Definitive Report - Report No 389, June 2019

Case No 3195 (Peru) - Complaint date: 16-JAN-16 - Closed

Allegations: The complainant alleges acts of anti-union discrimination by the National Tax Administration Supervisory Authority (SUNAT)

1. 528. The complaint is contained in a communication dated 16 January 2016 from the United National Union of Workers of the National Tax Administration Supervisory Authority – Internal Taxation (SINAUT SUNAT).
2. 529. The Government sent its observations in two communications dated 26 July 2016 and 3 May 2019.
3. 530. Peru has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant’s allegations

1. 531. In its communication dated 16 January 2016, the complainant organization alleges acts of anti-union discrimination (proceedings to impose sanctions and the imposition of penalties) by the National Tax Administration Supervisory Authority (SUNAT) against two trade union officials, María del Carmen Covarrubias Hermoza and Paola Luisa Aliaga Huatuco. The complainant organization states that at that time Ms Covarrubias was serving as general secretary of SINAUT SUNAT and as titular representative of the Autonomous Confederation of Peruvian Workers (CATP) before the National Occupational Safety and Health Council, the Technical Social Security Committee of the National Council for Labour and Employment Promotion (CNTPE) and the Special Anti-crisis Committee, while Ms Aliaga was serving as defence secretary of SINAUT SUNAT and titular representative of the CATP before the Technical Labour Committee of the CNTPE and the Special Committee on Productivity and Minimum Wages.
2. 532. The complainant organization states that the public institution had initiated disciplinary action against both trade union officials following several statements made using various forms of media. In this respect, the complainant organization explains that on 26 June 2015, the weekly publication Hildebrandt en sus trece published an article entitled “Doble de cuerpo” (“Body double”) in which both trade union officials questioned the management of the public institution in question, and in particular the alleged uneven increase in remuneration enjoyed by the executives of the public institution, to the detriment of the other workers, and the alleged recruitment of officials in the confidence of senior management by direct appointment, to the detriment of the principle of career development and merit that should govern public employment. Furthermore, the complainant organization indicates that on 14, 17 and 20 July 2015, the trade union officials, using various forms of media, reported that a number of irregularities had been seen in training provided to workers through a private university, and other matters related to worker overcrowding, the inappropriate use of workers’ funds, and lack of compliance with occupational safety and health standards.
3. 533. The complainant organization alleges that, following these statements, the public institution initiated administrative proceedings against the officials in question for failure to comply with their obligations as workers, as stipulated in article 38(m) and (x) of the internal workplace rules of the public institution, which constituted serious administrative misconduct as stipulated in article 47(a) and (g) of said rules. According to the memorandums issued by that body, the officials had failed in their obligation to “refrain from any actions that might undermine the image of SUNAT”, “refrain from insulting or making slanderous claims against the employer or managerial staff” and accuse them of having made statements that “not only did not correspond to reality but that in addition continued to affect the image of the institution, calling into question the integrity of the institution and the quality of its technical experts”. On 10 and 16 September 2015, the public institution notified both trade union officials of their respective penalties, sentencing Ms Covarrubias and Ms Aliaga Huatuco to a three-day and to a one-day suspension from duty without pay, respectively. Both trade union penalties were appealed before the Civil Service Tribunal on 10 October 2015 (highest administrative court that hears disputes between the State and public officials).
4. 534. The complainant organization states that, prior to the imposition of the penalties in question, it had requested the National Directorate for Labour Taxation (SUNAFIL) to initiate an inspection procedure to verify whether anti-union practices had been committed against the officials in question. According to the same, after carrying out the inspection activities, on 30 October 2015 SUNAFIL issued infringement report No. 2077-2015, finding that the public institution in question had engaged in acts of discrimination against the trade union and the trade union officials.
5. 535. Regarding the above-mentioned matters, the complainant organization considers that: (i) the initiation of disciplinary proceedings against the two officials as a result of statements made to the media constitutes an act of anti-union discrimination; (ii) both trade union officials were not only performing their duties as trade union officials of their organization, but were also representing the CATP in tripartite social dialogue bodies and on various technical committees; (iii) the public statements made by the trade union officials referred to matters of public knowledge and, consequently, it considers that the views expressed by the trade union officials in question related wholly to matters directly associated with their work in defence of labour rights, such as the unfair distribution of wages and the undermining of workers’ careers within the public institution; (iv) the public statements were made in the context of the legitimate exercise of their trade union duties, as the right to freedom of association also implies freedom of expression; (v) SUNAFIL determined in its infringement report that “the disciplinary proceedings and the penalties imposed on the appellants and trade union representatives of SINAUT SUNAT constitute acts of trade union discrimination, acts prohibited by constitutional, international and legal instruments, and which affect freedom of association and the freedom of expression of the representatives of the organization in question”. Moreover, the report notes that “the working environment in which the events occurred” must be taken into account, “as the views expressed by the appellants constitute part of the statement of claims and objections made by the trade union organization that they represent”; and (vi) the public institution has been the subject of several complaints presented to the Committee and, despite its conclusions, the Government has not implemented any of its recommendations.

