Definitive Report - Report No 392, October 2020

Case No 3200 (Peru) - Complaint date: 05-APR-16 - Closed

Allegations: The complainant organizations allege that a municipality failed to observe a collective agreement and a direct bargaining protocol in relation to the granting of indefinite union leave to union leaders and with respect to hours of work. They also allege that the municipal authorities have been harassing and intimidating SITRAMUN members with rotation and suspension measures

1. 862. The complaint is contained in a communication from the Federation of Municipal Workers, Employees and Manual Workers of Peru (FTM-Peru) dated 4 April 2016. The Union of Municipal Workers and Employees of Bellavista (SITRAMUN) sent new allegations in communications dated 22 February and 20 March 2017 and also 20 March 2019.
2. 863. The Government sent its observations in communications dated 17 January, 14 February and 28 December 2017 and also 5 November 2019.
3. 864. 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. 865. In its communication dated 4 April 2016, FTM-Peru indicates that in 1989 the municipality of Bellavista (hereinafter: the municipality) and SITRAMUN concluded a collective agreement which provides, inter alia, for the granting of indefinite trade union leave to members of the SITRAMUN executive committee. FTM-Peru states that, under the collective agreement, for the last 26 years, the municipality had granted indefinite trade union leave to three SITRAMUN officers. FTM-Peru indicates that this practice changed with the issuing of Municipal Decision No. 131-2016 of 16 February 2016, whereby the municipality decided to grant trade union leave only for 30 days per year and not on an indefinite basis. FTM-Peru states that a reading of that decision shows that it was taken on the basis of the Civil Service Act (No. 30057, issued on 4 July 2013) and its implementing regulations, which provide that “public entities are obliged to grant trade union leave for a maximum of 30 calendar days per year”. FTM-Peru considers that the municipality’s actions disregard the collective agreement and restrict the fundamental right to union leave, with the possible aim of securing the dismissal of the union leaders. In addition, according to SITRAMUN in a communication dated 20 March 2017, despite having asked the municipal authorities several times for a meeting, the latter have shown an evasive attitude and a lack of interest in resolving the dispute over union leave.
2. 866. In addition, in its communication of 22 February 2017, SITRAMUN claims that for some three years the personnel subdivision has ceased to observe the working hours for summer and winter agreed upon in the direct bargaining protocol signed with the union in 1987 (attached to the SITRAMUN communication). According to SITRAMUN, in the protocol different working hours were agreed upon for summer and winter: (i) from 7.45 a.m. to 1.30 a.m. in the January–March period; and (ii) from 8 a.m. to 3 p.m. in the April–December period. SITRAMUN claims that the personnel subdivision has ceased to observe these hours of work and has instead imposed a single work schedule for the whole January–December period, namely from 8.00 a.m. to 4.45 p.m.
3. 867. Lastly, in a communication dated 20 March 2019, SITRAMUN alleges that the mayor of the municipality and his senior staff have been harassing the union members, intimidating them through the rotation of three members and seeking to suspend workers for having allegedly condemned the suspension of some health services and the dismissal of workers by the health subdivision.

