Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 364, Junio 2012

Caso núm. 2866 (Perú) - Fecha de presentación de la queja:: 28-ABR-11 - Cerrado

Allegations: Hindrances to collective bargaining by the Union of Labour Inspectors of the Ministry of Labour and Employment Promotion (SI-PERÚ), anti-union tactics and restrictions of the right of union leave

1. 829. The complaint is contained in communications dated 28 April and 19 July 2011 from the Autonomous Confederation of Peruvian Workers (CATP).
2. 830. The Government sent its observations in communications dated 27 July 2011 and 23 February 2012.
3. 831. Peru has ratified the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87), the Right to Organize and Collective Bargaining Convention, 1949 (No. 98), and the Labour Relations (Public Service) Convention, 1978 (No. 151).

A. Allegations of the complainant organization

1. 832. In its communications dated 28 April and 19 July 2011, the CATP claims that its affiliates, the Union of Labour Inspectors of the Ministry of Labour and Employment Promotion (SI-PERÚ), associates only inspectors of the private-sector labour system and has 202 members, i.e. more than half the workers in its field, and is therefore a majority union that is representative of all labour inspectors in Peru.
2. 833. On 23 June 2010, the CAPT management board formally submitted to the Ministry of Labour and Employment Promotion the list of demands approved by the general assembly on 25 May 2010, which contained the proposals for the negotiation of wage increases and working conditions for 2010–12. In the following months, the Ministry showed no interest whatsoever in starting discussion of the list of demands submitted, even though the law establishes that the parties must start the bargaining process within ten days of the list being received. It was only after repeated denunciations in Congress and on the strength of communications to the Ministry of Labour from the national parliament that our employer was obliged to appoint representatives with a view to starting the bargaining process.
3. 834. In September 2010 (three months after the list of demands had been submitted), the first face-to-face meeting between the parties took place. Later, at the second face-to-face meeting, in response to the union’s demands with regard to financial and working conditions, the Ministry limited itself to offering, as its sole proposal, a small space to be fitted for use as a union notice board. Beyond this, citing budget restrictions set out in the Public Sector Spending Act for 2011, the Ministry offered nothing in respect of wage increases or even working conditions with no budgetary implications (for instance, access to teaching or research, safe working conditions, signage, etc.).
4. 835. In that context, the Deputy Minister of Labour herself told the negotiating committee that the Ministry of Labour had resumed the process of transferring inspection activities and agents to the regional governments of Lima Provincias and Callao. This is a source of disquiet to the members, because the so-called “transfer of personnel to the regions” implies, in fact, a forced and permanent move by some inspectors to places far removed from their homes. The employer’s practical goal was to have the union set aside the ongoing collective bargaining process and focus on this problem.
5. 836. Simultaneously, in early November 2010, the Ministry of Labour sent a notice of dismissal for dereliction of duty to the union’s Secretary-General, Mr Hipólito Carlos Javier Bráñez, who was a member of the committee negotiating the list of demands, alleging that he had not completed the internal procedure (request approved by the supervisor) for obtaining leave to attend an academic event. The Labour Ministry authorities refused to consider his request for leave and to provide the corresponding authorizations, despite having granted authorization and leave to other workers who had followed the same procedure as the Secretary-General. The effect of the allegation was none other than to exert anti-union pressure on the union negotiating committee so that it would agree to the “zero proposal” put on the table by the Ministry of Labour, which comprised no wage increase. Weeks later, when a new management board was elected and the Secretary-General left his post, the Ministry of Labour decided to apply only a light disciplinary penalty.
6. 837. Realizing that it was impossible to reach an agreement through face-to-face negotiations, and given that the other party had no proposals, in late November 2010, the union decided to declare that this phase had ended and to start conciliation proceedings. During this second phase, the representatives of the Ministry of Labour repeated their “zero proposal” during the conciliation meetings, invoking supposed budget constraints. The Ministry of Labour having failed to negotiate in good faith, and aware that the conciliation was not being conducted by an impartial body that was independent of the parties, but rather by public servants from the Ministry itself, the union’s general assembly decided to end the conciliation proceedings, a decision it communicated to the Ministry of Labour on 27 January 2011, seven months after the start of the collective bargaining process.
