Rapport définitif - Rapport No. 367, Mars 2013

1. 1075. The complaint is contained in a communication from the General Confederation of Workers of Peru (CGTP) dated 5 October 2011.
2. 1076. The Government sent its observations in a communication dated 27 April 2012.
3. 1077. 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. 1078. In its communication of 5 October 2011, the General Confederation of Workers of Peru (CGTP) alleges wage discrimination by the municipality of La Victoria against 45 workers members of the La Victoria Municipality Workers’ Union (SINTRAOMUN–VIC (a minority union)), while the majority union (La Victoria District Council Workers’ Union (SOCODIVIC)), having taken legal action, obtained an increase in remuneration for 1999 of 16 per cent.
2. 1079. The CGTP explains that, in 1999, by means of Emergency Decree No. 011-99 of 14 March 1999, the Central Government of Peru awarded an increase in remuneration of 16 per cent, that is, 16 per cent of total monthly remuneration, to all civil servants; this increase was awarded to those workers who did not receive an increase from their main employer (ministries, local governments, etc.) directly and/or through collective bargaining.
3. 1080. However, according to the CGTP, in 1999, workers in the municipality of La Victoria (manual and non-manual workers) received no increase for 1999 from the mayor, either directly or through collective bargaining, despite the fact that the increase of 16 per cent awarded by the Central Government applied to them under the provisions of Emergency Decree No. 011-99, in accordance with Supreme Decree No. 070-85-PCM, section 9 of Act No. 26706 and paragraph 9.2 of section 9 of Act No. 27013, sections 4 and 5 of which stipulate that local government workers who do not adopt the bilateral negotiation regime established by the above Supreme Decree must receive the increases in remuneration awarded by the Central Government. Sections 4 and 5 of Supreme Decree No. 070-85-PCM specifically state:
   • Section 4: Local government workers who do not adopt the bilateral negotiation regime established by the present Supreme Decree shall receive the general increases awarded to public sector workers by the Central Government.
   • Section 5: The general increases in remuneration awarded to all public sector workers by the Central Government shall form part of the increases awarded through bilateral negotiation.
4. 1081. The CGTP adds that the majority union (SOCODIVIC) began legal enforcement proceedings, seeking the application of the 16 per cent increase awarded under Emergency Decree No. 011-99. The case, No. 18899-2002, was upheld on 29 October 2002 by the Eighth Specialized Civil Court of Lima, but only for members of the union in question, which had brought the case, and not for workers belonging to SINTRAOMUN–VIC. This was detrimental to a total of 57 workers under contract with the same employer, the municipality of La Victoria. On 2 February 2005, in accordance with the ruling, the municipality signed a memorandum of enforcement with the majority union, so that the resolution issued by the mayor’s office on 5 November 2004 would be applied, thereby recognizing the 16 per cent increase in remuneration but only for members of the majority union.
5. 1082. In the face of such exclusion, the minority union submitted an administrative request for the increase in remuneration provided for by the Emergency Decree to be awarded; however, the municipality has refused to make the payments, despite the fact that the Decree is an order and that the State is obliged to apply it as part of its duties.
6. 1083. The CGTP emphasizes that, under the Collective Labour Relations Act (No. 25593) and the consolidated text thereof, Supreme Decree No. 010-2003-TR, benefits obtained by the majority union through accords, agreements, etc. must be extended to cover members of the minority union. Furthermore, the Political Constitution of the State and Act No. 27270 of 29 May 2000 prohibit acts of discrimination, which, under this Act, are classed as criminal offences if committed by civil servants.
7. 1084. The CGTP states that, in view of this refusal, the workers affected by this act of discrimination approached the Ministry of Labour, through SITRAOMUN–VIC, in 2011 to request an inspection in the hope that, following an investigation, the authorities would recommend that the 16 per cent increase in remuneration for 1999 should be enforced, given that an act of discrimination had taken place. However, the Ministry of Labour, displaying a biased attitude, has refrained from comment, thereby failing to fulfil its protective function and leaving workers without constitutional protection.
8. 1085. The CGTP also emphasizes that all the claimant municipal workers have an average of 30 years of service, perform the same tasks as each other and are employed by a single employer, the municipality of La Victoria; however, 80 per cent of them (the members of the majority union) are receiving the 16 per cent increase in remuneration, while 20 per cent have been excluded simply because they belonged to a minority union. This also violates their right to freedom of association.

