Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 408, Octobre 2024

1. 569. The complaint is contained in communications dated 23 September and 5 October 2022, presented by the Single Union of Peruvian Education Workers (SUTEP) and Education International (EI), respectively. The General Confederation of Workers of Peru (CGTP) sent additional information in a communication dated 16 May 2024.
2. 570. The Government sent its observations in communications dated 19 January and 3 February 2023.
3. 571. 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

1. 572. In their various communications, the complainants allege that a number of practices were carried out by the Ministry of Education (hereinafter “the MINEDU”) to the detriment of the SUTEP, which is the majority trade union organization in the education sector. These practices include obstructing the granting of union leave to its executive committee members, unjustified initiation of disciplinary proceedings against three of its union officials, as well as undermining their representation and collective bargaining rights by failure to adhere to the stages and deadlines legally established for conducting collective bargaining and disregarding its status as the majority trade union.
2. 573. The complainants allege that the MINEDU responded late and only partially to the request for 2022–23 trade union leave for eight executive committee members. According to the complainants: (i) the request was submitted in writing on 30 November 2021 and should have been dealt with by the MINEDU by the first week of February 2022 at the latest, in line with the deadline set it to this effect in paragraph 5.16.3 of Vice-Ministerial resolution No. 123 2021 MINEDU, which governs, inter alia, the procedure for granting leave for trade union representation in the teaching profession; (ii) the MINEDU only approved the request for trade union leave on 9 August 2022, with the issuance of General Secretariat Decision No. 132-2022-MINEDU, that is almost nine months after submission of the request; (iii) in issuing that decision, the MINEDU disregarded the concept of “positive administrative silence” (provided for in the General Administrative Procedure Act) that could be applied to its request for trade union leave. Under this concept, the request should have been considered approved as soon as the legal deadline expired, with no need for a MINEDU decision in that connection; (iv) furthermore, the aforementioned General Secretariat Decision granted partial trade union leave, that is only from 9 August 2022 to 8 August 2023, without including the leave requested from 27 March to 8 August 2022, thus leaving the trade union activities carried out during this period without coverage; and (v) an appeal was filed against General Secretariat Decision No. 132-2022-MINEDU, which has not yet been dealt with because the MINEDU refuses to refer it to the Civil Service Tribunal. The complainants point out that, until the change in government in July 2021, the SUTEP had never seen trade union leave for its officials restricted and that, since then, the MINEDU has been giving greater prominence to a minority trade union organization, the National Federation of Education Workers of Peru (hereinafter “the minority trade union organization”), which was said to have been illegally recognized shortly before the government took office.
3. 574. The complainants also allege that the MINEDU initiated administrative disciplinary proceedings against the SUTEP General Secretary, the Deputy General Secretary and the Secretary for Equality and Gender, for allegedly abandoning their posts between 27 March and 8 August 2022, a period during which General Secretariat Decision No. 132-2022-MINEDU did not grant trade union leave. This, according to the complainants, ignores the fact that during this period the union officials continued to be granted leave to carry out their trade union functions by applying the aforementioned concept of positive administrative silence to the SUTEP’s request for trade union leave.
4. 575. The complainants also allege that the MINEDU has unlawfully excluded the SUTEP and another trade union in the education sector from the executive board of Derrama Magisterial, which is a private organization that has been managing social security funds for and granting loans to teachers for several decades. The complainants state that: (i) outside its remit, the MINEDU issued Supreme Decree No. 009-2022-MINEDU and Ministerial resolution No. 356 2022 MINEDU in order, respectively, to amend the statutes of Derrama Magisterial and to launch a process to elect the members of its executive board, as well as other bodies; and (ii) the SUTEP was not consulted about the election process, which disregards the right of this organization to appoint its own representatives to Derrama Magisterial (which it had been doing for more than 40 years) and, lastly, ignores the fact that this is not a government entity. The complainants consider that the regulatory measures described above were adopted in order to accommodate the minority trade union organization.
