Rapport définitif - Rapport No. 354, Juin 2009

1. 1037. The complaints are contained in a communication from the Single Union of Peruvian Education Workers (SUTEP) and the General Confederation of Workers of Peru (CGTP) dated 10 July 2007 and in a communication from the National Federation of Education Administrative Workers (FENTASE) dated 31 July 2007. FENTASE sent additional information in a communication dated 21 September 2007.
2. 1038. The Government sent its observations in communications dated 26, 28 and 30 May, 30 December 2008, and 18 and 20 February 2009.
3. 1039. 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 complainants’ allegations

1. 1040. In their communications dated 10 and 31 July 2007, the SUTEP, the CGTP and the FENTASE object to Act No. 28988 published in the Official Journal of 21 March 2007. This Act: (1) declares regular basic education an essential public service and makes the state administration responsible for adopting measures to ensure the relevant services, and (2) provides that such declaration “shall not affect the constitutional rights of workers or the workers’ rights recognized by international treaties” (section 2). Finally, it provides that implementing regulation shall be issued within 30 days of the Act entering into force (section 4).
2. 1041. On 3 July, the Government issued Supreme Decree No. 017-2007-ED regulating the Act. The provisions of this Decree include the following:
   • – Its purpose is to regulate measures designed to ensure the continued provision of the education service in public educational institutions in the case of a work stoppage by the managerial, teaching, auxiliary, administrative and service staff.
   • – A “work stoppage” is defined as any form of suspension of the education service in educational institutions by a unilateral decision of the staff concerned, regardless of the reason given, how it is termed and the manner in which it is carried out. Furthermore, it states that a strike or any other type of interruption in the service concerned carried out following a unilateral decision by the staff concerned, regardless of how it is termed, which does not constitute the exercise of the right to strike declared in accordance with the requirements laid down in its text shall constitute “irregular and illegal forms of suspension of the education service”.
   • – It provides that the National Register of Substitute Teachers, created by Ministerial Resolution No. 080-2007-ED, is a register of professionals who are qualified to provide the education service in the event of a work stoppage. Within 24 hours of an announcement of a work stoppage or of an unannounced stoppage, the principals of the public educational institutions shall, under penalty of administrative responsibility, request that professionals listed on the National Register of Substitute Teachers be hired in sufficient number to ensure the continued provision of the education service.
   • – It provides that the staff may exercise the right to strike during the school year only through their respective trade union organizations. The trade union organizations are required to have legal personality and be registered in the Register of Trade Union Organizations of Public Servants (ROSSP) of the Ministry of Labour and Employment Promotion in order to initiate the process of declaring a strike to the authorities in the education sector.
   • – It states that the Ministry of Education shall examine and issue a decision on the declaration of strike.
   • – It provides that a decision to call a strike shall be communicated by the respective trade union organization to the relevant decentralized education management authority, at least ten working days in advance, together with: (1) details concerning the scope of the strike, the reason, its duration and the day and time set for its start; (2) a copy of the voting record which clearly shows that the decision was adopted in the manner expressly laid down in the constitution of the trade union concerned, and that this decision represents the will of the majority of its members included in its scope. With regard to trade union organizations whose assembly is made up of representatives, the decision shall have been adopted in an assembly expressly convened and ratified by their rank and file members; (3) a copy of the assembly record, which shall be approved by public notary or, failing that, by the Justice of the Peace of the town; (4) the names of the managerial, teaching, auxiliary, administrative and service staff of the public educational institutions who will continue working to ensure the continuity of the services and activities in the educational institutions concerned; and (5) a sworn statement of the executive committee of the union concerned that the decision was adopted in accordance with the requirements laid down in paragraphs (b) and (c) of section 18.
   • – The strike shall be declared illegal by the Regional Directorate of Education or by the Ministry of Education if, for example, it is staged without the union concerned having notified the decentralized education management authority of the decision to call a strike; if it is held despite the fact that it has been declared inadmissible; or if it involves any irregular form of suspension of the education service such as a strike or any other type of interruption in the service concerned, by a unilateral decision of the staff.
   • – If the strike is declared illegal, the staff shall return to work, failing which they shall be guilty of serious misconduct and shall be liable to the relevant sanction.
