Suites données aux recommandations du comité et du Conseil d’administration - Rapport No. 408, Octobre 2024

Cas no 2998 (Pérou) - Date de la plainte: 30-OCT. -12 - Clos

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

1. 25. The Committee last examined this case concerning allegations of anti-union acts against workers linked to a public administration programme through temporary contracts (administrative service contracts) at its March 2015 meeting [see Report No. 374, paras 695– 723]. On that occasion, the Committee: (a) requested the Government to keep it informed of the outcome of the judicial appeals lodged by the union leaders, Mr Roger Freddy Gamboa Reyes, Mr Alfonso Díaz Córdova, Mr Jorge Dagoberto Mejía Maza and Ms Estela González Bazán against the failure to renew their administrative service contracts; (b) with regard to the allegations concerning the use of pressure and verbal threats so that union members would withdraw from the union, while the Committee took note of the Government’s statements concerning the difficulties in conducting such investigations and in finding evidence of pressure or threats, it stressed that the complainant organizations alleged that there had been a significant decrease in the number of union members and that, between 2012 and 2013, the contracts of 27 union leaders were not renewed, and therefore again requested the Government to initiate an investigation through the labour inspectorate without delay and to keep it informed of the outcome; and (c) the Committee recalled that fixed-term contracts should not be used deliberately for anti-union purposes. Further, the Committee pointed out that, in certain circumstances, the employment of workers through repeated renewals of fixed-term contracts for several years can be an obstacle to the exercise of trade union rights. The Committee requested the Government to take this principle into account when conducting the relevant investigations.
2. 26. By communications dated 13 July 2015, 16 August 2016 and 29 May 2017, the National Federation of Workers of the National Programme for Direct Support to the Most Needy (the Juntos Programme) (FENATRAJUNTOS) sent additional information. For its part, the Government sent further comments by communications dated 7 January 2016, 31 October 2017 and 8 February 2024.
3. 27. In its various communications, the FENATRAJUNTOS alleges that the Government has failed to comply with the Committee’s recommendations. The organization alleges in particular that the Government has not ordered, nor does it intend to order, an investigation by the labour inspectorate, as recommended by the Committee, since the National Superintendence of Labour Inspection (SUNAFIL) has declared that it is not competent to carry out inspections in the matters that are the subject of the complaint. The organization also reiterates its previous allegations of pressure to disaffiliate through verbal threats and the non-allocation of trade union leave.
4. 28. The complainant organization then refers to new facts by alleging the non-renewal by the Juntos Programme of the contracts (“covert dismissal”) of several of its trade union leaders in 2016 and 2017 in alleged breach of trade union privileges (Mr Carlos Enrique Zúñiga Calderón, Secretary of Defence, Mr Héctor David Rivera Huanca, Secretary General of FENATRAJUNTOS in Puno, Mr Fidel Aresio Salas Herrera, Secretary General of FENATRAJUNTOS in Cusco, Ms Aurea Berrospi Palacios (Secretary of Trade Union Training). It adds that the Juntos Programme did not renew the contracts of Ms Alicia Elizabeth Huerto Ortíz and Mr Fidel Hamilton Santos Durán, both from its regional federation in Huánuco, for anti-union reasons. Finally, the complainant organization claims that the Juntos Programme has not complied with its list of grievances for 2014–2016, despite its successive requests.
5. 29. In its communications dated 7 January 2016, 31 October 2017, and 8 February 2024, the Government provides information on the recommendations issued by the Committee and formulates its observations in relation to the complainant organization’s new allegations. In relation to the Committee’s recommendation (a), the Government reports that only two of the five leaders mentioned in the recommendation (Messrs Roger Freddy Gamboa Reyes and Jorge Dagoberto Mejía Maza) have brought legal proceedings in respect of the non-renewal of their contracts, with the following results: (i) the amparo [protection of constitutional rights] action brought by Mr Gamboa Reyes was declared inadmissible and archived; (ii) Mr Gamboa Reyes also brought an administrative contentious action whose first instance judgment was unfavourable to him, but his appeal was, as of 2017, pending resolution; and (iii) the amparo action brought by Mr Jorge Dagoberto Mejía Maza was declared inadmissible and archived.
6. 30. With regard to the Committee’s recommendation (b), the Government reports that the Ministry of Labour has concluded that the labour regime of workers on administrative service contracts in the Juntos Programme is a public labour regime and that, therefore, by virtue of article 4 of the General Labour Inspection Act, the SUNAFIL is not competent to carry out inspections of the matters that are the subject of the present complaint.
7. 31. With regard to the Committee’s recommendation (c) concerning the successive renewals of temporary contracts over several years which could constitute an obstacle to the exercise of trade union rights, the Government states that the regime of administrative service contracts is transitional in nature and constitutes a substantive improvement over the previous “non-personal services to the State” contracting regime. The Government also indicates that the governing body of the Civil Service, SERVIR, has supervisory powers over public entities, by virtue of which it: (i) monitors compliance with the rules and policies of the administrative system of human resources management; and (ii) recommends the review of acts and decisions of the entity and the necessary corrective measures. Moreover, any citizen may file a complaint with the Office of the Comptroller General of the Republic regarding alleged arbitrary or illegal acts occurring in any public entity.
