Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 374, Marzo 2015

Caso núm. 2998 (Perú) - Fecha de presentación de la queja:: 30-OCT-12 - Cerrado

Allegations: Non-renewal of administrative service contracts or dismissal in two public institutions of union officials who represented their union in the collective bargaining process; among other things, refusal to grant union leave to union officials with this type of contract, obstacles to collective bargaining and coercion of union members by a representative of a public institution into leaving the union, etc.

1. 695. The Committee last examined this case at its March 2014 meeting, when it presented an interim report to the Governing Body [see 371st Report, paras 705–732, approved by the Governing Body at its 320th meeting (March 2014)].
2. 696. Subsequently, new allegations and additional information were presented by the Confederation of Workers of Peru (CTP) in a communication dated 17 May 2014 and by the National Federation of Workers of the National Programme for Direct Support to the Most Needy (the Juntos Programme) (FENATRAJUNTOS), a CTP affiliate, in communications dated 21 October 2013, 10 January and 12 May 2014.
3. 697. The Government sent new observations in communications dated 31 January, 3 June, 7 July and 6, 18 and 25 August 2014.
4. 698. 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), the Labour Relations (Public Service) Convention, 1978 (No. 151), and the Collective Bargaining Convention, 1981 (No. 154).

A. Previous examination of the case

1. 699. At its March 2014 meeting, the Committee made the following recommendations on the pending issues [see 371st Report, para. 732]:
   • (a) The Committee requests the complainant organizations to indicate whether the union officials Mr Víctor Vicente Basantez Roldán and Mr Roger Freddy Gamboa Reyes have lodged appeals before the courts against the non-renewal of their contracts.
   • (b) Noting with regret that the Government has not sent specific information on the allegations concerning the non-renewal of the administrative service contracts of the union officials Mr Gerald Alfonso Díaz Córdova, Mr Jorge Dagoberto Mejía Maza and Ms Estela González Bazán, of the union of workers operating in the Juntos Programme, and that neither has it responded to the allegations by the complainants concerning the refusal to grant trade union leave, the Committee requests the Government to send without delay its observations on these allegations and to institute an investigation through the Labour Inspectorate in this regard, including into the recent allegations of 30 December 2013 relating to the decrease in the number of its affiliates in the various offices of the Juntos Programme.
   • (c) The Committee generally recalls the principle according to which, while it does not have the mandate and will not pronounce itself with respect to the advisability of recourse to fixed-term or indefinite contracts, the Committee wishes to draw to attention that, in certain circumstances, the employment of workers with successively renewed fixed-term contracts for several years may affect the exercise of trade union rights. The Committee requests the Government to pay attention to this principle when conducting the relevant investigations.
   • (d) The Committee invites the complainant organizations to provide detailed information on the allegations relating to the coercion of workers to withdraw from the union.

B. Additional information and new allegations by the complainant organizations

1. 700. In its communications of 17 May 2014, the CTP and FENATRAJUNTOS allege that the Juntos Programme, through the Public Prosecutor of the Ministry of Development and Social Inclusion, had brought an invalidation appeal against the registration of FENATRAJUNTOS.
2. 701. In its communications of 21 October 2013, and 10 January and 12 May 2014, in response to recommendation (a) made by the Committee in its previous examination of the case, FENATRAJUNTOS states that union leader Mr Roger Freddy Gamboa Reyes has initiated legal proceedings challenging the failure to renew his contract. It adds that, between 2012 and 2013, the Juntos Programme failed to renew the contracts of 27 union leaders in Lima and in seven regions. FENATRAJUNTOS also maintains that the Juntos Programme has pressured its members to submit letters of withdrawal from the union and testimonials in support of the management exercised by the head of the Programme’s national office; these letters were sent, not to the trade union as they should have been, but to the employer, because the authors were afraid that their contracts would not be renewed and were subjected to verbal threats of the consequences if they left any evidence, as union leaders in the city of Trujillo confirmed.
3. 702. FENATRAJUNTOS also alleges that the Juntos Programme did not allow two of its leaders to participate in collective bargaining on the list of demands for 2012–13.

