the Committee notes that the Government states that SUNAT respects the sanctity of the wages of its employees, and therefore did not deduct the amounts of the fines imposed by the trade union on the workers who did not observe the strike, as there is no legal basis for doing so, and the employer is only obliged to deduct from remuneration the statutory ordinary and extraordinary trade union dues of its unionized workers at the request of their trade unions and with the worker’s written consent. In this regard, the Committee considers that SUNAT’s decision not to deduct the fines imposed by the trade union on the workers does not in itself violate the principles of freedom of association.
4. 1212. As regards the allegations that SUNAT scheduled an internal competition to fill vacant posts, the timetable of which coincided with the dates previously fixed for the strike, the Committee notes that the Government states that SUNAT indicates that: (1) on 17 April 2009 guidelines for filling vacant managerial posts were approved; (2) as of that date, preparations were made to carry out the selection procedures to fill the vacancies; (3) the communication sent in September 2009 containing the proposal for filling the vacancies predates the date on which SINAUT SUNAT decided, in an extraordinary general assembly on 24 October 2009, to hold the strike. The Committee notes this information.
5. 1213. As regards the allegations that SUNAT designated part of its activities as essential services, requesting its workers, in the event of a strike, to guarantee the presence of the necessary staff to prevent the interruption of its activities, the Committee notes that the Government states that: (1) SUNAT sent a communication to the complainant organization to inform it of the occupations and number of workers necessary to maintain essential minimum services, and did not intend to restrict the workers’ right to strike; (2) SUNAT’s letter was based on section 78 of Supreme Decree No. 010-2003-TR, the Collective Labour Relations Act, and on its implementing Regulations, which set out two cases of exceptions to stoppages: one consists of essential public services, which do not cover the tax administration, and the other, which includes work essential to the enterprise, the interruption of which would endanger persons, safety or property or prevent the immediate resumption of the normal activity of the enterprise once the strike has ended, does cover the services of the tax administration; (3) in view of the nature of its functions and of the fact that tax and customs procedures are subject to statutory time limits, it is essential to guarantee the continuity of services to that end.
6. 1214. In this regard, while it observes that SUNAT employees are not prohibited from exercising the right to strike, but that provision is made for imposing a minimum service, the Committee recalls that the Government informed the Committee of Experts on the Application of Conventions and Recommendations in its report on Convention No. 87 that “in accordance with section 1 of Supreme Decree No. 013-2006-TR (which amends section 68 of Supreme Decree No. 011-92-TR), it was stipulated that in the event of disagreement on the number and occupation of workers who are to continue working in conformity with section 82 of the Act, the labour authority shall designate an independent body to determine them and that the decision of the independent body will be accepted by the labour authority in order to resolve the disagreement”. In these circumstances, the Committee trusts that, should a disagreement arise on the number of workers required to guarantee a minimum service in SUNAT in the event of a strike, the parties will be able to refer the matter to the independent body provided for in the legislation.
7. 1215. As regards the allegations that SUNAT has displayed an evident unwillingness to communicate with the trade union, the Government states that SUNAT indicates that this assertion is unfounded, since it has held a number of meetings with representatives of the trade union (it refers to those held on 9 and 10 April 2010, 27 January 2010 and 18 February 2010, and meetings with the National Director of Human Resources on 24 March and 4 November 2010), and that constant efforts are being made to maintain a positive industrial relations climate. The Committee takes note of this information and hopes that both parties will do everything in their power to maintain harmonious industrial relations.
8. 1216. As regards the allegations that SUNAT refuses to grant the trade union the facilities necessary to enable it to function normally (an increase in trade union leave, leave to attend events, recognition of trade union immunity, access to premises to communicate with members, provision of an office and email account, etc.), the Committee observes that the Government states that SUNAT indicates that: (1) section 32 of the consolidated text of the Collective Labour Relations Act provides that the employer is obliged to grant leave to attend events that are mandatory for union officials, up to a limit of 30 days per calendar year and per official; (2) the representatives of SINAUT SUNAT were granted trade union leave in 2009 and 2010 (the number of days is specified), even exceeding 30 days in 2009; (3) as regards facilities consisting in the use of infrastructure, equipment and other items, SUNAT has over 7,000 employees, and the facilities and equipment it has barely cover its needs (it even rents premises); and (4) at no time did SUNAT restrict access of union officials to any SUNAT premises, and, bearing in mind that SUNAT carries out most of its work with taxpayers during a continuous workday of at least eight hours, the authorization of meetings of unionized employees is granted on condition that it does not affect service and the normal functioning of the institution. The Committee takes note of this information.