7. 838. In accordance with the legal framework in force in Peru, on 3 and 15 February 2011, the union informed the Ministry of its decision to submit the dispute to arbitration. The Ministry has yet to reply to that request, even though ten months have elapsed, and, on the contrary, continues to adopt anti-union tactics against union leaders.
8. 839. The complainant organization draws attention to the fact that, in this lengthy process, the employer (Ministry of Labour) attended the meetings but never put forward a single tangible proposal. It always maintained the “zero proposal”, violating the principle of good faith and delaying the proceedings by arguing – mistakenly – that the budget laws barred any financial proposal whatsoever.
9. 840. Indeed, the Labour Ministry’s argument that the Public Sector Budget Act makes it impossible for it to grant wage increases is not true, given that collective bargaining with entities subject to the Public Sector Budget Act is guided by those entities’ budget allocations.
10. 841. In addition, the CATP alleges that, acting arbitrarily and in a manner inconsistent with the rules, the Ministry of Labour instituted disciplinary proceedings against the Assistant Secretary-General, Mr Carlos Antonio Espinoza Neyra, who was informed on 16 February 2011 that he stood accused of false and non-existent acts (insulting behaviour and disobedience). This occurred in the context of the Ministry’s decision not to negotiate and the union’s request that the dispute be submitted for arbitration. Thus, for example, the accusation of insulting behaviour mentions no specific word or sentence that could be considered, even subjectively, as an insult to the authorities or colleagues. This irregular proceeding violates the rules of due process and affects the right of defence, as it is impossible to determine whether the supposed content of the alleged insulting behaviour is correct or not, or whether it transgresses Peruvian labour legislation. In relation to the second alleged fault, “disobedience”, no details are provided about the existence of even one act of disobedience. The proceedings were thus instituted without observing the formalities established by the regulations governing the career of inspector, which provide that an investigation must be conducted before any accusations are made. Since the hidden purpose of the dismissal proceedings was to frighten the union leader concerned, the Ministry initially obviated the investigation phase and directly formulated the accusation. Later, in the face of the irregularities, the Ministry itself decided to “suspend” the dismissal proceedings in order to “investigate” anew what had already served as grounds for accusation and dismissal. That decision contravenes the regulations in force and is indicative of the employer’s bad faith and of its intent to use dismissal proceedings to scare union leaders, given that the irregularities committed led to excessive and unnecessary delay in the ultimate settlement of the improperly instituted disciplinary procedure, generating uncertainty as to the outcome and reflecting its true anti-union motive.
11. 842. Another anti-union act committed by the employer was the attempt to prevent the union from carrying out its legitimate activities to have its demands met. Specifically, when the Ministry learned that the trade union planned to hold various peaceful activities on 23 March 2011 to promote industrial peace and uphold the right to collective bargaining (sit-in near the Labour Ministry), it decided temporarily to second ten inspectors, five of them members and five union leaders, for duty outside Lima from 21 to 31 March 2011. In practice, this meant that the union’s entire management board was sent out of Lima on supposed inspection duties, even though they had requested union leave. None of the ten inspectors was on the list of those scheduled to travel in March (the schedule is drawn up at the start of each month); on the contrary, they had inspections scheduled for the same period. The Ministry rejected the union’s request not to second the leaders, which was accompanied by a proposal to replace them with other inspectors.
12. 843. The complainant organization further indicates that:
    • – Mr Carlos Antonio Espinoza Neyra, the union’s Assistant Secretary-General, was on vacation, a fact that the employer should have taken into account before scheduling his secondment; he had been given union leave for 24 March 2011;
    • – Mr Julmer Rettis Garay, the union’s Financial Secretary, had inspections scheduled for 21, 22 and 23 March 2011;
