Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 374, Mars 2015

1. 627. The complaint in Case No. 2941 is contained in communications dated 20 March 2012 and 7 June 2013 of the Federation of Peruvian Light and Energy Workers (FTLF). The Single Union of Workers of the Institute of Forensic Medicine and Sciences of Peru (SUTRAIMELCIFOR) sent its allegations in a communication of 28 June 2012.
2. 628. The Government sent its observations in communications of 25 June and 14 September 2012 and 6 September 2013.
3. 629. The complaint in Case No. 3026 is contained in communications dated 22 May and 23 September 2013 by the General Confederation of Peruvian Workers (CGTP). This is supported by the Confederation of Peruvian Workers (CTP), the Single Union of Workers of the National Institute of Agrarian Innovation (SUTSA INIA), and the Federation of Single Unions of Agrarian Sector Workers (FESUTSA), in communications dated 9 September 2013, and by the Federation of Municipal Workers, Employees and Labourers of Peru (FTM-Perú), in a communication dated 16 May 2014. The National Confederation of Workers of Peru State (CTE-Perú) submitted its allegations in communications dated 17 October and 5 December 2014. The National Federation of Judicial Employees of Peru (FNTPJ) submitted its allegations in a communication dated 13 October 2014. Lastly, the Autonomous Workers’ Confederation of Peru (CATP) submitted its allegations in a communication dated 26 December 2014.
4. 630. The Government sent its observations in communications of 7 February, 1 and 24 September, and 1 October 2014.
5. 631. 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

Case No. 2941

1. 632. In its communication dated 20 March 2012, the FTLF alleges that the National Fund for Financing State Entrepreneurial Activity (FONAFE) establishes ceilings in the wages paid by state electrical companies, which are in line with the budget assigned to state companies limiting the possibilities of negotiating salary increases through collective bargaining.
2. 633. Furthermore, the FTLF alleges that Resolution No. 284-2011-TR of the Ministry of Labour and Employment Promotion, dated 23 October 2011, rendered optional arbitration inapplicable and ineffective as a mechanism for resolving lists of demands, since it obliges the arbitrators of collective bargaining, which cover a state entity or company, to take into account the resources available in the public budget. More specifically, the above resolution imposes on the arbitrators the specific weighting criteria referring to the public sector budget, contained in articles 77 and 78 of the Political Constitution and those contained in rulings of the Constitutional Court which endorse the full observance of the budgetary rules.
3. 634. In its communication dated 7 June 2013, the FTLF alleges that the 58th final supplementary provision of the Public Sector Budget Act for the Fiscal Year 2013, Act No. 29951, violates the right of collective bargaining, since it prohibits increasing workers’ wages through collective bargaining or arbitration awards. The FTLF states that FONAFE must comply with said Act and that, as a result, state electrical companies within FONAFE’s sphere are unable to negotiate economic clauses. The FTLF states that, at the beginning of 2013, it took legal protection proceedings against the Act, since it considered that the Act infringes its constitutional right to freedom of association and collective bargaining, and that the Ninth Constitutional Court declared the request non-receivable and ordered the case to be closed for good. The complainant organization considers that a ruling of this kind affects the right of collective bargaining.
4. 635. In its communication dated 28 June 2012, SUTRAIMELCIFOR, as a representative of the workers of the National Institute of Forensic Medicine and Sciences, alleges that the General Administration of the Public Prosecutor’s Office excluded it from the scope of a resolution which authorized the Ministry of Economy and Finance to carry out a study so as to determine the wage scales for 2012; and that the Public Prosecutor’s Office did not allow it to form part of a commission responsible for proposing and coordinating with the Ministry of Economy and Finance the wage scales of the Public Prosecutor’s Office for 2012.

Case No. 3026

1. 636. In its communication dated 22 May 2013, the CGTP alleges that the 58th final supplementary provision of the Public Sector Budget Act for the Fiscal Year 2013, Act No. 29951, violates the right of collective bargaining, since it prohibits increasing workers’ wages through collective bargaining. The CGTP considers that the Act in question contravenes the conclusions reached by the Committee on Freedom of Association in its 357th Report on Peru, in which it pointed out that the impossibility of negotiating wage increases on an ongoing basis is contrary to the principle of free and voluntary bargaining enshrined in Convention No. 98.
