Interim Report - Report No 371, March 2014

Case No 2998 (Peru) - Complaint date: 30-OCT-12 - Closed

Allegations: Non-renewal of administrative service contracts or dismissal in two public institutions of union officials who represented their union in the collective bargaining process; refusal to grant union leave to union officials with this type of contract, obstacles to collective bargaining and coercion of union members by a representative of a public institution into leaving the union

1. 705. The complaint is contained in a communication from the Confederation of Workers of Peru (CTP) dated 30 October 2012. This organization submitted additional information and new allegations in communications dated 1 February and 20 September 2013. The National Federation of Workers of the National Programme for Direct Support to the Most Needy (the Juntos Programme) (FENATRAJUNTOS), which is affiliated to the CTP, presented its complaint in communications dated 30 September, 21 October and 30 December 2013 and 3 February 2014.
2. 706. The Government sent its observations in communications dated 30 April, 4 June and 2 December 2013.
3. 707. Peru has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), Right to Organise and Collective Bargaining Convention, 1949 (No. 98), the Labour Relations (Public Service) Convention, 1978 (No. 151), and the Collective Bargaining Convention, 1981 (No. 154).

A. The complainants’ allegations

1. 708. In its communications dated 30 October 2012 and 1 February 2013, the CTP alleges the non-renewal of the administrative service contracts of Mr Gerald Alfonso Díaz Córdova, general secretary (2012) of the Union of Workers of the National Programme for Direct Support to the Most Needy (the Juntos Programme), Mr Jorge Dagoberto Mejía Mazo, legal defence secretary, and Ms Estela González Bazán social assistance secretary. This was despite the fact that the programme had an approved budget and despite the fact that the first two were members of the committee negotiating the list of demands, so that the dismissals took place during the collective bargaining process; in addition, neither official was allowed to continue to participate in the committee negotiating the list of demands for 2012–13. The CTP also alleges the non-renewal by the Institute of the Sea of Peru (IMARPE) of the administrative service contract of Mr Víctor Vicente Basantez Roldán, who was involved in negotiating the list of demands presented by the union. Furthermore, on 30 July 2013, the Juntos Programme failed to renew the contract of Mr Roger Freddy Gamboa Reyes, the new general secretary (2013) of the union operating in the programme, after he reported that one of the managers in the La Libertad region had committed a sexual offence against a female member of the union.
2. 709. In its communication dated 20 September 2013, the CTP alleges that the Juntos Programme does not wish to sign the collective agreement for 2012–13 despite an agreement having been reached between the workers, the representatives of the State-run programme and the Lima Regional Directorate of the Ministry of Labour.
3. 710. In its communication of 30 September 2013, the FENATRAJUNTOS, which is affiliated to the CTP, reiterates the allegations made by the CTP and indicates that the Juntos Programme is refusing to grant union leave to union officials. In addition, one of the managers of the programme coerced union members into submitting letters of withdrawal from the union out of fear that their contracts would not be renewed; obviously, these workers have indicated to national officials that they do not wish to be identified, because they are afraid that they will be fired. The withdrawal letters were addressed to the institution and not to the union, as would be normal practice. In its communication of 30 December 2013, the complainant supplies statistics illustrating the decrease in the number of its affiliates in the various offices of the Juntos Programme.

