Definitive Report - Report No 382, June 2017

Case No 3160 (Peru) - Complaint date: 06-JUL-15 - Closed

Allegations: Legislative provisions which restrict the collective bargaining rights of public sector workers

1. 500. The complaint is contained in a communication dated 16 July 2015 from the Autonomous Confederation of Workers of Peru (CATP) and the United National Union of Workers at the National Tax Administration Superintendency (SINAUT–SUNAT).
2. 501. The Government sent its observations in a communication dated 23 February 2016.
3. 502. 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. 503. In their communication of 16 July 2015, the complainant organizations allege that the national legislation violates the right to collective bargaining of workers at the National Tax Administration Superintendency (SUNAT) (hereinafter: Tax Superintendency) in preventing the negotiation of pay increases and other benefits.
2. 504. The complainant organizations emphasize that the first paragraph of the ninth final supplementary provision of Act No. 29816 (SUNAT Reinforcement Act) provides that processes of collective bargaining or arbitration in labour matters shall be governed by the respective legal standards and budget regulations in force. They recall in this respect that the legislation in force is Act No. 30281 (Public Sector Budget Act for 2015), section 6 of which prohibits adjustments or increases in pay or other benefits – reproducing the terms of the budget laws that have been in force for over 20 years (the complainants point out that these laws prohibit any kind of increase in pay or benefits, including as a result of arbitration).
3. 505. Moreover, the complainant organizations emphasize that the second paragraph of the abovementioned ninth final supplementary provision of Act No. 29816 provides that in negotiation and arbitration processes a maximum 1 per cent of the annual increase in resources by comparison with the previous year shall be considered as the sole source of financing for any increase, benefits and/or improvements in conditions of work and employment. The complainants consider that this paragraph can be interpreted in two ways: (i) as imposing a limit on negotiations concerning non-pay-related conditions; or (ii) (in contradiction to the first paragraph which refers to the budget legislation) as allowing pay negotiations but with a limit not exceeding 1 per cent of the annual increase in SUNAT’s own resources – a limit which, according to the complainants, would constitute a derisory amount (compared with the volume of SUNAT’s resources and outputs) and also an excessive restriction on collective bargaining. In this respect, the complainants object to the fact that the parties concerned do not negotiate what percentage of own resources can be the subject of negotiation (this is defined by the legislation). They also consider that this limitation would also lack justification as an exceptional adjustment measure since it is not based on any exceptional situation but is a permanent restriction.
4. 506. The complainant organizations indicate that this violation of the right to collective bargaining does not constitute an isolated case but is a recurrent phenomenon on which the ILO supervisory bodies have expressed their views. The complainants allege that Act No. 30057 of 2013 (Civil Service Act) permanently consolidates the limitations on collective bargaining relating to remuneration for the whole public sector. They recall in this respect that the Committee of Experts on the Application of Conventions and Recommendations (CEACR) has pointed out that such limitations are contrary to Conventions Nos 98 and 151 and claim that the Government has not taken any steps so far to implement the Committee’s recommendations. Furthermore, they stress that the Government and the authorities concerned have also not implemented the Committee’s recommendations in Cases Nos 2690 and 2816. In these cases, faced with the refusal of the Tax Superintendency to negotiate financial conditions or refer the dispute to arbitration, the Committee: (i) in its 357th Report (June 2010), emphasized that the impossibility of negotiating pay increases on an ongoing basis is contrary to the principle of free and voluntary negotiation and asked the Government to promote appropriate mechanisms so that SINAUT–SUNAT and the Tax Superintendency might conclude a collective agreement; and (ii) in its 367th Report (March 2013), recommended that the Government establish a tripartite dialogue round table as a means of improving the collective bargaining system in the public administration and overcoming the difficulties and problems encountered in practice.
5. 507. The complainant organizations denounce the fact that, far from these problems having been solved in the negotiations from 2010 to 2013, the Tax Superintendency has persisted in committing acts of bad faith in collective bargaining: delays at the start of negotiations, failure to attend direct negotiation or conciliation meetings convened by the labour authority and failure to formulate proposals, claiming that it was prohibited under the legislation to adopt pay increases or other benefits. As a result, the negotiations failed to reach a successful conclusion after several months of fruitless meetings. The complainants also indicate that the Tax Superintendency committed anti-union acts during the negotiations held in 2010–11, restricting the use of institutional email for union purposes and instituting disciplinary proceedings against union leaders for the improper use of email in disseminating information through this medium on the progress of collective bargaining and union activities (in its 362nd Report (2011), the Committee recommended that the question of the use of email by the union should be the subject of negotiation between the parties).
6. 508. Furthermore, the complainants allege that, even though the Tax Superintendency claims that it is unable to negotiate financial benefits with SINAUT–SUNAT (the majority union) because this is prohibited by law, it has in fact negotiated financial benefits with minority unions, with the aim of undermining SINAUT–SUNAT.