5. 576. The complainants also allege that the SUTEP’s right to collective bargaining was violated. They claim, furthermore, that the MINEDU has unjustifiably and severely delayed the 2022, 2023 and 2024 collective bargaining processes. They state that Act No. 31188 of 2021 introduced an annual collective bargaining process and set rigid stages and deadlines for how it is conducted. They explain that this Act provides that: workers must first submit their list of dispute grievances between 30 November of year 1 and the end of January of year 2; then, the government entity concerned must form the bargaining committee, also by the end of January of year 2; subsequently, the direct contact stage must begin in February of year 2; and, lastly, the collective bargaining process must be concluded by 30 June of year 2, in order for the collective agreement (or arbitration award) to enter into force on 1 January of year 3 (if the collective agreement (or arbitration award) is concluded after this date, it will only come into force in year 4).
6. 577. The complainants state that: (i) although the SUTEP complied with submitting its draft collective agreements for 2022, 2023 and 2024 within the legal deadline referred to in the previous paragraph, the MINEDU formed the bargaining committees late during all those years (it did so on 16 June in 2022, on 30 May in 2023, and still had not done so as of 15 March 2024); and (ii) the appointment of the bargaining committees – by the MINEDU – on dates very close to the deadline by which, according to the above-mentioned Act, collective bargaining must be completed (30 June of each year), left no time for the SUTEP to develop its bargaining strategies and in the end meant it had to quickly accept the financial proposals of the MINEDU in 2022 and 2023 (the EI and the SUTEP also claim that the SUTEP was only able to negotiate a non remunerative bonus in 2022); (iii) the MINEDU, instead of only reviewing the formal aspects of the grievances submitted by the SUTEP, issued a number of decisions without explanation or justification and, further, did not respond to the communications sent to it by the SUTEP requesting it to set up the bargaining committees for the years in question as a matter of urgency; and (iv) the failure to comply with the legal deadlines governing collective bargaining in the state sector is a strategy by the MINEDU to avoid collective bargaining with the SUTEP, which deprives it of its right to collective bargaining and prevents it from representing and defending the interests of its members.
7. 578. The complainants also allege that, disregarding the fact that the SUTEP is the majority trade union in the education sector, the MINEDU set up a permanent bargaining table in 2022 with the minority trade union organization, through General Secretariat Decision No. 112 2022 MINEDU, while only setting up a temporary bargaining table with the SUTEP lasting merely 20 days due to its delay in complying with the stages and deadlines legally established for conducting collective bargaining for the year in question, as detailed above.
8. 579. Lastly, the CGTP alleges that the MINEDU has systematically failed to comply with 43 clauses of the 2023–24 collective agreement signed with the SUTEP, even though, according to existing legislation, all the clauses should have entered into force on 1 January 2024 at the latest. These clauses refer, inter alia, to the MINEDU’s commitments regarding the gradual conversion of certain temporary teaching posts to permanent posts; a review of the respective regulations on the certification of a representative from the majority trade union to serve on the Administrative Disciplinary Proceedings Committee; authorization of a management bonus for contractual teachers under the 2024 budget; and the call in the 2024 Budget Law for an increase in the monthly remuneration of appointed and contractual teachers and teaching assistants.

B. The Government’s reply

1. 580. In its various communications, the Government provides the MINEDU’s observations on the allegations in the present case.
2. 581. With regard to the allegation of obstructing the granting of trade union leave, the MINEDU provides information, according to which: (i) pursuant to paragraph 5.16.3 of Vice-Ministerial resolution No. 123-2021-MINEDU, and as there are two national trade unions in the education sector, the trade union leave for representation should be set in proportion to the number of teachers affiliated to each organization, and one of the steps taken by the MINEDU must be to verify that the membership data recorded in the digital and physical lists submitted by the trade unions concerned correlate; (ii) the delay in processing the request for trade union leave submitted in 2021 by the SUTEP was due to operational difficulties caused by the lack of correlation and order between the physical and digital membership lists submitted by this union and to the illegibility of some of the members’ identity documents in the physical lists; (iii) in March 2022, the MINEDU informed the SUTEP, in a virtual meeting, about the progress in the processing of its request for trade union leave and the problems encountered, which persisted despite the SUTEP submitting further information (additional physical and digital lists) after that meeting; and (iv) in April 2022, an official letter was sent to the SUTEP stating that positive administrative silence could not be applied in its request for trade union leave because, under the General Administrative Procedure Act, this concept only applies to administrative procedures that are subject to it and does not include the granting of leave for trade union representation, which has its own requirements and deadlines.
