Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 367, Marzo 2013

1. 960. In its previous examination of the case, at its November 2011 session, the Committee submitted an interim report to the Governing Body [see 362nd Report, paras 1176 to 1223, approved by the Governing Body at its 312th Session (November 2011)].
2. 961. The Autonomous Confederation of Peruvian Workers (CATP) sent new allegations in a communication dated 21 August 2011.
3. 962. The Government sent new observations in communications dated 28 December 2011 and 3 and 17 May 2012.
4. 963. 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), the Labour Relations (Public Service) Convention, 1978 (No. 151), and the Collective Bargaining Convention, 1981 (No. 154).

A. Previous examination of the case

1. 964. In its previous examination of the case, at its November 2011 session, the Committee made the following recommendations on matters outstanding [see 362nd Report, para. 1223]:
   • ...
   • (b) The Committee requests the Government to confirm whether the administrative authority ordered the reinstatement in his former post of union official Mr Edmóstines Montoya Jara, as stated by the complainant organization, and, if so, to take steps to ensure that the order is carried out [this trade union official works in the Office of the National Superintendent of the Tax Administration];
   • (c) As regards the alleged initiation of disciplinary proceedings against union representatives for alleged misuse of email (Defence Secretary Ms María Covarrubias and communication and public relations secretary Mr Jorge Carrillo Vértiz), the Committee requests the Government to keep it informed of the outcome of the inquiry that will be conducted in this regard [by the labour inspectorate];
   • (d) The Committee requests the Government to send its observations in regard to the allegations of the complainant organization objecting to the conduct of the labour administrative authority authorizing SUNAT to express its views on the declaration of a strike on 24 and 25 November 2009.

B. New allegations

1. 965. In a communication dated 21 August 2011, the Autonomous Confederation of Peruvian Workers (CATP), representing the complainant (the United Trade Union of SUNAT Employees (SINAUT SUNAT)), alleges that the Office of the National Superintendent of the Tax Administration (SUNAT) has engaged in practices that go against the principles of collective bargaining and good faith ever since the above union presented SUNAT with its list of demands for 2011–12 on 26 February 2010. In its communication, the CATP gives a very extensive and detailed account of the various stages of the bargaining process, the main points of which are as follows: (1) delaying tactics and lack of specific proposals during the direct negotiation phase and lack of willingness to find solutions to the list of demands, particularly those of an economic nature, a position that SUNAT (the employer) maintained during the conciliation phase, stating that budgetary limits had to be respected; (2) the “counter-proposals” put forward by SUNAT on non-economic issues during the conciliation phase did not represent any real improvement; and (3) on 21 September 2010, the eighth conciliation meeting was held; the employer representatives said that they “had not had time to review the material submitted by the union”. In response, the SINAUT negotiating committee expressed the view that such an attitude could only be interpreted as a further demonstration of bad faith and lack of real will to reach any agreement on the list of demands. At the same meeting, it was brought to the attention of the labour administration authority that, in letter No. 150-2010-SUNAT/2F0300, the SUNAT personnel management department had requested the union to restrict its use of the institutional email system to professional matters only, attempting to give the unexpected impression of being unaware that the employer had always accepted the everyday use of the system to communicate with union members and workers in general; even SUNAT itself, through its staff and representatives, has repeatedly approached the union and the workforce in general by email to state its position on various trade union matters.
2. 966. The CATP adds that, bearing in mind that the facts outlined severely affected – in the context described – the normal course of collective bargaining, and added to the total lack of serious proposals from the employer and the failure to honour commitments made during discussions, together with the imposition of a new restriction that undermines free and fluid communication and coordination between the union and its units across the country, placing it at an obvious disadvantage right in the middle of conciliation talks on its list of demands, the union informed the labour administration authority that it had decided to suspend conciliation meetings. In addition, in an official letter dated 5 November 2010, the union informed SUNAT of its decision to refer the dispute to labour arbitration, in accordance with the provisions of section 61 of the Collective Labour Relations Act.