B. The Government’s reply

1. 509. In its communication of 23 February 2016, the Government forwards the opinions issued by the National Civil Service Authority (SERVIR), the Tax Superintendency and the Deputy Minister of Labour in relation to the allegations made by the complainant organizations.
2. 510. As regards the allegation that, under Act No. 30057 the negotiation of pay increases is prohibited, SERVIR emphasizes that this Act regulates the scope of collective rights for the public sector with the aim of having a uniform regulatory framework which: prevents distortions with regard to pay negotiations (which means that only certain workers may engage in pay negotiations); prevents any disorder with regard to pay resulting from different rules for pay negotiations depending on which labour regulations the public servants concerned are subject to (which has meant that civil servants with similar duties or posts have different levels of pay); and establishes objective technical criteria relating to pay increases and applies the principle of budgetary provision.
3. 511. The Tax Superintendency indicates, with regard to the allegation of failure to implement the recommendations of the CEACR concerning collective bargaining with SINAUT–SUNAT: (i) as regards the collective bargaining for 2008–09, that the union decided to refer the dispute to arbitration and that, further to an award being issued against the Tax Superintendency, that body filed an appeal with the courts to challenge the award; (ii) as regards the list of demands for 2010–11, negotiations were held without any violation of the principle of free and voluntary bargaining, taking into account, in relation to the financial aspects, that the Budget Act and Act No. 29816 set limits on adopting increases in financial benefits; and (iii) as regards the allegation that the Tax Superintendency refuses to negotiate pay increases despite having concluded collective agreements in the past with other trade unions to which such increases were indeed granted, the Tax Superintendency emphasizes that it has always acted in strict conformity with the applicable laws, and points out that the prohibition contained in the Civil Service Act (No. 30057) does not apply to the Tax Superintendency (whose Act No. 29816 provides for the negotiation of increases and benefits up to the equivalent of 1 per cent of the annual increase in resources). The Tax Superintendency emphasizes that in 2011, 2012 and 2013 it concluded collective agreements with various trade unions with due regard for the regulatory framework of Act No. 29816; accordingly, the possibility exists of concluding a collective agreement with SINAUT–SUNAT in the future.
4. 512. The Deputy Minister for Labour recalls the applicable legal provisions in his observations, indicating that, while the ninth final supplementary provision of Act No. 29816 provides for the possibility of negotiating increases in benefits up to a maximum of 1 per cent of the annual increase in resources, section 6 of Act No. 30281 (Public Sector Budget Act for 2015) prohibits any adjustment or increase in pay or other benefits. The Deputy Minister also indicates that Act No. 29816 and Act No. 30281 have not been the subject of any appeals claiming them to be unconstitutional (and so these Acts are presumed to be constitutional) and that, in examining the constitutionality of Act No. 30057 of 2013 (Civil Service Act), further to a challenge to the chapter on collective bargaining, the Constitutional Court confirmed the said Act as being constitutional in part.
5. 513. In the light of all the abovementioned considerations, the Government concludes that: (i) the ninth final supplementary provision of Act No. 29816 does not violate the right to collective bargaining, since the Tax Superintendency participated in negotiations and reached agreements with a number of unions; (ii) the Civil Service Act (No. 30057) and its implementing regulations establish provisions on collective bargaining in the public sector with the aim of having a uniform regulatory framework that prevents disorder with regard to pay, establishing objective technical criteria; (iii) the Constitutional Court confirmed Act No. 30057 as being constitutional in part (it did not declare it to be unconstitutional as regards collective bargaining); and (iv) with regard to Act No. 30281, no appeals claiming it to be unconstitutional have been filed.