9. 1217. As regards the alleged transfer to a lower post of the deputy general secretary of SINAUT SUNAT, Mr Edmóstines Montoya Jara, the Committee notes that the Government states that SUNAT indicates that: (1) under section 36(g) of its Staff Regulations, SUNAT has the right to order detachments and/or any other staff movements in order to optimize the institution’s performance of its functions; (2) like any other employer, by virtue of its managerial prerogative, SUNAT exercises the right of “ius variandi”, and accordingly ordered the employee’s transfer to the Complaints Department of the Office of Major National Taxpayers through a personnel action, and on the same date, ordered his rotation to the Complaints Division, in which he is currently working; (3) the unit is located in the same building as the Ad Hoc Public Prosecutor’s Office of SUNAT, in which Mr Montoya previously worked; (4) there has been no reduction in his pay or grade, as attested by the copies of payslips attached; and (5) the trade union immunity of the union official was not infringed, as his activity as a union official was not affected in any way. The Committee observes that the complainant organization states that the Ministry of Labour and Employment Promotion has sanctioned SUNAT for that action, warning it to change its conduct, and that SUNAT has not done so. In these circumstances, the Committee requests the Government to confirm whether, as affirmed by the complainant organization, the administrative authority ordered the reinstatement in his former post of union official Mr Demóstenes Montoya Jara and, if so, to take steps to ensure that the order is carried out.
10. 1218. A regards the allegation that SUNAT has taken retaliatory action against the organizing secretary of SINAUT SUNAT, Mr Pedro Chilet Paz (according to the complainant organization, when the union official filed court proceedings for adjustment of his remuneration to that received by other workers performing the same tasks, SUNAT initiated disciplinary proceedings against him for having submitted other employees’ payslips as part of the judicial proceedings), the Committee notes that the Government states that SUNAT indicates that the disciplinary proceedings were instituted in response to a letter from an employee who stated that he had learned that his payslips had been used without his permission in judicial proceedings, and, after evaluating and reviewing the documents and information collected, it was found that the matters at issue did not constitute a violation or non-compliance with the Staff Regulations, and therefore the case was closed. The Committee takes note of this information.
11. 1219. As regards the alleged unlawful caution to the general secretary of SINAUT SUNAT, Ms Paola Aliaga Huatueco, to abide by working hours, the Committee notes that the Government states that SUNAT indicates that: (1) decision No. 067-2006-SUNAT issued rules on working hours, including provisions on staff who are not subject to direct supervision, and section 5 of the Act on working time, working hours and overtime provides that maximum hours of work do not apply to managerial staff, staff who are not subject to direct supervision and those working intermittently on call, or as caretakers or guards; (2) as a result, these workers are not entitled to overtime pay, since they do not have normal maximum hours of work; (3) Ms Aliaga carries out supervisory duties and is included in the category of staff not subject to direct supervision (for example, she may or may not record the time at which she comes to work, depending on her daily work activities); (4) the abovementioned rules do not exempt her from the performance of her assigned duties, and the employer is therefore justified in cautioning employees not subject to direct supervision to perform their assigned duties. In this case, the Committee observes a discrepancy between cautioning her to abide by her working hours (the complainant’s version) and cautioning her to perform her duties (SUNAT’s version). However, the Committee does not have sufficient information to determine whether anti-union harassment or persecution has occurred. In these circumstances, unless the complainant organization sends new information, the Committee will not pursue its examination of these allegations.
