Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 376, Octobre 2015

Cas no 3096 (Pérou) - Date de la plainte: 25-JUIN -14 - Clos

Allegations: Restrictions imposed by the State Health Service (ESSALUD) on the exercise of the right to strike by nurses

1. 861. The complaint is contained in a communication from the National Union of State Health Service Nurses (SINESSS) dated 25 July 2014. The union sent new allegations in a communication dated 4 November 2014.
2. 862. The Government sent its observations in a communication dated 6 January 2015.
3. 863. Peru has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and the Labour Relations (Public Service) Convention, 1978 (No. 151).

A. The complainant’s allegations

1. 864. In its communication dated 25 July 2014, SINESSS states that the right to strike is recognized in the National Constitution and that on 21, 22 and 23 May 2014 the launch of a national strike of indefinite duration from 10 June 2014 was unanimously approved and was duly notified to the Ministry of Labour and Employment Promotion on 26 May 2014. On 10 June 2014, the employer (the State Health Service (ESSALUD)) ordered its various administrative bodies, by Circular No. 22-GC-ESSALUD-2014, not to recognize the pickets and special working days scheduled by the SINESSS action committees under section 82 of the Collective Labour Relations Act (Supreme Decree No. 010-2003-TR), which provides as follows: “When the strike affects essential public services or there is a need to ensure the performance of essential activities, the workers involved in the dispute must guarantee the presence of the necessary staff to prevent a total stoppage and ensure the continuity of services and activities required. On an annual basis and during the first quarter, the enterprises that provide the said essential services shall notify their workers, the trade unions representing them and the labour authority of the number and duties of the workers needed for maintaining the services, hours of work and shifts that they are obliged to perform, and also the intervals at which the respective replacements must be made. The purpose of the present communication is to ensure that the workers or trade unions representing them meet their obligation to provide the respective workforce when the strike takes place.”
2. 865. SINESSS states that the employer failed to duly specify the essential areas in accordance with the law and, in view of the due planning of strike pickets by the trade union for the coverage of crucial services, the authority, failing to act in good faith, ordered its directors and administrative managers to undertake the following anti-union activities:
   • (a) provision to be made by chiefs of department and nursing services for external consultations, surgery and general hospital treatment, including minimum services, without due account taken of the fact that those services are not crucial areas or focuses of immediate care whose omission could endanger the lives, health or physical or psychological integrity of patients;
   • (b) the designation of overtime up to a maximum of 108 hours per month per worker, only in the areas of external consultation, surgery and general hospital treatment; the obligation to work extra hours, RPCT, ordinary hospital shifts of more than six and up to 12 hours for ordinary staff covered by the 728/276 labour regulations.
3. 866. The health administration has thus wilfully and arbitrarily circumvented the administrative competencies of the chiefs of department and duty nurses by obliging union members to provide ordinary services, in total disregard of the fact that the latter only have the legal obligation to provide essential services and not ordinary services such as external consultations, surgery and general hospital treatment.
