Report in which the committee requests to be kept informed of development - Report No 357, June 2010

1. 949. The present complaint is contained in communications from the Autonomous Confederation of Peruvian Workers (CATP) dated 17, 18 and 23 December 2008. The CATP sent new allegations in a communication of December 2008.
2. 950. The Government sent its observations in communications dated 19 January and 25 May 2010.
3. 951. Peru has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant’s allegations

1. 952. In communications of 17 and 18 December 2008, the CATP alleges obstacles to the collective bargaining process between the Union of Workers of Registry Zone No. IX, Lima Office of the Office of the National Superintendent of Public Registries – SUNARP (which represents public sector workers hired under the private sector regime) and the bargaining committee of Registry Zone No. IX, Lima Office. In particular, the complainant organization states that: (1) after several weeks of direct negotiation with the bargaining committee appointed by the authorities of Registry Zone No. IX, agreements were reached on working conditions, but no agreements could be reached on remuneration and other financial benefits since the committee stated that it would be legally impossible to formulate proposals on such points owing to austerity provisions under the Budget Act; (2) during negotiations on economic points, the trade union organization proposed that the number of economic points should be reduced from 13 to five in order to use arbitration, but the employer did not accept the proposal, citing budgetary restrictions, and refused to have the dispute submitted for decision by an arbitration tribunal; (3) in response to that position, in official letter No. 67-2007-SITRA No. IX, Lima Office, of 17 May 2007, the trade union organization decided to declare the direct negotiation stage over and submit the dispute to arbitration, in exercise of its legal power under the Collective Labour Relations Act; and (4) the zone authorities replied, in official letter No. 700-2007-SUNARP-Z.R. No. IX/JEF, that the Collective Labour Relations Act provided for several mechanisms for settling lists of demands, including conciliation, and that, accordingly, it had already been requested that a date should be set for that purpose; and that, given that they had to adhere to budgetary rules, the authorities could scarcely undergo an arbitration process in which they would have to offer a proposal for negotiation, which was not possible. Consequently, they confirmed in their communication of 15 June 2007 that, for the reasons given, they would not sign the arbitration agreement. The complainant organization indicates that the negotiation process remains incomplete to date.
2. 953. The CATP adds that members of the Union of Workers of Registry Zone No. IX, Lima Office of the SUNARP, in a meeting of 13 August 2008, agreed to go on strike on 15, 16 and 17 April 2008 and, through a subdirectoral order of 31 March 2008, legal recognition of the strike by the Ministry of Labour and Employment Promotion (hereafter “Ministry of Labour”) was obtained. The CATP states that it acted in accordance with the law by strictly respecting the provisions of the Collective Labour Relations Act and that it adhered to the additional requirements of officials of the Ministry of Labour. It also requested the current management of the SUNARP and Registry Zone No. IX, Lima Office, to reconsider and to recognize the effective exercise of the fundamental and constitutional right to collective bargaining by referring the dispute to arbitration.
3. 954. The CATP states that the fundamental reasons for declaring the strike were: (a) to defend the institutional nature of the public registries: qualified staff members were required, not persons who joined for party political interests, and the administration must undertake a comprehensive project to improve service; (b) to ensure the provision of all the necessary tools for carrying out the work in question and, among other urgent requirements, better service for the community; and (c) to safeguard the fundamental labour rights of collective bargaining and freedom of association, since the employer is currently refusing to comply with the law and sign an arbitration agreement, obliging resort to the only legal option available, that of strike action.
4. 955. According to the CATP, the workers were driven to go on strike and sole responsibility for that action lies with the current management of Registry Zone No. IX, Lima Office, and of the National Superintendent of Public Registries. The complainant organization alleges that, in a blatant violation of the fundamental right to strike, the workers on strike (which had been declared legal by the administrative labour authority) were replaced, as stated in inspection report No. 1343-2008-MTPE/2/12.3, which even asserts that the inspection process was obstructed. Fines were imposed in this respect, in accordance with subdirectoral decision No. 1307-2008-MTPE/2/12.330, dated 16 October 2008. This decision therefore proves that the constitutional right to strike was violated.