12. 1220. As regards the disproportionate evaluation and appraisal of the performance of the abovementioned general secretary of SINAUT SUNAT, the Committee notes that the Government states that SUNAT indicates that: (1) the performance evaluation of the trade union official was carried out in accordance with the rules on annual performance evaluation, based on objective criteria and in the light of evaluation factors and levels of competence for each one; (2) in view of Ms Aliaga Huatueco’s disagreement and in accordance with the procedure laid down, an appeals board was set up, which reviewed and evaluated the arguments and evidence presented; (3) the investigation was completed on 25 August 2010 and the appeal was declared receivable in part; and (4) it is thus not correct to assert that the reason for the negative evaluation was her activity as a trade union official, as the evaluation was based on objective criteria and the procedure followed for her evaluation and subsequent review on appeal was that laid down in the Staff Regulations of the institution. In the light of this information, and in the absence of information from the complainant organization on any appeal lodged against the administrative appeal decision, the Committee will not pursue its examination of this allegation.
13. 1221. As regards the allegation that written warnings were issued in the form of cautions to union representatives in the Cajamarca office (Mr Manuel Oswaldo Solano Dávila and Mr Eleodoro Américo Paredes Fabián) and in the Piura office (Mr Joanna Nava Lamia) and that disciplinary proceedings were initiated against union representatives for alleged misuse of email (Defence Secretary Ms María Covarrubias and communication and public relations secretary Mr Jorge Carrillo Vértice), the Committee notes that the Government states that SUNAT indicates that: (1) as regards the representatives of the Cajamarca office, the warning was issued in response to a communication which the persons concerned sent to the Chamber of Commerce and Industry of Cajamarca containing untrue assertions detrimental to SUNAT’s image, as it taxed executives of the institution with mismanagement and moral and ethical decline, and with having been singled out for pay rises and appointed for subjective reasons; (2) as regards the union representative of the Piura office, the warning was sent for having used the email system for purposes unrelated to his assigned duties; the SUNAT Staff Regulations provide that misuse of email constitutes a violation of the Staff Regulations, and appropriate use of email is a requirement imposed on all SUNAT employees, irrespective of whether they are members of a trade union; and (3) the warnings do not constitute a disciplinary measure. As regards the disciplinary proceedings for alleged misuse of email against union officials María Covarrubias and Jorge Carrillo Vértiz, SUNAT states that it has not authorized its staff or members of the union to use email for non-work-related purposes; specifically, the SUNAT Staff Regulations prohibit the use of email accounts provided by the institution for purposes unrelated to assigned duties, and the prohibitions are strictly mandatory for all staff, unionized or non-unionized. In these circumstances, observing that the Government states that an inspection order will be issued in the matter, the Committee requests the Government to keep it informed of the outcome of that inquiry. Furthermore, the Committee recalls that workers’ representatives should enjoy such facilities as may be necessary for the proper exercise of their functions, including access to workplaces and the use of email. Recalling that access to employers’ facilities should not be exercised to the detriment of the efficient functioning of the enterprise concerned, the Committee suggests that the employer and the workers’ organization strive to reach agreement on the modalities for the use of email.
14. 1222. Lastly, the Committee observes that the Government has not sent its observations in regard to the allegations of the complainant organization objecting to the conduct of the labour administrative authority authorizing SUNAT to express its views on the declaration of a strike on 24 and 25 November 2009. The Committee requests the Government to send its observations in this regard.

The Committee's recommendations

1. 1223. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee trusts that, should a disagreement arise on the number of workers required to guarantee a minimum service in the Office of the National Superintendent of the Tax Administration (SUNAT) in the event of a strike, the parties will be able to refer the matter to the independent body provided for in the legislation.
   • (b) The Committee requests the Government to confirm whether the administrative authority ordered the reinstatement in his former post of union official Mr Demóstenes Montoya Jara, as stated by the complainant organization, and, if so, to take steps to ensure that the order is carried out.
   • (c) As regards the alleged initiation of disciplinary proceedings against union representatives for alleged misuse of email (Defence Secretary Ms María Covarrubias and communication and public relations secretary Mr Jorge Carrillo Vértiz), the Committee requests the Government to keep it informed of the outcome of the inquiry that will be conducted in this regard. Furthermore, as regards the facilities that workers’ representatives should enjoy as may be necessary for the proper exercise of their functions, the Committee suggests that the issue of use of the email system by the trade union should be a matter for negotiation between the parties.
   • (d) The Committee requests the Government to send its observations in regard to the allegations of the complainant organization objecting to the conduct of the labour administrative authority authorizing SUNAT to express its views on the declaration of a strike on 24 and 25 November 2009.