4. 867. The present decision stemmed from the application of Circular No. 022-DEGRAR-ESSALUD-2014 (based on Circular No. 152-GCGP-ESSALUD-2014 applicable to medical and nursing strikes, Executive Decision No. 995-GC-ESSALUD-2013), whereby ESSALUD seeks to redefine all areas of ESSALUD activity as crucial areas contrary to the rules established in previous years on the basis of Executive Decision No. 725-GC-ESSALUD-2002; in other words, union members have been called upon to be present in their ordinary services without observing the strike pickets.
5. 868. The Second Provincial Prosecutor’s Office for Crime Prevention of Lima Judicial District declared that nurses belonging to SINESSS were taking care of crucial areas according to the urgency and gravity of patients’ situations.
6. 869. In the abovementioned Circular No. 022, the ESSALUD administration stated that the management hire duty staff as replacements or through other contractual arrangements such as subcontracting to bridge the labour gap in certain areas. This is a further example of violation of freedom of association inasmuch as the national legislation clearly states in section 25 of the regulations implementing the General Labour Inspection Act (Supreme Decree No. 019-2006-TR) that any acts shall be null and void that impede the free exercise of the right to strike, where the aim is to replace workers on strike – by hiring or scheduling, either direct hire using contracts of unlimited duration or subject to specific conditions, or indirect hire through agencies or via contracting or subcontracting of works or services – without the authorization of the labour administrative authority.
7. 870. SINESSS adds that it is therefore contradictory that the aim is to hire staff from outside the institution to work in ordinary services, inasmuch as it is well known that in order for the unit to function legally and efficiently the participation of professional nursing staff hired and appointed prior to the strike is required.
8. 871. The complainant organization indicates that on 11 June 2014 the administrator of the Ucayali health-care network, by Letter No. 122-OA-DRAUC-ESSALUD-2014, imposed a ban, without any explanation, on the entry and exit of staff taking part in strike pickets and of all union members who had joined the strike.
9. 872. In view of the intransigence of the authorities with regard to recognizing the restriction on entry of the nurses to the pickets, SINESSS Ucayali filed a criminal complaint with the Second Provincial Prosecutor’s Office for Corporate Affairs of Coronel Portillo (Ucayali) on 16 June 2014.
10. 873. On 17 June 2014, the ESSALUD General Manager for Health Benefits ordered scheduling for residents in surgical specialities or sub-specialities and specialist doctors with a view to performing nursing activities in ordinary services without duly providing for the fact that the General Health Act (No. 26842) itself specifies the competencies of each professional, drawing attention to civil liability in the event of failure to perform duties.
11. 874. SINESSS also objects that on 18 and 20 June 2014, by Circulars Nos 1767-GRALA-JAV-ESSALUD and 024-GC-ESSALUD-2014, instructions were given to deduct wages for absenteeism from workplaces on the basis of the declaration of illegality of the strike issued by the Ministry of Labour and Employment Promotion.
12. 875. In its communication of 4 November 2014, the complainant union alleges the rejection of the application for trade union leave from Ms Marcela Guevara González, the union’s Social Welfare Secretary, in breach of the rules on trade union leave for health professionals. According to SINESSS, the administration claims that it seeks to avoid conflicts of interest since Ms Guevara González holds the post of Chief Nurse of the Adult Emergency Services, which is a position of trust within ESSALUD and hence it is not appropriate for her to hold a post as a SINESSS official at the same time.