5. 956. The CATP adds that, in further proof of the intimidating, anti-union conduct and the ongoing violation by the SUNARP of the right to freedom of association, seven workers were dismissed, two of whom were trade union leaders, on the pretext that they had claimed that unionized workers who had attended an event organized by the SUNARP had suffered ill-treatment. The dismissed workers were as follows: Ms Adriana Delgado Angulo, Secretary of the organization; Ms María Yolanda Zaplana Briceño, Deputy Secretary-General; Ms Rosemary Almeyda Bedoya, member; Ms Elizabeth Mujica Valencia, member; Ms Mirian Reyes Candela, member; Ms Nelly Marimón Lino Montes, member; and Ms Rocío del Carmen Rojas Castellares, member. In addition, the CATP alleges that the Secretary-General of the National Federation of Workers of the National Public Registries System, Mr Elías Vilcahuamán, was dismissed in July 2008 and, after having obtained a protective order for his reinstatement, was dismissed again, involving other grounds for dismissal without legal basis.
6. 957. In its communication of 23 December 2008, the CATP states that national legislation still does not include all the Committee’s recommendations from Cases Nos 1648 and 1650 (291st Report) concerning the need to amend the Collective Labour Relations Act in relation to the power of the Ministry of Labour to suspend strike action unilaterally, the Ministry’s power to determine minimum services in the event of disagreement and the restriction of certain forms of strike action (such as wild-cat, work-to-rule and go-slow strikes). The CATP further objects to the legislative provisions (articles 71, 74 and 84 of the Collective Labour Relations Act and directive No. 003-2004-DNRT) that give the Ministry of Labour the power to declare a strike illegal and maintains that the criteria applied by the labour authorities severely restrict the right of public and private workers to strike (the CATP states that, according to statistics of the Ministry of Labour, 90 per cent of strikes are declared illegal).

B. The Government’s reply

1. 958. In its communications of 19 January and 25 May 2010, the Government, in relation to the complaint submitted by the Union of Workers of Registry Zone No. IX, Lima Office, on the refusal by the employer to settle the list of demands for the period 2007–08, and on the dismissal of trade union leaders and unionized workers, states that it is important to emphasize that article 28 of the Political Constitution of Peru enshrines the rights to freedom of association and to collective bargaining. In addition, given that the Peruvian State ratified Conventions Nos 87 and 98 in 1964, compliance with the provisions of these international instruments is obligatory in the national territory.
2. 959. In relation to the allegations, the Government states that Registry Zone No. IX, Lima Office, through official letter No. 648-2009-SUNARP-Z.R. No. IX/OL-JEF, indicated that the version of events given by the CATP does not correspond to reality because, since the beginning of the present collective bargaining process, the trade union has been made aware of the austerity provisions established by Act No. 28927 (Act on the Public Sector Budget for the 2007 financial year), which make it impossible for Registry Zone No. IX, Lima Office, to meet the economic increases demanded in the list. This position is confirmed by report No. 103-2007-EF/76.16 issued by the Ministry of Economy and Finance, which stated the following:
   • – Article 4, paragraph (1), of Act No. 28927 (Act on the Public Sector Budget for the 2007 financial year), has established as an austerity provision for public bodies a ban on adjustments to or increases in remuneration, bonuses, expenses, allowances, payments and benefits of any nature and the conclusion is that the ban constitutes a restriction on the benefits established in the amended consolidated text of the Collective Labour Relations Act; it is therefore impossible to undergo collective bargaining on adjusting or increasing payments of any nature.
   • – In addition, in report No. 001-2009-EF/76.16 of 7 January 2009, the National Public Budget Department of the Ministry of Economy and Finance stated, in relation to the request by the trade union organization to settle a list of demands by signing an arbitration agreement, that it must be understood that the conclusion of arbitration agreements is related to settling lists of demands in connection with which no agreement has been reached during direct negotiation or conciliation with regard to working conditions, productivity and other aspects of labour relations, but not with regard to salary increases.