    • – Ms Paola del Carmen Egúsquiza Granda, the union’s Secretary-General, had been granted sick leave from 18 to 22 March 2011 and had inspections scheduled on 23 March 2011; furthermore, she had been given union leave for 24 and 25 March 2011;
    • – Mr Ricardo Cerna Obregón, the union’s Defence Secretary, had been given union leave for 22 and 25 March 2011 and had inspections scheduled for 23 and 24 March 2011; and
    • – Mr Víctor Gómez Rojas, the union’s Organization Secretary, had been given union leave for 22 and 25 March 2011 and had inspections scheduled for 23 and 24 March 2011.
13. 844. Lastly, in the wake of our protest action, the Ministry has been hindering the work of the union’s leaders by restricting union leave for various trade union activities (inter alia, participation in workshops at the ILO office in Lima or in inter-union working groups the aim of which is to participate more effectively in the ILO’s standard-setting activities). Indeed, the Ministry has denied requests for leave and demanded that written evidence be provided of the invitations to the events for which leave has been requested. The denials are based on a narrow interpretation of the national legislation relating to union leave and contravene the States’ obligation under ILO Conventions (which form part of the Constitution) to guarantee that national rules are applied in such a way as to uphold the principle of freedom of association.
14. 845. The CATP further alleges that the Ministry of Labour and Employment Promotion, acting in a manner inconsistent with the rules and in response to a call for an indefinite national strike (scheduled to start on 25 May 2011) of which it was informed on 17 May 2011, within the deadline and in compliance with the law, acted as judge and party in declaring the strike unlawful in Subdirectorate Order No. 048-2011-MTPE/1/20.21, dated 18 May 2011. That order was not duly communicated, and the union learned of it on reading file No. 57801-2011-MTPE/1/20.21, dated 24 May 2011. On 24 May 2011, within the legal deadline, the union filed a request for annulment and appeal. On 25 May 2011, the union started to exert pressure by exercising the constitutional right to strike; it was notified in the afternoon that the strike was illegal in Subdirectorate Orders Nos 064-2011-MTPE and 054-2011-MTPE/1/20.21, which were based on a labour inspection report verifying the “realization of the strike”. Representatives of the Ministry of Labour and Employment Promotion posted a notice on the main entrance to the Ministry, ordering the strikers to return to their workplace on 27 May 2011, failing which appropriate legal action would be taken.
15. 846. The complainant organization goes on to say that the workers affiliated with the union returned to their workplace of their own volition on 31 March 2011, even though the illegality of the strike had not been confirmed and without having missed a single day of work without justification. The workers nevertheless ascertained that a notice had been posted on the front of the Ministry requiring them all to return to their usual duties; that notice did not meet the requirements of the law.
16. 847. In this context, the Ministry sent 18 members, labour inspectors and auxiliary inspectors, and SI PERÚ’s Secretary-General, Ms Paola del Carmen Egúsquiza Granda, notices of dismissal on 3 and 4 June 2011, undoubtedly in response to the exercise of the right to strike. The 18 letters of notice were annulled and filed, but the union’s Secretary-General was accused of having attended, allegedly without having been invited, a “reserved” meeting of the CNTPE (National Board for Labour and Employment Promotion), despite the fact that she attended as an invited advisor, in her capacity as a union leader and representing a trade union (CATP), that the supposedly “reserved” nature of the CNTPE meeting she attended had not been agreed by the parties, much less communicated to the union representatives attending, and that she was not on duty or working that day.
17. 848. The complainant organization adds that the Ministry, through the Labour Inspection Director for Lima, in a clear act of intimidation and discrimination, sent out notices of dismissal that had no grounds at all; 18 were filed and annulled; the case of the Secretary General, Ms Paola del Carmen Egúsquiza Granda, is pending.
18. 849. The disciplinary proceedings instituted against the Secretary-General, Ms Paola del Carmen Egúsquiza Granda, are being pursued despite the fact that the allegations have been refuted and that no evidence has been found of culpability. This violates Ms Egúsquiza Granda’s right of defence. The proceedings started on 26 May 2011 and have been adjourned pending an investigation of the merits. A request has been made to “extend the evidence” to acts unrelated to the notice of dismissal in an attempt to bring a fresh serious error to Ms Egúsquiza Granda’s account, thus violating procedure, the right of defence and also the right to be presumed innocent.

