Definitive Report - Report No 392, October 2020

Case No 3239 (Peru) - Complaint date: 04-JUL-16 - Closed

Allegations: Criteria and provisions relating to the granting of trade union leave that unduly interfere in the exercise of trade union representation

1. 890. The complaint is contained in a communication dated 4 July 2016 from the Autonomous Confederation of Peruvian Workers (CATP) and the United National Union of Workers of the National Tax Administration Supervisory Authority – Internal Taxation (SINAUT-SUNAT).
2. 891. The Government sent its observations in a communication dated 11 August 2017.
3. 892. 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. 893. In their communications, the complainant organizations allege that technical report No. 52 2016-SERVIR/GPGSC of 18 January 2016 and resolution No. 060-2016-8AOOO of 31 May 2016 introduce criteria and provisions relating to the granting of trade union leave that interfere in the internal autonomy of the organizations and hamper the exercise of trade union representation activities.
2. 894. The complainants state that in accordance with national legislation (article 32 of the Collective Labour Relations Act (LRCT) and articles 61 to 64 of the rules governing the Civil Service Act): (i) the instrument that should contain provisions with a view to facilitating union activities in relation to meetings, communications and leave is the collective agreement and not a directive from the employer; (ii) in the absence of an agreement the employer shall only be required to grant leave for “events at which attendance is compulsory” to specific trade union leaders up to a limit of 30 calendar days per year and per leader; (iii) the limit of thirty days will not apply when there is a more favourable custom or collective agreement at the workplace; (iv) in the absence of a collective agreement or custom, the employer must comply with the legal limits, that is it must grant up to a limit of thirty days of leave and is not authorized to regulate a matter that should be decided with the participation of both parties or in accordance with customary practice; and (v) it is not for the employer to determine at which events attendance is compulsory or to monitor the use of trade union leave – it is for the trade union organization to determine in its statutes at which events attendance is compulsory, as it is a matter for the internal autonomy of trade union organizations to define how to use the facilities provided by law in the absence of a collective agreement or applicable custom.
3. 895. Despite this legal framework, in June 2016 the National Tax Administration Supervisory Authority (SUNAT) issued resolution No. 060 2016-8AOOO, which, in updating the procedure to check the attendance and presence of workers, establishes that: (i) it is the responsibility of trade union organizations to inform SUNAT of the names and surnames of the trade union leaders to whom the entitlement applies; (ii) where the leave is for a full day, the immediate superior must be informed at least two working days in advance, with an indication that trade union leave is to be used and information about the events requiring compulsory attendance that the trade union leader will be attending; (iii) where the leave is by the hour or for part of a working day, to ensure that no assigned task is interrupted, the worker must inform the immediate superior in advance that trade union leave is to be used and of the events requiring compulsory attendance that are to be attended; (iv) if the events requiring compulsory attendance are not indicated, the leave request will be deemed not to have been submitted and “appropriate action” will be taken, meaning that penalties for professional misconduct will be implemented; and (v) for this purpose the national human resources administration will be able to check whether the information provided by the worker about the use of the trade union leave is true.
4. 896. The complainant organizations state that this resolution is based on technical report No. 52-2016-SERVIR/GPGSC of 18 January 2016 issued by the National Civil Service Authority (SERVIR), a report which was issued at the request of SUNAT and which states that: (i) failure to indicate the beginning and end dates of the leave constitutes misconduct subject to disciplinary action; and (ii) “it is the responsibility of trade union leaders to prove that the leave requested is to be used for events at which attendance is compulsory and it is for each trade union organization to establish the mechanisms to check that the period of leave is used for trade union activities”. The complainant organizations call into question the report’s failure to mention the fact that the statutory limits only apply in the absence of a more favourable collective agreement or custom – which opens the door to a situation whereby, in public entities such as SUNAT, a regulatory or customary agreement of this kind is displaced by the criteria established in the technical report – in other words by criteria, procedures and deadlines fixed by the employer.
5. 897. With regard to the situation in SUNAT, the complainants state that the issue of trade union leave had been regulated according to a customary practice whereby: (i) the employer granted leave of up to thirty days to four trade union leaders; and (ii) the leave was used with prior notice or regularized afterwards, without information having to be provided about which events requiring compulsory attendance it was being used for and without its use being subject to periods of notice, monitoring by the employer or possible sanctions. The complainants attach copies of requests for leave submitted and accepted in the past according to this practice that they claim to be customary, stating that it was repeated and accepted by the parties.
6. 898. In this context, the complainants consider that the contested resolution constitutes a unilateral measure that puts obstacles in the way of and makes it difficult to use trade union leave, subjecting it to compliance with conditions, procedures and periods of notice that had not been applied previously, without that having affected at any time the continuity of public services or the achievement of institutional goals. The complainants specifically denounce the fact that the resolution requires, when the leave is requested, that “the event requiring compulsory attendance” that the person will attend must be indicated as a condition for the leave to be granted, and that it authorizes the employer to monitor and check the use of the leave and to sanction anything that, according to its criteria, could constitute inappropriate use of the leave, which would indirectly include the possibility of determining which events require compulsory attendance. This, they argue, implies clear interference by the employer in the autonomy of the organizations and in the running of their activities, for which provision is not made in national legislation and which, in practice, can result in a mechanism for the employer to monitor trade union activities.