   • – Similarly, article 5, paragraph 5.1, of Act No. 29142 (Act on the Public Sector Budget for 2008), establishes that it remained prohibited for public bodies to readjust or increase remuneration, bonuses, expenses or allowances and that lists containing demands for salary increases and others of an economic nature may not be referred to arbitration.
   • – In conclusion, it is noted that the collective bargaining process, the subject of the complaint, has been undertaken in accordance with the law and has been restricted by the austerity provisions established in the budgetary regulations, which should not be interpreted as a refusal to recognize the right to freedom of association and the right to strike, enshrined in article 42 of the Constitution.
3. 960. With regard to the collective bargaining process and domestic regulations thereon, the Government indicates that the amended consolidated text of the Collective Labour Relations Act, Decree-Law No. 25593, adopted through Supreme Decree No. 0102003TR and its regulations adopted through Supreme Decree No. 011-92-TR, is the legal provision that regulates freedom of association, effective recognition of the right to collective bargaining and the right to strike of workers under the private sector labour regime. Collective bargaining can be seen as the means by which trade unions and employers address matters of labour relations with a view to reaching a collective agreement. It begins with the submission of a list of demands by the trade union organization or worker representatives, which must contain a draft collective agreement including the following information: (a) the trade union’s name and registration number; (b) a list of the members nominated for the bargaining committee in accordance with the requirements established in article 49 of the Act; (c) the name or legal name and address of each of the companies or employers’ organizations involved; (d) the demands being made with respect to issues such as salary, working conditions and productivity, which must take the form of a clause and be included appropriately within a single draft agreement; and (e) the signatures of the trade union leaders appointed for that purpose by the assembly, or of authorized representatives if no trade union exists. The list must be submitted no earlier than 60 calendar days before, and no later than 30 calendar days, after the expiry date of the current agreement. It is submitted directly to the enterprise, and a copy sent to the labour authorities. In agreements on the branch or occupational level, the demands are always submitted through the labour authorities. Collective bargaining is undertaken during the periods agreed upon by the parties, during or outside working hours, and must begin within ten calendar days of the submission of the list. This period is known as the direct negotiation stage.
4. 961. If in the direct negotiation stage the parties do not reach agreement on how to settle the list of demands, they inform the administrative labour authority of the termination of the negotiation stage and may simultaneously request the initiation of the conciliation stage. The conciliation stage is undertaken before the administrative labour authority on the premises of the Ministry of Labour, which has a body of specialized and qualified technical staff. The conciliation process must be flexible and simple, with the conciliator playing an active role in promoting agreement between the parties. There is no set time frame for the direct negotiation and conciliation processes; as many direct negotiation and conciliation meetings are held as are necessary and as the parties consider appropriate. If no agreement is reached during the conciliation stage, any party may request that the list of demands should be settled through arbitration, for which the consent of all parties and a written arbitration agreement is required. In such cases, when neither direct negotiation nor conciliation has been successful, the trade union organization has the option to exercise the right to strike, in accordance with the legal requirements established by the administrative labour authority.
5. 962. A strike is defined as collective suspension of work as agreed by a majority of workers and carried out voluntarily and peacefully away from their place of work. In order to declare a strike, the following circumstances are required: the objective must be to defend the socio-economic or professional rights and interests of the workers involved; the decision must be taken strictly in accordance with the union’s constitution and must, in all circumstances, represent the will of the majority of workers involved; the minutes of the assembly must be endorsed by a public notary or, failing that, by a local Justice of the Peace; the minutes must be transmitted to the employer and to the administrative labour authority with at least five working days’ notice, or ten working days’ notice for essential public services, together with a copy of the vote record; and the collective negotiation must not have been referred to arbitration.