B. The Government’s response

1. 850. In its communications dated 27 July 2011 and 23 February 2012, the Government sent its observations on the complaint presented by the CATP on behalf of its member, SI-PERÚ, in connection with alleged anti-union tactics by the Ministry of Labour and Employment Promotion with regard to collective bargaining of the 2010–12 list of demands, disciplinary proceedings, temporary secondments of inspectors forming part of the union management board, and the granting of union leave.
2. 851. With regard to collective bargaining of the list of demands for 2010–12, the Government states in letter No. 1485-2011-MTPE/1/20 that the Metropolitan Lima Regional Director for Labour and Employment Promotion – as Chairperson of the Committee negotiating the 2010–12 list of demands – refutes the allegations, specifying that the Ministry did not manifest a lack of interest in engaging in collective bargaining with SI-PERÚ. It adds that the collective bargaining process was started by the Ministry itself, even though the workers’ organization concerned had not formally submitted its request to the corresponding administrative labour authority; the request was presented to the Subdirectorate for Collective Bargaining on 27 September 2010.
3. 852. Likewise, in letter No. 846-2011-MTPE/2/14, the Ministry’s Director General of Labour – tasked with replacing the abovementioned Regional Director as Chairperson of the negotiating Committee – holds that SI-PERÚ’s complaint relating to the Ministry’s supposed lack of interest in the collective bargaining process and to the fact that the Ministry offer was limited to a space for the publication of union notices does not correspond to the truth. In this respect, the letter appended to this report sets out the proposals made in the list of demands that were implemented by the Ministry and which are not limited to providing a space for announcements. It specifies that it undertook to make the requisite representations to the Ministry of the Economy and Finance – the unit responsible for budget matters – for approval of a permanent wage increase.
4. 853. From the facts set out in the abovementioned document, it can be seen that the Ministry was constantly open to dialogue, and even took the steps required for the start of face-to-face negotiations. Two meetings were held before SI-PERÚ formally presented its request to the Subdirectorate for Collective Bargaining. In this respect, and in relation to the list of demands, the Ministry had held more than four extraordinary meetings before an indefinite national strike was called, for the purpose of finding a solution and examining the demands formulated. Subsequently it even reaffirmed to SI-PERÚ’s management board its pledge to maintain an open-door policy of constant dialogue.
5. 854. Likewise, there is evidence to the effect that the Ministry approved various measures to improve the labour inspectors’ working conditions and technology, and to raise professional standards with various training programmes aimed at improving working conditions. However, despite the labour conditions and benefits implemented for the inspectors’ benefit in response to the list of demands submitted, SI-PERÚ insisted on submitting its case for arbitration, proposing a series of measures that were financial in nature and which the Ministry was not enabled to implement: Like all public sector entities, the Ministry is subject to the restrictions established by the Public Sector Budget Act and the General National Budget System Act.
6. 855. Lastly, what is set out above is in keeping with the Peruvian legal system, which recognizes the right to freedom of association and collective bargaining of public servants in State entities and corporations subject to the private-sector labour system, insofar as the exercise of those rights does not run counter to the specific rules limiting the benefits stipulated, as is the case of the legal provisions on the budget.
7. 856. With regard to the disciplinary proceedings and the temporary secondment of inspectors forming part of the union’s management board, in letter No. 1534-2011-MTPE/1/20.4 the Labour Inspection Directorate, which has jurisdiction in the matter, issued the corresponding discharges; these are appended as part of the communication submitted by the Metropolitan Lima Regional Directorate for Labour and Employment Promotion (referred to above).
8. 857. SI-PERÚ alleges anti-union tactics in the form of various disciplinary proceedings against the following leaders:
   • – The institution of dismissal proceedings for dereliction of duty (in November 2010) against the then Secretary-General, Mr Hipólito Carlos Javier Bráñez, who it says had completed an internal procedure to obtain leave to attend an academic event.
9. In this regard, the documents presented indicate that Mr Hipólito Carlos Javier Bráñez was not dismissed. The Ministry concluded that this worker had merely failed formally to comply with the procedure for obtaining leave, in that he decided to go on vacation unilaterally and to take leave without making the corresponding request or obtaining due authorization from his supervisor; the Ministry considered this a minor fault.
   • – The arbitrary and irregular institution of disciplinary proceedings against the Assistant Secretary-General, Mr Carlos Antonio Espinoza Neyra, who was falsely accused of acts (insulting behaviour and disobedience) which, because they were not described in detail, affected his right of defence.
10. The Government states that the documents submitted indicate that Mr Carlos Antonio Espinoza Neyra was not dismissed. The Ministry concluded that this worker had merely failed temporarily to follow his supervisor’s order; the Ministry considered this a minor fault.