3. 967. The CATP states that, on 14 October 2010, an extra-procedural meeting was held at the offices of the Regional Directorate for Labour and Employment Promotion for Lima, to exhaust a further extra-procedural avenue in negotiating the list of demands for 2010–11. At this meeting, SUNAT provided the union with a written document – SUNAT–SINAUT Negotiating Committee – which mentions a set of actions implemented as “policies” by SUNAT, relating to some of the demands set out in the list. In response, the union pointed out that the “policies” being implemented by the employer are unilateral decisions that may be changed or revoked in the future on the employer’s sole initiative, and they cannot therefore be viewed as benefits obtained through bargaining until a collective agreement has been signed with workers to guarantee their permanence. The meeting ended with no agreement having been reached, and on 3 February 2011 the union requested the Sub-Directorate for Collective Bargaining of the Ministry of Labour to summon the parties to sign a commitment to go to arbitration. So far, neither SUNAT nor the Ministry of Labour has taken any action with regard to this arbitration request.
4. 968. The CATP recalls, furthermore, that, with respect to the (previous) list of demands (2008–09), which remained unresolved, the Committee on Freedom of Association made the following recommendation in Case No. 2690:
   • (b) The Committee emphasizes that the impossibility of negotiating wage increases on an ongoing basis is contrary to the principle of free and voluntary collective bargaining enshrined in Convention No. 98 and requests the Government to promote appropriate mechanisms so that SINAUT SUNAT and SUNAT may conclude a collective agreement in the near future. The Committee requests the Government to keep it informed in this regard.

C. The Government’s reply

1. 969. In its communication of 28 December 2011, with regard to the alleged infringement of the principle of free and voluntary bargaining through lack of will to bargain on any demands of an economic nature included in the list of demands, the Government states that article 77 of the Political Constitution of Peru and the General Act on the National Budgetary System, No. 28411, lay down that the budget is allocated by an annual act and is governed by principles such as budgetary equilibrium, universality and unity, integrity, annuality and multiannual programming, among other things. Section 6 of the Public Sector Budget Act for the financial year 2010, No. 29465, stipulated that all state bodies were prohibited from altering or increasing any form of economic benefit. It further states that labour arbitration bodies are subject to the legal limitations set out in that Act.
2. 970. In the same vein, the consolidated text of the Collective Bargaining Act, approved by Supreme Decree No. 010-2003-TR, lays down, in section 1, paragraph 2, that workers in state bodies and enterprises that are part of the State’s business activities, which are subject to private sector labour laws, are covered by the standards laid down in the above Act except where they contradict specific standards limiting the benefits provided by private sector labour laws.
3. 971. It adds that, in legal report No. 337-2010-SERVIR/GG-OAJ, the National Civil Service Authority (SERVIR) concludes, in response to an enquiry from SUNAT, that:
   • The right of public servants [be they subject to public or private labour law] to bargain collectively is not exercised without restrictions, but is subject to legal limitations, including those governing budgetary matters.
   • …
   • These budgetary restrictions should also be applied if a dispute is referred to arbitration, under either form of labour law.
4. 972. As regards applying the principle of good faith, the Government maintains that the assertions made by SINAUT SUNAT lack any substance, given that SUNAT has participated in the process of collective bargaining with a view to reaching agreement, sending designated representatives to the various direct negotiation, conciliation and extra-procedural meetings organized by the Ministry of Labour and Employment Promotion; evidence of this can be found in the minutes of conciliation meetings, as well as in the records of attendance, which not only show who was present, but also whether there was discussion between the parties so as to reach agreement as far as possible.
5. 973. Furthermore, the Government states that, at the eighth conciliation meeting, SUNAT indicated that it had not had time to review the documentation submitted by the union. It points out in this regard that the documentation received, which consisted of 41 folders containing information on arbitration awards relating to various state bodies, was submitted through the public registry on 15 September 2010 and received by the institution’s representatives on 16 and 17 September. The information merited examination, which cannot be interpreted as a display of bad faith or lack of willingness to reach an agreement, given that SUNAT attended the meeting in question fully prepared to continue bargaining.
