Allegations: Improper fixing, through regulations, of the level of collective
bargaining and of the trade union authority responsible for naming the representatives
granted union leave in the public education sector
- 377. The complaint is contained in a communication from the Single Union
of Education Workers of Lima (SUTE Lima) and the National Grass-Roots Union Committee of
the Single Union of Peruvian Education Workers dated 13 August 2016, and in a
communication from the Single Union of Education Workers of the Ayacucho Region (SUTE
Ayacucho) and the Single Union of Education Workers of Huamanga Province (SUTE Huamanga)
dated 18 August 2016. The Single Union of Education Workers of the Tacna Region (SUTEP
Tacna) sent communications relating to the complaint on 1 May and 26 November 2019, and
the National Federation of Education Workers of Peru (FENATE PERU) sent a communication
dated 25 May 2020 in which it endorsed and supported the information submitted by SUTEP
Tacna.
- 378. The Government sent its observations in a communication dated 6 July
2017.
- 379. 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 allegations
A. The complainant allegations- 380. In their communications, the complainant organizations SUTE Lima,
SUTE Ayacucho, SUTE Huamanga and SUTEP Tacna, which are four regional organizations
belonging to the Single Union of Peruvian Education Workers (SUTEP), call into question
two provisions of the Teaching Reform Act Regulations (RLRM), which were amended by
Supreme Decree No. 13-2016 MINEDU and which, according to the complainants, violate the
freedom of association and right to collective bargaining of the regional education
sector organizations for the following reasons:
- (i) article 194.2 of the RLRM
grants the secretary-general of the national union education workers or the national
federation of teachers, as appropriate, the authority to accredit regional
representatives for the purpose of granting paid leave. This same provision
establishes that each regional education directorate is responsible for granting
paid leave to two representatives of the grass-roots education union or teachers’
union duly included on the Register of Trade Unions of Public Servants (ROSSP). The
complainants believe that this allocation of powers by the RLRM to the
secretary-general of SUTEP is excessive and conflicts with the rights of trade union
representation held by the regional SUTEs duly included on the register. The
complainants add that no authorization from the national executive committee was
required for the registration of their regional directorates – which demonstrates
that, under the protection of freedom of association, accreditation at the national
level is not necessary. They believe that this provision of the regulations turns
the national executive committee of SUTEP – with which they can have significant
disagreements – into a union monopoly, and so it should not be given such
accreditation in any way.
- (ii) article 207-A b) of the RLRM only permits
collective bargaining between the national trade union and the Ministry of
Education. This provision defines a collective agreement as an agreement made
between the Ministry and the national union of education workers or national
federation of teachers with majority representation (which is SUTEP). This
definition denies regional trade unions (the regional SUTEs) the opportunity to
represent their members by negotiating with regional governments. The complainants
believe that reserving this power for the national union does serious harm to the
regional SUTEs, which do not necessarily agree with the list of claims presented by
SUTEP. The regional SUTEs believe that their leaders were elected specifically for
the purpose of participating in collective bargaining with the Ministry of Education
or with other relevant national or regional authorities.
- 381. The complainants emphasize that these regional trade unions have the
right to represent their members to the authorities and recall in this regard that
numerous regional trade unions have been established in the country, which have legal
status and have been registered with the Ministry of Labour and Employment Promotion.
They believe that these provisions restrict their rights of representation and their
freedom of association. They allege that they should be able to participate in
collective bargaining and determine which of their representatives are granted union
leave.
- 382. In addition, SUTEP Tacna alleges that the anti-union practices by
SUTEP towards the regional trade unions are ferocious and that this was demonstrated by
an administrative appeal lodged in 2014 in which it requested to cancel the registration
of SUTEP Tacna. SUTEP Tacna also makes reference to the request to cancel the
registration of other regional trade unions.
B. The Government’s reply
B. The Government’s reply- 383. In its communication of 13 July 2017, the Government provides the
following observations from the relevant authorities, in response to the allegations
made:
- (i) The Teaching Reform Act (LRM) and its Regulations (RLRM) recognize
the union of education workers at the national level, a position held by SUTEP
(which is included on the ROSSP), although it also has grass-roots or regional trade
unions.