11. 858. The Government goes on to say that the Labour Inspection Directorate, in letter No. 1534-2011-MTPE/1/20.4, set out arguments discrediting each of the facts denounced with regard to the disciplinary proceedings instituted against the abovementioned union leaders, concluding that in all cases it acted in strict compliance with the disciplinary authority it has under the Regulations on the Career of Labour Inspector, approved by Supreme Decree No. 021-2007-TR; it specifies that the fact that they are union members or leaders does not absolve inspectors in the public service from fulfilling their obligations as Labour Inspection agents.
12. 859. SI-PERÚ also maintains that the Ministry endeavoured to prevent its union activities by making improper use of its managerial capacities when, in the face of planned peaceful activities (sit-in in the vicinity of the Ministry), it assigned ten inspectors, five of them members and five union leaders, to temporary secondments from 21 to 31 March 2011.
13. 860. In this respect, the Government states that the Labour Inspection Directorate has specified that the temporary secondment was made in response to a request from the Labour Inspection General Directorate to the Metropolitan Lima Regional Directorate for Labour and Employment Promotion for the secondment of ten inspectors to various parts of the country between 20 and 31 March 2011. That measure is in keeping with the provisions governing the inspection system. According to article 22 of the General Law on Labour Inspection, No. 28806, in order to ensure that the labour inspection system functions properly, the central authority can order activities to be carried out outside the territorial limits of the territorial body concerned, either by seconding inspectors to another territorial inspection unit or by conducting inspection activities in companies or sectors active in the territory of more than one region.
14. 861. Lastly, account must be taken of the fact that the requirements of the central authority – the General Directorate of Labour Inspection – are not limited to secondments scheduled and communicated in timely fashion to the supervisory inspectors, given that operational decisions are based more on the need for Labour Inspection action, which can modify plans, and that trade union leaders and members must meet their work obligations just like all other agents and are therefore at the administration’s disposal for the discharge of their duties as established by the law.
15. 862. Turning to the allegations relating to the granting of union leave, SI-PERÚ alleges that the Ministry has restricted such leave for its leaders by demanding that the invitations to attend the events justifying such leave be provided in writing. The Government states that, in letter No. 109-2011-MTPE/4/12, the Head of the General Office of Human Resources maintains that the nature of the public labour inspection service requires that union leave be requested in good time, because inspection agents have a daily schedule of visits. It goes on to say that, in letter No. 28-2011-MTPE/4/12, the request for union leave formulated by SI-PERÚ one day in advance was granted, despite the lateness of the request, with the indication that in future such requests had to be submitted 48 hours in advance.
16. 863. The Ministry, clearly in keeping with a policy of respect for trade union freedoms, grants union leave as a rule whenever such leave is requested in good time, in line with the provisions of Article 6.2 of the Labour Relations (Public Service) Convention, 1978 (No. 151), which stipulates that the granting of facilities is not to impair the efficient operation of the administration or service concerned.
17. 864. Regarding the alleged inadmissibility of the declaration that the SI-PERÚ strike of 25 May 2011 was illegal, on the grounds that the union was not duly notified, the Government states that, in accordance with what is indicated in Directorate Order No. 070-2011-MTPE/1/20.2, such notification was duly communicated by the Subdirectorate for Collective Bargaining in Subdirectorate Order No. 048-2011-MTPE/1/20.21. According to article 1 of Supreme Decree No. 001-93-TR, it is for the authority in charge (the Assistant Director of Collective Bargaining) to handle collective bargaining proceedings and for the Conflict Prevention Directorate to resolve, in second and final instance, appeals against orders issued at first instance. For this, article 1 of the Single Ordered Text of the Industrial Relations Act, approved by Supreme Decree No. 010-2003-TR, stipulates that the law applies to workers covered by the private-sector labour system working for private employers and to public sector workers subject to the same labour system.
18. 865. In letter No. 303-2012-MTPE/1/20.4, dated 30 January 2012, information was provided with regard to auxiliary inspector Paola del Carmen Egúsquiza Granda, indicating that the Metropolitan Lima Regional Directorate of Labour and Employment Promotion decided to dock her one calendar day of pay for having incurred a minor fault with respect to the failure to fulfill the obligation set out in letter (g) of article 15.1 of the regulations, which stipulates: “any other obligation governed by the relevant rules …”. This includes the obligation to act in compliance with the provisions established for the private-sector labour system of the Ministry of Labour and Employment Promotion, approved in Secretary-General Resolution No. 029-2005-TR/SG, of 20 October 2009. The inspector filed an appeal for reconsideration of the Directorate Resolution on 27 December 2011, and the resolution was annulled, the appeal for reconsideration having been declared valid and the penalty therefore inapplicable.
19. 866. With regard to the alleged systematic violation by the Ministry of Labour and Employment Promotion of the trade union rights of 18 members, the Government states that the law enables the Labour Inspection Directorate to investigate, in the light of events, whether a given inspector is liable to a penalty for any act or omission, deliberate, involuntary or negligent, that contravenes the obligations, prohibitions and other provisions governing the career of labour inspectors. The Government repeats that none of the inspectors was penalized in any way.