3. 582. The MINEDU also reports that, taking into account the problems encountered in the processing of trade union leave requested by the SUTEP (as well as by other trade unions), it was decided to issue Vice-Ministerial resolution No. 074-2022-MINEDU, published on 17 June 2022, amending Vice-Ministerial resolution No. 123-2021-MINEDU and incorporating temporary provision 10.4, which exceptionally invalidated the deadlines set for 2022 in the latter resolution for the procedure for granting leave for trade union representation. The MINEDU indicates that, in a letter dated 22 June 2022, it sent the SUTEP the updated schedule of deadlines to be considered for that year and that on 30 June 2022 a meeting was held with an authorized representative of the union to show progress made in the collation of the membership lists and to explain the ongoing operational difficulties that were delaying its completion; at this meeting, the SUTEP representative recommended a temporary break (establishing a reference date) in order to deal with the pending request for trade union licences and then to continue with the list collation. As reported by the MINEDU, after taking into account, aside from other elements, the recommendation made by the SUTEP official, it finally issued General Secretariat Decision No. 132-2022-MINEDU, which granted trade union leave to seven members of the SUTEP executive committee from 9 August 2022 to 8 August 2023; this General Secretariat Decision did not include the eighth member of the committee – the Deputy General Secretary – as she already had trade union leave valid between March and December 2022. According to the MINEDU, in August 2022, the SUTEP filed an appeal and precautionary measures against General Secretariat Decision No. 132-2022-MINEDU (registered under file No. MPD2022 EXT 0163140), which was referred in the same month to the Civil Service Tribunal and is currently being processed.
4. 583. According to the information provided by the MINEDU, the latter decided not to grant the request for retroactive trade union leave (for a period prior to 9 August 2022) made by the SUTEP on 8 August 2022 on the grounds that it did not specify the date until which this trade union leave should be retroactive and that, in implementation of the General Administrative Procedure Act, administrative acts cannot be granted retroactive effect when they infringe the fundamental rights of third parties, as in this case the students’ fundamental right to education.
5. 584. Furthermore, with regard to the allegations concerning the unjustified initiation of disciplinary proceedings against three SUTEP union officials, the MINEDU reports that: (i) the General Secretary of the union was acquitted in December 2022 in the disciplinary proceedings brought against him for alleged abandonment of his post on the grounds that, although General Secretariat Decision No. 132-2022-MINEDU only granted him trade union leave from 9 August 2022, his status as general secretary legitimized his absence from work for a period prior to that date so he could participate in the negotiations of the 2022 list of dispute grievances; (ii) in September 2022, it was decided to initiate disciplinary proceedings against the union’s Secretary for Equality and Gender, given that she must prove and/or document the alleged abandonment of her post before 9 August 2022; and (iii) no disciplinary proceedings were initiated against the union’s Deputy General Secretary.
6. 585. With regard to the alleged undermining of the SUTEP’s right to representation within Derrama Magisterial, the MINEDU states that: (i) Supreme Decree No. 009-2022-MINEDU and Ministerial resolution No. 356-2022-MINEDU, respectively, amended the statutes of Derrama Magisterial and called elections for its executive board, as well as for other bodies; (ii) these regulations were issued within its remit, while article 3 of Supreme Decree No. 021-88-ED, approving the statutes of Derrama Magisterial, empowers it to approve amendments to the statutes and to issue any additional measures needed for better compliance (a power ratified by the Constitutional Court in 2006); (iii) in 2022, Derrama Magisterial lodged a constitutional amparo proceeding (remedy for the protection of constitutional rights) to challenge the aforementioned regulations (processed under file no. 05338-2022-0-1801-JR-DC-11); (iv) in the context of these proceedings, the Eleventh Constitutional Chamber of the Supreme Court of Justice of Lima granted, through Decision No. 2 of 14 November 2022, a precautionary measure suspending the effects of the aforementioned regulations; and (v) with this precautionary measure still in force, the election of the new members of the executive board of Derrama Magisterial (which should have taken place on 16 April 2023) has yet to happen.