6. 974. While it may be true that increases in remuneration and other economic benefits are restricted by public order provisions, SUNAT maintains that it has been willing to bargain on other matters, as is the case with working conditions. SUNAT states that, despite no agreement having been reached through the collective bargaining process for 2010–11, various demands have already been acknowledged and acted upon, to the benefit of all workers in the institution who are covered by the measures taken, such as:
   • – providing uniforms (clothes and shoes) to SUNAT staff;
   • – transport for staff performing duties at offices located in high-risk or hard-to-reach areas: Callao Maritime Customs, Chucuito, San Luis and Santa Anita;
   • – career path. With funding from the Inter-American Development Bank, the private consultancy GOBERNA SAC is currently designing a career path system that is structured and sustainable over time, promoting staff development within the institution;
   • – internal competitions for management posts not considered positions of trust;
   • – paid leave to look after immediate family with health problems, which in some cases may exceed the number of days requested by the union;
   • – performance evaluation. The private consultancy DHO Consultores is designing a results-based evaluation system to ensure professional development and quality assurance for all workers and managers within the institution;
   • – help with transfers;
   • – training programme to be aligned with draft career path;
   • – strengthening the social assistance team by contracting professionals to provide social support at provincial level, strengthening the medical team, and providing more complex treatments; and
   • – the canteen services at the San Mateo, IR Lima and IPCN offices have been improved.
7. 975. The Government states that it has issued normative instructions, through the Ministry of Labour and Employment Promotion, intended to clarify the use of arbitration in collective bargaining where agreement cannot be reached on a dispute. So, for instance, the dispute submitted to the Committee on Freedom of Association by SINAUT SUNAT could be referred to arbitration under these instructions once they take effect. Specifically, by means of Supreme Decree No. 014-2011-TR, an important provision on the use of optional arbitration has been incorporated into the Collective Labour Relations Act Regulations approved by Supreme Decree No. 011-92-TR. This new regulatory provision (section 61-A) sets out the circumstances in which any of the parties to collective bargaining may request optional arbitration to resolve a dispute. They are as follows:
   • (a) if the parties cannot reach agreement about the level or substance of initial bargaining; and
   • (b) if, during bargaining over the list of demands, acts of bad faith are observed that serve to delay, hinder or avoid an agreement being reached.
8. 976. The aim of this provision – the Government continues – is to clarify the scope of section 61 of the consolidated text of the Collective Labour Relations Act, approved by Supreme Decree No. 010-2003-TR, which allows for the possibility of going to arbitration if there is no agreement during direct negotiation or conciliation and which, in accordance with rulings of the Constitutional Court, provides for optional arbitration to determine the level at which bargaining should take place or to resolve matters concerning bad faith in bargaining.
9. 977. The first instance in which optional arbitration may be requested during collective bargaining should not be understood as restricting the principle of free and voluntary bargaining on which collective bargaining is based. On the contrary, a measure such as that described, which allows for optional arbitration when no agreement is reached about initial bargaining – either the level or substance thereof – arises out of concern over the parties’ lack of negotiating experience. It is not an attempt to introduce an interventionist policy, but is meant to ensure that the parties are not disadvantaged by inexperience and can arrive at an appropriate solution.
10. 978. With regard to the second instance that allows parties to choose optional arbitration, the Ministry of Labour and Employment Promotion, in Ministerial Resolution No. 284 2011 TR, issued complementary provisions to improve its application, providing an indicative (but not exhaustive) list of activities that should be considered acts of bad faith in collective bargaining. Section 2 thereof states:
    • In the case of collective bargaining in State bodies or enterprises that are subject to private sector labour laws, account must be taken of the current legal framework, the provisions of articles 77 and 78 of the Political Constitution of Peru, and rulings Nos 008 2005-PI/TC and 1035-2001-AC/TC of the Constitutional Court, in accordance with which any decision or measure to improve remuneration must be in line with the budgetary allocation previously authorized and included in the relevant public sector budget acts approved for the financial year …
    • During collective bargaining in a public body or State enterprise that is subject to private sector labour laws, economic increases and/or benefits are financed from funding sources that use resources that are raised directly; these should be provided for in the initial institutional budget for the body concerned, or the equivalent for a State enterprise …
11. 979. The Government underlines the fact that this provision allows for the possibility of negotiating increases in remuneration in so far as they may be covered by the budgetary provisions that govern the activities of public sector bodies, although it must be borne in mind that such financing must be planned using resources raised directly by the public sector body in question.