C. The Committee’s conclusions

Allegations of hindrances to the right to collective bargaining

1. 867. The Committee observes that, in the present case, the complainant organization alleges that the Ministry of Labour and Employment Promotion delayed in negotiating the list of demands (2010–12) approved by SI-PERÚ on 25 May 2010, and acted in a manner inconsistent with the principle of good faith by maintaining a “zero proposal” for wage increases on the grounds of budget restrictions set out in the Public Sector Budget Act for 2011 and by not making tangible offers with regard to working conditions having no budget implications. According to the complainant organization, face-to-face meetings between the parties only started in September 2010; in November 2010, the union declared that this phase had ended and instituted conciliation proceedings, which it declared ended on 27 January 2011; in February 2011, the union communicated to the Ministry the decision to submit the dispute for arbitration but had received no reply at the time it filed this complaint.
2. 868. The Committee notes the Government’s statements that: (1) the Ministry did not show a lack of interest in the collective bargaining process; in fact, it was the Ministry itself that started the process, even though the union had not formally submitted its request (which was only submitted on 27 September 2010); (2) contrary to what is indicated by the complainant organization, the Ministry did not limit its proposal to a space for a notice board, but rather implemented various proposals on the list of demands; (3) the Ministry held various meetings with the union, undertook to make the requisite representations to the Ministry of the Economy and Finance for the approval of a permanent wage increase and had informed the union that it pledged to maintain an open-door policy of permanent dialogue; (4) the Ministry approved various units to improve the inspectors’ working conditions and technology and to raise professional standards with training programmes; and (5) despite this, the union insisted on submitting its case for arbitration, proposing a series of financial measures with budget implications that the Ministry was not in a position to implement.
3. 869. The Committee notes that the complainant organization and the Government present different versions of events during the collective bargaining process. It observes, however, that the Government mentions various meetings between the parties and affirms that the Ministry has accepted and implemented various proposals from the list of demands, including the undertaking to make the requisite representations to the Ministry of the Economy and Finance for approval of a permanent wage increase, which appears to be the union’s principal demand; in this sense, in the Committee’s view, the Ministry does not appear to have acted in bad faith in the negotiations, rather the parties apparently failed to reach full agreement in a process that undoubtedly went on for a long time. The Committee notes, nonetheless, that the Government has not provided further details on the question of the wage increase and refuses to submit it to arbitration, which does not constitute in and of itself a violation of the principle of collective bargaining. Taking account of the length of the negotiations between the parties, the Committee requests the Government, in keeping with its offer to the union, to make representations to the Ministry of the Economy and Finance for consideration of approval of a wage increase for the inspectors and to keep it informed in this respect.