7. 586. Regarding the alleged delay in the 2022 collective bargaining process, the MINEDU states that: (i) this bargaining process was conducted pursuant to the then recent Public Sector Collective Bargaining Act of 2021, and to ensure its proper implementation and execution, it was necessary to issue further regulations and decisions; (ii) between 20 January and 3 June 2022, various regulatory and administrative actions were taken to negotiate the 2022 list of dispute grievances submitted by the SUTEP, which were aimed at establishing the competent body within the MINEDU to evaluate and review the content of the list of dispute grievances and to determine the level of representativeness that the SUTEP needed to have to be able to act legitimately in the negotiations; (iii) once these actions were completed, in June 2022, General Secretariat Decision No. 100-2022-MINEDU was issued establishing the MINEDU representation that would be responsible for negotiating the 2022 list of dispute grievances; and (iv) once dialogue round tables had been held, on 15 July 2022 the MINEDU and the SUTEP signed the 2022–23 collective agreement, which the SUTEP neither challenged nor made any observations thereon. Rather, it signed the agreement, which is proof of its agreement.
8. 587. Lastly, the MINEDU also states that, in the light of its policy of dispute management in dialogue forums, it was decided through General Secretariat Decision No. 112-2022-MINEDU to set up, exceptionally and temporarily (until December 2022), a “round table to follow up on agreements and working meetings” with the minority trade union organization in order to coordinate and manage its requests and demands, to follow up the agreements signed with it and to implement the agenda items discussed in the working meetings.

C. The Committee’s conclusions

1. 588. The Committee notes that this case concerns a series of allegations of violations of the rights to freedom of association and collective bargaining allegedly committed by the Ministry of Education (MINEDU) to the detriment of the Single Union of Peruvian Education Workers (SUTEP).
2. 589. The Committee notes that the complainants’ main allegations are: (i) the late and partial adoption by the MINEDU of trade union leave for eight SUTEP officials between 2022 and 2023, disregarding the usual deadlines and the application of the concept of administrative silence; (ii) the instituting of disciplinary proceedings against three trade union officials for abandoning their posts without trade union leave; (iii) the exclusion of SUTEP representatives from the Peruvian national teachers’ social welfare institution (Derrama Magisterial), through undue amendments to its statutes and the process to elect its executive board; (iv) the violation of the SUTEP’s right to collective bargaining by the delay in the 2022, 2023 and 2024 bargaining processes, with failure to adhere to the legally established deadlines and stages; (v) the setting up by the MINEDU of a permanent bargaining table with the National Federation of Education Workers of Peru (the minority trade union organization) and only a temporary bargaining table with the SUTEP, ignoring its status as the majority trade union; and (vi) the MINEDU’s systematic non-compliance with 43 clauses of the 2023– 24 collective agreement signed with the SUTEP, and which is currently in force.
3. 590. The Committee also notes that the Government, for its part, indicates that: (i) the delays in the process for approving trade union leave are due to the need to verify the number of members per trade union in the sector so as to be able to grant leave in proportion to that number, and that a regulation of 17 June 2022 changed the deadlines for the approval of such leave exceptionally for 2022; (ii) of the two disciplinary proceedings instituted, one ended with the acquittal of the accused and the other was still pending; (iii) the amendments to the statutes of Derrama Magisterial were made under article 3 of Supreme Decree No. 021-88-ED, which gives the MINEDU such power; (iv) the delays in the collective bargaining process were due to the need to adopt regulatory measures to operate under the recent Public Sector Collective Bargaining Act of 2021; and (v) the dialogue round table with the minority trade union organization was set up on an exceptional and temporary basis (until 31 December 2022).
4. 591. With regard to the allegations of obstruction and delays in the granting of trade union leave, the Committee notes that the complainants state that the Government granted trade union leave for the SUTEP on 9 August 2022, that is nine months after the union submitted the request and six months after the legally established deadlines, without the delayed granting of leave having retroactive effect, thus leaving the period from 27 March to 8 August 2022 without coverage. The Committee notes that the Government states, on the other hand, that it was necessary to verify the number of members in each of the two existing trade unions in the sector before granting the leave on a proportional basis and that difficulties arose in undertaking that count.