2. 637. In its communication dated 23 September 2013, the CGTP alleges that the Civil Service Act, No. 30057, issued in July 2013, violates the rights of freedom of association and collective bargaining enshrined in Conventions Nos 87, 98 and 151. In specific terms, the CGTP alleges that: (1) the Act excludes public servants, public managers and trusted servants from collective rights; (2) the Act restricts collective bargaining in all public entities to working conditions only and subjects relating to wages or of economic significance are excluded from negotiation or any other participatory mechanism; (3) the Act infringes the right to strike when allowing public entities to hire, temporarily and directly, the staff necessary to guarantee the provision of the minimum services in essential services and in services vital for the entity to operate, from the beginning of the strike until its actual end. Moreover, the Act does not detail which activities constitute essential services, thereby implying that limitations on the right to strike may be extended beyond the hypothetical cases accepted by the ILO supervisory bodies as characterizing a service as “essential”, and includes the notion of “services indispensable for the entity to operate”, thereby extending the restrictions on this right; and (4) the process of devising the Act has avoided using the mechanism for participation or consultation of workers’ organizations.
3. 638. In its communications dated 9 September 2013, the CTP, SUTSA INIA and FESUTSA allege that the Civil Service Act, No. 30057, denies the right of collective bargaining to public servants with respect to economic conditions and therefore violates the Political Constitution of Peru and also the labour and union rights recognized in Conventions Nos 87, 98 and 151. The complainant organizations state that the Government never consulted the public workers, nor their unions or trade union associations either, and that 36 parliamentary deputies instituted proceedings in July 2013 alleging that the Act in question was unconstitutional. The complainant organizations indicate that the draft budget of Peru, 2014, likewise violates Convention No. 98 since it prohibits all public entities from readjusting or increasing remuneration, bonuses, grants, rewards and benefits of any type.
4. 639. For its part, in its communication of 16 May 2014, the FTM-Perú alleges that Act No. 30057: (1) prohibits collective bargaining on wages and includes only changes to working or employment conditions, in accordance with the budgetary and infrastructure possibilities of the entity and the nature of the functions performed therein; (2) adds great difficulties to the bargaining process, given that the list must be approved by the National Civil Service Authority (SERVIR) and the Ministry of Economy and Finance, and that the agreements have a period of validity of not less than two years; and (3) infringes the right to strike when allowing public entities to hire, temporarily and directly, the staff necessary to guarantee the provision of minimum services in essential services and in services vital for the entity to operate, from the beginning of the strike until its actual end. Finally, the FTM-Perú states that although the Act provides that incorporation in the new system of rules provided for by the Act is voluntary, the Act also states that within a maximum period of six years, all sectors – except those excluded – will be regulated by Act No. 30057.

B. The Government’s reply

Case No. 2941

1. 640. In its communication of 25 June 2012, the Government indicates that the Peruvian State respects collective bargaining and that the rules applied by FONAFE do not violate or undermine this right. The Government explains that FONAFE establishes a wage ceiling, in accordance with the budget assigned for state companies so as to be able to implement their operational and strategic plans, and thus make such companies sustainable. The Government emphasizes that FONAFE and companies within its sphere must comply with the provisions of the Public Sector Budget Act for the Fiscal Year 2013 and that hence the actions or measures taken by FONAFE are carried out or performed on the basis of imperative or public order rules, without infringing any trade union rights.
2. 641. As regards the allegation by the FTLF that Resolution No. 284-2011-TR of the Ministry of Labour and Employment Promotion, dated 23 October 2011, rendered optional arbitration inapplicable and ineffective as a mechanism for resolving lists of demands, since it obliges the arbitrators of collective bargaining, which cover a state entity or company, to take into account the specific weighting criteria referring to the public sector budget, contained in articles 77 and 78 of the Political Constitution, and those contained in rulings of the Constitutional Court which confirm complete observance of the budgetary rules, the Government states that in Rulings Nos 008-2005-AI/TC and 02566 2012 PA TC, the Constitutional Court made it clear that collective bargaining involving public servants must be done, taking into consideration the constitutional limit according to which the budget must be balanced and fair. The Government underlines that the Constitutional Court does not deny state workers the exercise of the right to collective bargaining, but subjects them to budgetary rules, and that the economic agreements reached must be covered by the budget.