B. The Government’s reply

1. 876. In its communication dated 6 January 2015, the Government refers to the statements by the Management Board of ESSALUD, indicating that: on 26 May 2014, SINESSS notified the Ministry of Labour and Employment Promotion [Ministry of Labour] of its intention to call a strike. The labour authority, by Executive Decision No. 80-2014-MTPE/2/14 of 27 May 2014, declared that the strike call, which covered all SINESSS members who were subject to the private labour regulations, was unauthorized since it had not met all the requirements laid down in section 72 of the single consolidated text of the Collective Labour Relations Act (Supreme Decree No. 010-2003-TR), a decision which was not appealed against and was therefore valid. Subsequently, after verification that the announced stoppage actually took place, the Ministry of Labour, by Executive Decision No. 89-2014-MTPE/2/14 of 12 June 2014, declared the indefinite national strike of SINESSS to be illegal “for employees subject to the public labour regulations”.
2. 877. By Executive Decision No. 92-2014-MTPE/14 of 24 June 2014, the labour authority dismissed the appeal submitted by SINESSS against Executive Decision No. 89-2014-MTPE/2/14 of 12 June 2014, whereby the labour authority had declared the union’s strike to be illegal. Furthermore, it declared the administrative channels for these procedures to be exhausted, in accordance with section 218 of the General Administrative Proceedings Act (No. 27444). ESSALUD adds that by Letter No. 188-GCGP-ESSALUD-2014 of 3 June 2013, the representatives of SINESSS were urged to comply with Executive Decision No. 980-GG-ESSALUD-2013 of 18 July 2013, which contains the operational contingency plan for use in the event of a work stoppage by ESSALUD workers. The contingency plan covers all crucial areas of ESSALUD, which must function 100 per cent at national level for the duration of any strike or stoppage called by the unions.
3. 878. The claim made by SINESSS, to the effect that ESSALUD did not notify the labour authority of the number and duties of the workers needed for maintaining services, timetables and shifts, omits the fact that SINESSS was obliged to cater for the crucial areas of the institution; the union was fully aware of that from the abovementioned letter, even before the start of the indefinite national strike. ESSALUD points out that Supreme Decree No. 012-2014-SA of 23 June 2014 approved the arrangements to ensure the provision of health services during the strike.
4. 879. The statements made by SINESSS in its complaint are at odds with the legal standards in force, since the crucial areas established in the contingency plan for work stoppages by ESSALUD workers were approved by Executive Decision No. 980-GG-ESSALUD-2013 of 18 July 2013, which was communicated to all ESSALUD representative bodies and, by Letter No. 188-GCGP-ESSALUD-2014 of 3 June 2014, to the SINESSS General Secretary.
5. 880. In accordance with the legal standards in force, the Management Board, by Circulars Nos 177 and 189-GCGP-ESSALUD-2014 of 9 June 2014 and 26 June 2014, respectively, announced the adoption of essential measures in response to the abovementioned industrial action, to prevent the health services provided by the institution from being substantially affected. Furthermore, it indicated the actions to be taken by staff during the strike, stating, inter alia, that strike pickets did not form part of the health-care programme and were not counted as actual hours worked, and that the crucial areas established in the contingency plan for work stoppages by ESSALUD workers, approved by Executive Decision No. 980-GG-ESSALUD-2013 of 18 July 2013, had to be covered by the staff who were scheduled to work there.
6. 881. Report No. 83-GCGP-ESSALUD-2014 of 29 August 2014 to the Management Board states that after verifying the documentation submitted, in relation to the facts indicated by SINESSS Ucayali, it was concluded that the Ucayali health-care network had taken administrative action in accordance with the regulations in force, with a view to optimizing existing resources and thereby meet the requirements of the said health-care network during the indefinite national strike launched by SINESSS on 10 June 2014.
7. 882. As regards the wage deductions for nurses who participated in the indefinite national strike launched by SINESSS, this does not contravene any legal standards in force, since, according to the law, if no actual work is done, no payment is applicable, especially if the strike has been declared unauthorized and illegal by the labour authority.
8. 883. In the light of the above, ESSALUD took administrative action in line with the legal and administrative regulations in force and did not commit any violation of freedom of association or the right to strike. Nor was there any violation of the right to strike or any harassment of any representative of the unions, especially SINESSS.
9. 884. Articles 7, 10 and 11 of the Constitution of Peru state that Peruvian citizens have the right to protection of their health; that the State recognizes the universal and progressive right of all persons to social security, aimed at ensuring their protection against contingencies specified by the law and improving their quality of life; and that the State guarantees free access to health benefits and pensions through public, private and mixed entities. Moreover, the fundamental rights established in section 51 of the Peruvian Civil Code must be observed, including the right to life, physical integrity, freedom and honour, inherent human rights that are irrevocable, inalienable and protected by law.
10. 885. ESSALUD highlights the fact that through an agreement reached further to an extraordinary meeting between ESSALUD and SINESSS, the indefinite national strike launched on 10 June 2014 was suspended and it was arranged for the workers to be reinstated in their posts as from the first shift on 3 August 2014. ESSALUD observed the fundamental rights established in the abovementioned articles 7, 10 and 11 of the Peruvian Constitution and all fundamental rights as a whole, including trade union rights and the right to collective bargaining.

