Definitive Report - Report No 69, 1963

Case No 285 (Peru) - Complaint date: 01-MAR-62 - Closed

1. 51. The complaint submitted by the Peruvian Federation of Hospital and Allied Workers was notified in a telegram sent direct to the I.L.O on 1 March 1962. In a communication dated 8 April 1962 the complaining organisation forwarded additional information in support of its claim. The Peruvian Government submitted its observations on these two communications in a letter dated 20 October 1962.
2. 52. Peru has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), but not the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).
3. 53. The complaint contains two series of allegations, one relating to the unionisation of government employees, and the other to the right to strike of hospital workers. These two allegations are dealt with separately below.

A. A. The complainants' allegations

• Allegations relating to the Right of Government Employees to Join Trade Unions
  54. 54 The complainants allege, in their communication dated 8 April 1962, that the law forbids government employees to join trade unions, although in practice hospital workers have secured such trade union powers as the right to a voice in the improvement of certain aspects of their working conditions, membership of a standing committee dealing with hospital affairs, and permission to submit wage claims.
  55. 55 The Government, in its communication dated 20 October 1962, states that in accordance with the Civil Service Regulations (Act No. 11377) government employees are granted the right to organise, provided only that they do not employ the name or methods of a trade union; in practice, however, all hospital and allied workers do act in the same way as trade unionists, without restriction of any kind.
  56. 56 The Committee notes that section 49 of the Civil Service Regulations is worded as follows Public servants may only associate for cultural, sporting, welfare or co-operative purposes. Such associations may not adopt the name or structure of a trade union, employ the methods characteristic of such bodies, exercise coercion in support of their claims, or have recourse to strike action.
  57. 57 The Committee, noting the specific prohibition placed by the Civil Service Regulations on the unionisation of government employees, feels it necessary, bearing in mind the principle formulated in other cases regarding the importance of allowing government employees to form and register trade unions, to point out the incompatibility between these provisions of Peruvian law and the normally accepted principle, embodied in Article 2 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), which has been ratified by Peru, that workers, without distinction whatsoever, should have the right to establish organisations of their own choosing without previous authorisation.
  58. 58 The Committee, while observing that hospital and allied workers, according to the Government-and this is confirmed by the complainants themselves-in practice possess some of the powers of trade unionists, recalls that ever since its establishment it has made it clear that the whole purpose of its procedure for examining complaints is to foster respect for de jure and de facto trade union rights, and it has reiterated this principle in another case by declaring that the right of the workers to establish organisations of their own choosing can only be considered to exist if it is fully recognised and respected both in law and in practice.
  59. 59 Accordingly the Committee recommends the Governing Body to draw the attention of the Peruvian Government to the importance which it attaches to the normally accepted principle, embodied in Article 2 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), which has been ratified by Peru, that workers, without distinction whatsoever (including workers employed by the State), should have the right to establish organisations of their own choosing; to invite the Government to consider the possibility of abolishing the requirements of section 49 of the Civil Service Regulations, which are incompatible with the principle in question; and to bring these conclusions to the notice of the Committee of Experts on the Application of Conventions and Recommendations.
• Allegations relating to the Right to Strike of Hospital Workers
  60. 60 The complainants allege that Act No. 13907 dated 24 January 1962 (a copy of which they forward) prohibits strikes by hospital workers, and they argue that this matter violates the freedom of association sought by free workers throughout the world. The complainants add that this Act " represents a return to the dark ages of labour history " and point out that stoppages of work by hospital workers have never exceeded 12 hours and then only after having exhausted the negotiating procedure. At no time have the sick been abandoned, since a skeleton staff has always remained on duty and neither the hospital patients themselves nor persons in need of emergency care have at any time been neglected.
  61. 61 The Government states in its communication dated 20 October 1962 that Act No. 13907 lays down a procedure for direct negotiation and arbitration concerning collective demands by the workers. This procedure formerly applied only to private organisations and demands, so that the new Act marks an advance compared with the Civil Service Regulations.
  62. 62 Act No. 13907 contains two sections. Section 1 is worded as follows:
• Collective demands by professional and clerical civil servants and by wage earners employed in hospitals, clinics or welfare centres shall be settled by arbitration if direct negotiations prove unsuccessful. The arbitration tribunal shall consist of five members appointed as follows: two by each party and the fifth, who shall act as chairman, by joint consent. If the parties are unable to agree, the fifth member shall be chosen from a list of five drawn up by the senior court of the judicial district concerned, on request from the Ministry. The awards of these tribunals shall cover all the points causing the dispute and shall be final.
• Section 2 gives details of the penalties for breach of section 1.
  63. 63 The Committee has always applied the principle that allegations regarding the right to strike lie within its competence in so far, but only in so far, as they affect the exercise of trade union rights, and has repeatedly observed that the right of workers and workers' organisations to strike as a legitimate means of defending their occupational interests is generally recognised. In this connection the Committee has stressed the importance which it attaches, whenever strikes in essential services are forbidden or subject to restriction, to ensuring adequate guarantees to safeguard to the full the interests of the workers thus deprived of an essential means of defending their occupational interests and has pointed out that the restriction should be accompanied by adequate, impartial and speedy conciliation and arbitration procedures, in which the parties can take part at every stage and in which the awards are binding in all cases on both parties.
  64. 64 In the case in question the Committee considers that the provisions of Act No. 13907 appear to afford adequate safeguards for the interests of hospital workers by establishing an impartial arbitration procedure, the awards given under which appear to be binding on both parties, and it accordingly recommends the Governing Body to decide that this aspect of the case does not call for further consideration.

The Committee's recommendations

1. 65. In all the circumstances the Committee recommends the Governing Body:
   • (a) with regard to the allegations relating to the right of government employees to join trade unions:
   • (i) to draw the attention of the Peruvian Government to the importance which it attaches to the normally accepted principle, embodied in Article 2 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), which has been ratified by Peru, that workers without distinction whatsoever should have the right to establish organisations of their own choosing;
   • (ii) to invite the Peruvian Government to consider the possibility of abolishing the provisions of section 49 of the Civil Service Regulations, which are incompatible with the foregoing principle;
   • (iii) to bring these conclusions to the notice of the Committee of Experts on the Application of Conventions and Recommendations;
   • (b) to decide that the allegations relating to the right to strike of hospital workers do not call for further examination.