3. 642. As to the judgment of the Ninth Constitutional Court, referred to by the FTLF, which rejected the request for protection relating to the Public Sector Budget Act for the Fiscal Year 2013, the Government states that the fact that the judgment was not in favour of the complainant organization is no justification for said ruling affecting in any way the fundamental right to freedom of collective bargaining.
4. 643. In its communication of 14 September 2012, the Government declares, in relation to the allegations made by SUTRAIMELCIFOR, that the legal advisory office of the Public Prosecutor’s Office stated that, in accordance with the General Administrative Procedure Act, the general managerial resolution of the Public Prosecutor’s Office, which excluded the complainant organization from its scope, could not be amended and that, although the Public Prosecutor’s Office had no obligation to set up a commission to analyse the 2012 wage scales, it decided to form a special commission, in which another trade union participated (the Union of Workers of the Public Prosecutor’s Office).

Case No. 3026

1. 644. In its communication dated 7 February 2014, in response to the complaint submitted by the CGTP, the Government explains that the workers covered by the Act on the Foundations of Public Sector Administrative Careers and Remuneration, approved by Decree-Law No. 276 of March 1984, only have the right to collective bargaining in relation to working or employment conditions. The Government states that although the right to collective bargaining for public sector workers is not expressly recognized in the Constitution, its recognition stems from the application of Article 7 of Convention No. 151, which has been ratified by Peru and incorporated through article 55 of the Political Constitution of Peru.
2. 645. The Government indicates that in view of articles 77 and 78 of the Political Constitution of Peru, the budget assigns fairly public resources and the draft budget must be effectively balanced. The Government also states that the Fiscal Responsibility and Transparency Act, No. 27245, was approved in November 2003, together with the General National Budget System Act, No. 28411, in December 2004, which establish the principles, processes and procedures that regulate the national budget system, in accordance with articles 77 and 78 of the Political Constitution.
3. 646. Similarly, Act No. 29849 was approved in April 2012 in order to grant labour rights to workers hired on administrative services contracts, and Act No. 29874, of June 2012, allows measures to be implemented for the granting of labour incentives through the Assistance and Stimulus Fund Administration Committees (CAFAE), to which the Public Sector Budget Act for the Fiscal Year 2012, No. 29812, refers. The Government explains that the aim of that rule is to eliminate inequalities and inequities among the monetary increases granted to administrative workers through the CAFAE in the different budget lists included in Decree-Law No. 276.
4. 647. As to the allegations submitted by the CGTP, according to which the Public Sector Budget Act for the Fiscal Year 2013, No. 29951, violates Conventions Nos 87 and 98, since it prohibits increases being made to the workers’ wages through collective bargaining, the Government explains that the aim of the rules governing the state public budget is to order and balance state expenditure, given that the resources are public and the product of the contributions made by all citizens and that different responsibilities entrusted to the State must be fulfilled.
5. 648. The Government states that the Constitutional Court had the opportunity to make a ruling on the right to collective bargaining and the prohibition on making any type of increases to public administration staff, even where this is the result of labour arbitration. The Government emphasizes that in Rulings Nos 008-2005-AI/TC and 02566-2012-PA-TC, the Constitutional Court made it clear that collective bargaining involving public servants must be done, taking into consideration the constitutional limit, according to which the budget must be balanced and fair. The Government adds that similar conclusions have also been put forward by the Supreme Court of Justice in Appeal No. 4169-2008-Lambayeque, which states that collective bargaining must be carried out in the public sector, taking into account the national budgetary laws which determine the scope of negotiation.
