Rapport définitif - Rapport No. 360, Juin 2011

Cas no 2810 (Pérou) - Date de la plainte: 26-JUIL.-10 - Clos

Allegations: Refusal by the authorities to negotiate a list of demands presented by the Trade Union of Employees of the Prime Minister’s Office (SITRA PCM)

1. 994. The complaint is contained in a communication from the Autonomous Confederation of Peruvian Workers (CATP) dated 26 July 2010.
2. 995. The Government sent its observations in a communication dated 7 February 2011.
3. 996. 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. 997. In its communication dated 26 July 2010, the CATP states that employees of the public administration in Peru have not been granted increases in their base salaries for over 15 years. The CATP indicates that its affiliate, the Trade Union of Employees of the Prime Minister’s Office (SITRA PCM), represents employees of the Prime Minister’s Office (a public body that is part of the executive branch of the central Government of Peru) who are subject to the provisions of Legislative Decree No. 276 on public servants of the central Government.
2. 998. The complainant adds that SITRA PCM presented its first list of demands for 2010, covering the affiliated public servants in communication No. 006-2010-SITRA-PCM/JD, dated 5 March 2010 (file No. 201006196). More than four months later, no reply has been received to date. The complainant states that the absence of a reply from the administrative authority implies a clear act of defiance or lack of desire to engage in good-faith dialogue to find a fair and reasonable compromise between the need to preserve the autonomy of the bargaining parties as far as possible, on the one hand, and the duty of governments to take the necessary steps to overcome their budgetary difficulties, on the other.
3. 999. The CATP points out that the Prime Minister’s Office is the main employer among national government bodies, as it is responsible for developing the national general policies governing the State of Peru. It therefore has the obligation and the duty to abide by Conventions to which the State is a party, especially those relating to the promotion and guarantee of the fundamental rights that support trade unions. Freedom of association and collective bargaining are fundamental human rights supporting every worker affiliated to a trade union, which should be guaranteed and promoted by any authority representing the State and having the status of an official and an employer. The budgetary powers vested in the legislative authority should not have the effect of preventing the application of collective agreements concluded directly by that authority on its behalf; however, to the contrary, ever since SITRA PCM was established, obstacles have been placed in the way of the trade union activities of its officers, who are denied the trade union immunity to which they are entitled.
4. 1000. The complainant affirms that, in a social and democratic State governed by the rule of law, the right to bargain collectively is inherent in the right to freedom of association, since the exercise of that right empowers trade unions, enabling them to achieve their essential objective of representing, defending and promoting their members’ interests and making the principle of equal opportunity in employment possible, real and effective. In addition, the exercise of the right to collective bargaining is a means of realizing the goal of well-being and social justice in relations between employers and workers, within a framework of good-faith dialogue, wide-ranging discussion, economic coordination and fiscal balance. By failing to reply to SITRA PCM’s request, the employer has disregarded the fundamental right to freedom of association and collective bargaining, in violation of the provisions of the Conventions signed and ratified by the State of Peru and the principles stated by the Committee on Freedom of Association.
5. 1001. Lastly, the complainant indicates that Act No. 27411, the General Act on the national budgetary system, in force in Peru, prohibits, in its seventh transitional provision, indexing and increases in pay scales, benefits and bonuses. Act No. 29465, concerning the Budget for the fiscal year 2010, prohibits in subsection 6(1) of section 6 the increase or adjustment of remuneration, bonuses or allowances of any kind in public bodies at the three levels; there was no consultation of any kind on these laws or on wage fixing in the public sector. These laws make it impossible for public sector trade unions to request approval of their lists of demands asking for financial increases, contrary to the Conventions approved and signed by Peru.