12. 980. With regard to the effective use of arbitration in collective bargaining in state bodies and enterprises, the Government states that section 3 of aforementioned Ministerial Resolution No. 284-2011-TR stipulates that, in order to serve as an arbitrator in collective bargaining in state bodies and enterprises that are subject to private sector labour laws, a person must be on the National Register of Arbitrators for Collective Bargaining and have completed the training course on collective bargaining in the public sector run by the Directorate General for Labour and the Directorate General for Fundamental Rights and Safety and Health at Work within the Ministry of Labour and Employment Promotion.
13. 981. Arbitration in collective bargaining that involves state bodies or enterprises is therefore subject to the regulations outlined in the previous paragraph. As a result, on 21 and 22 December 2011, the first training course on collective bargaining in the public sector was held (within the time limit established in the sole final transitional provision of the resolution in question), which is an essential requirement for inclusion on the National Register of Arbitrators for Collective Bargaining that will allow optional arbitration to be used effectively in state bodies and enterprises. The resolution states that:
    • The first training course on collective bargaining in the public sector, provided for in section 3 of the present resolution [Ministerial Resolution No. 284-2011-TR], will be organized within 60 working days. Once a list of arbitrators certified to arbitrate in collective bargaining in state bodies and enterprises that are subject to private sector labour laws has been compiled, optional arbitration regulated by Supreme Decree No. 014-2011-TR will be introduced. This shall in any event occur within no more than ninety (90) working days from the date on which the present ministerial resolution is published.
14. 982. The Government concludes its observations on these matters by stating that:
    • – Based on the above, the right of the union organization in question to bargain collectively has not been infringed, as SUNAT has followed the collective bargaining procedure properly, its actions being guided by the principles of free and voluntary bargaining and good faith in bargaining; this is demonstrated by the employer’s attendance at direct negotiation, conciliation and extra-procedural meetings;
    • – If, despite the above, SINAUT SUNAT reiterates its allegation that SUNAT has infringed its right to bargain collectively (by alleged acts of bad faith), it is fully at liberty to make use of the mechanisms for proceeding to optional arbitration, in accordance with the relevant provisions recently approved by the Peruvian Government;
    • – The provisions issued by the Government with a view to introducing optional arbitration in the event of failure to reach agreement during collective bargaining through direct negotiation or conciliation before the administrative labour authority do not constitute an interventionist policy affecting the principle of free and voluntary negotiation but – on the contrary – contribute to peaceful solutions in those cases in which the parties are inexperienced in bargaining (in initial bargaining, either on level or substance) or if there are indications of bad faith in bargaining by any of the parties involved.
15. 983. Collective bargaining in state bodies and/or enterprises that are subject to private sector labour laws must be in line with the budgetary allocations previously made in relevant acts. Collective bargaining processes that imply increases in remuneration must be covered by appropriate financial planning, taking into account the resources raised directly by the public sector entity in question (in this specific case: SUNAT).
16. 984. Regarding the use of arbitration in state bodies and enterprises, the provisions of Ministerial Resolution 284-2011-TR are being effectively applied (within the time limit stipulated in the resolution itself). The resolution creates the obligation for arbitrators to be included on the National Register of Arbitrators for Collective Bargaining, having first completed the training course on collective bargaining in the private sector.
17. 985. Further, in its communication of 17 May 2012, the Government states that SUNAT has reached agreement with two trade union organizations (other than the complainant) regarding the use of facilities for publicizing their internal communications: specifically, physical space is being provided for notice boards to be installed on which trade union activities can be advertised, on the proviso that the use of such notice boards will be shared with other union organizations. The Government has sent the final text of the collective agreement for 2010–11 signed between SUNAT and the National Federation of Customs and Taxation Workers.
