Effect given to the recommendations of the committee and the Governing Body - Report No 387, October 2018

Case No 2816 (Peru) - Complaint date: 22-SEP-10 - Closed

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

1. 48. The Committee last examined this case at its March 2014 meeting and on that occasion requested the Government once again to convene a tripartite dialogue round table to improve the system of collective bargaining in public administration. The Committee also requested the Government to indicate whether the administrative authority had taken decisions in relation to the alleged misuse of electronic mail by trade union leaders Ms María Covarrubias and Mr Jorge Carrillo Vértiz [see 371st Report, paras 95–98].
2. 49. In its communications dated 15 April 2015 and 20 August 2017, the Autonomous Confederation of Peruvian Workers (CATP) alleges that the Office of the National Superintendent of the Tax Administration (SUNAT) persists in acting in bad faith in collective bargaining with the United Trade Union of SUNAT Employees (SINAUT-SUNAT) and that the Ministry of Labour has not taken any action in this regard. As an example, the CATP indicates that in all the negotiations the SUNAT has not observed the deadlines established by law to carry out the negotiations and that the Ministry has not made any observations to the entity in that respect. The CATP also indicates that, even though during the direct negotiation and in the conciliation stages the SUNAT stated that budgetary limits had to be respected and that it was therefore unable to negotiate and grant any form of economic benefits, the entity granted a closure bonus of 1,000 nuevos soles (PEN) for the list of demands for 2012–13. The CATP also indicates that, while on the one hand the SUNAT indicates to the SINAUT-SUNAT (the majority union) that it cannot grant any economic benefits, on the other hand it does grant economic benefits to minority unions, with the clear aim of weakening the majority union. The CATP also indicates that unions were not invited to express their view with respect to the issuance of Act No. 30057 of 2013 of the Civil Service, which denies public employees the right to collective bargaining and to participate in the determination of their remuneration and in other subjects with financial implications.
3. 50. The complainant also alleges that the SUNAT has refused to comply with the arbitration awards issued in the collective bargaining processes with SINAUT-SUNAT for the years 2010, 2011, 2012, 2013 and 2015. The CATP indicates that on 4 August 2017, a notarized letter was sent to the SUNAT requesting it to comply with the arbitration awards, to which the entity has not yet replied. The CATP indicates that, to date, the SUNAT has failed to provide the SINAUT-SUNAT with the following benefits: 2010–11 arbitration award (which includes the payment of the bonus for the closing of the 2010 list of demands, amounting to PEN2,200 to each union affiliate); arbitration award 2011–12 (which includes the payment of the bonus for the closing of the 2011 list of demands, amounting to PEN2,600 to union affiliates); arbitration award 2013 (which includes the payment of the bonus for the closing of the 2013 list of demands, amounting to PEN3,000) and arbitration award 2015 (which includes the payment of the bonus for the closing of the 2015 list of demands, amounting to PEN3,400). The CATP has attached a copy of the aforementioned arbitration awards in which the proposal of the union was partially accepted given that in the arbitral tribunal’s view, the SUNAT is not per se prohibited from negotiating economic benefits in collective bargaining processes.
4. 51. In its communications dated 6 May 2014, 2 August 2016 and 13 February 2018, the Government indicates that: (i) the SUNAT complies with the internal provisions that regulate collective bargaining processes in the public administration, promoting free and voluntary negotiation according to the principle of good faith and that various collective agreements had indeed been signed from 2011 to 2017 with different trade union organizations; (ii) as of 5 May 2016, the provisions contained in Act No. 30057 of the Civil Service, which regulates collective bargaining rights of workers in the public sector, are applied to the SUNAT; (iii) the arbitral awards of 2010–11, 2011–12, 2013 and 2015 cannot be considered to be valid as they have failed to comply with mandatory rules and contravened the principle of budgetary balance; (iv) the arbitral tribunals granted the complainant economic benefits such as bonuses for the closing of the lists of demands and the Christmas basket, in contravention with the provisions of Act No. 30057 of the Civil Service and that is why the SUNAT has judicially challenged such arbitral awards; (v) the SUNAT has the obligation to protect its economic resources given that funds are public, it has accordingly requested precautionary measures to suspend the execution of arbitration awards until there is a final decision of the judiciary; and (vi) it is for the judiciary to establish the validity of the arbitration awards issued in the collective bargaining processes of 2011–12, 2013 and 2015.
5. 52. In relation to the alleged misuse of email accounts, the Government recalls that email accounts can only be used for activities that are exclusively related to the fulfilment of the functions of the institution.
6. 53. The Committee recalls that the allegations concerning the difficulties in collective bargaining processes with the SUNAT have been examined in the context of various cases presented by CATP and SINAUT-SUNAT, such as Case No. 2960 and Case No. 3160 recently examined by the Committee and to which recommendations it refers to [see 382nd Report, paras 500–518]. In these cases, the Committee trusted that the necessary steps would be taken to promote voluntary, good faith negotiation between the SUNAT and SINAUT-SUNAT, so that they can sign a collective agreement in the near future, including with regard to pay and other benefits, and reiterated 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.
7. 54. The Committee also recalls that, in the above-mentioned cases, it noted that the Committee of Experts on the Application of Conventions and Recommendations (CEACR), within the framework of the application by Peru of Conventions Nos 98 and 151, it was informed that, in a ruling of 3 September 2015, the Constitutional Court of Peru, on the basis of Conventions Nos 98 and 151 and of the corresponding comments of the ILO supervisory bodies: (i) declared unconstitutional the prohibition of collective bargaining for salary rises contained in the public sector budget legislation for the years 2012–15; and (ii) called upon Congress to approve the regulation of collective bargaining in the public sector. The Committee refers the legislative aspects of the case to the CEACR.
8. 55. The Committee notes that, since its last examination of this case, the Congress of the Republic approved a law on collective bargaining in the public sector on 18 October 2018, which, according to its article 1, regulates the exercise of the right to collective bargaining of trade unions of state workers. The Committee expresses the hope that it will be implemented so as to promote voluntary and good faith negotiation between the SUNAT and the SINAUT–SUNAT.
9. 56. The Committee also requests the Government to inform it of the outcome of the ongoing judicial proceeding in which the SUNAT challenged the validity of the arbitral awards issued in the collective bargaining processes of 2011–12, 2013 and 2015. In this regard, the Committee notes that the arbitration award issued on 7 July 2017 (attached by the CATP), in which the arbitral tribunal unanimously accepted the union’s list of claims for 2015, made reference to ILO Conventions Nos 87, 98 and 151, as well as the comments of the CEACR and the recommendations of this Committee in the context of Case No. 2690.
10. 57. Finally, the Committee observes that the Government has not provided information on any decision taken by the administrative authority in relation to the alleged misuse of electronic mail by trade union leaders Ms María Covarrubias and Mr Jorge Carrillo Vértiz and requests the Government to transmit the said information as soon as possible.