B. The Government’s reply

1. 1086. In its communication of 27 April 2012, the Government states that, according to information supplied by the Regional Directorate for Labour and Employment Promotion for Metropolitan Lima, and also by the municipality of La Victoria, it has not been possible to identify any offences committed by the municipality against SINTRAOMUN–VIC as regards the alleged wage discrimination suffered by members thereof.
2. 1087. The Government recalls that it is alleged, in the complaint presented, that the municipality of La Victoria has committed acts of wage discrimination against the complainants by granting an increase (supplement) of 16 per cent in monthly pay, as provided for in Emergency Decree No. 011-99, to SOCODIVIC, following legal action, but not to SINTRAOMUN-VIC.
3. 1088. In this regard, the Government states that Emergency Decree No. 011-99 prescribes:
   • Section 1: To grant, from 1 April 1999, a special supplement to civil servants …
   • Section 2: The special supplement provided for by the present Emergency Decree shall be equivalent to sixteen per cent (16 per cent) …
   • Section 6: The supplement provided for by section 2 of the present Emergency Decree shall not apply to:
   • … (e) Personnel who provide services for local governments, who are subject to the provisions of paragraph 9.2 of section 9 of Act No. 27103 …
4. 1089. In the case brought by SOCODIVIC against the municipality of La Victoria, the Eighth Specialized Civil Court of Lima handed down a ruling on 29 October 2009, stating the following:
   • Ruling: Rejecting the argument that the administrative channel had not been exhausted and upholding the complaint, and therefore ordering the municipality of La Victoria to extend the increase of 16 per cent awarded by the Central Government, as set out in Emergency Decree No. 011-99 of 14 March 1999, to those workers represented by the union …
5. 1090. In this regard, and in view of the legal ruling, the municipality only paid the 16 per cent increase to the workers covered by the ruling, and cannot therefore be accused of direct or indirect discrimination, given that it was following a legal ruling.
6. 1091. Furthermore, the Government refers to the third and fourth grounds given in the Constitutional Court’s ruling in case No. 0837-2004-AC/TC, which relates to a claim by workers in the municipality of La Victoria represented by the United Workers’ Front:
   • 3. Emergency Decrees Nos 073-97 and 011-99 expressly provide, in section 6, paragraph (e), that such supplements do not apply to personnel providing services for local governments, who are subject to the second paragraph of section 9 of Act No. 26706 and paragraph 9.2 of section 9 of Act No. 27013, respectively, which provide that supplements for local government workers are to be funded from resources directly raised by each municipality and are determined through the bilateral negotiation process established in Supreme Decree No. 070-85-PCM.
   • 4. In accordance with the criterion established by the Constitutional Court in case No. 910-2003-AC/TC, even though Supreme Decree No. 070-85-PCM, in accordance with the budgetary acts previously cited, stipulates that local government workers who do not adopt the bilateral negotiation regime provided for in the above Supreme Decree must receive the increases in remuneration awarded by the Central Government, it is also the case that, in legal rulings, it has not been established that no bilateral negotiation regime exists between the parties involved in these proceedings, given that, as can be seen from documents 76 to 78, the trade union organizations of the municipality of La Victoria and the district itself have not renounced the bilateral negotiation process provided for in the above Supreme Decree, and that it can be observed that joint committees have been set up to improve the economic or remuneration conditions of the workers in question; it even appears that, by means of mayoral resolution No. 00858-98-ALC/MDLV, an outcome document from direct negotiation, dated 29 September 1998, was approved, in accordance with which determining whether the supplements, payment of which is sought, should apply requires a prior evidentiary phase, during which the appropriate procedures for gathering and examining evidence can be followed.
7. 1092. Point nine of generic inspection order No. 5905-2011-MTPE/1/20.4, a copy of which the Government attaches, states:
   • Ninth: While there may be a difference in remuneration among workers, in that only one group is receiving the 16 per cent supplement provided for in Emergency Decree No. 011-99, this payment has been made in accordance with a ruling handed down by the Eighth Specialized Civil Court of Lima, and the employer cannot therefore be accused of direct or indirect discrimination, as the difference does not result from a policy or criterion applied by the entity inspected.
8. and concludes:
   • In view of the above, it is not for the Administrative Labour Authority to comment further in this regard, as rulings have been handed down by the Constitutional Court rejecting the enforcement proceedings relating to Emergency Decrees Nos 090-96, 073-97 and 011-99; this safeguards the right to pursue these claims through the appropriate channels.
9. 1093. There has therefore been no form of discrimination, merely the enforcement of a legal ruling issued in the light of due process, in that the municipality of La Victoria has followed the orders of the competent authority.
10. 1094. Moreover, from the inspection order it can be gathered that the right of the complainants to pursue their grievance through the appropriate channels has been safeguarded, as a result of which the international route should not have been taken because an appeal could be brought against the legal ruling within the domestic system.
11. 1095. In conclusion, the Government states:
    • – in view of the legal ruling handed down by the Eighth Specialized Civil Court of Lima, the municipality of La Victoria paid the 16 per cent increase only to those workers covered by the ruling, for which reason the employer cannot be accused of direct or indirect discrimination, as it acted pursuant to a legal ruling that found in favour of the claimants, in the light of due process;
    • – as mentioned in point nine of generic inspection order No. 5905-2011-MTPE/1/20.4, concerning the payment of the 16 per cent supplement provided for in Emergency Decree No. 011-99, payment was made in accordance with a ruling handed down by the Eighth Specialized Civil Court of Lima, and the employer cannot therefore be accused of direct or indirect discrimination, as the difference in payment does not result from a policy or criterion applied by the municipality of La Victoria;
    • – there has therefore been no form of discrimination, merely the enforcement of a legal ruling issued in the light of due process, in that the municipality of La Victoria followed the orders of the competent authority;
    • – based on arguments of fact and law, the Government states that it can be deduced that the Peruvian State has not violated any fundamental right of the members of SITRAOMUN–VIC; and
    • – in view of all the above, the Government requests that the complaint be rejected and closed.