- (ii) According to what is established in article 194 of the RLRM (as
amended by Supreme Decree No. 13-2016 MINEDU, which the complainants are calling
into question), trade union representation leave is granted to: (a) eight members of
the executive committee of the teaching union or federation set up to defend the
rights and interests of teachers at a national level; and to (b) two grass-roots
representatives of the union for each regional education directorate nationally. The
secretary-general of the union at the national level is the person responsible for
accrediting regional representatives for the purpose of granting paid leave. As a
result, education sector bodies are obliged to grant union representation leave both
to the national leaders of SUTEP and to those from grass-roots unions (regional,
provincial, etc.) and in both cases they must be duly included on the
ROSSP.
- (iii) With regard to collective bargaining, the Ministry of Education
does not negotiate with grass-roots unions or regional teaching unions. With a view
to guaranteeing the defence of the teachers’ interests, the aforementioned Supreme
Decree provides that collective bargaining is undertaken between the Ministry of
Education and the union or federation that has an absolute majority of teachers as
members (50 per cent plus one of the unionized teachers at the national level). This
provision is in line with the "most representative union system" and provides an
interim solution to trade union plurality: equal treatment of trade unions and
strengthening the effectiveness of the protection of workers’
interests.
- (iv) This system does not entail discrimination against minority
unions, but rather better standardization and active channelling of petitions,
claims or proposals that could represent minority unions through a majority union.
SUTEP is made up of different sections or grass-roots unions, including the regional
SUTE organizations. These grass-roots unions, by virtue of the principle of union
leadership, are subject to the provisions of the SUTEP authorities and the
regulations of its Statute. In addition, each regional SUTE organization is
responsible for electing its own representatives and for accrediting them with the
authorities accordingly. Those SUTEs are part of the organic structure of SUTEP,
which means they are represented by it in the collective bargaining processes and
are able to channel their claims that way.
C. The Committee’s conclusions
C. The Committee’s conclusions- 384. The Committee observes that in the present case, first presented by
four regional trade unions from the education sector belonging to the national trade
union SUTEP, it is alleged that it is contrary to freedom of association and collective
bargaining to determine by means of Regulations which trade union authority appoints the
regional representatives of the education union or teachers’ union that are granted paid
leave and which level of the trade union structure is able to collectively bargain in
the public education system.
- 385. The complainant organizations from the education sector, SUTE Lima,
SUTE Ayacucho, SUTE Huamanga and SUTEP Tacna, believe that articles 194.2 and 207-A b)
of the RLRM, as amended by Supreme Decree No. 13-2016, limit freedom of association: (i)
by granting the secretary-general of SUTEP the authority to determine which
representatives of the regional SUTEs will be granted paid leave, even though they have
their own leaders and autonomy; and (ii) by restricting the opportunity for collective
bargaining at the national level (with SUTEP as the majority union), excluding the
capacity of grass-roots unions, such as the regional SUTE organizations, to bargain
collectively. In addition, the Committee takes note that the complaint also makes
reference to specific situations of conflict between SUTEP and several of its regional
unions, such that the national trade union is alleged to have requested the cancellation
of the registration of several of its regional organizations
- 386. The Committee also notes the Government’s reply to the allegations
relating to the contents of the RLRM. The Committee notes that the Government states in
this regard that: (i) the secretary-general of the union at the national level is the
person responsible for accrediting the regional representatives for the purpose of
granting paid leave and as a result, the education sector bodies are obliged to grant
union representation leave both to the national leaders of SUTEP and to those from
grass-roots unions (regional, provincial, etc.); (ii) the existing system, while
permitting union pluralism, grants the authority to negotiate to the most representative
trade union at the national level (SUTEP) and this strengthens the defence of the
workers’ interests; (iii) for this reason, the Ministry of Education does not negotiate
with grass-roots unions or regional teaching unions; and (iv) grass-roots unions, such
as the regional SUTE organizations, are part of the organic structure of SUTEP, so it
can channel their petitions and appointments, and can represent them in collective
bargaining processes.