C. The Government’s reply

1. 703. In its communications of 31 January, 3 June, 7 July, and 6, 18 and 25 August 2014, in response to recommendation (a) made by the Committee in its previous examination of the case, the Government states that the complainant organizations have not responded to the Committee’s request that they indicate whether the union official, Mr Vicente Basantes Roldán, had lodged an appeal before the administrative dispute courts against the non-renewal of his administrative service contract. The Government notes that Mr Roger Freddy Gamboa Reyes has appealed for reinstatement and is awaiting a judgment but that the Office of the Provincial Public Prosecutor has expressed the view that the complaint is baseless.
2. 704. With respect to recommendation (b), in response to the allegations regarding the failure to renew the administrative service contracts of union leaders, the Government states that these are fixed-term contracts and that, for budgetary reasons, they cannot extend beyond the end of the fiscal year in which the worker was hired; therefore, contrary to the claimants’ contention, non-renewal is not comparable to dismissal, let alone arbitrary dismissal or a unilateral decision of the employer to terminate the contract. The contracts of these three individuals were not renewed because they had expired (in the specific case of Mr Gerald Alfonso Díaz Córdoba, non-renewal was also related to the abolition of the administrative department in which he worked) and all three of them have lodged appeals before the courts challenging the failure to renew their contracts. The Government reiterates the comprehensive information on the legal regime governing administrative service contracts that it provided in its previous replies.
3. 705. Concerning the alleged refusal to grant union leave, the Government maintains that the Juntos Programme made every accommodation, including by granting union members from remote provinces days of leave at full pay so that they could participate in the negotiations held at the Ministry of Labour and Employment Promotion in Lima (the Government mentions nine such meetings).
4. 706. With regard to the alleged decrease in the number of union members at the various offices of the Juntos Programme, the Government states that, by Order No. 708-2012-MIDIS-PNADP-DE, the Programme requested the trade union to submit a list of its members and that the union leaders never did so. This omission by the union was reported to the Collective Bargaining Sub-directorate of the Ministry of Labour.
5. 707. The same request was made and ignored again in 2014. Thus, the Juntos Programme does not know who the trade unions’ members are and, consequently, there can be no question of a Programme plan to “decrease the number of members”.
6. 708. Furthermore, in the collective agreement concluded, the Juntos Programme undertook: (i) to respect the trade union rights of all union leaders and of unions that have been established at the national level and recognized by the Ministry of Labour and Employment Promotion; (ii) not to take reprisals against union leaders for their organizational work on behalf of the workers; (iii) to permit the holding of peaceful meetings inside the Juntos Programme buildings; and (iv) to authorize the placement of union bulletin boards in the main lobby and the various offices.
7. 709. Concerning the new allegations that collective bargaining was hindered by an attempt to prevent two of the complainant federation’s leaders from participating in the negotiations, the Government maintains that the collective agreement with the union, representing the Juntos Programme’s workers for the period 2012–13, was signed on 30 September 2013 and that two of the complainant federation’s leaders participated in the bargaining process as advisers. The Government therefore regrets that, on 21 October 2013, this national federation presented a complaint to the Committee on Freedom of Association.
8. 710. The Government states that FENATRAJUNTOS has provided no evidence in support of its allegations regarding hidden layoffs and pressure on trade union leaders and members. In that connection, according to the Office of the Second Provincial Public Prosecutor of the La Libertad judicial district, the claims regarding the case of Mr Roger Freddy Gamboa Reyes are wholly unfounded. Therefore, there has been no violation of any fundamental right of the complainant federation’s workers or of their trade union rights; those rights are recognized under the law, which provides for the lodging of judicial appeals, and in the collective agreement.
9. 711. The Government denies the allegation that the Juntos Programme authorities are supposedly pressuring trade union members.
10. 712. With regard to the allegation that the Juntos Programme, through the Public Prosecutor in the Ministry of Development and Social Inclusion, has brought an invalidation appeal against the inclusion of the complainant federation in the registry of trade union organizations of public servants (ROSSP), the Government denies that such an appeal has been brought and adds that the current legislation and, in particular, article 4 of Supreme Decree No. 010-3003 TR, adopting the single consolidated text of the Collective Labour Relations Act, establishes that the Government must refrain from any type of action that might hinder, restrict or impinge on workers’ right to form unions and from any form of interference with the establishment, administration or sustainability of the trade unions of which they are members; and that Article 3 of ILO Convention No. 87 establishes that “[t]he public authorities shall refrain from any interference which would restrict this right or impede the lawful exercise thereof” and that “[w]orkers’ and employers’ organisations shall have the right [...] to elect their representatives in full freedom ...”. The Government emphasizes that FENATRAJUNTOS, its Statute and its governing board are registered for the period 27 May 2012 to 26 May 2014.
11. 713. The Government adds that the Public Prosecutor’s Office, as the State defence body, is responsible for determining whether the documents issued by public entities comply with the law and whether State organizations, such as trade unions, have been registered in accordance with the relevant legislation. The Government, through the competent bodies, is empowered to determine whether a trade union no longer meets the legal requirements for existence. Contrary to the allegations made by the CTP, the document to which FENATRAJUNTOS refers merely requests the submission of information to the Juntos Programme; it does not violate the right to freedom of association and is not, as the complainant trade unions maintain, an invalidation appeal against the registration of the complainant federation.

