Solicitud directa (CEACR) - Adopción: 2022, Publicación: 111ª reunión CIT (2023)

Convenio sobre las relaciones de trabajo en la administración pública, 1978 (núm. 151) - Perú (Ratificación : 1980)

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Observación

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The Committee notes the observations of the Single Trade Union of Workers of the Judiciary–Lima–Peru of 2015, as well as the Government's response in this regard. The Committee also notes the Government's reply to the observations of the General Confederation of Workers of Peru of 2014.

Articles 4 and 5 of the Convention. Protection against anti-union discrimination and interference. Noting that section 52 of the General Regulations of Civil Service Act (LSC) No. 30057 (Supreme Decree No. 040-2014-PCM) only explicitly provided that termination of employment for anti-union reasons shall be invalid, the Committee requested the Government to provide information on the legal consequences and penalties applicable for other anti-union acts which have the effect of prejudicing public employees in their employment (such as transfer, demotion, etc.). The Committee notes the Government's indication that it is reasonable to infer from a reading of section 52 of the General Regulations that civil servants enjoy protection against any act of discrimination likely to prejudice freedom of association in relation to their employment, in a broad manner, and that section 53 of the General Regulations provides that trade union organizations enjoy adequate protection against acts of interference by any public body. The Government indicates that, in case of acts of interference, the civil servants or trade union organizations concerned are required to apply to the Human Resources Office to follow the regular procedure in accordance with the disciplinary regime and sanctioning procedure regulated by the Civil Service Act and its General Regulations. The Committee notes the trade union federations’ indications that: (i) the Civil Service Act and its Regulations lack specific references to a trade union immunity or to enhanced protection of workers and in particular of their representatives in the exercise of their trade union rights; (ii) this lack of protection is more evident following the repeal by the State Sector Collective Bargaining Act No. 31188, published on 2 May 2021, of section 40 of the Civil Service Act, which provided for the supplementary application of the Collective Labour Relations Act (LRCT), which does provide for a trade union immunity; (iii) there is no provision for any administrative authority to investigate infringements and require the cessation of anti-union conduct; and (iv) given that the labour inspectorate is unable to intervene because its inspection and sanctioning powers are limited to the private sector, SERVIR's technical reports guide the decisions of public bodies on the basis of interpretations contrary to the principles of freedom of association. Recalling the need, in accordance with the Convention, to ensure adequate protection against all acts of discrimination against public employees by reason of their trade union membership or activities, as well as against interference by the public authorities, the Committee requests the Government to take the necessary measures to ensure the adoption of legal provisions providing for sufficiently effective and dissuasive sanctions for acts of anti-union discrimination as well as acts of interference against trade union organizations of public servants.

Application of the Convention in practice. Having noted the allegations that workers engaged under administrative service contracts (CAS) were unable to exercise the trade union rights recognized by law due to the permanent employment instability which characterizes their contractual situation, the Committee requested the Government to engage in dialogue on this subject with the trade union organizations of the public sector and to report the outcome. The Committee notes the Government's indication that: (i) Act No. 31131 establishing provisions to eradicate discrimination in public sector schemes, published on 9 March 2021, prohibited administrative service contracts and provided that workers engaged under this scheme should be incorporated into the scheme of Legislative Decree No. 728 (Labour Productivity and Competitiveness Act) and Legislative Decree No. 276 (Act establishing the basic rules for the civil service and remuneration in the public sector); (ii) workers engaged as of 10 December 2021 who were under the administrative service contracts scheme have open-ended contracts, provided that they have participated in a public competition for a permanent position. However, it will be possible to engage staff under administrative service contracts on a fixed-term basis for substitute or temporary work; and (iii) a number of trade unions represent this group of workers and in the negotiations held in the context of Act No. 31188, administrative service contracts workers were represented. The Committee notes the indications of the trade union federations that: (i) while Act No. 31131 established the open-ended nature of administrative service contracts, a new form of temporary and irregular employment, known as third-party contracts, is on the rise; and (ii) in 2020, more than 127,000 persons were recruited under service contracts and, in most cases, these are employment relationships under the guise of third-party contracts in which workers cannot exercise their trade union rights as they are retaliated against through the non-renewal of their contracts. While welcoming the legislative measures taken in relation to administrative service contracts, noting these concerns, the Committee requests the Government to submit the matter of protection against anti-union discrimination of public employees working in the State administration who are not on open-ended contracts to in-depth consultations with the representative organizations of the public sector. The Committee requests the Government to provide information on these discussions and their outcome.