6. 963. Within three working days of receipt of the communication, the administrative labour authority must declare its inadmissibility if it does not meet the above requirements. The decision declaring the inadmissibility of a strike must precisely indicate which requirement or requirements have not been met. Under this type of procedure, administrative silence signifies tacit agreement. The strike may apply to an enterprise, to one or several of its establishments, to one branch or one occupation, and the length of the strike may or may not be declared; if prior notice is not given of its length, it is taken to be for an indefinite period. A strike declared in accordance with the requirements has the following impact: it leads to the total cessation of work by the workers involved, and the employer may not hire replacement staff to undertake the work of those on strike; all individual work contracts are suspended, including the obligation to pay wages, without affecting the continuation of the employment relationship; no machinery, raw materials or other goods may be removed from the place of work, except under exceptional circumstances with the prior knowledge of the administrative labour authority; tasks that are indispensable to the enterprise and whose standstill would pose a threat to people, security or the storage of goods or prevent the enterprise’s immediate resumption of ordinary activity after the strike is over are excluded from suspension; and when the strike affects essential public services or when indispensable activities must be guaranteed, the workers involved in the dispute must guarantee the presence of the staff necessary to prevent a total standstill and ensure continuity of services and activities as required.
7. 964. The Government indicates that the strike will be declared illegal: (a) if it takes place despite having been declared inadmissible; (b) if acts of violence against goods or persons occur during the course of the strike; (c) if it involves unscheduled stoppages or stoppages in central areas or sections of the enterprise, go-slows or any kind of stoppage in which the workers remain at or obstruct the entrance to the place of work; and (d) if it is not called off after notification of the arbitration award or final ruling ending the dispute.
8. 965. The ruling shall be issued, ex officio or at the request of a party, within two days of the events, and may be contested. The appeal ruling must be issued within two days. The strike ends by agreement between the conflicting parties, following a decision by the workers or upon being declared illegal. A decision by workers to call off the strike must be transmitted to the employer and the administrative labour authority with 24 hours’ notice. When a strike is declared illegal by approved or enforceable ruling, the workers must return to work the following day. A ruling handed down at second or final instance becomes enforceable the day following the date of notification.
9. 966. The Government states that in this context and in relation to the process of collective bargaining referred to by the complainant organization, it must be borne in mind that three lists of demands were being processed by the Subdirectorate for Collective Bargaining, corresponding to the three periods. The first concerns file No. 78627-2007-MTPE/2/12.210 (list of demands 2007–08). The Union of Workers of Registry Zone No. IX, Lima Office, submitted its list of demands for 2007–08 on 3 April 2007, stating that the list applied to all workers in Registry Zone No. IX. The points to be negotiated included salary increases, benefits (for example education and seniority benefits and a bonus for closing the agreement), subsistence allowance, mobility allowance, training, uniform provision, remuneration for responsibility and additional pay for night work. The Subdirectorate for Collective Bargaining ruled that the file should be opened and the parties notified in order to begin the direct negotiation stage of the collective bargaining process. On 15 June 2007, the trade union organization informed the administrative labour authority that the direct negotiation stage had ended and requested the launch of the conciliation stage. Conciliation meetings were held on 2 and 7 July 2007, with the attendance of both parties; however, since no agreement was reached, the trade union declared the conciliation stage over. The union’s final proposal was that the dispute over the settling of the list of demands should be resolved by an arbitration tribunal by conclusion of a written arbitration agreement, a proposal that was not accepted by the representatives of Registry Zone No. IX.
10. 967. The trade union, through official letter No. 55-2008-SITRA Z.R. No. IX, Lima Office, dated 18 March 2008, gave the administrative labour authority notice of strike action, which would be held on 15, 16 and 17 April 2008, in relation to the list of demands for 2007. The trade union had indicated that its employer, Registry Zone No. IX, had been unwilling to sign a written arbitration agreement, on the grounds that it was prevented from doing so since the arbitration award would contain proposals on the economic points in the list of demands, which was prohibited under the austerity measures established in Act No. 28927 (Act on the Public Sector Budget for the 2007 financial year). The union’s communication was declared inadmissible by the Subdirectorate for Collective Bargaining through subdirectoral order No. 017-2008-MTPE/2/12.1, dated 18 March 2008, in which, among other points, it stated that the trade union had not complied with article 73(c) of Supreme Decree No. 010-2003-TR and paragraph (e) of Supreme Decree No. 011-92-TR, since it had not sent a copy of the communication of the strike to the employer and had advised that the sworn statement enclosed had not been signed by all of the members of the executive committee. The union did not appeal against that ruling.