18. 986. The Government adds that, on 29 March 2012, an arbitration award was made as part of the collective bargaining process (for 2008–09) between the complainant (SINAUT SUNAT) and SUNAT, and points out that, in its final proposal, the union did not include any request regarding communication facilities (use of email or notice boards), although SUNAT had envisaged authorizing such facilities.
19. 987. With regard to the Committee’s recommendation concerning the transfer of Mr Edmóstines Montoya Jara, the Government states, in its communication of 3 May 2012, that he held the post of Supervisor of the Criminal Division of Procedural and Administrative Management within SUNAT from 8 August 2005 until 9 July 2006. Subsequently, by means of circular memorandum No. 091-2005-SUNAT/200000 of 16 November 2005, the Deputy National Superintendent for Internal Taxation made the National Human Resources Administration aware that it would be appropriate to promote those workers acting as supervisors to the “specialized professional” category, so as to recognize the technical expertise, efforts, dedication and responsibility involved in carrying out those functions; at the same time, circular memorandum 039-2006-SUNAT/200000 was issued on 11 April 2006, in which the Office of the Deputy National Superintendent for Internal Taxation stated that such promotions would only occur in those units whose internal structure allowed for tasks and responsibilities to be assigned to a supervisor. In order to be promoted to “specialized professional”, professional staff performing supervisory duties should meet certain requirements, including: (a) a minimum of one year performing supervisory duties; and (b) a minimum of eight workers under their supervision.
20. 988. The Government states that Mr Montoya was approved in accordance with a Constitutional Court ruling of 18 October 2007 (No. 04922-2007-PA/TC, clarified and amended by rulings of 18 June and 31 July 2008, respectively) granting him professional III status, because he met the requirements set out in Resolution No. 224-2006/SUNAT of the Office of the Superintendent. The worker in question was qualified for the post, having a university degree and more than 13 years’ experience in the specialist operational group, and having reached the level of professional supervisor but with no managerial experience. The requirements for the specialized professional I category, which includes supervisors with managerial experience, are completely different.
21. 989. The Government points out that promotions to specialized professional duties were neither automatic nor compulsory but were dependent on the requirements set out in circular memorandum No. 039-2006-SUNAT/200000 being met, from which it can be inferred that not all supervisors were to be promoted to those duties; one may therefore conclude that there was no discrimination against Mr Montoya. In September 2008, the inspection services finalized Mr Montoya’s reclassification to professional III, granting him the appropriate benefits in accordance with Constitutional Court ruling No. 04922-2007-PA/TC, which had ordered that the remuneration of all SUNAT workers should be standardized. Mr Montoya was therefore granted professional III status, which increased his salary from 6,240.16 to 7,500.16 nuevos soles and, from January 2009, to 7,800 nuevos soles, based on the weighted average remuneration referred to in the above ruling.
22. 990. Mr Montoya was assigned professional III status because he met the requirements for that category, as has already been stated. Although the administrative labour authority of first instance did indeed fine SUNAT, the fine was subsequently revoked by the higher authority in Resolution No. 356-2011-MTPE/1/20.4, on the basis of the arguments given in the preceding paragraphs.
23. 991. With regard to the Committee’s recommendation regarding the strike on 24 and 25 November 2009 (the allegation concerned the fact that the notification of a strike planned for the month of November 2009 was declared inadmissible), the Government states that the labour administration authority, through the Directorate for Dispute Prevention and Resolution, said, in its ruling on the appeal brought by the union against the initial administrative decision, that the union had not met the requirements set out in the consolidated text of the Collective Labour Relations Act and the organization’s statute, which are detailed below:
    • (i) Section 73 of the consolidated text of the Collective Labour Relations Act stipulates, among the admissibility requirements for declaring a strike, that any such decision must be adopted in the form expressly determined by the statutes and that in any event it must represent the majority will of the workers who are affected by it.
    • (ii) Reviewing the documents in the case file reveals that article 38 of the union organization’s statute states: “The union may declare a strike at a general assembly of its members. Such a decision must be adopted by at least an absolute majority of members present and eligible to vote.”