- 387. Observing that different aspects of the present complaint indicate
the existence of conflicts between several of the regional constituent groups of SUTEP
and the national leadership, the Committee first wishes to recall that conflicts within
a trade union lie outside the competence of the Committee and should be resolved by the
parties themselves or by recourse to the judicial authority or an independent arbitrator
[see Compilation of decisions of the Committee on Freedom of Association, sixth edition,
2018, para. 1622].
- 388. With regard to trade union leave, the Committee recognizes that,
depending on the approach to the law and labour relations in each country, different
procedures can be established to give effect to the facilities granted to trade union
representatives. With regard to this specific case, the Committee takes note of the
complainants’ allegations that the regulations grant the central body of the teaching
union the authority to name which regional representatives are granted leave, even
though the regional branches of that union are included as such on the register of trade
unions, they have their own legal status and, furthermore, they should be in a position
to choose for themselves which of their members will receive trade union leave. The
Committee also notes the Government’s reply, according to which the regulations permit
the granting of union leave to both the central and regional bodies of the teaching
unions.
- 389. The Committee observes that, since the complaint was submitted,
Supreme Decree No. 1-2020 has been issued, which amended article 194.2 of the RLRM on
trade union representation leave. The Committee observes in this regard that the amended
version of article 194.2 of the RLRM: (i) on the one hand, considers the possibility
that several representative trade union organizations exist in the education sector, at
both the central and regional levels, and on the other hand, considers the possibility
that the sector’s regional unions either do or not belong to a national organization;
and (ii) provides that a maximum of three trade union leaves are granted in each region,
rather than two, as established by Supreme Decree No. 13-2016. The Committee nonetheless
observes that the revised regulations continue to grant the central body of the
representative unions in the field of education the authority to accredit the
representatives of the regional unions receiving regional union leave before the
Regional Education Directorate, when those regional unions are part of a national
organization.
- 390. The Committee recalls that in previous cases it has considered that
the regulation of procedures and methods for the election of trade union officials is
primarily to be governed by the trade unions’ rules themselves. The fundamental idea of
Article 3 of Convention No. 87 is that workers and employers may decide for themselves
the rules which should govern the administration of their organizations and the
elections which are held therein [see Compilation para. 592]. In line with the above,
the Committee invites the Government, in full consultation with the representative trade
unions in the sector, to consider how to revise the current regulations such that it is
the organizations of education workers themselves that determine the internal mechanisms
by which the representatives that will receive union leave are named. The Committee
refers the legislative aspects of this case to the Committee of Experts on the
Application of Conventions and Recommendations.
- 391. With regard to the level of collective bargaining, the Committee
firstly recalls that it has considered that, while the public authorities have the right
to decide whether they will negotiate at the regional or national level, the workers,
whether negotiating at the regional or national level, should be entitled to choose the
organization which shall represent them in the negotiations [see Compilation, para.
1370]. Secondly, the Committee observes that, since the complaint was submitted, the
rules applicable to collective bargaining in the public service have been amended by the
adoption in 2021 of Act No. 31188 on Collective Bargaining in the Public Sector and by
the adoption in 2022 of Supreme Decree No. 008-2022-PCM, which establishes guidelines
for the application of Act No. 31188, and that those standards also address collective
bargaining in the public education sector. The Committee observes in that regard that:
(i) article 5.b of Act No. 31188 defines the decentralized level of collective
bargaining in the public sector as that which is carried out at the sectoral and
territorial level, and within each public body, or at the level deemed suitable by the
trade union organizations; and (ii) the second supplementary repeal provision in Supreme
Decree No. 008-2022-PCM expressly repeals articles 207-A and 207-B of the RLRM, which
are the subject of this case. In light of the foregoing, the Committee will not pursue
its examination of this allegation.
The Committee’s recommendations
The Committee’s recommendations- 392. In the light of its foregoing conclusions, the Committee invites the
Governing Body to approve the following recommendations:
- (a) The Committee invites
the Government, in full consultation with the representative trade unions in the
sector, to consider how to revise the current regulations such that it is the
organizations of education workers themselves that determine the internal mechanisms
by which the representatives that will receive union leave are named.
- (b) The
Committee considers that this case does not call for further examination and is
closed, and refers the legislative aspects of the case to the Committee of Experts
on the Application of Conventions and Recommendations.