B. The Government’s reply

1. 711. In its communication of 30 April 2013, the Government states that, in its complaint, the CTP refers primarily to the arbitrary dismissal from various public sector bodies of union officials with administrative service contracts, which were not renewed by the relevant authority and which, in its opinion, affects the right to freedom of association which is enshrined in the ILO Conventions that have been ratified by Peru.
2. 712. In this regard, the Government indicates that administrative service contracts are a system of contracts that are fixed-term, renewable and comprise the following rights: (1) a maximum 48-hour working week; (2) a weekly rest period of 24 consecutive hours; (3) 15 consecutive days’ leave for a complete year of service; (4) affiliation to the ESSALUD contributory social security scheme; and (5) affiliation to a pension scheme.
3. 713. Furthermore, in a ruling issued on 31 August 2010, the Constitutional Court recognized the labour status of the system of administrative service contracts, declaring it to be compatible with the constitutional framework, even though it found that there was a constitutional omission in the provisions concerning the right to organize and the right to strike, which had to be rectified by the administrative labour authority in accordance with article 28 of Peru’s Constitution. Further to this ruling, Supreme Decree No. 065-2011-PMC of 26 July 2011 established amendments to the regulations governing administrative service contracts, granting the right to organize to the workers under this system, allowing them to form trade unions and join the public service trade unions which already exist in the body in which they provide services, as well as the right to strike. In addition, Act No. 29849 of 6 April 2012 provides for the gradual phasing-out of the special system established by Legislative Decree No. 1057, in conjunction with the implementation of the new civil service regime. This act guarantees, inter alia, the following labour rights: pay not lower than the legal minimum wage; maximum working time of eight hours per day or 48 hours per week; weekly rest period of 24 consecutive hours; refreshment breaks which are not included in the working day; bonus for national holidays and Christmas; 30 calendar days’ paid holidays; paid maternity/paternity leave; freedom of association; affiliation to a pension scheme (either a private scheme or the national one); affiliation to the ESSALUD health scheme; and employment certificates.
4. 714. Grounds for termination of the contract include: resignation, mutual consent and expiry of the contract period.
5. 715. With regard to the allegation by the CTP that the failure to renew the contracts of union officials represents a violation of Convention No. 87, the Government indicates that the bodies mentioned in the complaint operate under the public system and they are therefore authorized to conclude contracts with their staff according to the special system of administrative service contracts. There has been no failure by these bodies to meet any legal obligation with respect to former contract employees since they are not obliged by law to renew contracts once they have expired, and this has been the situation regarding the abovementioned workers. To see the abovementioned situation in terms of a violation of freedom of association is unjustified since the fact of being a union member or union official under contract does not imply that public bodies are unable to terminate the contract, in view of the nature of administrative service contracts, which are of a temporary and fixed-term nature.
6. 716. Accordingly, the Constitutional Court of Peru, the highest constitutional authority in the country, stated in the ruling handed down in Case No. 2626-2010-PA/TC that:
   • 5. … the system of substantive protection against arbitrary dismissal provided for under the special system of administrative service contracts is in conformity with article 27 of the Constitution.
   • 6. … It should also be pointed out that this does not mean that an administrative service contract is converted into an unlimited contract, as section 5 of Supreme Decree No. 075-2008-PCM establishes that the “duration of an administrative service contract, cannot exceed the period corresponding to the fiscal year within which the contract is concluded”; in other words, administrative service contracts are only ever fixed term and any administrative action to the contrary would be illegal.
7. Consequently, it stated that:
   • … should the employment relationship be ended without any of the grounds for termination of the administrative service contract being present, the person concerned will be entitled to receive the compensation provided for in clause 13.3 of Supreme Decree No. 075-2008-PCM.
8. In conclusion, it states that:
   • 7. … this is a special, transitory system of employment whose purpose is to initiate the process of reform and restructuring of the civil service, and for this reason any constitutional claim for reinstatement cannot be considered.
9. 717. The action of the Juntos Programme has in no way affected the trade union rights of the programme’s staff. Regarding the alleged dismissal of Mr Víctor Vicente Basantez Roldán, a trade union official and employee of IMARPE, on 31 December 2008, IMARPE signed an administrative service contract (Contract No. 070-2009) with Mr Basantez Roldán, under the provisions of Legislative Decree No. 1057 and its regulations, assigning him duties as a technician in the Logistics and Infrastructure Unit.
10. 718. By addendum to Administrative Service Contract No. 070-2009, the parties agreed to extend the administrative service contract for two months, from 1 May 2012 to 30 June 2012, with the same terms as those specified in the original contract.