5. 592. The Committee notes that seven SUTEP officials were granted leave from 9 August 2022 to 8 August 2023 without this decision having retroactive effect. The Committee notes that the SUTEP filed an appeal and precautionary measures against the regulation approving these leaves of absence, which is still pending before the Civil Service Tribunal. The Committee recalls that, while account should be taken of the characteristics of the industrial relations system of the country, and while the granting of such facilities should not impair the efficient operation of the undertaking concerned, Paragraph 10(1) of the Workers’ Representatives Recommendation, 1971 (No. 143), provides that workers’ representatives in the undertaking should be afforded the necessary time off from work, without loss of pay or social and fringe benefits, for carrying out their representation functions, and that, while workers’ representatives may be required to obtain permission from the management before taking time off, such permission should not be unreasonably withheld [see Compilation of Decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 1603]. While taking due note of the Government’s explanations on the reasons for the delay in granting trade union leave to SUTEP officials for the period 2022–23, the Committee underlines the importance of representatives of the main trade unions in the public education sector having access, without delay and with legal certainty, to trade union leave to carry out their representation functions. The Committee requests the Government to take all necessary measures to meet these criteria, and further requests the Government to provide updated information on the appeal filed with the Civil Service Tribunal against the regulation approving non retroactively the above mentioned trade union leave.
6. 593. With regard to the instituting of disciplinary proceedings for abandonment of post between 27 March and 8 August 2022 against the SUTEP General Secretary, Deputy General Secretary and Secretary for Equality and Gender, the Committee notes the Government’s statement that only two proceedings were instituted, that the proceedings against the General Secretary have already been concluded, with the acquittal of the accused, and that, as regards the proceedings against the Secretary for Equality and Gender, it is up to the official to disprove with evidence her alleged abandonment of post. The Committee notes that the Government does not deny that the two disciplinary proceedings relate to the period not covered by the decree granting delayed trade union leave to SUTEP officials for the period 2022–23. Recalling that it has drawn attention to the fact that initiating administrative proceedings against union officials without sufficient grounds might have an intimidating effect on union officials [see Compilation, para. 1102], the Committee regrets that, given these circumstances, disciplinary proceedings have been instituted against the SUTEP officials, and requests the Government to ensure that the criteria set out in the preceding paragraph are fully taken into account in the decision on the disciplinary proceedings still pending. The Committee requests the Government to provide information thereon.
7. 594. With regard to the allegations concerning the alterations to the legal deadlines for the collective bargaining process between the MINEDU and the SUTEP in 2022, 2023 and 2024, which the complainants consider to be a strategy to limit the SUTEP’s bargaining power, the Committee notes the Government’s reply concerning the 2022 bargaining process. The Committee notes that the Government, while acknowledging the above-mentioned delay, states that it was caused by the need to adopt, between January and June 2022, regulatory and administrative measures to implement the new Act No. 31188, the Public Sector Collective Bargaining Act, in force since 3 May 2021. It was then only from June 2022 that the bargaining tables with the SUTEP could take place, leading to the signing on 15 July 2022 of the 2022–23 collective agreement, which the SUTEP neither challenged nor made any observations thereon. While taking due note of these statements regarding the 2022 bargaining cycle, the Committee regrets to note that it has not received the Government’s observations concerning the alleged delays in the 2023 and 2024 bargaining cycles. In this respect, the Committee recalls that the principle that both employers and trade unions should negotiate in good faith and make efforts to reach an agreement means that any unjustified delay in the holding of negotiations should be avoided [see Compilation, para. 1330]. In light of the foregoing, the Committee requests the Government to take active measures to ensure effective compliance with legal deadlines by public institutions involved in collective bargaining processes in the public education sector.