B. The Government’s reply

1. 1002. In its communication dated 7 February 2011, the Government states that, by communication No. 5494-2010-PCM/SG dated 8 November 2010, the Prime Minister’s Office informed the trade union that, under the new administration that took office in September 2010, there was every intention to respond to the trade union officers and engage in a smooth process of coordination, in order to better address their demands, within the legal framework established by the legislation in force.
2. 1003. The Government adds that the State of Peru, within its regulatory framework, affords full protection to public sector employees, providing for special regulation of the collective bargaining process. In that regard, article 42 of the Political Constitution recognizes the right of public servants to organize and to strike, and stipulates that this does not include public servants of the State with decision-making powers and those in positions of trust or executive posts, as well as members of the armed forces and the national police. The fact that that article does not expressly recognize the right of public servants to bargain collectively cannot necessarily be taken to mean that they do not have that right, since the constitutional provision cited above should be interpreted with other provisions of the Constitution and international treaties and agreements on the subject ratified by Peru, as is the case of the ratified ILO Labour Relations (Public Service) Convention, 1978 (No. 151).
3. 1004. The Government affirms that ILO Convention No. 151 recognizes the right of these workers to bargain collectively and provides that ratifying States shall encourage and promote machinery for negotiation between the State and public employees’ organizations. From this it may be concluded that public servants’ trade unions have the right to bargain collectively and that this is a constitutionally derived right.
4. 1005. The Government states that the exercise of the right of public servants to bargain collectively is subject to dual regulation, depending on whether they are governed by the labour law applicable to the private or the public sector. Employees of state bodies and/or enterprises subject to private sector labour law are covered by the provisions laid down in the Consolidated Act on collective labour relations, approved by Supreme Decree No. 010-2003-TR. However, under section 1 of the Consolidated Act, the exercise of those rights by public servants shall not be contrary to specific provisions restricting it. In the case of public servants, employees and permanent workers subject to the unified system of remuneration, their right to organize, which includes collective bargaining, is governed by Supreme Decree No. 003-82-PCM, section 4 of which provides that that right cannot be exercised by a trade union in an unrestricted manner, but within the limits laid down by the law.
5. 1006. The Government points out, lastly, that the Prime Minister’s Office has expressed its willingness to initiate dialogue with the complainant trade union with a view to finding a rapid solution to its demands, indicating that it will act within the scope of its remit. The Government intends to provide timely information on developments in the present case.

C. The Committee’s conclusions

1. 1007. The Committee observes that the complainant organization alleges that SITRA PCM presented a list of demands in March 2010 and that no reply has been received to date from the administrative authority.
2. 1008. The Committee notes that the Government states that: (1) the State of Peru, within its regulatory framework, affords full protection to public sector employees, providing for special regulation of the collective bargaining process in constitutional and lower ranking provisions; (2) article 42 of the Political Constitution recognizes the right of public servants to organize and to strike, and stipulates that this does not include public servants of the State with decision-making powers and those in positions of trust and executive posts, as well as members of the armed forces and the national police; (3) the fact that that article does not expressly recognize the right of public servants to bargain collectively cannot necessarily be taken to mean that they do not have that right, since the constitutional provision cited above should be interpreted with other provisions of the Constitution and international treaties and agreements on the subject ratified by Peru, as is the case of ILO Convention No. 151; and (4) the right to organize and bargain collectively of public servants, employees and permanent workers subject to the unified system of remuneration is governed by Supreme Decree No. 003-82-PCM, section 4 of which provides that the right to bargain collectively cannot be exercised in an unrestricted manner, but within the limits laid down by the law.
3. 1009. The Committee also notes with interest from the Government’s reply that by communication dated 8 November 2010 the Prime Minister’s Office stated that the new administration which took office in September 2010 has every intention to respond to the trade union officers and engage in a smooth process of coordination, in order to better address their demands and find a rapid solution to them, within the legal framework established by the legislation in force. In these circumstances, the Committee hopes that SITRA PCM and the Prime Minister’s Office will be able to reach agreement in the near future and requests the Government to keep it informed.

The Committee's recommendations

1. 1010. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
   • The Committee hopes that SITRA PCM and the Prime Minister’s Office will be able to reach agreement in the near future and requests the Government to keep it informed.