Suites données aux recommandations du comité et du Conseil d’administration - Rapport No. 356, Mars 2010

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

1. 127. At its November 2008 meeting, the Committee made the following recommendations in relation to the matters which remained pending [see 351st Report, para. 160]:
   • The Committee again recalls that the right to hold meetings is essential for workers’ organizations to be able to pursue their activities and that it is for employers and workers’ organizations to agree on the modalities for exercising this right, and that the Labour Relations (Public Service) Convention, 1978 (No. 151), ratified by Peru, provides in Article 6 that such facilities shall be afforded to the representatives of recognized public employees’ organizations as may be appropriate in order to enable them to carry out their functions promptly and efficiently, both during and outside their hours of work and that the granting of such facilities shall not impair the efficient operation of the administration or service concerned. The Committee again requests the Government to invite the National Trade Union of Health Social Security Workers (SINACUT EsSalud) and the health social security authorities to conduct negotiations with a view to reaching an agreement on arrangements for exercising the right to hold meetings, including deciding the venue for trade union meetings. Furthermore, the Committee requests the Government to send its observations relating to the allegations recently submitted by SINACUT EsSalud [objecting to the rules for granting trade union leave].
2. 128. In its communication dated 25 January 2009, the National Trade Union of Health Social Security Workers (SINACUT EsSalud) alleges that, further to lodging an administrative appeal against Directive No. 013-GG-ESSALUD-2007 which arbitrarily regulated the granting of trade union leave at EsSalud, the directive was null and void in view of the fact that the authority issued no ruling on the appeal and in this case administrative silence signified tacit agreement under the terms of the legislation. EsSalud’s reply has been to deny that the directive is null and void.
3. 129. As regards the allegations referring to the refusal to grant facilities for SINACUT meetings on EsSalud premises, the complainant organization points out that the general secretariat of EsSalud, by means of official communication No. 268-SG-ESSALUD-2009 of 15 May 2009, made a pronouncement on the lodged complaint, indicating that it reaffirms the version issued by human resources central management, to the effect that premises for the exercise of trade union activities can only be made available if the institution has sufficient capacity, which is not the case at EsSalud, arguing that ILO Conventions Nos 87 and 151 establish only general provisions obliging companies or employers to provide the necessary conditions for the adequate performance of activities relating to collective representation.
4. 130. The complainant organization adds that EsSalud refused to grant trade union leave to Mr Julio Grissom Ávila to attend the UN Climate Change Conference with an international trade union organization, declaring that the abovementioned Directive No. 013 is binding. The complainant adds that it was customary also to allow attendance at non-statutory events and that a collective agreement of wider scope which allows such leave is applicable.
5. 131. In its communication of 30 November 2009, the Government forwards EsSalud’s observations on the issues under examination, as follows:
   • – As regards the refusal to grant trade union leave to SINACUT member Mr Julio Ávila to attend the annual UN Climate Change Conference from 1 to 12 December 2008, it should be noted that SINACUT EsSalud did not have an executive committee with a valid mandate, registered by the labour administrative authority, at that time. Regarding the representative capacity of the worker at the above event, union member Mr Julio Grissom Ávila Tamara was appointed under the relevant assembly agreement, but Peruvian legislation clearly states that only union officials have the authority to exercise a legal representative function, and this does not apply to the present case.
   • – As regards the discrepancy arising from the existence of a favourable collective agreement concluded with the CUT federation, whereby it was determined to approve trade union leave for the participation of delegates at national events and that cases not covered (for example, attendance at international events) would be determined by the EsSalud management in coordination with the union, it should be noted that the collective agreement in question states in its rules on trade union leave that it applies to the CUT federation without its scope extending to other union groups, thus regulating the subject of trade union leave according to the number of members in each primary union.
6. 132. Finally, the Government recalls that the complainant union has only 150 members.
7. 133. The Committee notes the information from EsSalud forwarded by the Government to the effect that: (1) there is no capacity for making premises available for the trade union; (2) administrative silence does not signify tacit agreement with respect to Directive No. 013-GG-ESSALUD-2007 regulating the granting of trade union leave since it is not an administrative act; and (3) the trade union leave requested for Mr Julio Ávila to attend the UN Climate Change Conference was not granted because he was not a trade union official (as required by Peruvian law) but a trade union member and the collective agreement referred to by the complainant union does not apply here. The Committee observes that the issues of facilities for trade union representatives in EsSalud and the exercise of the union right of assembly on EsSalud premises continue to be the subject of allegations. The Committee repeats its previous recommendations and again requests the Government to send EsSalud the recommendation that the parties reach an agreement on arrangements for exercising the right to hold union meetings and on conditions for the taking of union leave. The Committee expresses the hope that both parties will make efforts in this respect.