Rapport définitif - Rapport No. 407, Juin 2024

Cas no 3228 (Pérou) - Date de la plainte: 06-JUIN -16 - Clos

Allegations: The complainant organizations allege the incompatibility of several provisions of the Civil Service Act and its implementing regulations with Conventions Nos 87, 98 and 151, the non-implementation of the Civil Service Support Commission and its impact on collective rights, the existence of practical barriers to exercising the right to collective bargaining in the public sector and government interference in the trade union organizations’ internal affairs

1. 359. The complaint is contained in a communication dated 6 June 2016 from the National Union Confederation of State Sector Unions (UNASSE) and the Intersectoral Confederation of State Workers (CITE). These organizations together with the General Confederation of Workers of Peru (CGTP) and the National Confederation of State Workers of Peru (CTE-Peru) sent additional allegations in a communication dated 3 March 2023.
2. 360. The Government sent its observations in communications dated 14 June 2017, 6 February 2018, 6 May 2019, 7 May 2021, 12 September 2023 and 15 April 2024.
3. 361. 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 complainants’ allegations

1. 362. In their communication of 6 June 2016, two of the complainants (UNASSE and CITE) begin by alleging that several provisions of Act No. 30057 on the Civil Service and its implementing regulations violate Conventions Nos 87, 98 and 151 and are incompatible with public officials’ freedom of association and right to collective bargaining and their organizations’ right to implement their programmes of action. In particular, the complainants refer to: (i) the exclusion of public officials, public managers and public servants in positions of trust from the right to organize under section 40 of the Act; (ii) various restrictions on the right to strike under sections 41 and 45.2 of the Act and sections 80 and 81 of its implementing regulations, referring in particular to trade union organizations’ duty not to affect the functioning of public entities, the temporary recruitment of staff needed to ensure the provision of minimum services in essential services, voting conditions for the declaration of strikes and the prohibition of atypical forms of strikes; and (iii) with regard to collective bargaining, the prohibition, under sections 42 and 44(b) of the Act, of negotiating wages and other issues with financial implications throughout the public service, as well as the obligation under section 44(d) of the Act of a minimum term of two years for collective agreements concluded in the public service.
2. 363. The two complainants then allege the non-implementation of the Civil Service Support Commission, which is responsible for: ruling on the admissibility and lawfulness of strikes; determining the minimum services in essential services in the event of a dispute; and electing the chair of the arbitration tribunal in the event of a disagreement between the parties (sections 86 to 89 of the implementing regulations of the Civil Service Act). The complainants add that the Commission’s powers are still entrusted to the Labour Administrative Authority.
3. 364. The complainants also report lengthy delays in the Labour Administrative Authority’s scheduling of conciliation hearings in the authorities’ scheduling of conciliation hearings when negotiating lists of demands in the public service, in collective bargaining proceedings in the public service, which do not comply with the delays established in section 72 of the implementing regulations of the Civil Service Act. The complainants refer in this regard to the situation of three unions (the Union of Municipal Workers, the Union of Municipal Workers of San Juan de Miraflores and the United National Union of Workers of the National Tax Administration Supervisory Authority) that allegedly dealt with significant delays in conciliation proceedings.
4. 365. Moreover, the two complainants report: (i) the Government’s refusal to respond to their lists of national demands in 2014, 2015 and 2016, which is a clear violation of their right to collective bargaining to determine their terms and conditions of employment; and (ii) the Government’s refusal to respond to the list of sectoral demands submitted in 2015 by the National Federation of University Workers of Peru (FENTUP), which is affiliated with CITE and brings together unions of administrative workers from public and private universities in the country. The complainants indicate in this regard that the relevant unit of the Ministry of Economy and Finance rejected the lists of demands submitted by FENTUP on the grounds that: (i) financial issues cannot be negotiated under the Civil Service Act; (ii) FENTUP was not authorized to submit lists of decisions, negotiate collectively on behalf of employees of public universities or sign a collective agreement, as that is the role of the unions of the respective universities; (iii) section 54 of the implementing regulations of the Act establishes that trade union organizations are responsible for representing civil servants in demands of a collective nature and for signing of collective agreements, but does not refer to federations or confederations; and (iv) the role of federations and confederations is to advise unions. The complainants thus allege that, in the Government’s view, higher-level organizations (federations and confederations) do not have the right to collective bargaining, and that due to a peculiar interpretation of the law, they cannot submit lists of demands, bargain collectively or sign collective agreements.
5. 366. In their communication of 12 September 2023, the various complainants allege that the Government interfered in the trade union organizations’ internal affairs by arbitrarily recommending the three most representative trade union organizations of state workers that, under Act No. 31188 on State Sector Collective Bargaining, should form the bargaining committee for the centralized collective agreement for 2023. The ninth recital of Ministerial Resolution No. 035-2023-PMC, establishing the employers’ representation for the centralized collective bargaining for this period, recommends that the committee consists of CITE, CTE Peru and the National Confederation of Public Servants of Peru (CONASEP-PERU), excluding UNASSE. The complainants state that this would mean, in practice, the dissolution of the trade union coalition formed by CITE, CTE-Peru and UNASSE, which was formalized at the national level and which submitted the relevant draft collective agreement, as well as the imposition of another confederation, CONASEP-Peru, as part of the trade union representation in question.

