Rapport intérimaire - Rapport No. 306, Mars 1997

Cas no 1878 (Pérou) - Date de la plainte: 09-AVR. -96 - Clos

Allegations: Refusal to register a trade union organization, refusal of an institution to bargain collectively, and acts of anti-union discrimination

1. 520. The complaints in this case were lodged by the Single Trade Union of Technicians and Assistants of the Peruvian Social Security Institute (SUTAEIPSS) in communications dated 9 and 25 April, 28 October, 15 November, 11 December 1996 and 29 January 1997, and by the Single Trade Union of Workers of the Peruvian Broadcasting Company (SUTRACPR) in a communication dated 16 August 1996. The Government sent its observations in a communication dated 28 January and 28 February 1997.
2. 521. 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. 522. The SUTAEIPSS alleges that the Ministry of Labour and Social Advancement has refused to register the National Single Trade Union of Technicians and Assistants of the Peruvian Social Security Institute (SUNTAEIPSS). The Ministry of Labour bases its decision on the fact that, on the one hand, the SUNTAEIPSS and the SUTAEIPSS are one and the same trade union organization and, on the other, the SUTAEIPSS has been registered as a public employees' trade union by the Institute of Public Administration (INAP) and registering the SUNTAEIPSS would therefore be tantamount to granting double legal personality.
2. 523. The SUTAEIPSS (the complainant organization) alleges that the Ministry of Labour is mistaken and that this organization recognized by INAP is a regional body whereas the SUNTAEIPSS, though it has the same members as the SUTAEIPSS (but at the national level), is a new trade union organization with more than one branch that was established in accordance with the Collective Labour Relations Act (Legislative Decree No. 25593). The complainant adds that the SUNTAEIPSS's desire to register with the Ministry of Labour stems from the fact that INAP, which used to be responsible for registering trade unions of public employees, has been dissolved and the employees concerned are now unprotected and have no means of defending their trade union rights. The complainant concludes that the proposal of the president of the Labour and Social Security Committee of the Congress of the Republic to bring all public servants under the same labour laws and regulations as the private sector is all the more reason for the SUNTAEIPSS to register with the Ministry of Labour.
3. 524. The complainant further alleges that the Peruvian Social Security Institute (IPSS) has repeatedly refused to negotiate the workers' list of demands for 1994, 1995 and 1996 concerning wage increases, conditions of work and other labour issues, and this despite the SUTAEIPSS's willingness to compromise and reduce the demands contained in the three lists to just four points.
4. 525. In a communication dated 16 August 1996 the Single Trade Union of Workers of the Peruvian Broadcasting Company (SUTRACPR) alleges that the Peruvian Broadcasting Company has obliged 230 workers to follow a mass training programme for positions of trust; these workers are all union members and include all the union leaders. Under national legislation workers in positions of trust can neither be union members nor bargain collectively, and the company is trying in this way to get rid of the trade union.