3. 1042. According to the complainants, these legislative provisions issued by the current Government violate Article 3 of Convention No. 87 given that education services may not be regarded as an essential service. The determination of minimum services should involve not only the public authorities, but also the relevant employers’ and workers’ organizations. Moreover, irregular forms of suspension of the educational service shall not be regarded as illegal if they do not involve violence towards property and persons and a strike may not be evaluated and controlled by a government authority, let alone one that is involved in the dispute, as is the case in public education.
4. 1043. Finally, the complainant organizations point out that the use of a register for the replacement of workers who suspend work constitutes a serious violation of freedom of association, given that this measure renders the exercise of the right to strike ineffective, especially where, as in this case, the legality of the strike is in the hands of the very authority involved in the dispute.
5. 1044. In its communication dated 21 September 2007, FENTASE objects to Ministerial Resolution No. 0332-2007-ED which declared the national strike staged on 10 July 2007 inadmissible. The declaration that the strike was inadmissible is based on Act No. 28988. Furthermore, it alleges the application of Decree No. 010-2003-TR, the amended consolidated text of the Collective Labour Relations Act, which contains requirements for calling a strike which are impossible to fulfil in practice.

B. The Government’s reply

1. 1045. In its communications dated 26, 28 and 30 May 2008, the Government states with regard to the issue of Ministerial Resolution No. 0332-2007-ED that it should be taken into account firstly that, in accordance with the provisions of article 28 of the Political Constitution of Peru, the right to strike shall be exercised in line with the social interest. In this context, on 21 March 2007 Act No. 28988 was published, which defines regular basic education as an essential public service, in order to ensure the full exercise of the fundamental right of the person to education, a right recognized in the Political Constitution of Peru, in the General Education Act and in the international agreements concluded by the Peruvian State.
2. 1046. Moreover, in accordance with the provisions of section 86 of the amended consolidated text of the Collective Labour Relations Act, approved by Supreme Decree No. 010-2003-TR, strikes carried out by workers covered by the labour conditions of the public sector are subject to the regulations contained in that text. In that regard, under section 73(c) of the same amended consolidated text, the employer and the labour authority shall be notified of a decision to call a strike at least ten working days in advance when the strike concerns essential public services and under section 82, when the strike affects essential public services, workers involved in a dispute shall ensure that the staff required to prevent the total interruption of the service and ensure the continuity of the necessary services and activities remain in their posts. Consequently, the FENTASE was under the obligation to notify the employer and the labour authority of the decision to call a strike at least ten working days in advance and ensure that the staff required to prevent the total interruption of the service and ensure the continuity of the education service in the educational institutions providing regular basic education remained in their posts. Given that FENTASE did not comply with this obligation, the strike was declared inadmissible.
3. 1047. With regard to Act No. 28988, which declares regular basic education an essential public service, the Government adds that the text of this instrument in no way affects the constitutional rights of workers or the workers’ rights recognized by the international conventions and treaties ratified by the Peruvian Government. The aim of this Act is to grant the Ministry of Education the power to prevent pupils at the initial, primary and secondary levels from missing classes due to a strike or work stoppage by teachers. Moreover, the declaration of regular basic education as an essential public service is intended to ensure continuity of the education service, with the exception of school holidays, in the public educational institutions providing regular basic education, as a result of which the principal and vice-principal of these educational institutions must remain in their posts.
4. 1048. In that regard, the Ministry has the power to ensure that public schools never close, that the class schedule is followed and that classes actually take place. Consequently, since FENTASE has not proved its assertion on this point, the Government considers that none of the standards of the ILO Conventions ratified by the Peruvian Government have been violated. In this regard, the Government indicates that if fails to see how declaring regular basic education an essential public service would violate freedom of association rights.
5. 1049. With regard to the creation of the National Register of Substitute Teachers, the Government points out that, in accordance with the provisions of section 7 of the Regulations issued under Act No. 28988, approved by Supreme Decree No. 017-2007-ED, this register was created under Ministerial Resolution No. 080-2007-ED as a register of professionals who are qualified to provide the education service in the event of a work stoppage by the managerial, teaching, auxiliary, administrative and service staff. According to the Government, the creation of the National Register of Substitute Teachers does not violate freedom of association rights.
