Definitive Report - Report No 396, October 2021

Case No 3193 (Peru) - Complaint date: 12-NOV-15 - Closed

Allegations: The complainant alleges that the Ministry of Education refused to formally and officially establish a direct negotiation committee for collective bargaining

1. 486. The complaint is contained in a communication from the Single Union of Peruvian Education Workers (SUTEP) dated 12 November 2015.
2. 487. The Government sent its observations in communications dated 29 November 2016, 14 February 2017 and 13 November 2020.
3. 488. 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. 489. The complainant alleges the refusal of the Ministry of Education to formally and officially establish a direct negotiation committee for collective bargaining in the education sector in 2015.
2. 490. The complainant indicates that the establishment of a direct negotiation committee is a means of peaceful social dialogue for collective bargaining and that year after year committees for direct negotiation with the Ministry of Education had been established to address the problems and demands of teachers. Hence, in 2012, 2013 and 2014 the Ministry of Education had issued decisions establishing the corresponding committees for the negotiation of lists of demands between this Ministry and the complainant and the appointment of its representatives on the committees.
3. 491. In January 2015, the complainant submitted to the Ministry of Education official communications Nos 005-2015-CEN-SUTEP and 016-2015-CEN-SUTEP containing the corresponding list of demands and informing the Ministry of the appointment of its representatives for the establishment of the direct negotiation committee.
4. 492. The complainant indicates that in October 2015, the Ministry of Education informed it, by means of official communication No. 2697 2015-MINEDU/VMGP-DIGEDDDITEN, that as both supreme decrees governing the establishment of the committee for direct negotiation with the complainant had been revoked in 2014, no decision establishing the committee had been issued for the current year.
5. 493. The complainant states that various international trade union organizations expressed their displeasure and concern to the Government over the non-establishment of the direct negotiation committee, such as the Confederation of Education Workers of the Republic of Argentina, the National Confederation of Workers of Educational Establishments of Brazil and the Regional Committee of Education International for Latin America.
6. 494. The complainant considers that the refusal of the Ministry of Education to formally and officially establish the direct negotiation committee violated its fundamental rights to freedom of association and collective bargaining, because it undermined its members’ capacity for dialogue and dispute resolution. Consequently, the complainant requests the Committee to recommend to the Government and/or urge it to establish the corresponding direct negotiation committee.

B. The Government’s reply

1. 495. By communications dated 29 November 2016, 14 February 2017 and 16 November 2020, the Government indicates that in 2014, Supreme Decree No. 040-2014-PCM revoked the regulatory provisions, specifically Supreme Decrees Nos 003-82-PCM and 026-82-JUS, governing the establishment of committees for direct negotiation between representatives of the complainant’s National Executive Committee and the Ministry of Education by means of collective bargaining on the complainant’s list of demands.
2. 496. The Government specifies that article 41(k) and (n) of the Teaching Reform Act, which has been in force since 2012, recognizes teachers’ rights to freedom of association and to organize as well as to enjoy working conditions that assure quality in the teaching and learning process and the efficient exercise of their duties. The Government also indicates that the regulations of the Teaching Reform Act that were adopted in 2013 originally did not contain any provisions on collective bargaining in the education sector, as the matter was governed by the aforementioned supreme decrees, which were in force until they were revoked in 2014.
3. 497. The Government indicates that in 2015 the Ministry of Education prepared a draft supreme decree governing collective bargaining and the establishment of direct negotiation committees in the education sector. In 2016, the Ministry finally adopted Supreme Decree No. 013-2016-MINEDU, which incorporated provisions on collective bargaining in the regulations of the Teaching Reform Act (article 207(a) and 207(b)). Those provisions govern, inter alia, the general aspects and procedure for collective bargaining.
4. 498. The Government states that Supreme Decree No. 013-2016-MINEDU allows the establishment of committees for direct negotiation between the complainant and the Ministry of Education and that the adoption of this supreme decree demonstrates the Government’s intention to implement dialogue forums that prevent disputes and promote the harmonious resolution of the complainant’s demands.
5. 499. The Government informs the Committee that as a result of the adoption of Supreme Decree No. 013-2016-MINEDU, a committee for direct negotiation between the complainant and the Ministry of Education was established. Through General Secretariat Decision No. 447-2016-MINEDU, the committee was set up in 2016 to negotiate the list of demands between the parties and to appoint their representatives to the committee.
6. 500. The Government considers that the allegations in the present complaint were overcome with the adoption of Supreme Decree No. 013-2016-MINEDU and the subsequent establishment of a committee for direct negotiation between the complainant and the Ministry of Education.
7. 501. Lastly, the Government indicates that during the period to which the complaint refers, the Ministry of Education always maintained a policy of holding meetings for dialogue with the representatives of the complainant organization’s National Executive Committee, during which various topics related to teaching at the national level were examined.

C. The Committee’s conclusions

1. 502. The Committee observes that the complainant organization alleges that in 2015 the Ministry of Education refused to formally and officially establish the direct negotiation committee for collective bargaining within the education sector.
2. 503. The Committee notes that the complainant indicates that year after year, committees for direct negotiation between it and the Ministry of Education had been established pursuant to the decisions adopted by this Ministry and that, however, in 2015 it submitted a list of demands and the Ministry of Education declined to formally and officially establish a direct negotiation committee, on the grounds that the two supreme decrees governing the establishment of such a committee had been revoked. The complainant considers that the situation described above violated its fundamental rights to freedom of association and collective bargaining, and requests the Committee to recommend to the Government and/or to urge it to establish the corresponding direct negotiation committee.
3. 504. Furthermore, the Committee notes the Government’s observations stating that in 2016 the Ministry of Education adopted Supreme Decree No. 013-2016-MINEDU (the draft of which was prepared, also by the Ministry of Education, in 2015) in order to incorporate into the Teaching Reform Act specific provisions on collective bargaining governing the general aspects and negotiation procedure within the education sector. The Government states that the above-mentioned supreme decree allowed the subsequent establishment of a committee for direct negotiation between the complainant and the Ministry of Education and the appointment of its representatives to the committee by virtue of the adoption of the General Secretariat Decision No. 447-2016-MINEDU. The Government states that, during the period to which the complaint refers, the Ministry of Education always maintained a policy of holding meetings for dialogue with the representatives of the complainant organization’s National Executive Committee, in which various matters related the teaching profession at the national level were discussed.
4. 505. While duly noting the information provided by the Government, in particular on the adoption and validity of a normative framework governing collective bargaining in the education sector and on the informal dialogues held between the Ministry of Education and the complainant in the period to which the complaint refers, the Committee understands from publicly available information that the Ministry of Education and the complainant have continued to establish direct negotiation committees in recent years.
5. 506. Lastly, the Committee observes that since the submission of the complaint, it has not received any additional information from the complainant. In these circumstances, and taking account of the information provided by the Government, the Committee will not pursue its examination of this case.

The Committee’s recommendation

1. 507. In the light of its foregoing conclusions, the Committee invites the Governing Body to decide that this case does not call for further examination.