B. The Government's reply

1. 526. Regarding the refusal of the Ministry of Labour and Social Advancement to register the SUNTAEIPSS, the Government states in a communication dated 28 January 1997 that the SUTAEIPSS is a trade union organization of public employees that represents all its members at the national level, and that it was registered with the now defunct Institute of Public Administration (INAP). As the complainant recognizes, the SUNTAEIPSS's membership is the same as the SUTAEIPSS's; moreover, both the organizations' representatives are the same, which means that they are one and the same organization. Proof of this, according to the Government, is the fact that the complaint lodged with the ILO was submitted by the SUTAEIPSS and not by the SUNTAEIPSS, which is directly concerned.
2. 527. The Government adds that the complainant's assertion that it had never had any intention of claiming two legal personalities - one conferred by INAP and the other by the Ministry of Labour (though not as the SUTAEIPSS at the national level) - in fact argues in favour of the Government's position. It claims that the complainant's intention was not simply to change the name but to do away with the SUTAEIPSS altogether, in the hope of extending its membership to workers governed by the private sector labour laws and regulations.
3. 528. The Government adds that the collective rights of public employees are governed by specific provisions, such as the Administrative Career Bases Act which recognizes the right to join trade unions; consequently, the SUNTAEIPSS could not be established under the Collective Labour Relations Act, since this applies to private sector workers and to assimilated state enterprises. The Government states also that, under Act No. 25636, employees of the Peruvian Social Security Institute (IPSS) who remained in their posts after the staff rationalization process had the option of continuing to work under the public sector laws and regulations or of subscribing to the private sector system; newly recruited staff would come under the private sector system and could therefore set up trade union organizations in accordance with Legislative Decree No. 25593. The Government goes on to say that the availability of this option meant that two juridical systems - one public and one private - would coexist, provided that not all the workers who remained in their jobs after the rationalization process opted for the private scheme; thus the SUTAEIPSS represents those workers who are governed by the public sector laws and regulations.
4. 529. The Government concludes that, although the disappearance of INAP has left a legal vacuum as regards the registration of trade union organizations of public employees, this does not prevent such organizations from being established to defend the rights of their members since registration is not a prerequisite and trade unions can be established purely and simply at the request of the workers. Finally, the Government points out that, if the proposal of the president of the Labour and Social Security Committee of the Congress referred to by the complainant is endorsed and all public servants thereupon come under the private sector labour regulations, nothing will impede existing public servants from exercising their collective rights in accordance with Legislative Decree No. 25593 and the regulations made under it.
5. 530. As to the alleged refusal of the Peruvian Social Security Institute (IPSS) to negotiate the workers' list of demands for 1994, 1995 and 1996, the Government observes that, although public servants cannot negotiate wage increases collectively, such increases may be granted by the Administration if the fiscal situation of the public body concerned allows and if it is authorized to do so. The Government goes on to explain that the Public Administration has to operate within its budget and cannot obtain more resources than those specifically allocated for each fiscal year, especially since the Peruvian State is going through a period of restructuring and austerity. Wage increases for public employees during a fiscal year would necessarily entail modifying the previously approved budget, and the body concerned therefore cannot grant any such increase without the approval of the Ministry of Economy and Finance. The Government adds that the IPSS refused to negotiate wage increases with the SUTAEIPSS on the one hand because it has a budget that it cannot exceed, and on the other because specific arrangements have been made to rationalize public expenditure.