D. The Committee’s conclusions

Issues raised during the previous examination of the case

1. 714. With regard to recommendation (a), made by the Committee in its previous examination of the case, the Committee takes note of the information provided by the Government: the contracts of the union leaders, Mr Gerald Alfonso Díaz Córdova, Mr Jorge Dagoberto Mejía Maza and Ms Estela González Bazán, were not renewed because they were administrative service contracts, which are fixed-term, and had expired; and the union leaders have appealed for reinstatement. The Committee requests the Government to keep it informed of the outcome of these appeals.
2. 715. With respect to recommendation (b), in which the Government was requested to institute an investigation, through the labour inspectorate, into the allegations that, owing to discrimination, the number of its members in the various offices of the Juntos Programme has decreased, as well as the allegations of coercion. Concerning recommendation (d), in which the complainant organizations were requested to provide detailed information on the allegations relating to the coercion of Juntos Programme workers to withdraw from the union, the Committee observes that the Government makes no mention of the labour inspectorate investigation into the decrease in the number of union members that the Committee requested.
3. 716. The Committee takes note of the most recent information provided by the complainant federation, which alleges that, between 2013 and 2014, the Juntos Programme failed to renew the contracts of 27 union leaders in Lima and in seven regions; the complainant federation stresses that union members were pressured into signing letters of withdrawal from the union, that those letters were sent not to the union, but to the employer, and that verbal threats, of which there is no evidence, gave rise to the fear of non-renewal.
4. 717. The Committee notes: (1) the Government’s statement that these are fixed-term contracts which expire at the end of the fiscal year; (2) the statement by the Juntos Programme that it does not know who the union members are because, despite its request, the union has refused to provide their names and that consequently, in its opinion, there can be no question of a plan to decrease the number of union members; (3) that the collective agreement includes provisions on freedom of association and prohibits reprisals against unions while the law recognizes the trade union rights of Juntos Programme workers and their right to appeal before the courts; and (4) that the complainant organizations have provided no evidence of pressure or hidden layoffs.
5. 718. The Committee emphasizes that there is a contradiction between the allegations and the Government’s reply. It notes, however, that the Government has not ordered an investigation, through the labour inspectorate, into the allegations of pressure to withdraw from union membership and failure to renew contracts for union-related reasons. While it is aware that it is difficult to conduct such investigations and to find evidence of this type of problem, it requests that the investigation be conducted without delay and that it be kept informed of the outcome.
6. 719. The Committee recalls that fixed-term contracts should not be used deliberately for anti-union purposes. Further, the Committee points out that, in certain circumstance, the employment of workers through repeated renewals of fixed-term contracts for several years can be an obstacle to the exercise of trade union rights. The Committee requests the Government to take this principle into account when conducting the relevant investigations.

New allegations

1. 720. With regard to the new allegations concerning the failure to allow two FENATRAJUNTOS leaders to participate in the union’s collective bargaining with the Juntos Programme, the Committee takes note of the Government’s statement that both leaders participated as advisers and that the collective agreement was signed.
2. 721. Concerning the alleged refusal to grant union leave, the Committee notes the Government’s reference to the provisions of the collective agreement on the placement of union bulletin boards, the holding of union meetings and the granting of union leave, particularly so that union leaders – including those from the regions – can participate in negotiations on the collective agreement (nine days of meetings).
3. 722. With regard to the complainants’ allegation that, in February 2013, the Juntos Programme, through the Public Prosecutor of the Ministry of Development and Social Inclusion, brought an invalidation appeal against the registration of the complainant federation, the Committee notes that the Government categorically denies this allegation and states that the complainant federation, its Statute and its governing board are registered. The Committee takes note of the Government’s statement that the Public Prosecutor merely asked the Juntos Programme whether the federation still met the legal requirements for existence. While the Committee observes that the complainants’ and the Government’s accounts differ, it notes that in all cases the federation is still functioning normally and will therefore not pursue its examination of this allegation.

The Committee’s recommendations

1. 723. In light of the foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government to keep it informed of the outcome of the judicial appeals lodged by the union leaders, Mr Roger Freddy Gamboa Reyes, Mr Gerald Alfonso Díaz Córdova, Mr Jorge Dagoberto Mejía Maza and Ms Estela González Bazán against the failure to renew their administrative service contracts.
   • (b) With regard to the allegations concerning the use of pressure and verbal threats so that union members would withdraw from the union, while the Committee takes note of the Government’s statements concerning the difficulties in conducting such investigations and in finding evidence of pressure or threats it stresses that the complainant organizations allege that there has been a significant decrease in the number of union members and that, between 2012 and 2013, the contracts of 27 union leaders were not renewed. Therefore, it again requests the Government to initiate an investigation through the labour inspectorate without delay and to keep it informed of the outcome.
   • (c) The Committee recalls that fixed-term contracts should not be used deliberately for anti-union purposes. Further, the Committee points out that, in certain circumstances, the employment of workers through repeated renewals of fixed-term contracts for several years can be an obstacle to the exercise of trade union rights. The Committee requests the Government to take this principle into account when conducting the relevant investigations.