6. 649. The Government states that, notwithstanding the above, it emerged that in various arbitration awards the arbitrators adopted contrary, and even challenging, positions, stating expressly in their pronouncements that the budgetary restrictions established in the public sector budget laws would not be applied, ordering increases in wages without any technical support or identifiable source of funding, which affect the principle of a balanced budget and create disorder in the public sector, and that the National Congress chose to regulate this situation, by including the provision in the Public Sector Budget Act for the Fiscal Year 2013, which is brought into question by the CTP.
7. 650. In its communications dated 1 and 24 September 2014, the Government made its observations concerning the allegations relating to the Civil Service Act, No. 30057. As to the allegation that the Act excludes public servants, public managers and trusted servants from the right to join trade unions, the Government indicates that although no such exclusion exists in the strict sense of the term, a rule should be created which specifies the scope for the purposes of clearer interpretation. As regards the allegation that the Act allows, in the case of a strike, staff to be hired temporarily in order to guarantee the provision of minimum services in essential services and in services vital for the entity to operate, the Government understands that this provision would not cause problems of compatibility with the ILO Conventions, provided that the requirements established in the Act are satisfied, that is, the services defined as essential are determined according to the criteria of the ILO supervisory bodies, the minimum services are defined with the participation of workers’ organizations, and replacement workers are hired only where the minimum services have not been covered by the organization or workers exercising their right to strike and this situation leads to a serious risk to human life, safety or health. With respect to the allegation that the Act limits the right to collective bargaining by requiring to negotiate for a period of two years, the Government stresses that the Committee on Freedom of Association has held that “the duration of collective agreements is primarily a matter for the parties involved.” As concerns the allegation that the Act limits the right to collective bargaining, restricting its content only to working conditions and excluding therefrom, and from any other participatory mechanism, subjects relating to wages or of economic significance, the Government understands that the Act may be viewed as taking a backward step in the recognition and effectiveness of a fundamental right such as collective bargaining, and considers that these aspects should be included in a legislative provision. On the last point, the Government reports that on 21 May 2014, the Plenum of the Constitutional Court issued a ruling which settled the case of failure to observe the Constitution brought by 34 members of the National Congress against various articles of the Act. The Government notes that, although under section 5 of the Basic Law of the Constitutional Court, the majority of votes required to declare valid the allegations contained in the complaint relating to the unconstitutional nature of Act No. 30057, since it adversely affects the right to collective bargaining, three of the judges consider that the exclusion of remuneration and budgetary matters from collective bargaining constitutes an infringement of the aforementioned constitutional right. Moreover, a further three judges consider that Act No. 30057 will be constitutional only if, within 90 days, a consultation mechanism is set up. Finally, the Government emphasizes that in both cases the Constitutional Court used the ILO Conventions ratified by Peru as a benchmark of constitutionality.
8. 651. In its communication dated 1 October 2014, the Government states that the hiring of staff during a strike constitutes a measure of an exceptional nature, the new regulations prescribe that it is applicable in situations in which minimum services are not respected. With respect to collective bargaining, the abovementioned Act defines the scope of the right to collective bargaining and is justified by the fact that it avoids differences that currently exist in regard to the negotiation of wages and the disorder that may result from different rules in the negotiation of wages based on the employment relationship of the worker. The Act establishes technical and objective criteria for increasing wages and takes into account the principle of budgetary provision.

C. The Committee’s conclusions

1. 652. The Committee notes that in both cases the allegations refer to legal restrictions and, in practice, to collective bargaining in the public sector and, in particular, the impossibility to increase public sector wages through collective bargaining. Case No. 2941 refers essentially to the Public Sector Budget Act for the Fiscal Year 2013, No. 29951, and more precisely to the 58th final supplementary provision which, according to the allegations of the complainant organizations, the FTLF and the CGTP, prohibits wage increases for workers through collective bargaining. The above provision states, inter alia, that negotiation or labour arbitration proceedings may contain only working conditions; that arbitration resolutions, agreements or awards which ignore said prohibition will be null and void ipso jure, and that arbitrators who fail to implement that provision will no longer be entitled to participate in public sector collective bargaining arbitration processes.