C. The Committee's conclusions

1. 531. The Committee observes that the complaints in this case concern the refusal to register a trade union organization, the refusal of an institution to negotiate working conditions collectively and acts of anti-union discrimination by an enterprise.
2. 532. The Committee notes the Government's detailed explanation of the Ministry of Labour and Social Advancement's refusal to register the National Single Trade Union of Technicians and Assistants of the Peruvian Social Security Institute (SUNTAEIPSS). The Committee notes specifically the Government's argument that the Single Trade Union of Technicians and Assistants of the Peruvian Social Security Institute (SUTAEIPSS) is a nationwide trade union of public employees that was registered with the now defunct Institute of Public Administration (INAP) and that, on the one hand, as the complainant recognizes, the SUNTAEIPSS has the same membership as the SUTAEIPSS and, on the other, their union representatives are the same, which means that they are one and the same organization.
3. 533. The Committee further notes that the collective rights of public employees are governed by specific provisions, such as the Administrative Career Bases Act which provides for the right to join trade unions, and that the SUNTAEIPSS can therefore not be established under the Collective Labour Relations Act since the Act applies only to private sector workers and assimilated state enterprises.
4. 534. The Committee further notes that, under Act No. 25636, employees of the Peruvian Social Security Institute (IPSS) who remained in their posts after the staff rationalization process had the option of continuing to work under the public sector laws and regulations or of subscribing to the private sector system, and that newly recruited staff would come under the private sector system and could therefore set up trade union organizations in accordance with Legislative Decree No. 25593. The Committee also notes that, according to the Government, not all the workers who remained in their jobs after the rationalization process opted for the private scheme, and that the SUTAEIPSS thus represents those workers who are governed by the public sector laws and regulations.
5. 535. In the light of the foregoing, the Committee observes that this is a complex situation in which two sets of labour laws and regulations - one for the public sector and one for the private sector - coexist within a single public institution, the IPSS, and that this prevents some of the workers (those who are transferred to the private sector) from freely establishing organizations of their own choosing and electing the representatives they choose. The Committee accordingly calls on the Government to adopt the necessary measures so as to comply with the aforementioned principle, in accordance with Articles 2 and 3 of Convention No. 87.
6. 536. As to the IPSS's refusal to negotiate the list of demands for 1994, 1995 and 1996 on the grounds that public servants are not entitled to negotiate wage increases collectively, the Committee recalls, in the first place, that by ratifying Conventions Nos. 98 and 151 Peru has undertaken to take appropriate measures to encourage and promote the full development and utilization of machinery for collective negotiation of terms and conditions of employment.
7. 537. Regarding the budget restrictions on public bodies and the need for them to obtain the Ministry of Economy and Finance's approval to increase their employees' wages, referred to by the Government, the Committee stated in a similar case that it was aware that collective bargaining in the public sector calls for verification of the available resources in the various public bodies or undertakings, that such resources are dependent upon state budgets and that this can pose some difficulties. The Committee nevertheless observed that provision should be made for a mechanism which ensures that, in the collective bargaining process in the public sector, both trade union organizations and their public sector employers are consulted and may express their points of view to the authority responsible for assessing the financial consequences of draft collective agreements. Irrespective of any opinion voiced by the financial authorities, the negotiating parties should be in a position to reach an agreement freely (see 287th Report, Case No. 1617 (Ecuador), paras. 63-65).
8. 538. In these circumstances, the Committee calls on the Government to take the necessary steps for collective bargaining to take place between the Peruvian Social Security Institute (IPSS) and the Single Trade Union of Technicians and Assistants of the IPSS (SUTAEIPSS) and for provision to be made for a mechanism which ensures that, in the collective bargaining process in the public sector, both the trade union organizations and the public sector employers are consulted and may express their points of view to the authority responsible for assessing the financial consequences of draft collective agreements.
9. 539. Regarding the allegation of the Single Trade Union of Workers of the Peruvian Broadcasting Company (SUTRACPR) that the enterprise has committed acts of anti-union discrimination, the Committee intends to examine this allegation in the light of the recent communication of the Government dated 28 February 1997.

The Committee's recommendations

1. 540. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee notes the Government's explanation of the Ministry of Labour and Social Advancement's refusal to register the National Single Union of Experts and Assistants of the Peruvian Social Security Institute (SUNTAEIPSS). The Committee observes that this is a complex situation in which two sets of labour laws and regulations - one for the public sector and one for the private sector - coexist within a single public institution, the IPSS, and that this prevents some of the workers concerned (those who are transferred to the private sector) from freely establishing organizations of their own choosing and electing the representatives they choose. The Committee accordingly calls on the Government to adopt the necessary measures so as to comply with the aforementioned principle, in accordance with Articles 2 and 3 of Convention No. 87.
   • (b) Regarding the refusal of the Peruvian Social Security Institute (IPSS) to negotiate the workers' list of demands for 1994, 1995 and 1996, the Committee calls on the Government to take the necessary steps for collective bargaining to take place between the Peruvian Social Security Institute (IPSS) and the Single Trade Union of Experts and Assistants of the IPSS (SUTAEIPSS) and for provision to be made for a mechanism which ensures that, in the collective bargaining process in the public sector, both the trade union organizations and the public sector employers are consulted and may express their points of view to the authority responsible for assessing the financial consequences of draft collective agreements.
   • (c) Regarding the allegation of the Single Trade Union of Workers of the Peruvian Broadcasting Company (SUTRACPR) that the enterprise has committed acts of anti-union discrimination, the Committee intends to examine this allegation in the light of the recent communication of the Government dated 28 February 1997.