11. 968. However, the trade union, through official letter No. 72-2008-SITRA Z.R. No. IX, Lima/JD Office, dated 28 March 2008, resubmitted its communication giving general notice of a strike, which was held on the days indicated in the first communication. The Subdirectorate for Collective Bargaining, through a subdirectoral order of 31 March 2008, declared that the communication successfully met all the requirements of established legislation. That ruling was not appealed by Registry Zone No. IX.
12. 969. The Ministry of Labour, through the Regional Directorate of Labour and Employment Promotion of Lima–Callao, in relation to the above conflict, summoned the parties to an out-of-court meeting on 4 April 2008, with the aim of assisting in the solution of the problem. During the meeting and on the basis of what both parties said, it was possible to identify five points of disagreement arising from the 2007 list of demands, which related to economic increases requested by the union. After some deliberation, the union indicated that negotiations should be held on only three of the five points. Registry Zone No. IX stated that it was impossible for it to sign a written arbitration agreement, given that the Act on the Public Sector Budget for the 2007 financial year prohibited remuneration increases or adjustments, a situation that would be reflected in its exchanging the unionized workers’ meal vouchers for a direct payment. As a way of settling this list of demands, Registry Zone No. IX proposed a closure bonus of 3,000 nuevos soles (PEN). That proposal was not accepted by the trade union, which stated that the amount did not compensate for the time that had passed since the beginning of the present negotiations. With a view to finding a solution to the conflict, the Regional Directorate summoned the parties to further out-of-court meetings, on 9 and 11 April 2008, during which both parties maintained their initial positions.
13. 970. The second period of negotiation concerns file No. 92640-2008-MTPE/2/12.210 (list of demands 2008–09). The Union of Workers of Registry Zone No. IX, Lima Office, submitted its list of demands for the period 2008–09 to the administrative labour authority on 27 March 2008, stating that the list applied to all workers in Registry Zone No. IX. The aspects to be negotiated cover the same points requested in the previous list. The Subdirectorate for Collective Bargaining ruled that the file should be opened and the parties notified in order to begin collective bargaining at the direct negotiation stage, the latest development of the present collective bargaining process.
14. 971. The third period of negotiation concerns file No. 50148-2009-MTPE/2/12.210 (list of demands 2009–10). The Union of Workers of Registry Zone No. IX, Lima Office, submitted its list of demands for the period 2009–10 to the administrative labour authority on 20 April 2009, stating that the list applied to all workers in Registry Zone No. IX. The aspects to be negotiated cover the same points requested in the previous lists. The Subdirectorate for Collective Bargaining ruled that the file should be opened and the parties notified in order to begin collective bargaining at the direct negotiation stage. On 1 October 2009, the trade union organization declared the direct negotiation stage over and requested that the conciliation stage be launched, which was carried out on 9 and 17 November 2009 with meetings that resulted in no agreement. Registry Zone No. IX, Lima Office, once again indicated that it would be impossible to grant economic increases, as these were prohibited under the Public Budget Act of 2009. It further ruled out any possibility of resolving the present dispute by signing an arbitration agreement.