2. 653. According to the complainant organization, the FTLF, and as confirmed by the Government, FONAFE must comply with the Public Sector Budget Act for the Fiscal Year 2013 and, as a result, state electrical companies in FONAFE’s sphere are unable to negotiate economic clauses. The complainant organization also alleges that FONAFE establishes wage ceilings for state electrical companies that comply with the budget assigned for state companies, limiting the possibilities of negotiating wage increases through collective bargaining. The FTLF also objects to Ministerial Resolution No. 284 2011-TR, of 23 October 2011, which obliges the arbitrators in collective bargaining, which cover a state entity or company, to take into account the resources available in the public budget.
3. 654. Case No. 3026 refers essentially to the Civil Service Act, No. 30057, issued in July 2013 which according to the allegations of the complainant organizations, the CGTP, the CTP, SUTSA INIA, FESUTSA and the FTM-Perú, restricts collective bargaining in all public entities to working conditions only, and excludes from negotiation, and any other participatory mechanism, subjects relating to wages or of economic significance. The above Act states, inter alia, that civil servants have the right to request improved non-monetary compensation, including changes to working or employment conditions, in accordance with the budgetary and infrastructure possibilities of the entity and the nature of the functions performed therein.
4. 655. The Committee notes the Government’s observations in which it states that the exercise of the right to collective bargaining for public sector workers, in the same way as any other right, is not absolute, but is subject to the limitations of the law, including those which regulate budgetary matters. In this connection, the Government explains that, in accordance with the General National Budget System Act, No. 28411, FONAFE establishes, through its guidelines or directives, a wage ceiling in accordance with the budget assigned for state companies, so as to be able to implement their operational and strategic plans, and thus make them sustainable. The Government maintains that the actions or measures taken by FONAFE are carried out or performed on the basis of imperative or public order rules, without infringing any trade union rights.
5. 656. In relation to the allegation of the complainant organizations, the FTLF and the CGTP, that the 58th final supplementary provision of the Public Sector Budget Act for the Fiscal Year 2013, No. 29951, prohibits increases in workers’ wages through collective bargaining and that, as a result, state electrical companies in FONAFE’s sphere are unable to negotiate economic clauses, the Committee notes that the Government states that FONAFE and companies in its sphere must comply with the Public Sector Budget Act for the Fiscal Year 2013, and that therefore the actions or measures taken by FONAFE are carried out or performed on the basis of imperative or public order rules, without infringing any trade union rights. The Government explains that the aim of the rules governing the state public budget is to order and balance state expenditure, given that the resources are public and the product of the contributions made by all citizens and that different responsibilities entrusted to the State must be fulfilled.
6. 657. The Committee notes that, as alleged by the complainant organizations and confirmed by the Government, the 58th final supplementary provision of the Public Sector Budget Act, No. 29951, restricts collective bargaining and labour arbitration to working conditions only, and that section 6 of that Act prohibits the readjustment, increase or creation of any form of income for public sector workers through whatever mechanism. The Committee observes that, as indicated by the complainant organization, the FTLF, and confirmed by the Government, FONAFE must comply with Act No. 29951, and that as a result, state electrical companies within FONAFE’s sphere are unable to negotiate economic clauses. The Committee notes that the complainant organization, the FTLF, attached to its complaint copies of letters sent to FONAFE and to the electrical company, Electrocentro, SA, in which it requested that the 58th final supplementary provision of Act No. 29951 should not be applied. As is clear from the attachments submitted by the complainant organization, in his reply the FONAFE Executive Director stated that Act No. 29951 restricts collective bargaining and labour arbitration to working conditions only and emphasized that FONAFE must comply with the Act in question; for its part, the company Electrocentro, SA, stated that the Act was the responsibility of FONAFE and that it is not competent to deal with the request to revoke or contravene the content of the 58th final supplementary provision of Act No. 29951.