B. The Government’s reply

1. 367. Regarding the exclusion of certain categories of state officials from the right to organize (section 40 of the Civil Service Act), the Government indicates that such exclusions are constitutional (article 42 of the Constitution). In addition, the Government points out that the exclusion only applies to persons who have managerial power, expressed in the capacity and obligation to lead a group of individuals and which also involves representation of the organization or the leadership of a particular organizational unit, as well as the capacity to take decisions within its remit.
2. 368. As to the alleged legislative restrictions on the right to strike, the Government indicates that: (i) the complainants’ arguments regarding the supposed implicit restriction on this right provided for in section 41 of the Civil Service Act are unfounded, as (the final part of) this provision is intended to prohibit the authority from promoting acts that restrict or limit the right of public servants to organize; (ii) the recruitment of staff needed to ensure the provision of minimum services in services deemed “indispensable” and “essential” (section 45.2 of the Act) is an exceptional measure to ensure the provision of minimum services in the event that public servants do not deliver the services deemed indispensable and essential, and in order to implement this measure, the various guarantees provided for in the legislation must be met; (iii) the fact that strike declarations must be supported by the majority of workers (section 80 of the implementing regulations of the Act) is not a restriction on the right to strike of public servants, as it is up to the trade union organizations to establish the percentage and mechanisms required to ensure that the will of the majority of their members is guaranteed when approving their decisions on their programmes of action; and (iv) the prohibition of atypical forms of strikes (section 81 of the implementing regulations of the Act) is intended to prevent such strikes from generating acts of violence and disrupting the work of non-striking workers; although any suspension of work, however brief, should be considered a strike, certain types of actions have paralysing effects comparable to a radical suspension of work, even if they do not bring activity to a complete halt (such as go-slow or work-to-rule strikes).
3. 369. As regards the Civil Service Support Commission, the Government indicates that the new civil service system is being implemented gradually and that this Commission has not been implemented yet. As a result, according to the Government, the powers of this Commission are temporarily entrusted to the Labour Administrative Authority, and election of the president of the arbitration tribunal is being held at the request of the parties involved in collective bargaining proceedings in the public sector.
4. 370. As to the alleged restrictions on collective bargaining contained in the legislation (sections 42 and 44 of the Civil Service Act) and the possibility of negotiating lists of national and sectoral demands, the Government states that: (i) in a judgment in 2015, the Constitutional Court ruled that the absolute restrictions on collective bargaining in the public sector contained in the legislation were unconstitutional, recognizing that wage increases may be discussed through the collective bargaining mechanism, with respect for the principle of budgetary balance and legality; (ii) the Constitutional Court stated that collective bargaining is a statutory right and urged the legislature to approve the regulation of collective bargaining for the public sector; (iii) since 3 May 2021, the State Sector Collective Bargaining Act has been in force, which regulates the right to collective bargaining of trade union organizations of state workers (section 1), provides that collective bargaining in the public sector may be centralized or decentralized (section 5) and establishes that the most representative trade union confederations of state workers at the national level may engage in centralized collective bargaining on behalf of public servants (sections 7 and 9); and (iv) centralized collective bargaining proceedings took place in 2022 and 2023, and the centralized collective agreement for 2023–24 was signed on 30 June 2023 by five confederations of state workers, including UNASSE, CITE and CTE-Peru.
5. 371. With regard to the Government’s alleged interference in the trade union organizations’ internal affairs by recommending, in Ministerial Resolution No. 035-2023-PMC, the three most representative trade union organizations of state workers that should form the bargaining committee for the centralized collective agreement for 2023 (excluding UNASSE), the Government specifies that: (i) the Resolution affected only the composition of the employers’ representation for collective bargaining for 2023 and not the trade union organizations’ representation; (ii) following the publication of the Resolution, the seventh temporary supplementary provision of the guidelines for the implementation of the State Sector Collective Bargaining Act (approved by Supreme Decree No. 008-2022-PCM and amended by Supreme Decree No. 054-2023-PCM) was adopted, and which provides that, until the Labour Administrative Authority finishes implementing the register of state workers’ union membership, centralized collective bargaining shall involve, instead of only three higher-level trade union organizations, the five national and multisectoral confederations recorded in the register of trade union organizations of public servants, which, in their most recent list of members that was sent to the Labour Administrative Authority prior to the submission of the draft collective agreement, have the largest number of affiliated public servants; and (iii) UNASSE and other confederations were involved in the collective bargaining for 2022 and 2023.