11. 719. On 21 June 2012, in other words within the legal time frame, IMARPE informed Mr Basantez Roldán that his existing administrative service contract would not be renewed, which was not a violation of his rights or of the legislation concerning administrative service contracts. The international commitments that Peru has entered into have therefore not been violated either, as evidenced by the fact that Mr Basantez Roldán subsequently participated in meetings as a representative of the workers hired under the system of administrative service contracts with the executive board of the institute, which placed no restrictions on this activity.
12. 720. The Government reiterates that paragraph 5.1 of the regulations of Legislative Decree No. 1057, approved by Supreme Decree No. 075-2008-PCM, states that “the administrative service contract is for a fixed term. The duration of the contract may not exceed the period corresponding to the fiscal year within which the contract is concluded; however, the contract may be extended or renewed as often as is considered necessary by the contracting entity, depending on its needs, as has been the case. Any extension or renewal must not exceed the fiscal year and must be offered in writing before the expiry of the contract or the previous renewal or extension.” In accordance with the provisions of section 10 of Legislative Decree No. 1057, the contract between Mr Basantez Roldán and IMARPE established in its 21st clause that one of the grounds for termination of the contract in question was that mentioned in section 10(h), namely: the expiry of the contract. On 26 June 2012, Mr Víctor Vicente Basantez Roldán filed a motion for reconsideration, which was examined by the legal service of the institution in question and considered to be unfounded.
13. 721. The National Civil Service Authority (SERVIR) has issued an opinion in response to an inquiry from the legal affairs department of the National Public Records Office, specifying that the termination of an administrative service contract upon expiry of the contract (in the event that the body decides not to extend or renew the contract) is not equivalent to dismissal. It follows, therefore, that there has been no violation of freedom of association or of the ILO Conventions that have been ratified by Peru.
14. 722. With regard to the allegations concerning the union official Mr Roger Freddy Gamboa Reyes, in its communication of 2 December 2013, the Government denies any anti-union discrimination and states that he was hired under the administrative service contract system on 30 July 2012, and that his contract was repeatedly renewed until 30 July 2013. On 11 June, he was notified that his contract would be terminated, in accordance with the current legislation on this type of temporary contract, which establishes that no reason needs to be given and that the duration of such a contract cannot exceed one fiscal year. The Government indicates that, as it was a temporary contract, non-renewal is not equivalent to dismissal. The Government adds that the alleged case of the sexual abuse of a female worker by one of the managers of the Juntos Programme, as reported by the union operating within the programme on 10 June 2013, led to an administrative procedure and the corresponding investigation, which found that, in the absence of reliable evidence, no sanctions should be applied. The Government indicates that the Juntos Programme was informed of the complaint on 10 June 2013, in other words after it made its recommendation not to renew the contract of Mr Gamboa Reyes. Furthermore, the Government indicates that, in his performance appraisal of 27 March 2013, Mr Gamboa Reyes was rated as “average” with a mark of 26.5 per cent. Accordingly, the technical coordinator in his area indicated, in a report dated 29 April 2013, that Mr Gamboa Reyes “had not managed to submit his reports and workplans on time, his productivity is low in terms of maintaining lists of beneficiaries and new registrations, he does not follow up with households and he shows a lack of motivation and ability to work in a team”. Consequently, in a memorandum dated 30 April 2013, the territorial unit of La Libertad issued a warning to Mr Gamboa Reyes for the reasons set out above, and on 9 May 2013, Mr Gamboa Reyes defended his action and requested that the decision be reconsidered. The administrative unit’s response was that it was appropriate to uphold the warning.
15. 723. In several memoranda dated 22 May 2013, the Registrations and Payments Unit reported that certain managers at the local level, including Mr Roger Freddy Gamboa Reyes, had registered heads of households with expired identification cards among the beneficiaries of the Juntos Programme. In Memorandum No. 35-2013-MIDIS/PNADP-UA, those involved were invited to explain the above irregularities, whereupon Mr Gamboa Reyes stated only that he had made an honest mistake. Furthermore – the Government continues – as stated by the executive board of the Juntos Programme, Mr Roger Freddy Gamboa Reyes is involved in a case concerning the unauthorized use of the institution’s logo, in violation of the provisions of Supreme Decree No. 003-2008-PCM.
16. 724. In its communications dated 4 June and 2 December 2013, the Government reiterates its previous statements and adds that, if the complainants consider that any of their fundamental rights have been violated, they may appeal to the judiciary. The Government also considers that suitable domestic remedies should be exhausted before an international body is approached, to assess whether the fundamental right of a person was violated or not. On the basis of these facts and considerations, the Government requests the Committee to close this case. In its communication of 3 February 2014, the Government reports the conclusion of the collective agreement 2012–13 (negotiations in which trade union leaders Mr Gerald Alfonso Díaz Córdova and Mr Jorge Dagoberto Mejía Maza took part although their contracts had not been renewed), which contains clauses concerning trade union immunity, prohibition of anti-union retaliation and trade union facilities. The Government adds that the complainant did not provide evidence as regards pressure to withdraw from the union.