7. 658. The Committee wishes to emphasize that it has referred on various occasions to matters relating to collective bargaining in Peruvian legislation applicable to the public sector and that in the past few years it has made recommendations to the Government as part of complaints submitted by Peruvian trade union organizations, very similar to the present cases (Cases Nos 2639 and 2934). The Committee recalls that in Case No. 2639 it already examined the allegation relating to wage ceilings imposed by FONAFE in the wage scales of public electrical companies. The Committee reiterates its previous conclusions and once again recalls the principle, according to which “in so far as the income of public enterprises and bodies depends on state budgets, it would not be objectionable – after wide discussion and consultation between the concerned employers’ and employees’ organizations in a system having the confidence of the parties – for wage ceilings to be fixed in state budgetary laws” [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 1036]. The Committee requested the Government on that occasion “to ensure that trade unions in the public enterprises are consulted when setting budget ceilings for public enterprises with regard to wages, so that the trade unions concerned may assess the situation, express their views and positions and discuss with the authorities the considerations of general interest that these authorities may deem it necessary to highlight” [see 355th Report, para. 1013].
8. 659. The Committee also recalls that in Case No. 2934 it already examined the allegation relating to Ministerial Resolution No. 284-2011-TR which obliges the arbitrators of collective bargaining, which cover a state entity or company, to take into account the resources available in the public budget. The Committee notes that in its last reply the Government referred to the need for collective bargaining to take place within the state budgetary limits. The Committee reiterates its conclusion in Case No. 2934, according to which “the requirement itself for arbitrators to take into account available resources in the public budget is not contrary to the principles of freedom of association and collective bargaining”, and again requests the Government to ensure respect for its principles as regards salary restrictions in collective bargaining in the public sector [see Digest, op. cit., paras 1033-1043] [see 365th Report, para. 1257].
9. 660. Furthermore, as regards the civil service reform introduced by Act No. 30057, the Committee notes that the reform applies to State workers at the three levels of government (national, regional and local), and that two draft regulations were issued together with the Act: regulations governing the general application of the Act and regulations covering the special system for local governments. Likewise, the Committee observes that, as is clear from the wording of the Act, staff covered by the old systems (workers governed by Decree-Law No. 276 (public careers), workers governed by Decree-Law No. 728 (system based on rules for the private sector) and workers governed by Decree-Law No. 1057 (hired on administrative services contracts)) may be transferred, voluntarily and subject to a merit-based public competition, to the system provided for in the Act. Act No. 30057 states that incorporation in the new system should take place gradually and that it will be finalized within a maximum period of six years.
10. 661. As regards the allegations whereby the process of drafting the Civil Service Act No. 30057 circumvented the mechanism for participation or consultation of workers’ organizations, the Committee notes that the Government has not responded to this allegation and therefore recalls in general terms that it is essential that the introduction of draft legislation affecting collective bargaining or conditions of employment should be preceded by full and detailed consultations with the appropriate organizations of workers and employers [see Digest, op. cit., para. 1075]. Consequently, the Committee firmly expects that in future the Government will guarantee that, in practice, the trade unions participate in the consultations on any question or proposed legislation which affects the rights of the workers it represents.
11. 662. As to the allegations according to which Act No. 30057 infringes the right to strike by allowing public entities to hire, temporarily and directly, the staff necessary to guarantee the provision of minimum services in essential services and in services vital for the entity to operate, from the beginning of the strike until its actual end, the Committee notes that the Government considers that this would not cause problems of compatibility with the ILO Conventions, provided that the requirements established in the Act are satisfied, that is, the services qualified as essential are determined according to the criteria of the ILO supervisory bodies, the minimum services are defined with the participation of workers’ organizations, and replacement workers are hired only where the minimum services have not been covered by the organization or workers exercising their right to strike and this situation leads to a serious risk to human life, safety or health. In this regard, the Committee recalls the principle according to which the right to strike can be restricted or even prohibited in the public service or in essential services in so far as a strike there could cause serious hardship to the national community and provided that the limitations are accompanied by certain compensatory guarantees [see Digest, op. cit., para. 573].
12. 663. As to the allegations that section 40 of Act No. 30057 excludes public servants, public managers and trusted servants from collective rights, the Committee notes that the Government states that although no such exclusion exists in the strict sense of the term, a rule should be created which specifies the scope for the purposes of clearer interpretation. In this regard, the Committee recalls that Article 1(2) of Convention No. 151 states that the extent to which the guarantees provided for in this Convention shall apply to high-level employees whose functions are normally considered as policy-making or managerial, or to employees whose duties are of a highly confidential nature, shall be determined by national laws or regulations. The Committee recalls, however, that under Convention No. 98, ratified by Peru, the right of collective bargaining can be denied only to public servants working in the state administration.