15. 972. With respect to the communication regarding the 72-hour strike and the dismissal of trade union leaders and staff members of the Union of Workers of Registry Zone No. IX, the Labour Inspection Directorate undertook inspections, the results of which were as follows: (1) inspection order No. 5356-2008: strike verification. Following inspections on 15, 16 and 17 April 2008, the commissioned labour inspector stated that work would be suspended in the following manner, of a total of 668 workers: on 15 April 2008, 347 would go on strike and 321 would not; on 16 April 2008, 357 would strike and 311 would not; and, on 17 April 2008, 332 would strike and 336 would not; (2) inspection order No. 47942008: violation of freedom of association and the right to strike. The labour inspector confirmed that while the trade union was carrying out the industrial action, the employer, Registry Zone No. IX, Lima Office, adopted measures that contravened the right to freedom of association and the right to strike and made the aim of the strike impossible, as follows: (a) Registry Zone No. IX replaced the unionized workers, while they were exercising their right to strike, by staff linked to the institution through vocational training schemes, affecting 441 unionized workers; (b) the representative of Registry Zone No. IX did not allow the visit by the labour inspector to be carried out together with trade union representatives, a point which the inspector advised amounted to a form of obstruction of the labour inspection; (c) consequently, the labour inspector, through contravention notice No. 1343-2008-MTPE/2/12.3, proposed a fine of PEN105,000 for contravention of social and labour regulations; (d) the Third Subdirectorate for Labour Inspection, through subdirectoral decision No. 13017-2008-MTPE/2/12.330, fined Registry Zone No. IX PEN105,000. That ruling was upheld by the Labour Inspection Directorate through subdirectoral decision No. 927-2009-MTPE/2/12.3, dated 28 October 2009, the administrative channels having been exhausted; (3) inspection order No. 18471-2008: violation of freedom of association. The Union of Workers of Registry Zone No. IX alleged that its right to freedom of association had been violated when the employer dismissed trade union leaders and five unionized workers in view of the strike action of 15, 16 and 17 April 2008; according to the commissioned labour inspector, the employer’s representative argues that the dismissed staff members were guilty of serious misconduct, including loss of good faith in the working relationship, acts of violence, serious lack of discipline, insults and abuse of the employer, the employer’s representatives and the workers’ supervisors during the opening ceremony of the XXI Meeting of the Latin American Committee of Registry Offices on 22 September 2008 at the Hotel Los Delfines. The employer’s representative supports that claim with pre-dismissal and dismissal letters sent to the workers involved, in accordance with the dismissal procedure established in the Labour Productivity and Competitiveness Act. Lastly, it was stated that there had been no contravention of the cited social and labour regulations, in particular those on freedom of association, and that affected workers have the right to initiate legal proceedings in order to demand their rights.
16. 973. The Office of the Legal Adviser of the Sector, through official letter No. 10392009MTPE/2/9.1, dated 2 December 2009, requested the coordinator of the Supreme Court of Lima for information on the legal application of the ILO Conventions and on whether the dismissed workers have initiated legal proceedings and, if so, on the current status of the proceedings in order to duly inform the ILO. No reply has been received to date.
17. 974. Having undertaken the appropriate analysis, and in relation to the complaint submitted by the Union of Workers of Registry Zone No. IX against the Peruvian State for alleged violations of trade union rights through infringement of the right to freedom of association and the right to strike and the unfair dismissal of the leaders of that trade union, the Government states that Peruvian labour legislation that regulates freedom of association complies with the rules and principles of the ILO. In accordance with Convention No. 98, the legislation protects the right to organize and to bargain collectively and recommends that the employer should refrain from all acts that could obstruct, restrict or undermine those rights. The Ministry of Labour, through the Office of the Legal Adviser, issued a legal ruling through reports Nos 308-2009-MTPE/9.110 and 391-2008-MTPE/9.110, dated 30 May and 25 June 2008 respectively. Following analysis of the issue, the Office of the Legal Adviser concluded that the absence of provisions on increases in remuneration within the budgetary regulations cited by Registry Zone No. IX led to the conclusion that the constitutional right to collective bargaining (and any other fundamental right) could be only be restricted expressly, and that the budgetary regulations do not expressly restrict increases agreed through collective bargaining.
18. 975. In this respect, having observed that the budgetary regulations are worded in a generic manner that could lead to infringement of the constitutional right to collective bargaining, it has been decided to attribute to it the meaning which preserves that right, setting aside the meaning that could violate it. The general theory of law recognizes that between one reading that suggests that an act is incompatible with the Constitution and another that interprets it as compatible, the latter should be given preference. Similarly, if it is possible to interpret that the act and the Constitution are compatible and if such compatibility is reasonable, that interpretation should be given preference. Lastly, it should be noted that the reports issued have been clear in stating that the parameter for undertaking collective bargaining with bodies that are subject to the Budget Act is set at their available budget, which, within negotiations, could range from zero to the maximum budget available. In these circumstances, the legality of any eventual agreements depends on observance of the limit set for the body’s available budget.