    • (iii) Similarly, article 39, paragraph 2, of the union organization’s statutes expressly states: “When put to the vote, the decision must be adopted by at least an absolute majority of members present and eligible to vote at the assembly”, whether on the first or second ballot.
24. 992. The Government adds that, from the sworn declaration made by the SINAUT SUNAT executive committee, the following can be noted: (1) the executive committee of the above union states that the decision to declare a strike was adopted by a vote of 1,0212 (sic) members present and voting, which represents more than the absolute majority of members, without expressly specifying, in accordance with its statutes, whether those present and voting were eligible to vote; (2) reviewing the records of the assembly, it is not apparent whether, when the matter was put to the vote, it was expressly stated that the decision must be adopted by a ballot of members present and eligible to vote, as stipulated in the statutes; and (3) the certified, notarized copy of the attendance list for the union’s general assembly, held on 24 October 2009, at which the decision to declare a strike was adopted, shows that the total number of members from Lima who attended the assembly does not match either the number given in other documents or the total stated in point 1 of the sworn declaration by the union’s executive committee, meaning that the requirements of section 73(b), paragraph 2, of Supreme Decree No. 010-2003-TR were not met.
25. 993. The administrative authority has stated that, as both parties are taking part in collective bargaining (lead dossier) and given that the strike proceedings stem from the lead dossier, both parties are entitled to challenge them. In view of the above, the labour administration authority of second instance, observing that procedural irregularities had occurred, proceeded to revoke the unnumbered sub-directorate order of 11 November 2009 issued by the Sub-Directorate for Collective Bargaining; consequently, the notification, 48 hours in advance, of strike action to begin at 00:00 on 24 November 2009 was declared inadmissible.
26. 994. Finally, with regard to the Committee’s recommendation concerning the disciplinary proceedings against Ms Covarrubias and Mr Carrillo, the labour administration authority ruled that the body against which the complaint was made had committed no offence against Mr Carrillo because legal provisions exist concerning the use of email in public institutions, as has been clearly stated in previous submissions. As regards Ms Covarrubias, the labour administration authority issued inspection order No. 3510-2012-MTPE/1/20.4. Notwithstanding this, the Government points out that, during the arbitration proceedings begun in 2012 to resolve the 2008–09 collective bargaining process, the complainant did not raise the issue of email use as a point for negotiation. Quite the reverse: SUNAT did include it in its collective bargaining proposal, stating: “SUNAT agrees to authorize the installation of notice boards for posting union communications, on the understanding that the union shall be obliged to ensure that its communications and notices are couched in measured, appropriate and respectful terms. It must be clearly understood that any misuse of these notice boards that contravenes the above shall render this provision void.” This proposal by SUNAT is becoming an institutional practice, as other unions within the organization have signed collective agreements that include use of notice boards for communications they consider appropriate, as has already been noted.
27. 995. In view of all the above, the Government requests the Committee on Freedom of Association to close this case.

D. The Committee’s conclusions

1. 996. With regard to the recommendation made in its previous examination of the case, in which it requested the Government to confirm whether the administrative authority had ordered the reinstatement in his former post of union official Mr Edmóstines Montoya Jara (who had been transferred or moved to other duties), as stated by the complainant organization, and, if so, to take steps to ensure that the order was carried out [see 362nd Report, para. 1223(a)], the Committee considers it useful to reproduce the complainant’s allegations [see 362nd Report, para. 1192]:
   • The complainant organization adds that SUNAT has violated the trade union immunity of the deputy general secretary of SINAUT SUNAT. On 23 October 2009, SUNAT issued an unexpected order for the removal of Mr Edmóstines Montoya Jara, deputy general secretary of SINAUT SUNAT, from his post as professional supervisor of the Ad Hoc Public Prosecutor’s Office of SUNAT, transferring him to the post of resolution auditor in Division III of the Complaints Department of the Office of Major National Taxpayers of SUNAT, which is at a lower grade (the Ministry of Labour and Employment Promotion, in violation report No. 2482-2009-MTPE/2/12.3 of 2 December 2009 and a subsequent sub-directorate decision, recognized unfair treatment to the detriment of the deputy general secretary of SINAUT SUNAT, sanctioned SUNAT for the violations and warned it to change its unlawful conduct; however, SUNAT has not done this to date).