13. 664. As to the allegations that section 40 of Act No. 30057 adds major difficulties to the negotiating process given that once the list has been submitted, approval must be obtained from the National Civil Service Authority (SERVIR) and from the Ministry of Economy and Finance, and the agreements reached between the representatives of the public entity and the civil servants are valid for a minimum of two years, the Committee notes that the Government stresses that the Committee on Freedom of Association has held that “the duration of collective agreements is primarily a matter for the partners involved”. In this regard, the Committee recalls firstly that budgetary opportunities within the negotiating framework may be verified and, secondly, recalls the principle according to which “a statutory provision providing that a collective agreement should be in force for two years when no other period has been agreed by the parties does not constitute a violation of the right to collective bargaining” [see Digest, op. cit. para. 1049]. Consequently, the Committee will not continue with the examination of these allegations.
14. 665. In relation to the allegation by the complainant organizations that section 42 of Act No. 30057 circumvents collective bargaining in all public entities to working conditions only, excluding subjects relating to wages or of economic significance from negotiation or from any other participatory mechanism, the Committee notes that the Government considers that the said provision may be viewed as taking a backward step in the recognition of a fundamental right such as collective bargaining and considers that these aspects should be included in a legislative provision. The Committee notes that section 42 expressly states that civil servants have the right to request improvements to non-economic conditions, including changes to working or employment conditions, in accordance with the budgetary and infrastructure possibilities of the entity and the nature of the functions performed therein. The Committee therefore notes that under section 42 of the above Act, civil servants do not have the right to request improvements to their wages or subjects of economic significance.
15. 666. The Committee regrets to observe that in neglecting its conclusions and recommendations in previous cases, both Act No. 29951 and Act No. 30057 continue to restrict collective bargaining and labour arbitration to working conditions only and exclude from negotiation and any other participatory mechanism subjects relating to wages or of economic significance. Similarly, the Committee notes that the Public Sector Budget Act for the Fiscal Year 2014, No. 30114, together with the Public Sector Budget Act for the Fiscal Year 2013, prohibits the readjustment, increase or creation of any form of income for public sector workers, through whatever mechanism. The Committee notes with concern that those legislative restrictions are translated, in practice, into the impossibility of negotiating or participating in consultation mechanisms with trade union organizations on wage increases in the whole of the public sector. The Committee recalls that in a previous case relating to public sector port workers, it emphasized that the impossibility of negotiating wage increases on an ongoing basis is contrary to the principle of free and voluntary bargaining enshrined in Convention No. 98 [see 357th Report (Peru), para. 946]. Similarly, in previous cases, faced with allegations of obstacles and difficulties to bargaining collectively in the public sector, the Committee has stated that “it is 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 the period of duration of collective agreements in the public sector does not always coincide with the duration of budgetary laws – a situation which can give rise to difficulties” [see 357th Report, Case No. 2690 (Peru), para. 944] [see Digest, op. cit., paras 1037 and 1038]. Likewise, the Committee “shared the viewpoint of the Committee of Experts in its 1994 General Survey, when it stated that: ‘While the principle of autonomy of the parties to collective bargaining is valid as regards public servants covered by Convention No. 151, the special characteristics of the public service described above require some flexibility in its application.’ Thus, in the view of the Committee, legislative provisions which allow Parliament or the competent budgetary authority to set upper and lower limits for wage negotiations or to establish an overall ‘budgetary package’ within which the parties may negotiate monetary or standard-setting clauses (for example: reduction of working hours or other arrangements, varying wage increases according to levels of remuneration, fixing a timetable for readjustment provisions) or those which give the financial authorities the right to participate in collective bargaining alongside the direct employer are compatible with the Convention, provided they leave a significant role to collective bargaining. It is essential, however, that workers and their organizations be able to participate fully and meaningfully in designing this overall bargaining framework, which implies in particular that they must have access to all the financial, budgetary and other data enabling them to assess the situation on the basis of the facts” [see 365th Report (Peru), para. 1257] [see Digest, op. cit., para. 1038].
