Report in which the committee requests to be kept informed of development - Report No 363, March 2012

Case No 2856 (Peru) - Complaint date: 11-APR-11 - Closed

Allegations: Anti-union dismissals by the regional government of Callao

1. 1046. The complaint is contained in a communication dated 11 April 2011 from the General Confederation of Workers of Peru (CGTP).
2. 1047. The Government sent its observations in communications dated 19 and 27 September and 5 October 2011.
3. 1048. 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. 1049. In its communication of 11 April 2011, the CGTP alleges that, on 5 January 2007, the regional government of Callao illegally, arbitrarily and in violation of ILO Conventions Nos 87 and 98, declared null and void the contracts of numerous professional, technical and auxiliary workers by virtue of an administrative decision approved by the regional council of the province.
2. 1050. The CGTP adds that, after instituting legal proceedings, the dismissed workers obtained an interim measure providing for their reinstatement, followed by a judicial decision to the same effect. However, the regional government, instead of reinstating the dismissed workers in their original posts, imposed upon them service provider contracts governed by civil law. Furthermore, the regional government has appointed a number of new workers to replace those who were dismissed, instead of complying with the dozens of judicial decisions handed down.
3. 1051. Lastly, the CGTP alleges that among the dismissed workers who obtained a judicial order and subsequently a judicial decision ordering reinstatement was Ms Clara Tica, the Secretary-General of the Union of Workers of the Callao Regional Government, who was also obliged to sign a contract governed by civil law in March 2011. The CGTP underlines that this trade union official had been taking action to secure the reinstatement of the dismissed workers, in addition to other trade union activities.

B. The Government’s reply

1. 1052. In its communications dated 19 and 27 September and 5 October 2011, the Government indicates that it approached the regional government of Callao, which states that it has in no way violated the freedom of association of the workers of the Union of Workers of the Callao Regional Government and, therefore, vehemently rejects the grounds of the complaint, which concerns legal proceedings instituted to contest the dismissal and, in that connection, the appropriate steps are being taken to comply with the judicial reinstatement orders.
2. 1053. According to the regional government of Callao, the dismissal of these workers does not stem from an act of hostility. Moreover, a group of 19 workers were subsequently recruited to posts within the Staff Allocation Unit (CAP), which, according to the analytical budget for institutional staff, were unoccupied; thus, the aforementioned judicial order was complied with in this case. However, a group of 29 workers are employed under service provider contracts owing to a lack of vacancies within the staff allocation unit (as things stand, the regional government is not legally in a position to reinstate the dismissed workers – who are in possession of a judicial reinstatement order – to posts within the staff allocation unit, since the third transitional provision of Act No. 28411 (the General Act on the national budgetary system) allows for “the recruitment of staff only when the posts provided for in the budget are unoccupied”, thus nullifying actions that run counter to this provision without prejudice to the accountability of the public servant from the body that authorized those actions or the current holder of the post).
3. 1054. As regards the dismissal of the Secretary-General of the Union of Workers of the Regional Government of Callao, Ms Clara Tica, the regional government indicates that the judicial review of her dismissal is still pending before the Supreme Court of the Republic in the form of administrative proceedings. By virtue of an interim measure ordered by the court, the trade union official was subsequently recruited under a service provider contract, which was renewed consecutively until it was terminated by invoking the seventh clause. Ms Tica was informed of this in a communication dated 18 March 2011, which stated that “her behaviour was not in keeping with the body’s working requirements”.
4. 1055. The regional government notes that, as the different cases of dismissal have become the subject of legal proceedings, it should be recalled that article 139(2) of the 1993 Constitution and section 4 of the consolidated text of the Judiciary Organization Act provide that no authority may take over cases that are pending before a jurisdictional body or interfere in the exercise of its functions as defined by its legal responsibilities.
5. 1056. Thus, by virtue of Memorandum No. 667-2011-MTPE/4/10, the Office of the President of the High Court of Justice of Callao was requested to provide an update on the status of the legal proceedings mentioned in the complaint. This information was received and, from it, it is understood that there are legal proceedings currently awaiting review (pending a final decision that will grant them the status of res judicata and make them enforceable) and others that are currently at the enforcement stage, in relation to which the originating courts are empowered to take the enforcement measures necessary to safeguard the rights of the affected workers. The documentation received also reveals that a final judicial decision has been handed down by the judicial authority concerning the reinstatement of seven workers in their posts, that a final decision is about to be handed down in several sets of proceedings, that there are others at the appeal stage, and that, in one case, the statute of limitation has expired.
6. 1057. The regional government concludes that, in keeping with the jurisprudence of the Constitutional Court of Peru – the highest authority interpreting the Constitution – “redress must be sought for any detrimental, unjustified or unreasonable act that affects unionized workers or their officials and makes it impracticable for the trade union to function”, which, according to the regional government, affords full protection to freedom of association. In addition, according to this jurisprudence, the right to organize and freedom of association includes, among other aspects, the protection of workers who are attached to or members of a trade union against any acts that would serve to restrict their rights and that are motivated by their membership of a trade union or a similar organization. Thus, the mass dismissal of workers reported in the complaint will have undermined freedom of association only if the affected workers were members of the Union of Workers of the Regional Government of Callao or, otherwise, if it was intended to restrict the normal enjoyment of the right to organize.