C. The Committee’s conclusions

1. 372. The Committee notes that the present case refers to the alleged incompatibility of several provisions of the Civil Service Act and its implementing regulations with Conventions Nos 87, 98 and 151, which have been ratified by Peru, the non-implementation of Civil Service Support Commission provided for by the Act and its impact on collective rights, the existence of various practical barriers to exercising the right to collective bargaining in the public sector, as well government interference in the trade union organizations’ internal affairs.
2. 373. The Committee notes that, since the submission of the complaint, the rules applicable to collective bargaining in the public sector have been amended with the adoption of the State Sector Collective Bargaining Act in 2021 and Supreme Decree No. 008-2022-PCM, establishing guidelines for the implementation of this Act, in 2022, and that this legislation covers collective bargaining in the areas in which the complainants operate (public entities of the executive, legislature and judiciary and of the central, regional and local Government).
3. 374. As to the legislative aspects of this case, the Committee first notes that the State Sector Collective Bargaining Act has repealed the provisions of the Civil Service Act which, according to the complaint, restricted the right to strike in the public sector (sections 41 and 45.2) and restricted collective bargaining in the sector (sections 42 and 44). With respect to the latter, the Committee recalls that it had noted with satisfaction that the State Sector Collective Bargaining Act provides that collective bargaining in the public service may cover all types of working and employment conditions, including remuneration and other conditions of work with an economic impact (see Case No. 3026, 401st Report, March 2023, paras 45 and 46). In the light of the foregoing, the Committee will not pursue its examination of this allegation.
4. 375. With regard to the allegation that certain categories of state officials are excluded from the right to organize under the legislation, the Committee, while observing that section 40 of the Civil Service Act (which excluded public officials, public managers and public servants in positions of trust from collective rights) was repealed by the State Sector Collective Bargaining Act, notes the Government’s indication that this exclusion is constitutional (article 42 of the Constitution). Noting that this matter is being examined by the Committee of Experts on the Application of Conventions and Recommendations (CEACR) in its supervision of the application of Convention No. 87, the Committee refers this aspect of the case to the CEACR.
5. 376. With regard to the other legislative issues related to the implementing regulations of the Civil Service Act, which remain in force, the Committee notes that, referring to the allegation that section 80 of the implementing regulations of the Act restricts the right to strike by requiring strike declarations to be supported by the majority of workers, the Government states that this section is not a restriction on this right of public servants, as it is up to the trade union organizations to establish the percentage and mechanisms required to ensure that the will of the majority of their members is guaranteed when approving their decisions on their programmes of action. In the light of this information, the Committee will not pursue its examination of this allegation.
6. 377. Moreover, with regard to the fact that section 81 of the implementing regulations of the Civil Service Act prohibits atypical forms of strikes in the public service (staggered stoppages, go-slow strikes, deliberate reductions in output, stay-in strikes and picketing), the Committee takes notes of the Government’s indication that the purpose of this provision is to avoid generating acts of violence and disrupting the work of non-striking workers. The Committee recalls that, regarding various types of strike action denied to workers (wild-cat strikes, tools-down, working to rule and sit-down strikes), the Committee considers that these restrictions may be justified only if the strike ceases to be peaceful [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 784]. The Committee also recalls that taking part in picketing and firmly but peacefully inciting other workers to keep away from their workplace cannot be considered unlawful. The case is different, however, when picketing is accompanied by violence or coercion of non-strikers in an attempt to interfere with their freedom to work; such acts constitute criminal offences in many countries [see Compilation para. 939]. Furthermore, the Committee recalls that the right to strike may be restricted or prohibited: (1) in the public service only for public servants exercising authority in the name of the State; or (2) in essential services in the strict sense of the term (that is, services the interruption of which would endanger the life, personal safety or health of the whole or part of the population) [see Compilation para. 830]. The Committee therefore trusts that the Government will review, in consultation with the representative workers’ and employers’ organizations, the regulations in force in the public service to ensure that they do not prohibit peaceful forms of the right to strike that allow non-striking workers to enter the workplace and carry out their work.
7. 378. As to the alleged non-implementation of the Civil Service Support Commission, which is responsible, inter alia, for determining the lawfulness of strike movements in the public service and establishing the level of minimum services in the event of a disagreement between the parties, the Committee notes the Government’s indication that the new civil service system is being implemented gradually and that the powers of this Commission are temporarily entrusted to the Labour Administrative Authority. In this regard, the Committee wishes to emphasize that, in previous cases, it has reminded the Government that responsibility for declaring a strike illegal (see, for example: Case No. 3096, 376th Report, October 2015, para. 889, and Case No. 3033, 371st Report, March 2014, para. 763) and the establishment of minimum services in the absence of an agreement between the parties (see Case No. 3096, 376th Report, October 2015, para. 891) should not lie with the Government but with an impartial and independent body. The Committee expects the Government to take the necessary measures, including at the legislative level, to ensure that both responsibility for declaring strike movements legal or illegal and the establishment of minimum services in the absence of an agreement between the parties are effectively examined by an impartial and independent body, and that the Civil Service Support Commission is established without further delay.
8. 379. With regard to the alleged delays in the authorities’ scheduling of conciliation hearings in collective bargaining proceedings in the public sector, which do not comply with the delays established in section 72 of the implementing regulations of the Civil Service Act, the Committee notes that the Government has not commented on this issue in general or on the specific situation of the three unions mentioned in the complaint. While the provision to which the complainants refer has been repealed by the guidelines for the implementation of the State Sector Collective Bargaining Act, the Committee wishes to recall that Article 8 of Convention No. 151 establishes that the settlement of disputes arising in connection with the determination of terms and conditions of employment shall be sought, as may be appropriate to national conditions, through negotiation between the parties or through independent and impartial machinery, such as mediation, conciliation and arbitration, established in such a manner as to ensure the confidence of the parties involved. The Committee therefore expects the Government to take the necessary measures to ensure the smooth and effective functioning of the mediation and conciliation procedures for collective labour disputes in the public sector that may have been established in the national legislation and regulations in force.
9. 380. As to the Government’s alleged refusal to respond to various lists of national and sectoral demands in the public service submitted in 2014, 2015 and 2016, on the grounds, inter alia, that higher-level trade union organizations (federations and confederations) in the public sector do not have the right to collective bargaining, the Committee notes the Government’s indication that the State Sector Collective Bargaining Act provides for forms of both centralized and decentralized collective bargaining in the public sector (section 5) and establishes that the most representative trade union confederations of state employees at the national level may engage in centralized collective bargaining on behalf of public servants (sections 7 and 9). The Committee also notes that, according to the Government, the central collective agreement for 2023–24 was signed by five confederations of state workers, including three of the complainants (UNASSE, CITE and CTE-Peru). In the light of this information and given that it has not received additional information from these organizations on the lists of demands referred to in this allegation, the Committee will not pursue its examination.
10. 381. Lastly, with regard to the Government’s alleged interference in the trade union organizations’ internal affairs by recommending, in a Ministerial Resolution, that the bargaining committee for the centralized collective agreement for 2023 be composed of three specific trade union organizations and excluding UNASSE from this coalition, the Committee notes the information provided by the Government and recalls that the centralized collective agreement for 2023–24 was signed by five confederations, including UNASSE. In this context, the Committee will not pursue its examination of this allegation.