2. 997. The Committee takes note of the Government’s statements that the union official in question benefited from promotion to the post of specialized professional and reclassification to professional III, receiving the appropriate benefits in accordance with a 2007 ruling by the Constitutional Court, which had ordered that the remuneration of all SUNAT workers should be standardized. Mr Montoya was therefore granted professional III status, which increased his salary from 6,240.16 to 7,500.16 nuevos soles and, from January 2009, to 7,800 nuevos soles. The Government adds that it is true that the labour administration authority fined SUNAT, but the fine was revoked by the higher authority in Resolution No. 356-2011-MTPE/1/20.4 on the basis of the arguments set out. Taking into account the Government’s arguments and information and the promotion and salary increases from which union official Mr Edmóstines Montoya Jara has benefited, the Committee will not pursue its examination of this allegation.
3. 998. With regard to its recommendation concerning the disciplinary proceedings against union representatives for alleged misuse of email (Defence Secretary Ms María Covarrubias and communication and public relations secretary Mr Jorge Carrillo Vértiz), in which the Committee requested the Government to keep it informed of the outcome of the inquiry to be conducted in that regard, the Committee takes note of the Government’s statements that: (1) the labour administration authority ruled that SUNAT had committed no offence against Mr Carrillo because legal provisions exist concerning the use of email in public institutions; and (2) the labour administration authority issued an inspection order in 2012. The Committee requests the Government to send the administrative authority’s existing and future decisions concerning these two officials. The Committee observes that restricting the union’s use of email is an important issue for the union and one which caused collective bargaining to break down. The Committee takes note of the Government’s statement that SUNAT has made improvements in its facilities for unions (such as the use of notice boards to publicize information) and points out that the union did not include the issue of email use among the matters to be dealt with in arbitration over its list of demands for 2008–09. Although it has taken account of this information provided by the Government, the Committee recalls that workers’ representatives should enjoy such facilities as may be necessary for the proper exercise of their functions, including access to workplaces and the use of email. Recalling that access to employers’ facilities should not be exercised to the detriment of the efficient functioning of the enterprise concerned, the Committee suggests that the employer and the workers’ organization strive to reach agreement on the modalities for the use of email.
4. 999. With regard to the Committee’s recommendations requesting the Government to send its comments on the complainant’s allegations that the administrative authority authorized SUNAT (the employer) to express its views on the declaration of a strike on 24 and 25 November 2009, the Committee takes note of the Government’s statements that: (1) the allegation refers to the declaration of inadmissibility (made by the administrative authority) concerning the complainant’s notification of the timing of this strike; and (2) during the appeals procedure, the administrative authority identified irregularities in voting (the records do not state whether the decision was adopted by a ballot of members present and eligible to vote, as stipulated in the union’s statutes; furthermore, the total number of members from Lima who attended the assembly does not match either the number given in other documents or the total stated in point 1 of the sworn declaration made by the union’s executive committee). The Government adds that SUNAT’s alleged authorization by the administrative authority to express its views on the declaration of a strike stems from the fact that both the union and SUNAT are entitled to challenge administrative decisions. The Committee takes note of this information.
5. 1000. The Committee takes note of the allegations made by the CATP concerning practices by SUNAT, during negotiations on SINAUT SUNAT’s list of demands for 2011–12, that go against the principles of collective bargaining and good faith (delaying tactics, lack of specific proposals during the direct negotiation phase, lack of willingness to find solutions to demands of an economic nature on the grounds that budgetary limits must be respected, counter-proposals on non-economic issues, put forward by SUNAT during the conciliation phase, that did not represent any real improvement, communication from SUNAT to the union right in the middle of conciliation proceedings instructing it to refrain from using the email system for union purposes that had always previously been accepted). The CATP adds that, in this context, the union asked for the matter to be referred to arbitration and that, although an “extra-procedural” meeting was held at which SUNAT submitted a document describing various measures taken on some of the demands included in the union’s list as “SUNAT policy”, the union pointed out that these unilateral decisions could not be viewed as benefits obtained through collective bargaining, since they could be amended or revoked.