Allegations relating to anti-union tactics and union leave

1. 870. With regard to the allegations relating to anti-union discrimination during the collective bargaining process, the Committee observes that, according to the complainant organization: (1) in November 2010, a notice of dismissal for dereliction of duty was sent to Mr Hipólito Carlos Javier Bráñez, accused by the Ministry of not having obtained his supervisor’s approval for leave to attend an academic event but whose request for leave, according to the allegations, was in fact refused by the Ministry; weeks later, the Ministry decided to apply a minor penalty; (2) in February 2011, the Ministry instituted disciplinary proceedings against Mr Carlos Antonio Espinoza Neyra, the union’s new Secretary-General, for supposed “insulting behaviour and disobedience”, but without providing details of the disobedience or objectionable words; and (3) on 31 March 2011, five members and five leaders of the union were seconded to carry out supposed inspection duties, at a time when the trade union had scheduled various activities in connection with the collective bargaining process for 23 March 2011.
2. 871. The Committee notes the Government’s statements according to which: (1) the union leader, Mr Hipólito Carlos Javier Bráñez, was penalized for having incurred a minor fault by failing to meet the formal requirements for requesting union leave (he did not submit the request and did not have his supervisor’s authorization); (2) the union leader, Mr Carlos Antonio Espinoza Neyra, was penalized for a minor fault for having temporarily failed to obey his superior’s order. With regard to the secondment in which five union members and five union leaders were forced to participate, the Government invokes the requirement of the Labour Inspection General Directorate to provide support for 11 days outside the territorial limits, for service reasons, which is authorized by the legislation and is one of the obligations such persons have as labour inspection agents under the law. According to the Government, those activities had been scheduled and were communicated in timely fashion to the supervisory inspectors. The Committee duly notes the Government’s explanations but requests that it send its observations on the union’s affirmation that several leaders had union leave during the secondment period.
3. 872. With regard to the alleged restrictions of union leave, and concretely to certain refusals reflecting a narrow interpretation of the legislation, the Committee notes the Government’s statements underscoring that union leave must be requested in good time so as not to disrupt the daily schedule of inspections, and that in one case in which leave was requested one day in advance it was authorized, but with the stipulation that subsequent requests had to be received 48 hours in advance, in keeping with Article 6 of Convention No. 151, which stipulates that the granting of facilities to trade union leaders is not to impair the efficient operation of the administration or service concerned.
4. 873. With regard to the allegations relating to the strike of May 2011, the Committee observes that, according to the Government’s response, the administrative authority’s declaration that the strike was illegal was issued in accordance with the law. The Committee once again wishes to draw the Government’s attention to the principle according to which responsibility for declaring a strike illegal should not lie with the Government, but with an independent body which has the confidence of the parties involved [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 628]. The Committee once again requests the Government, as it has on several occasions in the past, to take steps to modify the legislation so that the decision to declare a strike illegal lies, not with the administrative authority, but with an independent body which has the confidence of the parties involved.
5. 874. Lastly, with regard to the allegations relating to the notices of dismissal sent to 18 trade union members and to Ms Paola del Carmen Egúsquiza Granda, Secretary-General of the union, in respect of the exercise of the right to strike, the Committee notes that the complainant organization states that neither the 18 members nor the Secretary-General were penalized. According to the Government, the law authorizes the Ministry to investigate the job performance of labour inspectors; in this case, no penalty was incurred because the appeal for reconsideration of the decision to dock Ms Egúsquiza Granda one calendar day of pay was successful. The Committee wishes to draw attention to the fact that the communication of notices of dismissal (subsequently annulled) was related to the exercise of trade union activities and that such letters in the context described in this complaint could not fail to have an intimidating effect on the exercise of trade union rights.

The Committee’s recommendations

1. 875. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government, in keeping with its offer to the union, to make representations to the Ministry of the Economy and Finance for consideration of approval of a wage increase for the inspectors and to keep it informed in this respect.
   • (b) The Committee requests the Government to send its observations on the union’s affirmation that various leaders were on union leave during the obligatory secondment ordered by the Ministry.
   • (c) The Committee once again requests the Government to take steps to modify the law so that the decision to declare a strike illegal lies, not with the administrative authority, but with an independent body which has the confidence of the parties involved.