8. 595. With regard to the allegation that the MINEDU favoured the minority trade union organization by setting up a bargaining table with it in 2022, the Committee notes the complainants’ allegation that the table was permanent, whereas the bargaining table with the SUTEP for the annual negotiations in 2022 lasted, as mentioned above, only around 20 days. The Committee notes the Government’s reply that the “bargaining table to follow up on the agreements and working meetings” set up with the minority trade union organization was temporary, which can be corroborated by article 3 of General Secretariat Decision No. 112-2022-MINEDU, which provides for the round table’s period of validity until 31 December 2022. The Committee takes due note of these various elements. The Committee notes that: (i) what is not in dispute is the fact that the SUTEP is the most representative union within the public education sector which, under the legislation in force, entitles it to collective bargaining rights in that sector; (ii) the Committee has no specific information on the exact issues discussed at the bargaining table between MINEDU and the minority trade union organization or on the extent to which the discussions that took place there might or might not have had the effect of interfering with the SUTEP’s right to collective bargaining or of minimizing its role as an interlocutor in the sector. The Committee recalls that the granting of exclusive rights to the most representative organization should not mean that the existence of other unions to which certain involved workers might wish to belong is prohibited. Minority organizations should be permitted to carry out their activities and at least to have the right to speak on behalf of their members and to represent them [see Compilation, para. 1388]. In view of the above, the Committee invites the Government to ensure that: (i) the dialogue with the various trade unions that may be present in the public education sector is clearly established and is compatible with the regulations on trade union representativeness provided for in collective bargaining legislation; and (ii) the recognition of the existence of minority trade union organizations and the dialogue with them does not take place to the detriment of the most representative organizations in the sector.
9. 596. The Committee further notes the allegations regarding the measures adopted by the Government (Supreme Decree No. 009-2022-MINEDU and Ministerial resolution No. 356 2022 MINEDU), which amended the statutes of Derrama Magisterial – in particular the provisions relating to the composition and election of its executive board – and called elections to that body. The Committee notes that: (i) Derrama Magisterial is a private entity of trade union origin whose objectives are the provision of social welfare services (death, disability and retirement), social credit and social and cultural activities for teachers in public service; (ii) its statutes adopted in 1988 provide that its executive board is composed of four members of the SUTEP and two members of the Union of Higher Education Teachers of Peru (SIDESP) and one representative of the MINEDU; (iii) Supreme Decree No. 009-2022-MINEDU provides that the members of the executive board should all be members elected by all Derrama Magisterial affiliates. The Committee notes that the complainants allege that no consultations were held with the SUTEP regarding the amendments, that the amendments disregard the right of the SUTEP to appoint its representatives to the Derrama Magisterial (which it has been doing for more than 40 years), and that, lastly, they ignore the fact that this is not a government entity, but a private entity. The Committee notes that, for its part, the Government states in its communications of January and February 2023 that: (i) the regulations in question were issued within the Government’s remit under article 3 of Supreme Decree No. 021-88-ED, which approves the statutes of Derrama Magisterial, and empowers it to approve amendments to the statutes; and (ii) Derrama Magisterial lodged a constitutional amparo proceeding (remedy for the protection of constitutional rights) to challenge the aforementioned regulations (processed under file no. 05338 2022-0-1801-JR-DC-11), and that in the context of these proceedings, the Eleventh Constitutional Chamber of the Supreme Court of Lima granted a precautionary measure suspending the effects of the aforementioned regulations.
10. 597. While noting that it has not received updated information from the Government on this issue, the Committee notes that Supreme Decree No. 009-2022-MINEDU was repealed by Supreme Decree No. 008-2023-MINEDU of 27 April 2023, restoring the 1988 statutes of Derrama Magisterial to full force and effect. The Committee notes that Supreme Decree No. 008-2023 refers to the need to ensure respect for the right to association recognized in article 13 of the Political Constitution of Peru. Noting that Supreme Decree No. 009-2022-MINEDU, challenged by the complainants, has been repealed, the Committee considers that this allegation does not call for further examination.
11. 598. Lastly, the Committee notes with regret that it has not received the Government’s reply to the allegations of the complainants concerning non-compliance with the collective agreement 2023–24 signed between the MINEDU and the SUTEP. The Committee recalls that agreements should be binding on the parties [see Compilation, para. 1334], and that paragraph 3(1) of the Collective Agreements Recommendation, 1951 (No. 91), states that “Collective agreements should bind the signatories thereto and those on whose behalf the agreement is concluded”. In view of the above, the Committee requests the Government to provide without delay its observations on compliance with the aforementioned collective agreement.