6. 1001. The Committee observes that the complainant highlights a previous case concerning SUNAT that involves the list of demands for 2008–09, in which the Committee emphasized that the impossibility of negotiating wage increases on an ongoing basis is contrary to the principle of free and voluntary collective bargaining enshrined in Convention No. 98.
7. 1002. The Committee observes that the Government, as an indication of SUNAT’s willingness to bargain, states that there have been collective agreements with two other union organizations operating at SUNAT, one of which is the National Federation of Customs and Taxation Workers; the Government emphasizes that arbitration with SUNAT is possible (the Government refers to an arbitration award in proceedings between SUNAT and the complainant) and that the complainant could have recourse to the same procedure for the list of demands for 2011–12, by virtue of a 2011 ministerial resolution, if there is a lack of good faith in bargaining, provided that the requirements set out in the resolution are met (completing a training course – first organized in December 2011 – and being included on the National Register of Arbitrators). The Committee observes that the Government states that the 2011 ministerial resolution, in accordance with legislation and the practice of the Constitutional Court, provides for the possibility of negotiating increases in remuneration within previously authorized budgetary allocations, so long as it is taken into account that any such financing must be planned using resources directly raised by the public body in question.
8. 1003. The Committee takes note of the Government’s statements denying any lack of good faith on the part of SUNAT and pointing out that SUNAT had participated in bargaining meetings to try and reach agreement during the direct negotiation, conciliation and extra-procedural phases, and that records show that discussions took place between the parties in order to reach agreement as far as possible. The Committee takes note of the Government’s statement that the fact that SUNAT’s representatives were unable to review the extensive documentation submitted by the union, as reflected in the minutes of the conciliation meeting (21 September 2010), cannot be taken as an indication of bad faith, as the information was only received on 16 and 17 September. The Committee observes that the Government recognizes certain restrictions on the negotiation of economic provisions for budgetary reasons, although it seems that the situation has subsequently evolved from a legal point of view.
9. 1004. The Committee concludes, based on the statements made by the complainant and the Government, that the representatives of SUNAT participated in all phases of the bargaining process concerning the list of demands for 2011–12, that there was discussion between the parties and that the employer representatives made counter-proposals (although the complainant claims that they represented no real improvement). The Committee considers SUNAT’s practice of granting certain improvements in conditions to public servants, not within the framework of a collective agreement, but as unilateral decisions, even though they relate to bargaining matters (which makes it more a consultation than bargaining), to be more problematic. The Committee observes, in this respect, that the Government confirms that, during the bargaining process, SUNAT indicated that, despite no agreement having been reached, nine demands (which the complainant recognizes were related to some union demands) had already been acknowledged and acted upon, as detailed in the Government’s reply. In the Committee’s view, this practice does not promote collective bargaining and should be avoided.
10. 1005. The Committee observes that, in this case, as in previous cases concerning Peru, bargaining on provisions that imply increases in remuneration has run into significant difficulties in practice, and also that the applicable standards require further clarification (for instance, the state grants general bonuses to its employees). The Committee observes that, in this case, the arbitration requested by the complainant with regard to the list of demands for 2011–12 did not take place and that the bargaining process extended beyond the period it was intended to cover (as can be seen, for example, from this case and from the Government’s statements regarding the date of the arbitration award for the 2008–09 list of demands). The Committee observes that arbitration in public bodies is covered by a 2011 ministerial resolution that allows for arbitration if the union cites lack of good faith. The Committee invites the complainant to make use of this mechanism, if it still wishes to do so.
11. 1006. More generally, while pointing out once again the difficulties and problems encountered in collective bargaining in the public sector, the Committee considers that these difficulties and problems should be dealt with through tripartite dialogue, and invites the Government to establish such dialogue as a means of improving the system of collective bargaining in public administration and overcoming difficulties in remuneration, along with other difficulties and problems that, as this case illustrates, arise in practice. The Committee reminds the Government that technical assistance is available from the ILO, if it wishes to make use of it.