C. The Committee’s conclusions

1. 725. The Committee notes that, in the present complaint, the complainant organizations allege (1) the non-renewal of the administrative contracts of the trade union officials Mr Gerald Alfonso Díaz Córdova, Mr Jorge Dagoberto Mejía Maza and Ms Estela González Bazán, who were working for the Juntos Programme; (2) the non-renewal of the service contract of trade union official Mr Víctor Vicente Basantez Roldán, who was working at IMARPE, which is a public body; (3) the dismissal of Mr Roger Freddy Gamboa Reyes, a trade union official employed by the Juntos Programme; (4) obstacles to collective bargaining for 2012–13 in the Juntos Programme, despite an agreement having been reached between the workers, the representatives of the state-run programme and the Lima Regional Directorate of the Ministry of Labour; the obstacles include, according to the allegations, the refusal by the Juntos Programme to allow two union officials to participate in the negotiations on the list of demands; (5) coercion of union members by a manager of the Juntos Programme to submit letters of withdrawal from the union; and (6) the refusal by the Juntos Programme to grant union leave. The Committee notes the Government’s declaration that the trade union leaders Mr Gerald Alfonso Díaz Córdova, and Mr Jorge Dagoberto Mejía Maza participated in the negotiations of the collective agreement 2012–13, although their contracts had not been renewed, and that the collective agreement 2012–13 has finally been concluded and contains clauses concerning trade union immunity and prohibition of reprisals for anti-union reasons.
2. 726. The Committee also takes note of the Government’s statements that: (1) workers with administrative service contracts benefit from union rights in accordance with the law and the jurisprudence of the Constitutional Court, which nevertheless establish the temporary nature of these fixed-term contracts (which are renewable on an as-needed basis), the duration of which for budgetary reasons cannot exceed the period corresponding to the fiscal year within which the contract is concluded; when the employment relationship ends, the person concerned will be entitled to receive the compensation provided for by law; according to the Constitutional Court, this is a special, transitory system of employment, and any constitutional claim for reinstatement cannot be considered; and (2) if the complainants consider that any of their rights have been violated, they may appeal to the judiciary.
3. 727. The Committee also takes note of the Government’s specific statements in relation to the case of the non-renewal of the contract of trade union official Mr Víctor Vicente Basantez Roldán (IMARPE), denying the claim that the action taken constitutes a violation of freedom of association. The Committee notes that, according to the Government: (1) IMARPE signed an administrative service contract of a temporary nature on 31 December 2008 and the parties agreed to extend the contract for two months (from 1 May 2012 to 30 June 2012), specifically indicating that the grounds for the termination of the employment relationship was “the expiry of the contract”; and (2) IMARPE did not subsequently prevent Mr Basantez Roldán from participating as a workers’ representative in meetings with IMARPE’s executive board.
4. 728. With regard to the non-renewal of the administrative service contract of trade union official Mr Roger Freddy Gamboa Reyes, the Committee notes that the Government: (1) denies anti-union discrimination and indicates that the union’s allegations of sexual abuse were communicated to the employer after the recommendation was made not to renew the contract of this individual; (2) indicates that the system of temporary administrative service contracts does not require that a reason be given; and (3) according to several reports from the Juntos Programme, Mr Gamboa Reyes was issued with a warning for professional misconduct, details of which are provided in the Government’s reply, his performance was rated as “average” and he was involved in other irregular activities, including a case involving the unauthorized use of the Juntos Programme’s logo.
5. 729. The Committee concludes, in the case of the non-renewal of the contracts of trade union officials Mr Víctor Vicente Basantez Roldán and Mr Roger Freddy Gamboa Reyes, that the versions of events given by the trade union organizations and by the Government on the anti-union nature of the decision are contradictory. The Committee notes that, according to the Government, in such cases the parties concerned may appeal to the judicial authority and requests the complainant organizations to indicate whether the union officials in question have lodged appeals before the courts.
6. 730. The Committee notes with regret that while providing details on the jurisprudence of the Constitutional Court concerning the temporary contracts, the Government has not sent specific information on the allegations concerning the non-renewal of the administrative service contracts of the union officials Mr Gerald Alfonso Díaz Córdova, Mr Jorge Dagoberto Mejía Maza and Ms Estela González Bazán, of the union of workers operating in the Juntos Programme. The Committee requests the Government to send without delay its observations on these allegations and to institute an investigation through the labour inspectorate in this regard, including into the recent allegations of 30 December 2013 relating to the decrease in the number of its affiliates in the various offices of the Juntos Programme. Concerning the allegations by the complainants relating to the coercion of workers by the Juntos Programme to leave the union, the Committee observes that the Government declares that the complainant organization has not provided evidence in this respect. The Committee invites the complainant organizations to provide information on these allegations of coercion.
7. 731. The Committee generally recalls the principle according to which, while it does not have the mandate and will not pronounce itself with respect to the advisability of recourse to fixed-term or indefinite contracts, the Committee wishes to draw to attention that, in certain circumstances, the employment of workers with successively renewed fixed-term contracts for several years may affect the exercise of trade union rights [see 368th Report, Case No. 2884 (Chile), para. 213]. The Committee requests the Government to pay attention to this principle when conducting the relevant investigations.

