Report in which the committee requests to be kept informed of development - Report No 357, June 2010

Case No 2671 (Peru) - Complaint date: 22-SEP-08 - Closed

Allegations: The complainant organization alleges the dismissal of a trade union leader and failure by the employer to recognize the union

1. 816. The complaint is contained in a communication from the General Confederation of Workers of Peru (CGTP) dated 22 September 2008.
2. 817. The Government sent its observations in communications dated 2 November 2009, and 25 February and 25 May 2010.
3. 818. 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. 819. In its communication dated 22 September 2008, the CGTP alleges that the Single Union of Contract Workers of UNHEVAL–Huánuco (SUTCUNHEVAL) was established at Hermilio Valdizán de Huánuco National University (UNHEVAL). The union obtained recognition from the Regional Directorate of Labour and Social Promotion by means of a decision of 25 January 2008 granting registration of the union.
2. 820. The CGTP adds that the union, through its General Secretary, has made complaints of anti-labour practices in the form of discrimination against unionized contract workers by excluding them from consideration for permanent posts since the allocation of such posts was not conducted in an open manner by the University, that is, no public competition was held. This matter was raised with the University rector in a document dated 11 March 2008, but no reply was received.
3. 821. According to the CGTP, it was because of the above situation that the union, through its General Secretary, made a series of complaints (attached by the complainant) to public institutions having a supervisory function, including that of 2 May 2008 to the Office of the Comptroller-General of the Republic, which gave rise to the unfair dismissal on 5 May 2008 of the union’s General Secretary, Mr Franklin Reategui Valladolid, by order of the rector. This union official was also barred from entering his workplace.
4. 822. According to the complainant, the University has denied any possibility of recognition for the union, as shown by Decision No. 0337-2008-UNHEVAL-R of 1 April 2008, dismissing as baseless the application for recognition of the union and its executive committee.
5. 823. Finally, the complainant sends a copy of an application for amparo (protection of civil rights) filed with the Combined Court of Huánuco on 12 May 2008, which requests that the dismissal of the union’s General Secretary, in retaliation for his union activity reporting abuses, be declared illegal. The amparo application also refers to the University’s failure to recognize the union.

B. The Government’s reply

1. 824. In its communications of 2 November 2009, and 25 February and 25 May 2010, the Government states that it requested information from UNHEVAL concerning the allegations.
2. 825. In this regard, the University states that it is untrue that Mr Franklin Reategui Valladolid was unfairly dismissed and points out that he was reinstated in his work further to a judicial injunction (Case No. 283-2007-25). The University adds that, in the final instance in these proceedings, a decision was issued in which the exception proposed by the University was upheld, quashing the previous proceedings and declaring the application in question to be inadmissible. Consequently, in accordance with section 630 of the Code of Civil Proceedings – applicable to the issuing of the decision – admittance was denied to Mr Reategui since there was no judicial order or legal obligation requiring the University to continue to employ him. It should be pointed out that the administrative authority established the criteria to be applied when carrying out inspections in the public administration, through National Directive No. 009-2008-MTPE/2/11.4 of 12 December 2008, which provides that the scope of labour inspection covers all workers subject to private sector labour law and its remit does not extend to other types of employment. The misrepresentation referred to in the allegation should be submitted to an internal procedure, and, if the complaint is maintained, the case should then be brought before the judiciary by instituting administrative proceedings. This is therefore not a matter for intervention by the administrative authority, especially if the complainant has brought an action before the courts for restoration of his rights. Without prejudice to the foregoing, a further request has been sent, in communication No. 093-2010-MTPE/9.1 to the Office of the President of the Superior Court of Huánuco, for information on the current state of the judicial proceedings brought by the complainant, so that the ILO may be kept informed in due time of the action taken. The information requested will be forwarded to the ILO as soon as it is received.
3. 826. The University points out that, in January, Mr Reategui founded a workers’ union comprising staff who worked on the basis of service provider contracts governed by civil, rather than labour legislation and had himself elected as General Secretary, even though he was no longer employed owing to the abovementioned court action which was declared inadmissible. Under service provider contracts, services are not provided according to fixed working hours; as a result, Mr Reategui came to the University at any time to provide his services and, despite being absent even for periods of several days, he never faced administrative proceedings because of the nature of his contract, which is governed by the Civil Code.
4. 827. The University indicates that section 12 of Legislative Decree No. 276 (Administrative Service and Public Sector Remuneration Act) states that admission to the administrative service depends on successful participation in the entrance competition and therefore the workers seeking recognition (of the union) do not have the status of public servants. It affirms that the right to freedom of association has never gone unrecognized inasmuch as the Single Union of Administrative Workers, a union established by workers under Legislative Decree No. 276 in conjunction with Act No. 27556 establishing the register of public service trade unions, exists at the University. Hence the administrative body is in a position to recognize the right to organize with respect to public servants, but not with respect to persons working on the basis of service provider contracts. The University considers that the application for recognition of the union and its legal personality by the University is baseless.
5. 828. Finally, the Government indicates that it should be made clear that, since SUTCUNHEVAL filed an application for tutela (protection of constitutional rights) with the courts and proceedings are pending before the judicial authority with regard to recognition of the union (case No. 2008-02366-O-1201-JM-CI-1), the labour administrative authority is obliged to refrain from making any pronouncement on this matter, otherwise the officials concerned would incur criminal liability under the terms of article 139 of the Political Constitution of Peru, which seeks to protect the independence of the judiciary. The judicial authority has therefore been requested, in communication No. 0932010MTPE/91, to supply information on the current status of the judicial proceedings relating to the complaint, and this information will be sent to the ILO.