The Committee’s recommendations

1. 382. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) Noting that the issue of excluding certain categories of public officials from the right to organize is being examined by the Committee of Experts on the Application of Conventions and Recommendations (CEACR) in its supervision of the application of Convention No. 87, the Committee refers this aspect of the case to the CEACR.
   • (b) The Committee expects the Government to take the necessary measures, including at the legislative level, to ensure that both responsibility for declaring strike movements legal or illegal and the establishment of minimum services in the absence of an agreement between the parties are effectively examined by an impartial and independent body, and that the Civil Service Support Commission is established without further delay.
   • (c) Recalling that the right to strike may be restricted or prohibited for public servants exercising authority in the name of the State or in essential services in the strict sense of the term, tThe Committee trusts that the Government will review, in consultation with the representative workers’ and employers’ organizations, the regulations in force in the public service to ensure that they do not prohibit peaceful forms of the right to strike that allow non-striking workers to enter the workplace and carry out their work.The Committee expects the Government to take the necessary measures, including at the legislative level, to ensure that both responsibility for declaring strike movements illegal or illegal and the establishment of minimum services in the absence of an agreement between the parties are effectively examined by an impartial and independent body, and that the Civil Service Support Commission is established without further delay.
   • (d) The Committee expects the Government to take the necessary measures to ensure the smooth and effective functioning of the mediation and conciliation procedures for collective labour disputes in the public sector that may have been established in the national legislation and regulations in force.
   • (e) The Committee considers that this case does not call for further examination and is closed.