8. 32. With regard to the allegations of FENATRAJUNTOS concerning a series of additional arbitrary dismissals of its leaders and members, the Government reiterates that these workers were under fixed-term contracts, and therefore the non-renewal of their contracts cannot be equated with dismissal and there is no anti-union violation or reprisal in the issuance of the letter of termination of an administrative service contract. The Government submits in this regard the observations of the Juntos Programme, which states that: (i) there is no legal obligation to renew or extend the administrative service contracts that the State concludes, nor to substantiate the decision not to do so, since it is a discretionary power of the employer; (ii) the non-renewal of Mr Fidel Hamilton Santos Durán’s contract was followed by a Resolution of Dismissal pronounced against him for the improper use of a motorbike for personal purposes; (iii) the Second Civil Court of Huánuco declared itself incompetent to examine the amparo action filed by Mr Santos Durán for violation of his freedom of association; (iv) the criminal complaint filed by the union and by Mr Santos Durán was declared inadmissible; and (v) the amparo action filed by Ms Alicia Elizabeth Huerto Ortiz was being examined by the first Civil Court of Huánuco.
9. 33. With regard to the other allegations of FENATRAJUNTOS concerning a series of anti-union acts committed by the Juntos Programme, the Government submits the observations of the above-mentioned programme, which states that: (i) more than ten trade unions have been formed since the creation of the Programme and in this period there has not been a single substantiated case of threat or pressure on workers not to join or to disaffiliate from any of them; (ii) the granting of trade union leave is in accordance with the law, which provides that the employing entity is only obliged to grant trade union leave for attendance at events of compulsory attendance up to a limit of 30 calendar days per calendar year with pay and per leader; and (iii) the Juntos Programme respects its commitments acquired through the Collective Bargaining Agreement signed in 2013 and participated in the direct negotiation of the list of demands presented by FENATRAJUNTOS for the period 2014–16 without reaching an agreement.
10. 34. The Committee takes note of the allegations of new anti-union acts made by the complainant organization, which are similar in nature to those already examined by the Committee in the present case (non-renewal of administrative service contracts, pressure to disaffiliate, non-granting of trade union leave, obstruction of collective bargaining).
11. 35. The Committee also notes the observations provided by the Government concerning both the implementation of the recommendations made in the previous examination of the case and the new allegations made by the complainant organization. The Committee notes that the Government reiterates that the non-renewal of the administrative service contracts, which are fixed-term contracts, does not constitute anti-union discrimination, that there has been no anti-union policy in the Juntos Programme, as evidenced by the existence of numerous trade union organizations within it, that trade union leave was granted in accordance with the law and that the Programme was involved in the direct treatment of the list of demands submitted by the trade union in 2015.
12. 36. With respect to its request to be kept informed of the outcome of the legal actions brought by union leaders and members who have lost their jobs, the Committee notes the Government’s information that only four workers mentioned in the present case challenged the non-renewal of their contracts before the courts, mainly through amparo actions. The Committee also notes that, on the basis of the information provided by the Government and publicly available judicial information, these four actions were declared inadmissible. In the text of the court decisions before it, the Committee observes that the courts did not ask the Juntos Programme to explain the reason for the non-renewal of the contracts in order to rule out the allegation of the anti-union nature of the termination of the contracts. The Committee notes that this aspect relates to the indication by the Juntos Programme that the authorities have the discretion to decide not to renew the administrative service contracts. With regard to its recommendation for an investigation by the labour inspectorate into the significant decrease in union membership and the non-renewal of contracts between 2012 and 2013 of 27 union leaders, the Committee notes that it follows from the Government’s indications and from the provisions of the General Labour Inspection Act that SUNAFIL is not empowered to carry out labour inspections in public entities and in the matters covered by the present complaint. The Committee also takes note of the general information provided by the Government on other bodies (SERVIR, the Office of the Comptroller General of the Republic) competent in the area of public entities. The Committee regrets to note, however, that the Government does not refer to investigations carried out by these or other bodies into the facts which are the subject of the present complaint.
13. 37. The Committee recalls that where cases of alleged anti-union discrimination are involved, the competent authorities dealing with labour issues should begin an inquiry immediately and take suitable measures to remedy any effects of anti-union discrimination brought to their attention found [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 1159]. On the basis of the above, the Committee requests the Government to ensure that, in the future, allegations of anti-union acts that may affect public sector workers linked through administrative service contracts give rise to effective investigations and, in this context, to ensure that workers who allege that their contracts have not been renewed on the grounds of their trade union activity have effective remedies to examine whether or not the termination of their contracts was based on objective reasons. Noting that no new information has been provided by the complainant organization since 2018 and that the Committee of Experts on the Application of Conventions and Recommendations is examining the issue of protection against anti-union discrimination of public sector workers on fixed-term contracts in the framework of the supervision of the application by Peru of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), the Committee considers that this case is closed and does not call for further examination.