B. The Government’s reply

1. 536. In its communications dated 26 July 2016 and 3 May 2019, the Government sent observations from SUNAT regarding the administrative disciplinary proceedings and the imposing of penalties on the above-mentioned trade union officials. In this respect, the public institution concerned states that: (i) article 9 of the single consolidated text of Legislative Decree No. 728, Labour Productivity and Competitiveness Act, approved by Supreme Decree No. 003-97-TR, regulates the scope of subordination, granting the employer the right to give the orders necessary for work to be performed and to take disciplinary measures, within reasonable limits, in respect of any infringement or failure to comply with obligations, irrespective of the status of trade union official; (ii) the statements made by both trade union officials resulted in the initiation of disciplinary proceedings, within the terms of reference of the rules governing the disciplinary procedure of the public institution, during which the officials concerned exercised their right of defence; (iii) after evaluating the evidence, the counter evidence and further documents constituting the case, the public institution decided to impose penalties on the officials concerned; (iv) these proceedings do not constitute acts of anti-union discrimination, as the status of trade union official does not release the person concerned from fulfilling the obligations arising from the employment relationship; (v) freedom of expression does not extend to insults and freedom of information does not provide protection in the event of spreading inaccurate information; (vi) the statements made by the officials in question had allegedly seriously tarnished the image of the institution by spreading false, incorrect and imprecise information; (vii) the trade union officials, exercising their right to appeal, both proceeded to lodge an appeal against the administrative decision before the Second Chamber of the Civil Service Tribunal, which declared both appeals to be unfounded on 20 January 2016, having confirmed that the statements made by the objecting officials had not been duly proven and lacked substance; and (viii) with respect to infringement report No. 2077-2015 issued by SUNAFIL, SUNAT had allegedly submitted its counter arguments and to date the supervisory body concerned had allegedly not handed down a definitive ruling; consequently it cannot be claimed that SUNAT committed acts of anti-union discrimination.