6. 1050. With regard to Supreme Decree No. 010-2003-TR, the amended consolidated text of the Collective Labour Relations Act, which according to FENTASE contains requirements for calling a strike which are impossible to fulfil in practice, the Government reiterates its comments made in previous paragraphs on sections 86 and 73 of the amended consolidated text of the Collective Labour Relations Act. In that regard, the Government points out that in accordance with its comments in previous paragraphs concerning the Ministry of Education’s power to declare a strike legal or illegal, this power was already regulated in accordance with the provisions of the amended consolidated text of the Collective Labour Relations Act, approved by Supreme Decree No. 010-2003-TR. The Government considers that the requirements laid down for calling a strike in accordance with the provisions of section 73(c) of the amended consolidated text of the Collective Labour Relations Act, approved by Supreme Decree No. 010-2003-TR, are not impossible to fulfil and moreover the complaint dates from 2007 while the legislation dates back to 2003.
7. 1051. With regard to the legality of Supreme Decree No. 017-2007-ED which is the implementing regulation of Act No. 28988, the Government indicates that this Supreme Decree regulates measures designed to ensure the continued provision of the education service in public educational institutions which provide regular basic education at the initial, primary and secondary levels in the case of a work stoppage by the managerial, teaching, auxiliary, administrative and service staff. For the purposes of these Regulations, a work stoppage by these staff in public educational institutions which provide regular basic education at the initial, primary and secondary levels is understood to mean any form of suspension of the education service in those educational institutions by unilateral decision of the staff concerned, regardless of the reason given, how it is termed and the manner in which it is carried out.
8. 1052. In this regard, it should be pointed out that this instrument is consistent with the provisions of section 83(j) of the amended consolidated text of the Collective Labour Relations Act, approved by Supreme Decree No. 010-2003-TR, which provides that essential public services shall include other services as determined by law. Thus, the Collective Labour Relations Act allows other services to be added by law to the list of essential public services which does not include education (section 83). In that regard, when a strike affects essential public services, the striking workers shall ensure that the staff required to prevent the total interruption of the service and ensure the continuity of the necessary services and activities remain in their posts. Thus, the strike may not be total, since there must be a minimum contingent of workers present to prevent the interruption of the albeit restricted service.
9. 1053. Furthermore, it should be taken into account that the Collective Labour Relations Act also provides for restrictions on strikes held in non-essential public services, namely where it is necessary to ensure the continuity of “essential activities”, although there is no legal definition of such services. However, the ILO accepts that workers in certain non-essential public services may be subject to restrictions when a strike is called, such as requiring the continued provision of a “minimum service”. Finally, with regard to the statement made by the Director-General of the Legal Advice Office of the Ministry of Labour and Employment Promotion concerning the need to bear in mind that the ILO Committee of Experts on the Application of Conventions and Recommendations has defined essential public services as services the interruption of which would endanger the life, personal safety or health of the population and that in these cases the restriction of the right to strike is justified because of the priority given to the general interest over the private interests of striking workers, and that, consequently, the ILO Committee on Freedom of Association has expressly stated that the education service is not an essential public service.
10. 1054. The Government indicates that since the aim of education is to promote the full development of the person, the Political Constitution of Peru recognizes it as a fundamental right which ensures the development of the person, since it is a worthy activity which encourages personal growth. Consequently, the fact that education is a fundamental right means that the activity of implementing it and providing it, being linked to the dignity of persons, makes it an essential service for the coexistence and development of people in society. Furthermore, article 17 of the Constitution provides that education shall be free of charge and stipulates that the State has a duty to provide education at the initial, primary and secondary levels as a necessity and undertaking of the State. Finally, the Government mentions the international treaties under which education is recognized as a fundamental human right. In its communications of 30 December 2008 and 18 and 20 February 2009, the Government provided the decision of the constitutional tribunal holding that the constitutional complaint lodged against Law No. 29062, which modifies the legislation concerning the careers of public teachers, is unfounded. The tribunal’s decisions also noted that Law No. 28988 provides that education, generally, is an essential service and that minimum services must be provided for in case of strikes without affecting the essential content of this right. The Government indicated, in relation to the complainants’ allegations regarding the creation of the Register of Substitute Teachers, that the Register was created – in conformity with Law No. 28922 – by ministerial resolution in 2007 as a register of professionals who should be ready to provide educational services in case of a paralysis of labour in the education sector. The Government indicated that it does not understand in what way the creation of this Register violates freedom of association rights.