16. 667. The Committee recalls that Peru has ratified Conventions Nos 98 and 151 and that, consequently, it undertook to adopt measures to stimulate and promote the full development and use of negotiating procedures between the competent public authorities and organizations of public employees concerning employment conditions, or any other methods allowing representatives of public employees to help to determine such conditions. In this context, the Committee highlights that the Government is obliged to take measures to bring its legislation into conformity with Conventions that it has ratified in respect of the collective bargaining of wages in the public (state, regional and local) sectors. The Committee requests the Government to promote collective bargaining in the spheres in which the complainant organizations operate (forensic medicine, agrarian innovation and electricity which, although they form part of the public sector, do not refer to state administration officials).
17. 668. In relation to this point, the Committee takes due note that the Government reports that on 21 May 2014, the Plenum of the Constitutional Court issued a ruling which settled the case of failure to observe the Constitution brought by 34 members of the National Congress against various sections of Act No. 30057. The Committee notes that although under section 5 of the Basic Law of the Constitutional Court, the majority of votes required to declare valid the allegations contained in the complaint relating to the unconstitutional nature of Act No. 30057, since it adversely affects the right to collective bargaining, was not reached, three of the judges considered that the exclusion of remuneration and budgetary matters from collective bargaining constitutes an infringement of the aforementioned constitutional right and the other three judges considered that Act No. 30057 will be constitutional only if, within 90 days, a consultation mechanism is set up. The Committee notes that the Government emphasizes that in both cases the members of the Constitutional Court used the ILO Conventions ratified by Peru as a benchmark of constitutionality. In this regard, the Committee notes that according to the wording of the verdict that is available to the public, the six judges considered that the exclusion of remuneration and budgetary matters from collective bargaining is contrary to the provisions of ILO Convention No. 151.
18. 669. The Committee regrets that despite the Government announcement in 2013 that it would request technical assistance from the ILO, it has not made such a request and invites the Government again to avail itself of such assistance as soon as possible, in particular taking into account the fact that: (1) the specific arrangements for collective bargaining in the public sector allow such bargaining to take place before or after the budget is adopted, it being understood that, in the case of Peru, wage negotiations should take place when state budgets are prepared; and (2) that, as indicated by the Government, Act No. 30057 may be revised, in particular sections 31.2, 42, 43 and 44, which establish limitations on the right to collective bargaining on subjects relating to wages or of economic significance.
19. 670. Finally, as to the allegation presented by the complainant organization SUTRAIMELCIFOR that the General Administration of the Public Prosecutor’s Office excluded it from the scope of a resolution relating to the conduct of a study of the new salary scales; and that it did not allow SUTRAIMELCIFOR to form part of a commission responsible for proposing and coordinating with the Ministry of Economy and Finance the wage scales of the Public Prosecutor’s Office for 2012, the Committee notes that the Government states that the legal advisory office of the Public Prosecutor’s Office stated that, in accordance with the General Administrative Procedure Act, the general managerial resolution of the Public Prosecutor’s Office, which excluded the complainant organization from its scope, could not be amended, and although the Public Prosecutor’s Office had no obligation to set up a commission to analyse the wage scales for 2012, it decided to form a special commission in which another trade union (the Union of Workers of the Public Prosecutor’s Office) participated. The Committee requests the Government to ensure that in future the Public Prosecutor’s Office allows representative trade unions in public institutions, including SUTRAIMELCIFOR (which represents workers of the National Institute of Forensic Medicine and Sciences), to be consulted when determining wage scales so that the trade union organizations concerned may assess the situation, express their views and positions, and discuss with the authorities the considerations of general interest that these authorities may deem it necessary to highlight.
20. 671. The Committee requests the Government to provide its observations in reply to the allegations of the CTE-Perú of 17 October and 5 December 2014, the allegations of the FNTPJ of 13 October 2014, as well as the allegations of the CATP of 26 December 2014.