The Committee’s recommendations

1. 732. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the complainant organizations to indicate whether the union officials Mr Víctor Vicente Basantez Roldán and Mr Roger Freddy Gamboa Reyes have lodged appeals before the courts against the non-renewal of their contracts.
   • (b) Noting with regret that the Government has not sent specific information on the allegations concerning the non-renewal of the administrative service contracts of the union officials Mr Gerald Alfonso Díaz Córdova, Mr Jorge Dagoberto Mejía Maza and Ms Estela González Bazán, of the union of workers operating in the Juntos Programme, and that neither has it responded to the allegations by the complainants concerning the refusal to grant trade union leave, the Committee requests the Government to send without delay its observations on these allegations and to institute an investigation through the Labour Inspectorate in this regard, including into the recent allegations of 30 December 2013 relating to the decrease in the number of its affiliates in the various offices of the Juntos Programme.
   • (c) The Committee generally recalls the principle according to which, while it does not have the mandate and will not pronounce itself with respect to the advisability of recourse to fixed-term or indefinite contracts, the Committee wishes to draw to attention that, in certain circumstances, the employment of workers with successively renewed fixed-term contracts for several years may affect the exercise of trade union rights. The Committee requests the Government to pay attention to this principle when conducting the relevant investigations.
   • (d) The Committee invites the complainant organizations to provide detailed information on the allegations relating to the coercion of workers to withdraw from the union.