C. The Committee’s conclusions

1. 829. The Committee observes that the complainant organization alleges that Mr Franklin Reategui Valladolid, General Secretary of SUTCUNHEVAL, was dismissed on 5 May 2008 and has since been barred from entering his workplace, and also alleges failure by the University to recognize the union and its executive committee. The Committee observes that the complainant considers this to be an anti-union dismissal resulting from written reports of irregularities to the competent authorities (attached by the complainant).
2. 830. As regards the failure to recognize SUTCUNHEVAL, the Committee notes that the Government sent a report from the University indicating that: (1) according to section 12 of Legislative Decree No. 276 (Administrative Service and Public Sector Remuneration Act), admission to the administrative service depends on successful participation in the entrance competition and therefore the workers seeking recognition (of the union) do not have the status of public servants; (2) the right to freedom of association has never gone unrecognized in view of the existence of the Single Union of Administrative Workers; and (3) accordingly, the administrative body is in a position to recognize the right to organize with respect to public servants but not with respect to persons working on the basis of service provider contracts, and the University therefore considers that the application for recognition of the union and its legal personality by the University is baseless. The Committee notes the Government’s added statement that, since SUTCUNHEVAL filed an application for tutela with the courts and proceedings are pending before the judicial authority in regard to recognition of the union, the labour administrative authority is obliged to refrain from making any pronouncement on this matter.
3. 831. The Committee recalls that, under the terms of Article 2 of Convention No. 87, all workers, without distinction whatsoever, shall have the right to freely establish and join organizations of their own choosing and, under the terms of Article 9, only the armed forces and the police may be excluded from the scope of application of the Convention. The Committee, taking into account the fact that the issue of recognition of the trade union in question is currently pending before the judicial authority, expects that a decision will be handed down in the very near future and that account will be taken of the principle referred to above. The Committee requests the Government to keep it informed in this regard.
4. 832. As regards the alleged dismissal on 5 May 2008 of Mr Franklin Reategui Valladolid, General Secretary of SUTCUNHEVAL, the Committee notes that the Government sent a report from the University indicating that: (1) it is untrue that Mr Reategui was unfairly dismissed; (2) he was reinstated in his work further to a judicial injunction (Case No. 2832007-25). The University adds that, in the final instance in these proceedings, a decision was issued in which the exception proposed by the University was upheld, quashing the previous proceedings and declaring the application in question to be inadmissible; (3) admittance to the workplace was denied to Mr Reategui (who was no longer working at the University when he was appointed General Secretary) since there was no judicial order or legal obligation requiring the University to continue to employ him, given that he had been working on the basis of a service provider contract; (4) under the terms of service provider contracts, services are not provided according to fixed working hours, and consequently Mr Reategui came to the University at any time to provide his services and never faced administrative proceedings, owing to the nature of his contract; (5) National Directive No. 009-2008-MTPE/2/11.4 of 2008 provides that the scope of labour inspection covers all workers subject to private sector labour law and its remit does not extend to other types of employment; (6) the misrepresentation referred to in the allegation should be submitted to an internal procedure, and if the complaint is maintained, the case should then be brought before the judiciary by instituting administrative proceedings; (7) this is not a matter for intervention by the administrative authority, especially if the complainant has brought an action before the courts for restoration of his rights; and (8) a further request has been sent, in communication No. 093-2010-MTPE/9.1 to the Office of the President of the Superior Court of Huánuco, for information on the current state of the judicial proceedings brought by Mr Reategui. The Committee observes that the Government does not supply any information concerning the reasons for non-renewal of the service provider contract of Mr Reategui by the University and attaches to its reply several service provider contracts which he held for work at the University for various months in 2008.
5. 833. Moreover, the Committee recalls that the adequate protection of trade union officials in the case of anti-union discrimination is necessary in order to ensure that effect is given to the fundamental principle that workers’ organizations shall have the right to elect their representatives in full freedom.
6. 834. In these circumstances, the Committee expects that the judicial authority will hand down a decision in the very near future in regard to the non-renewal of Mr Reategui’s contract, and, in the case that it is found that the non-renewal was based on anti-union grounds, that measures for compensation and sanction are taken as provided by national law. The Committee requests the Government to keep it informed in this regard and to send a copy of the decision as soon as it is handed down.

The Committee's recommendations

1. 835. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee expects that the judicial authority will hand down a decision in the very near future with regard to the recognition of SUTCUNHEVAL and requests the Government to keep it informed in this regard.
   • (b) The Committee expects that the judicial authority will hand down a decision in the very near future in regard to the non-renewal of the service provider contract of the trade union leader, Mr Franklin Reategui and, in the case that it is found that the non-renewal was based on anti-union grounds, that measures for compensation and sanction are taken as provided by national law. The Committee requests the Government to keep it informed in this regard and to send it a copy of the decision as soon as it is handed down.