C. The Committee’s conclusions

1. 886. The Committee observes that in the present case SINESSS alleges that despite the fact that the Constitution of Peru recognizes the right to strike, the labour administrative authority declared as unauthorized and illegal the indefinite national strike called by the complainant union as from 10 June 2014 on account of non-observance of the 2013 collective agreement by ESSALUD, which took measures to restrict strike pickets, authorize the recruitment of workers to replace the strikers and deduct wages from striking staff members. The Committee observes that, according to ESSALUD and the administrative decisions communicated by the Government, the labour administrative authority claimed that the trade union, apart from failing to meet the formal requirements relating to the strike, did not make the necessary arrangements for the workers needed to prevent a total stoppage and ensure the continuity of services.
2. 887. The Committee observes that the complainant organization, for its part, maintains that ESSALUD did not specify at the appropriate time – contrary to the legislation in force – the number and duties of the workers needed or the essential areas concerned; furthermore, according to the complainant, the extension of minimum services went beyond “crucial areas and focuses of immediate care” to include ordinary services; the complainant also indicates that the ESSALUD circulars of 2013 and 2014 conflict with a (higher-ranking) decision of 2002 of the ESSALUD Management Board which limited the services to be maintained in the event of a strike to “crucial areas”. The Committee notes ESSALUD’s statement that: (1) the union was notified in 2013 of the contingency plan for minimum services during work stoppages and ESSALUD, faced with the strike call, adopted and communicated the necessary measures, specifically notifying the parties that the strike pickets did not form part of the health-care schedule and were not recognized as actual hours worked; (2) no representative of the complainant union was harassed; (3) the legislation provides that no wages are payable in the event of a strike; (4) the State is obliged by constitutional mandate to ensure health benefits and, under the Civil Code, to guarantee the right to life and physical integrity. The Committee observes that the nurses’ strike ended with an agreement signed between the parties on 3 August 2014 (which the Government attached to its reply), covering substantive issues which gave rise to the dispute and including the reinstatement of the strikers in their posts.
3. 888. The Committee concludes, from the allegations and the reply from ESSALUD, that the parties disagree on the actual observance of the national regulations applicable to minimum services and the extension and scope thereof, and also on whether or not the strike was legal. The Committee notes that the strike did not give rise to the initiation of disciplinary proceedings.
4. 889. The Committee wishes to recall that on numerous occasions [for example, at its March 2014 meeting, see 375th Report, Case No. 3033, para. 763] it has reminded the Government of Peru that responsibility for declaring a strike illegal should not lie with the government but with an impartial and independent body. The Committee again requests the Government, as it has done on previous occasions, to take steps to amend the legislation so that it takes account of this principle.
5. 890. Furthermore, as regards the disagreements concerning the content of minimum services, the Committee draws the Government’s attention to its decision in a previous case relating to strikes in essential services where authorized under national law: “As regards the legal requirement that a minimum service must be maintained in the event of a strike in essential public services, and that any disagreement as to the number and duties of the workers concerned shall be settled by the labour authority, the Committee is of the opinion that the legislation should provide for any such disagreement to be settled by an independent body and not by the ministry of labour or the ministry or public enterprise concerned” [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 613].
6. 891. As regards the issue raised by the complainant regarding the (in its opinion, excessive) scope of the minimum services specified in ESSALUD circulars, the Committee wishes to point out that it is unable to adopt a position on this matter. The Committee recalls as follows: “A definitive ruling on whether the level of minimum services was indispensable or not – made in full knowledge of the facts – can be pronounced only by the judicial authorities, in so far as it depends, in particular, upon a thorough knowledge of the structure and functioning of the enterprises and establishments concerned and of the real impact of the strike action” [see Digest, op. cit., para. 614]. The Committee suggests that the disagreements between the parties as to the number and duties of the workers should be settled by an independent body, such as, for example, the judicial authority.
7. 892. As regards the allegations concerning wage deductions from strikers for the time not worked, the Committee recalls that “salary deductions for days of strike give rise to no objection from the point of view of freedom of association principles” [see Digest, op. cit., para. 654].
8. 893. As regards the allegation concerning the hire of non-striking workers, the Committee recalls that it is permitted in the case of essential services such as the health service [see Digest, op. cit., para. 632].
9. 894. As regards the allegations concerning strike pickets, the Committee is unable to determine from the complaint and the Government’s reply whether the expression “strike pickets” refers to pickets providing information at the workplace entrance or to groups of strikers seeking to gain entry into the workplace. The Committee therefore merely recalls its general comments on pickets providing information, as follows: “The action of pickets organized in accordance with the law should not be subject to interference by the public authorities”; “the prohibition of strike pickets is justified only if the strike ceases to be peaceful”; and “the Committee has considered legitimate a legal provision that prohibited pickets from disturbing public order and threatening workers who continued work” [see Digest, op. cit., paras 648–650].
10. 895. 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.

The Committee’s recommendations

1. 896. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve 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.