C. The Committee’s conclusions

1. 1058. The Committee observes that the present case refers to the collective dismissal of workers in January 2007 and to the subsequent dismissal in March 2011 of the Secretary-General of the Union of Workers of the Regional Government of Callao, allegedly because of her trade union activities, in particular the action she had taken to secure the reinstatement of the dismissed workers. The trade union official was not reinstated in her post despite her having obtained an interim judicial order to this effect and she was instead obliged to accept a service provider contract governed by civil law, which was subsequently not renewed.
2. 1059. The Committee observes that, according to the allegations of the dismissed workers who approached the judicial authority, although they secured reinstatement in their posts, the regional government of Callao offered them only service provider contracts governed by civil law and appointed several workers to replace those who had been dismissed.
3. 1060. The Committee notes that the regional government denies that the dismissals have violated freedom of association or stemmed from acts of hostility, indicating that 19 workers have been reinstated in their posts, and that although 29 workers have not been reinstated in their posts (the regional government not being legally in a position to do so as, according to the budget, there are no vacancies), they have been recruited under service provider contracts, and steps are being taken to comply with the judicial reinstatement orders. The Committee notes that, according to the Government, these 29 workers instituted legal proceedings before the Supreme Court. The Committee also notes that, according to the documentation sent by the judicial authority, a judicial decision in favour of reinstating seven workers in their posts was handed down and that while in one case the statute of limitation had expired, in other cases, either a judicial decision was about to be handed down or the cases were at the appeal stage.
4. 1061. The Committee underlines that the alleged collective dismissals referred to in the present complaint date from 2007 and while it observes that the complaint does not provide details on the anti-union motives behind these dismissals (there is only a general reference to the violation of Conventions Nos 87 and 98), it considers that all workers and trade union members in particular are entitled to expeditious justice. Therefore, the Committee firmly expects that the dismissed workers who have yet to be reinstated in their posts (and who are currently employed by the regional government of Callao under service provider contracts) will receive a judicial decision, without delay, and requests the Government to keep it informed in this regard.
5. 1062. As regards the alleged dismissal of the Secretary-General of the trade union, Ms Clara Tica, who was not reinstated in her post despite her having obtained a judicial order to that effect and who was subsequently recruited under a service provider contract governed by civil law, which stopped being renewed in March 2011, the Committee takes note of the Government’s statement confirming that, having obtained an interim judicial order, she was recruited under a service provider contract governed by civil law, which stopped being renewed in March 2011 because “her behaviour was not in keeping with the body’s working requirements”. This case has also been referred to the judicial authority.
6. 1063. The Committee observes that, in the case of the dismissal of this trade union official, the trade union has alleged anti-union motives and specifically her actions to secure the reinstatement of the dismissed workers who had yet to be reinstated in their posts. The Committee stresses that the regional government does not cite individual, concrete actions constituting serious offences as grounds for dismissal but instead provides general statements to the effect that “her behaviour was not in keeping with the body’s working requirements”.
7. 1064. In these circumstances, given that the regional government has failed to cite concrete actions that constitute a serious offence but has instead provided ambiguous general statements and, bearing in mind the judicial order requesting the reinstatement of the trade union official in her post, the Committee reminds the Government of the obligation of the authorities of the regional government of Callao to lead by example in ensuring respect for fundamental labour rights, including freedom of association, and requests the Government to ensure that the authorities of the regional government of Callao take steps to reinstate without delay the trade union official Ms Clara Tica in her post. The Committee requests the Government to keep it informed in this regard.

The Committee’s recommendations

1. 1065. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee firmly expects that the dismissed workers who have yet to be reinstated in their posts (and who are currently employed by the regional government of Callao under service provider contracts) will receive a judicial decision without delay and requests the Government to keep it informed in this regard.
   • (b) The Committee reminds the Government of the obligation of the authorities of the regional government of Callao to lead by example in ensuring respect for fundamental labour rights, including freedom of association, and requests the Government to ensure that the authorities of the regional government of Callao take steps to reinstate without delay the trade union official Ms Clara Tica in her post. The Committee requests the Government to keep it informed in this regard.