Effect given to the recommendations of the committee and the Governing Body - Report No 401, March 2023

Case No 2816 (Peru) - Complaint date: 22-SEP-10 - Closed

Effect given to the recommendations of the committee and the Governing Body

1. 35. The Committee last examined this case, which concerns acts of alleged violation of trade union rights by the Office of the National Superintendent of the Tax Administration (SUNAT), at its October 2018 meeting [see 387th Report, paras 48–57]. On that occasion, the Committee requested the Government to inform it of the outcome of the judicial proceeding in which the SUNAT challenged the validity of the arbitral awards issued in the collective bargaining processes with the United Trade Union of SUNAT Employees (SINAUT–SUNAT) for the years 2011–12, 2013 and 2015, and also to provide information on any decision taken by the administrative authority in relation to the alleged misuse of email by trade union leaders Ms María Covarrubias and Mr Jorge Carrillo Vértiz.
2. 36. In its communications of 4 February, 22 July, 3 and 29 November 2019, as well as 7 May 2021, the Government provides information about the judicial proceedings regarding the validity of the aforementioned arbitral awards. The Government indicates that, although the judicial process regarding the 2013 arbitral award was finalized, the judgments issued in relation to the 2011–12 and 2015 arbitral awards were subject to appeals and the judicial processes have not concluded. The Government also reports that on 30 April 2021, the Congress of the Republic approved Law No. 31188 on Collective Bargaining in the State Sector and that it is intended to regulate the exercise of the right to collective bargaining by trade union organizations of state workers, in accordance with article 28 of the Political Constitution and the provisions of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and the Labour Relations (Public Service) Convention, 1978 (No. 151).
3. 37. The Government also indicates that the SINAUT–SUNAT filed, on behalf of Ms María Covarrubias and Mr Jorge Carrillo Vértiz, an amparo [protection of constitutional rights] lawsuit against the SUNAT alleging that the entity had violated the right to freedom of association by denying them the use of email as a means of communication for union purposes and by sanctioning union leaders for using email to disseminate information on union activities. The Government indicates that although in 2016 the Constitutional Court of first instance declared the amparo lawsuit well founded, that sentence was overturned in 2018 by the Superior Court of Justice of Lima. The Government annexed a copy of the judgment of the Superior Court of Justice of Lima in which it is indicated that email had been made available as a work tool and not for matters undertaken by the entity’s trade union since they were not authorized by an agreement or pact between the parties and that, consequently, the use of email had no impact on the essential content of freedom of association.
4. 38. The Committee takes note of the information provided by the Government. The Committee trusts that the judicial proceedings relating to the 2011–12 and 2015 arbitration awards concerning collective bargaining within the public service will be resolved without further delay. The Committee also notes with interest the information provided by the Government regarding the enactment in 2021 of Law No. 31188 on Collective Bargaining in the State Sector. The Committee further notes that the Committee of Experts on the Application of Conventions and Recommendations (CEACR), in its comments published in 2023 concerning Conventions Nos 98 and 151, took note of the information provided by the Government according to which, on 20 January 2022, Supreme Decree No. 008-2022-PCM was published approving guidelines for the implementation thereof. The Committee expects that such rules will be implemented in a manner that promotes voluntary and good faith negotiation between the SUNAT and the SINAUT–SUNAT. The Committee refers in greater detail to Law No. 31188 and the aforementioned Supreme Decree in the context of Case No. 3026, discussed below.
5. 39. The Committee also takes note of the 2018 judgment of the Superior Court of Justice of Lima, which overturned the judgment that had declared the amparo suit regarding the alleged misuse of email by union leaders to be well founded. The Committee notes that in that judgment the Court concluded that, insofar as the use of the public entity’s email had not been authorized by an agreement or pact between the parties, the email had been made available as a work tool and not for matters undertaken by the union. Recalling that workers representatives should enjoy such facilities as may be necessary for the proper exercise of their functions, including the use of email [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 1600] and that the modalities of use of email for union purposes in the workplace should be a matter for negotiation between the parties, the Committee encourages the parties, within the framework of the new regulations in force referred to in the previous paragraph, to define by mutual agreement the rules applicable in this regard.
6. 40. Based on all the aforementioned elements, the Committee considers that this case is closed and will not pursue its examination.