C. The Committee’s conclusions

1. 514. The Committee observes that the complaint is concerned with allegations that certain legislative provisions restrict the collective bargaining rights of workers at the National Tax Superintendency and in the public sector in general.
2. 515. As regards the legislation applicable to the Tax Superintendency and to the negotiations with SINAUT–SUNAT, the Committee duly notes that, according to the Tax Superintendency, the ninth final supplementary provision of Act No. 29816 permits the collective negotiation of pay increases and benefits (within a limit of 1 per cent of the annual increase in the Superintendency’s own resources) and that, having concluded agreements with a number of other unions in recent years, the possibility exists of signing a collective agreement with SINAUT–SUNAT in the future. The Committee recalls that, in previous cases in which difficulties of collective bargaining with the Tax Superintendency were alleged, the Committee underlined the importance of the parties being able to negotiate on pay-related matters and that appropriate mechanisms in this respect should be promoted [see Case No. 2690, 357th Report, paras 941–948, and Case No. 2816, 367th Report, paras 1001–1007]. As regards the complainants’ allegation that the limit of 1 per cent of the annual increase in resources is derisory and non-negotiated, the Committee recalls, in general, that the possibility of setting an overall fixed budget allocation in the context of which the parties can negotiate finance-related clauses is compatible with the principles of collective bargaining provided such clauses leave adequate scope for collective bargaining. The Committee also recalls that, in the context of Case No. 2816, having noted the difficulties and problems faced by collective bargaining in the public administration, the Committee considered that these difficulties and problems should be addressed through social dialogue and invited the Government to establish such dialogue as a means of improving the collective bargaining system in the public administration and surmounting the existing difficulties and problems, including with regard to remuneration [see 367th Report, para. 1006]. Lastly, as in previous cases, the Committee trusts that the Government will take the necessary steps to promote voluntary, good-faith negotiation between the Tax Superintendency and SINAUT–SUNAT, so that they can sign a collective agreement in the near future, including with regard to pay and other benefits.
3. 516. As regards the allegations of restrictions on collective bargaining in the public sector, through the prohibition on the negotiation of pay increases or other financial benefits contained in the legislation governing the public sector budget and the Civil Service Act, the Committee observes that the Committee of Experts on the Application of Conventions and Recommendations (CEACR), in the context of Peru’s application of Conventions Nos 98 and 151, noted as part of its examination of the same issue that the Constitutional Court of Peru, in a ruling of 3 September 2015, on the basis of Conventions Nos 98 and 151 and also the corresponding comments of the ILO supervisory bodies: (i) declared unconstitutional the prohibition on the collective negotiation of pay increases contained in the legislation governing the public sector budget for 2012, 2013, 2014 and 2015; and (ii) urged the National Congress to adopt regulations concerning collective bargaining in the public sector. The CEACR urged the Government to take the necessary steps, in consultation with the trade union organizations concerned, to review the Civil Service Act of 2013 and also all the relevant regulations so that public sector employees not engaged in the administration of the State can exercise their right to bargain collectively regarding financial and pay-related matters in accordance with Convention No. 98 and so that, in relation to the application of Convention No. 151, public employees engaged in the administration of the State can participate in determining conditions of employment, including pay and other matters of financial consequence. In view of the above and the fact that Peru has ratified Conventions Nos 98 and 151, the Committee invites the Government to keep the CEACR informed with regard to the legislative aspects of the case.
4. 517. The Committee observes that the allegation of anti-union acts in relation to the use of email is the subject of Case No. 2816, which is under examination by the Committee and to whose conclusions and recommendations reference is made.

The Committee’s recommendations

1. 518. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee trusts that the Government will take the necessary steps to promote voluntary, good-faith negotiation between the Tax Superintendency and SINAUT–SUNAT, so that they can sign a collective agreement in the near future, including with regard to pay and other benefits, and reiterates its invitation to the Government to address through social dialogue the difficulties and problems relating to collective bargaining in the public administration, including with regard to pay.
   • (b) In view of the fact that Peru has ratified Conventions Nos 98 and 151, the Committee invites the Government to keep the CEACR informed regarding the legislative aspects of the case, relating to the provisions that exclude pay and other matters of financial consequence from collective bargaining or participation on the part of public employees.