19. 976. Given the above, the Government considers it appropriate to note that it was established through the inspection process that Registry Zone No. IX violated the constitutional right to strike of the workers involved by replacing them with staff hired through vocational training schemes. The Ministry of Labour fined Registry Zone No. IX a sum of PEN105,000 for violation of the rights cited in the present complaint.
20. 977. With respect to addressing the lists of demands submitted to the administrative labour authority, it should be noted that, despite efforts by the Ministry of Labour, to date there has been no specific resolution of the present collective bargaining process, and such resolution depends on the will of the parties, as established in national legislation. It is therefore important to note that the State cannot interfere in any final decision on an agreement, since that would constitute intervention in the settlement of a conflict that involves the parties only. However, it will, through the relevant departments, promote the appropriate mechanisms in order that the parties might arrive at a satisfactory agreement.
21. 978. Lastly, in relation to the dismissals alleged by strikers, it should be stated that the Government is awaiting a response from the judiciary as to whether the persons affected have initiated legal proceedings, and that information will be forwarded to the ILO in due course.

C. The Committee’s conclusions

1. 979. The Committee observes that in the present case the complainant organization alleges that, within the framework of the collective bargaining process with the Union of Workers of Registry Zone No. IX, Lima Office of the SUNARP (which represents public sector workers hired under the private sector regime), the bargaining committee of Registry Zone No. IX, Lima Office, refuses to refer the dispute to arbitration, and also alleges the dismissal of trade union leaders and members who participated in a strike and the replacement of strikers. In addition, the Committee observes that the complainant organization objects to legislative provisions on strikes.
2. 980. With respect to the allegation that, within the framework of the collective bargaining process with the Union of Workers of Registry Zone No. IX, Lima Office of the SUNARP (which represents public sector workers hired under the private sector regime), the bargaining committee of Registry Zone No. IX, Lima Office, refuses to refer the dispute to arbitration, the Committee takes note of the fact that the Government refers to legal provisions that regulate the collective bargaining process and, in relation to the allegations specifically, indicates that: (1) three lists of demands have been addressed by the Subdirectorate for Collective Bargaining (for the periods 2007–08, 2008–09 and 2009–10); (2) within the framework of negotiations on the lists of demands for 2007–08 and 2009–10, Registry Zone No. IX, Lima Office, indicated that it was impossible for it to grant economic increases given that the Public Budget Act for the corresponding year prohibited such increases; (3) the Ministry of Labour, through the Office of the Legal Adviser, issued a legal ruling in reports of 30 May and 25 June 2008 in which it concluded that the budgetary regulations cited by Registry Zone No. IX do not expressly restrict salary increases through collective bargaining, and any restriction of the constitutional right to collective bargaining could be undertaken only expressly; (4) the reports clearly indicated that the parameter for undertaking collective bargaining with bodies subject to the Budget Act is set by their available budget; (5) despite efforts by the Ministry of Labour, to date there has been no specific resolution of the present collective bargaining process, and such resolution depends on the will of the parties, as established in national legislation; and (6) the State cannot interfere in any final decision on a collective agreement, since that would constitute intervention in the settlement of a conflict that involves the parties only, although it will, through the relevant departments, promote the appropriate mechanisms in order that the parties might arrive at a satisfactory agreement.
3. 981. In this respect, while observing that, according to the administrative labour authority, the Public Budget Act cited by Registry Zone No. IX, Lima Office, as grounds for not granting economic increases does not expressly restrict increases through collective bargaining and that, according to the complainant organization, agreements were reached on working conditions but no agreements could be reached on remuneration, the Committee expects that, with the Government’s proposed promotion of the appropriate mechanisms, the parties will be able finally to conclude a collective agreement determining working conditions. The Committee requests the Government to keep it informed in this respect.