C. The Committee’s conclusions

1. 1096. The Committee observes that, in the present case, the complainant organization alleges that, while the majority trade union of the municipality of La Victoria, in accordance with a legal ruling handed down by the Eighth Specialized Civil Court of Lima, received a monthly wage increase (“supplement”) from the municipality of 16 per cent (pursuant to Emergency Decree No. 011-99 of 14 March 1999, which was enacted to benefit all state workers who had not received a wage increase from their main employer either directly or through collective bargaining), the members of the minority trade union for the same municipality (La Victoria Municipality Workers’ Union (SITRAOMUN–VIC)) did not. In the complainant’s view, this amounts to an act of discrimination that violates the principles of freedom of association.
2. 1097. The Committee takes note of the Government’s reply, which is based on a ruling ordering the 16 per cent wage increase (supplement) to be paid to the majority trade union, and on a labour inspection carried out in the municipality, according to which: (1) the payment by the employer (to the majority union) of the 16 per cent wage supplement provided for in Emergency Decree No. 011-99 took place in accordance with the legal ruling handed down by the Eighth Specialized Civil Court of Lima, following due process, and the employer cannot therefore be accused of direct or indirect discrimination; (2) the minority trade union may pursue its grievance through the appropriate channels by bringing legal proceedings. The Committee observes that, in its reply, the Government refers to a Constitutional Court ruling from 2004, which states that: (1) wage “supplements” do not apply to workers who provide services for local governments, as wage supplements for such workers are funded by resources directly raised by each municipality and are determined through bilateral negotiation; (2) local government workers who do not adopt the bilateral negotiation regime must receive the increases in remuneration awarded by the Central Government; however, in the municipality of La Victoria, joint committees have been set up with the aim of improving the economic remuneration conditions of these workers, and an agreement resulting from direct negotiation, dated 29 September 1998, was approved, in accordance with which determining whether the supplements requested should apply requires a prior evidentiary phase, during which the appropriate procedures for gathering and examining evidence can be followed.
3. 1098. The Committee observes that, according to the 2004 ruling by the Constitutional Court, the supplement established for all state workers under Emergency Decree No. 011-99 of 14 March 1999 only applies to local government and municipal workers if no supplement has been established within the relevant municipal budgets through collective bargaining, and that it is the responsibility of the trade union to prove that the municipal supplement has not been established through collective bargaining. The Committee observes that the majority trade union obtained a ruling from the Eighth Specialized Civil Court of Lima in 2002, ordering the payment of the 16 per cent wage increase (“supplement”). Lastly, the Committee observes that, according to the complainant, the majority union signed a memorandum of enforcement with the municipality on 2 February 2005 so that the resolution of the mayor’s office of 5 November 2004 would be applied, thereby recognizing the applicability of the 16 per cent wage increase.
4. 1099. The Committee wishes to recall the principle that both the government authorities and employers should refrain from any discrimination between trade union organizations [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 343], and also that by according favourable or unfavourable treatment to a given organization, a government may be able to influence the choice of workers as to the organization which they intend to join [see Digest, op. cit., para. 340].
5. 1100. The Committee takes due note of the Government’s reply, which states that the minority union can pursue its grievance (payment of the 1999 wage increase of 16 per cent) through the appropriate channels by bringing legal proceedings.
6. 1101. The Committee points out that the Government has not denied the complainant’s statements that the average length of service for members of the minority union is 30 years and that they carry out the same tasks and have the same employer as members of the majority union.
7. 1102. In light of the above, the Committee underlines that requiring the minority union to bring legal proceedings – as the Government seems to suggest – to prove that collective bargaining on the supplement did not occur in 1999 and, therefore, that the 1999 wage increase of 16 per cent could also be awarded to the members of the minority union implies an excessive delay to resolve this issue. The Committee requests the Government, in consultation with the trade unions concerned, to rapidly put in place a mechanism to resolve these problems promptly in the municipality concerned.