C. The Committee’s conclusions

1. 537. The Committee observes that this case refers to the imposition of disciplinary penalties by the National Tax Administration Supervisory Authority (SUNAT) on two trade union officials from SINAUT SUNAT and the CATP following statements made using various forms of media denouncing alleged irregularities in the management of that public institution.
2. 538. The Committee notes that, according to the allegations of the complainant organization: (i) following the statements, SUNAT initiated administrative proceedings against the officials in question as, in its view, their statements had allegedly tarnished the image of the institution, and were incorrect and insulting; (ii) the public institution issued penalties against Ms Covarrubias and Ms Aliaga for alleged serious administrative misconduct and sentenced them to a three-day and to a one-day suspension from duty without pay, respectively; (iii) prior to the imposition of penalties, the complainant trade union requested the National Directorate for Labour Taxation (SUNAFIL) to initiate a procedure to verify whether anti-union practices had been committed; (iv) on 30 October 2015 SUNAFIL issued an infringement report, finding that the public institution in question had engaged in acts of discrimination against the trade unions and the trade union officials; and (v) both disciplinary penalties were appealed before the Civil Service Tribunal on 10 October 2015.
3. 539. The Committee also notes that the complainant organization states, in respect of the penalties imposed on the trade union officials, that: (i) the public statements made by the officials referred to matters of public knowledge and that the views expressed to the media related wholly to matters directly associated with their work in defence of labour rights; (ii) the exercise of freedom of association also implies the right to freedom of expression; and (iii) the present violation arose in a context of systematic violations of trade union rights by the above-mentioned institution and the Government’s refusal to implement the recommendations made by the Committee on Freedom of Association.
4. 540. The Committee notes that the Government submitted the reply from the public institution, which states, with respect to the allegation by the complainant organization, that: (i) article 9 of the single consolidated text of Legislative Decree No. 728, Labour Productivity and Competitiveness Act grants the employer the right to give the orders necessary for work to be performed and to take disciplinary measures, within reasonable limits, in respect of any infringement or failure to comply with obligations, irrespective of the status of trade union official; (ii) freedom of expression does not extend to insults and freedom of information does not provide protection in the event of spreading inaccurate information; (iii) the statements made by the officials in question had allegedly seriously tarnished the image of the institution by spreading false, incorrect and imprecise information; (iv) the appeals lodged by the officials were declared unfounded by the Second Chamber of the Civil Service Tribunal; and (v) to date SUNAFIL has allegedly not handed down a definitive ruling with respect to the alleged anti-union acts, and consequently it cannot be claimed that the public institution committed acts of anti-union discrimination.
5. 541. The Committee observes that according to infringement report No. 2077-2015, following the procedures followed at said institution, SUNAFIL concludes that “although the statements (by the officials in question) could be qualified as lacking in respect, they are not sufficiently serious as to justify a penalty of the severity of the suspensions from duty without pay imposed on the appellants, and neither can they be considered to be injurious in the true sense of the word, as they lack animus injuriandi” and it considers that “the disciplinary procedure and the penalty imposed on the appellants and trade union representatives of the SINAUT SUNAT trade union constitute anti-union discriminatory acts”. It further notes the public institution’s indication that it had submitted its counter arguments and that SUNAFIL had not yet handed down its definitive ruling. With respect to the freedom of expression of trade union organizations and its scope, the Committee recalls that the resolution of 1970 concerning trade union rights and their relation to civil liberties places special emphasis on freedom of opinion and expression, which are essential for the normal exercise of trade union rights [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 257]. The Committee also recalls that it has considered that the full exercise of trade union rights calls for a free flow of information, opinions and ideas, and to this end workers, employers and their organizations should enjoy freedom of opinion and expression at their meetings, in their publications and in the course of other trade union activities. Nevertheless, in expressing their opinions, these organizations should respect the limits of propriety and refrain from the use of insulting language [see Compilation, op. cit., para. 236].
6. 542. Noting, firstly, that the administrative decision handed down by the Civil Service Tribunal found the penalties imposed on the two officials to be valid, while SUNAFIL’s infringement report found that the penalties constituted anti-union discrimination, and observing, secondly, that since 2016 it has not received any information on SUNAFIL’s definitive ruling or on the possible judicial challenge to the administrative decision handed down by the Civil Service Tribunal, the Committee trusts that the proceedings relating to the disciplinary penalties imposed will have been completed without delay and in accordance with the Committee’s above-mentioned decisions.

The Committee’s recommendation

1. 543. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation.
   • The Committee trusts that the proceedings relating to the disciplinary penalties imposed on the trade union officials will have been completed without delay and in accordance with the Committee’s decisions mentioned in the conclusions of the present case.