4. 982. With respect to the dismissal, after the strike (which, according to the complainant organization, was declared legal by the administrative labour authority) in the context of the collective bargaining process, of trade union leaders, Mr Elías Vilcahuamán, Secretary-General of the National Federation of Workers of the National Public Registries System, Ms Adriana Delgado Angulo, Secretary of the organization and Ms María Yolanda Zaplana Briceño, Deputy Secretary-General and union members Ms Rosemary Almeida Bedoya, Ms Elizabeth Mujica Valencia, Ms Miriam Reyes Candela, Ms Nelly Marimón Lino Montes and Ms Rocío del Carmen Rojas Castellares, the Committee takes note that the Government indicates that the SUNARP trade union organization alleged violation of freedom of association by indicating that the employer dismissed trade union leaders and members in relation to the events that occurred during the strike of 15, 16 and 17 April 2008. The Committee further notes that the Government indicates that, in investigating the allegation, an inspection was conducted (inspection order No. 18471-2008) and that the labour inspector stated that: (1) the employer’s representative argues that the dismissed staff members are guilty of serious misconduct, including loss of good faith in the working relationship, acts of violence, serious lack of discipline, insults and abuse of the employer, the employer’s representatives and the workers’ supervisors during the opening ceremony of the XXI Meeting of the Latin American Committee of Registry Offices on 22 September 2008 at the Hotel Los Delfines; (2) the employer’s representative supports that claim with pre-dismissal and dismissal letters sent to the workers involved, in accordance with the dismissal procedure established in the Labour Productivity and Competitiveness Act; and (3) there was found to have been no contravention of the cited social and labour regulations, in particular those on freedom of association, and the affected workers have the right to initiate legal proceedings in order to demand their rights. Lastly, the Committee takes note that the Government states that the Office of the Legal Adviser of the Sector requested the coordinator of the Supreme Court of Lima for information on whether the dismissed workers have initiated legal proceedings and, if so, on the current status of the proceedings. In these circumstances, the Committee requests the Government to keep it informed of any legal action brought by the abovementioned trade union leaders and workers in relation to their dismissal.
5. 983. With respect to the allegation relating to the replacement of strikers during the abovementioned strike of 15, 16 and 17 April 2008, the Committee takes note that the Government indicates that an inspection was conducted (inspection order No. 4794-2008) and that the commissioned labour inspector confirmed that, while the trade union was carrying out the industrial action, the employer, Registry Zone No. IX, Lima Office, adopted measures that contravened the right to freedom of association and the right to strike, and specifically states that: (1) Registry Zone No. IX replaced the unionized workers while they were exercising their right to strike, by staff linked to the institution through vocational training schemes, affecting 441 unionized workers; (2) the employer’s representative did not allow the visit by the labour inspector to be carried out together with trade union representatives, and the inspector advised that this act amounted to a form of obstruction of the labour inspection; (3) consequently, the labour inspector, through contravention notice No. 1343-2008-MTPE/2/12.3, proposed a fine of PEN105,000 for contravention of social and labour regulations; and (4) the Third Subdirectorate for Labour Inspection, through decision No. 13017-2008-MTPE/2/12.330, fined Registry Zone No. IX PEN105,000 and that ruling was upheld by the Labour Inspection Directorate through decision No. 927-2009-MTPE/2/12.3, dated 28 October 2009, the administrative channels having been exhausted. Recalling the importance that it attaches to the principle that the hiring of workers to break a strike in a sector which cannot be regarded as an essential sector in the strict sense of the term, and hence one in which strikes might be forbidden, constitutes a serious violation of freedom of association [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 632] and in the light of the Government’s efforts in relation to these events, the Committee will not pursue its examination of these allegations.
6. 984. With respect to the challenged legislative provisions on the exercise of the right to strike, the Committee observes that the Government does not refer specifically to these provisions, but rather refers to the definition of a strike, the requirements for declaring a strike, the impact of a strike and grounds for declaring a strike illegal. The Committee recalls that 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, op. cit., para. 628]. The Committee observes that these legislative issues are already being pursued by the Committee of Experts on the Application of Conventions and Recommendations (CEACR). In these circumstances, while taking note that the Government has informed the CEACR that a draft general labour act is being processed which repeals the Collective Labour Relations Act, the Committee, like the Committee of Experts, expects that the act that is adopted will comply fully with the principles of freedom of association.