B. The Government’s reply

1. 899. In its communication of 11 August 2017, the Government provides the following observations by the authorities concerned in response to the allegations contained in the complaint.
2. 900. Firstly, the Government submits the observations of SUNAT. The employing entity states that resolution No. 060-2016-8AOOO was issued in accordance with the rulings of the Constitutional Court and of SERVIR. It states that stipulating that the use of trade union leave must be announced in advance and that information must be provided regarding the events requiring compulsory attendance that the trade union leaders will attend does not violate any trade union rights and cannot be considered to be interference by SUNAT, for two reasons:
3. 901. Secondly, the Government transmits the observations of the National Civil Service Authority, which states that technical report No. 52-2016-SERVIR/GPGSC neither affects nor limits the internal autonomy of trade union organizations, for two fundamental reasons:
4. 902. In this regard, SERVIR concludes, the technical report does not seek to limit nor interfere in activities that trade union leaders perform in defence of their members, but is implementing the provisions of the LRCT and its regulations, and the rulings of the Constitutional Court on the procedure to be followed by trade union organizations for the granting of trade union leave. In this respect, SERVIR recalls that the technical report, in indicating that it is the responsibility of trade union leaders to prove that the leave requested is to be used for events requiring compulsory attendance, specifies that it is for each trade union organization to establish the mechanisms to check that the period of leave is used for trade union activities.

C. The Committee’s conclusions

1. 903. The Committee observes that the complaint alleges that the criteria and provisions relating to the granting of trade union leave introduced in an institution of the public administration on the basis of technical report No. 52-2016-SERVIR/GPGSC and reflected in resolution No. 060-2016-8AOOO unduly interfered in the exercise of freedom of association, without recognizing the precedence of what might be established through collective bargaining and custom in that respect. The complainants allege that the resolution adopted, by requiring that notice be given to use leave and that information be provided, on pain of sanction, about the activities requiring compulsory attendance to be carried out, makes it difficult to use the leave, restricts freedom of association and implies a unilateral change by the employer to the existing customary practice (according to which, it is alleged, it was not necessary to give notice nor to specify the trade union activities concerned). The complainants express particular concern about the requirement stipulated in the resolution to provide information about the events at which attendance is compulsory when requesting trade union leave, considering that this authorizes the employing institution to meddle in the determination of the events that such leave can be used for and to monitor and check the use of the leave for anti-union purposes.
2. 904. With regard to determining the events at which attendance is compulsory, the Committee takes due note that, according to the Government, the events that are deemed to require compulsory attendance and, consequently, for which trade union leave is to be granted, are those that are freely determined in the statutes of the trade union organization in question, thus recognizing that describing and determining them as such is the responsibility of the workers’ organizations in the exercise of their trade union autonomy.
3. 905. With regard to the establishment of procedures and checks for the use of trade union leave, the Committee recalls more generally that the affording of facilities to representatives of organizations of public employees, including the granting of time off, has as its corollary ensuring the “efficient operation of the administration or service concerned”. This corollary means that there can be checks on requests for time off for absences during hours of work by the competent authorities solely responsible for the “efficient operation” of their services [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 1605]. In this respect, while a degree of checking is possible to allow the employer to guarantee the efficient operation of the administration concerned (for example, in this case, establishing that the trade union organization communicates with adequate notice when leave is to be used for events at which attendance is compulsory); this should not result in the checking or monitoring of the nature of the trade union events concerned.
4. 906. In the present case, the Committee duly notes the Government’s indication that the technical report to which the current complaint refers states that it is for each trade union organization to establish the mechanisms to check that the period of leave is used by the union leader for trade union activities. The Committee therefore understands that the technical report recognizes that it is the responsibility of the trade union to ensure that the leave is properly used for trade union purposes. Consequently, in the light of the above, while on the one hand: (i) a request for trade union leave can be subject to certain procedural requirements (for example, complying with a reasonable period of notice or other arrangements that may be established through bargaining or according to custom) and the indication by the organization concerned, in accordance with its statutes, that the leave is being used for an event requiring compulsory attendance; on the other hand: (ii) the procedure for requesting trade union leave should not involve the requirement to communicate the details of the trade union activities to be carried out to the employer or allow the employer to examine or monitor the nature of the activities.
5. 907. The Committee observes that the SUNAT resolution contains provisions that could give rise to undue checking and monitoring by the employer of the nature of the activities for which the leave is being requested, as: (i) it requires the worker to provide information about “the event requiring compulsory attendance that the leave is to be used for”; (ii) it establishes that if the worker does not provide the information required, the leave request is deemed not to have been submitted and “appropriate action” will be taken; and (iii) it allows the employer “to take the appropriate measures to check whether the information provided in hard copy and/or electronically by the worker about the use of the trade union leave is true”. In this respect, the Committee invites the Government to promote a constructive dialogue between SUNAT and the complainant union in order to amend resolution No. 060-2016-8AOOO.
6. 908. Regarding the alleged unilateral change to the customary practice existing in SUNAT, the Committee is not in a position to check whether, under national law, there was a custom that was binding on the parties in respect of the procedure for the granting of trade union leave. The Committee recalls that it should be possible to reach agreement on and clarify these matters and other issues relating to the granting of trade union leave by way of collective bargaining, which, as stipulated in national legislation, takes precedence where it provides more favourable conditions than those established in legal regulations. In this respect, the Committee invites the Government to promote collective bargaining between the parties on these issues relating to the granting of trade union leave, in the light of freedom of association and collective bargaining and taking any applicable customs into account in accordance with national legislation.

The Committee’s recommendations

1. 909. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • The Committee invites the Government to promote a constructive dialogue between SUNAT and the complainant union in order to amend resolution No. 060-2016-8AOOO.
   • The Committee invites the Government to promote collective bargaining between the parties on these issues relating to the granting of trade union leave, in the light of freedom of association and collective bargaining, and taking any applicable customs into account in accordance with national legislation.