B. The Government’s reply

1. 868. In its communications of 17 January, 14 February and 28 December 2017 and also of 5 November 2019, the Government sent its observations and also those of the municipality. With regard to trade union leave for the SITRAMUN officers, the Government attaches Technical Report No. 006-2017 of 19 January 2017 drawn up by the Directorate for the Promotion and Protection of Fundamental Labour Rights at the Ministry of Labour and Employment Promotion, indicating that: (i) the municipality’s reading of the Civil Service Act was partial, since section 61 thereof establishes that the limit of 30 calendar days per year per union officer does not apply when a more favourable collective agreement or practice exists; and (ii) while the collective agreement is in force, granting union leave of no more than 30 days could constitute a violation, both of the labour regulations in force and of the ILO principles relating to freedom of association and collective bargaining. In the report, it was suggested recommending to the Office for Cooperation and International Affairs at the Ministry that it use its good offices to ensure the resolution of the dispute by the municipality and the union.
2. 869. The Government has also attached a copy of Ministry of Labour Report No. 82 dated 28 December 2017, indicating that the issue of union leave was settled by Municipal Decision No. 428-2017 of 12 August 2017, revoking the first section of Municipal Decision No. 048-2017 (which granted a maximum of 30 days’ union leave per year), amending it so as to grant indefinite paid union leave with pay for the period of a calendar year. The Government has also attached a copy of Municipal Decision No. 295-2019 of 30 April 2019 stating that paid union leave was granted for the period from 1 January to 31 December 2019 to SITRAMUN officers Ms Rosa Marcia Villar Boyer, Ms Edith Riofrio Marquina and Ms Lily Castro Ordinola. The copy of this decision attached by the Government bears the signature of Ms Riofrio.
3. 870. With regard to the allegation that the municipality failed to observe the hours of work agreed upon in the direct bargaining protocol of 1987, the Government has forwarded a report dated 16 October 2019 from the personnel subdivision of the municipality of Bellavista, indicating that: (i) under paragraph 4.7 of the protocol, the parties undertook to observe a working day of 7 hours in winter and 5 hours 45 minutes in summer; (ii) without prejudice to the foregoing, by Council Order No. 011-2015 of 11 May 2015, the personnel division and subdivision were authorized to revise the Staff Regulations; (iii) by a personnel division decision of 15 May 2015, it was decided to establish a single work schedule for the January–December period; (iv) SITRAMUN filed a judicial complaint in this regard, and on 13 June 2018 the Fourth Specialist Labour Court of the High Court of Justice of Callao declared the complaint justified and the above-mentioned council order null and void, on the grounds that it contravened the direct bargaining protocol of 1987; and (v) on 22 August 2018, the aforementioned Labour Court deemed the ruling to be accepted (that is to say, no appeals had been filed against it). The report also indicates that although the municipal ordinance of 20 February 2019 amended the Staff Regulations to include a one-hour refreshment break, this does not alter the working day agreed upon in the direct bargaining protocol of 1987 (7 hours in winter and 5 hours 45 minutes in summer).
4. 871. Moreover, the above-mentioned report of the personnel subdivision of the municipality of Bellavista states that the allegations of mistreatment and harassment of SITRAMUN members are untrue and baseless and the union has not provided any evidence to substantiate them. The report indicates that career staff rotations were carried out by the officials responsible for the corresponding areas with a view to improving management and in line with the needs of the service. It also states that at the time of issue of the official documents from SITRAMUN, none of the above-mentioned rotations had occurred. It indicates that the rotations relating to the four workers took place between February and April 2019.

C. The Committee’s conclusions

1. 872. The Committee observes that in the present complaint the complainant organizations allege that the municipality failed to observe a collective agreement and a direct bargaining protocol which had been signed with SITRAMUN 30 years earlier. They claim that this non-observance was related to trade union leave and hours of work. They also allege that the municipal authorities have been harassing and intimidating SITRAMUN members with rotation and suspension measures.
2. 873. With regard to the allegation that the municipality failed to observe the collective agreement by ceasing to grant indefinite union leave to the SITRAMUN leaders, limiting such leave to 30 days per year, the Committee notes the Government’s indication that the decisions limiting the union leave to 30 days were revoked and that they were replaced by decisions granting indefinite leave with pay to the SITRAMUN officers. The Committee notes that the Government refers specifically to Municipal Decisions Nos 428 of 2017 and 295 of 2019.
3. 874. With regard to the allegation that the municipality failed to observe the direct bargaining protocol inasmuch as the personnel subdivision imposed in the last three years a single work schedule for January to December instead of respecting the summer and winter working hours agreed upon in the protocol, the Committee notes that the documents attached by the Government show that SITRAMUN filed a judicial complaint in this regard and that on 13 June 2018 the Fourth Specialist Labour Court of the High Court of Justice of Callao declared the complaint justified and quashed the order whereby the personnel subdivision had modified the work schedule contained in the Staff Regulations. The Committee notes that, according to the indication of the municipality’s personnel subdivision in a report attached by the Government, although the Staff Regulations were amended again on 20 February 2019 to include a one-hour refreshment break, this was done without altering the length of the working day agreed upon in the direct bargaining protocol of 1987 (7 hours in winter and 5 hours 45 minutes in summer).
4. 875. While recalling that mutual respect for the commitment undertaken in collective agreements is an important element of the right to bargain collectively and should be upheld in order to establish labour relations on stable and firm ground [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 1336], the Committee observes that, according to the information received from the Government, the issues relating to observance of the collective agreement and the direct bargaining protocol appear to have been resolved. The Committee recalls that the duration of collective agreements is primarily a matter for the parties involved, but if government action is being considered any legislation should reflect tripartite agreement [see Compilation, para. 1502].
5. 876. With regard to the allegation that the municipal authorities harassed and intimidated the union members with rotation and suspension measures for supposedly having condemned the suspension of certain health services and the dismissal of workers, the Committee notes that the municipality denies these allegations. The municipality points out that there is no supporting evidence; that the staff rotations were carried out by the officials responsible for the corresponding areas with a view to improving management and in line with the needs of the service; and that in any case the rotation of four workers took place between February and April 2019 and not when SITRAMUN sent the official documentation relating to the present complaint. Observing that it is not apparent from either the allegations or the documents provided that the staff rotations were for anti-union motives or that the municipality suspended the union members, the Committee will not pursue its examination of these allegations.

The Committee’s recommendation

1. 877. In light of its foregoing conclusions, the Committee invites the Governing Body to decide that this case does not require any further examination.