C. The Committee’s conclusions

1. 1055. The Committee observes that in the present case the complainant organizations object to the following, considering that they violate the principles of freedom of association with regard to the right to strike: (1) Act No. 28988 published on 21 March 2007 in the Official Journal, which declares regular basic education an essential public service; (2) Supreme Decree No. 017-2007-ED regulating Act No. 28988 (providing, inter alia, that the Ministry of Education or the Regional Directorate of Education may issue an opinion on the admissibility of a strike or declare a strike illegal and creating the National Register of Supply Teachers to replace teachers on strike); and (3) Resolution No. 0332-2007-ED which, in accordance with the challenged Act No. 28988, declared the National Strike staged on 10 July 2007 by FENTASE inadmissible and Decree No. 010-2003-TR, the amended consolidated text of the Collective Labour Relations Act, which, according to the complainants, contains requirements for calling a strike which are impossible to fulfil in practice.
2. 1056. The Committee notes that the Government indicates that: (1) with regard to Act No. 28988 which declares regular basic education an essential public service, this in no way affects the constitutional rights of workers or the workers’ rights recognized by the international conventions and treaties ratified by the Government, given that this Act is intended to grant the Ministry of Education the power to prevent pupils at the initial, primary and secondary levels from missing classes due to a strike or work stoppage by teachers. The purpose of declaring regular basic education an essential public service is to ensure the continuity of the education service, with the exception of school holidays, in public educational institutions providing regular basic education, as a result of which the principal and vice-principal of these institutions must remain in their posts; (2) Supreme Decree No. 017-2007-ED regulating Act No. 28988 regulates measures designed to ensure the continued provision of the education service in public educational institutions providing regular basic education at the initial, primary and secondary levels in the event of a work stoppage by the managerial, teaching, auxiliary, administrative and service staff; (3) for the purposes of the regulations concerned, a work stoppage by the managerial, teaching, auxiliary, administrative and service staff of public educational institutions providing education at the initial, primary and secondary levels shall be understood to mean any form of suspension of the education service in such institutions by unilateral decision of the staff concerned, regardless of the reason given, how it is termed and the manner in which it is carried out; (4) these regulations are consistent with the provisions of section 83(j) of the amended consolidated text of the Collective Labour Relations Act, approved by Supreme Decree No. 010-2003-TR, establishing that essential public services shall include services other than those listed as determined by law (when a strike affects essential public services, the striking workers shall ensure that the staff required to prevent the total interruption of the service concerned and ensure the continuity of the necessary services and activities remain in their posts); (5) with regard to the creation of the National Register of Substitute Teachers, in accordance with the provisions of section 7 of the Regulations issued under Act No. 28988, approved by Supreme Decree No. 017-2007-ED, this register was created under Ministerial Resolution No. 080-2007-ED as a register of professionals who are qualified to provide the education service in the event of a work stoppage by the managerial, teaching, auxiliary, administrative and service staff; and (6) with regard to Ministerial Resolution No. 0332-2007-ED, this was issued taking into account the provisions of section 86 of the amended consolidated text of the Collective Labour Relations Act, approved by Supreme Decree No. 010-2003-TR, which provides that strikes carried out by workers covered by the labour conditions of the public sector shall be subject to the provisions of that Act, as well as the provisions of section 73(c) of the same amended consolidated text which provides that a decision to call a strike shall be notified to the employer and to the labour authority at least ten working days in advance when it concerns essential public services; moreover, section 82 of the same text provides that where a strike affects essential public services, workers involved in a dispute shall ensure that the staff required to prevent the total interruption of the service concerned and ensure the continuity of the necessary services and activities remain in their posts. FENTASE was under the obligation to communicate the decision to call a strike to the employer and to the labour authority at least ten working days in advance and ensure that the staff required to prevent the total interruption of the service and ensure the continuity of the education service in the educational institutions providing regular basic education remained in their posts. Since it failed to fulfil this obligation, the strike was declared inadmissible.
3. 1057. The Committee recalls that basic education is not an essential service in the strict sense of the term namely, one which would endanger the life, personal safety or health of the whole or part of the population (the only services in which the right to strike can be prohibited or seriously restricted) but points out that it is acceptable in this sector to establish a minimum service which respects the following principles: “A minimum service may be set up in the event of a strike, the extent and duration of which might be such as to result in an acute national crisis endangering the normal living conditions of the population. Such a minimum service should be confined to operations that are strictly necessary to avoid endangering life or normal living conditions of the whole or part of the population; in addition, workers’ organizations should be able to participate in defining such a service in the same way as employers and the public authorities.” The Committee has stated, for example, that minimum services may be established in the education sector, in full consultation with the social partners, in cases of strikes of long duration [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, paras 610 and 625].
4. 1058. The committee observes that, following developments in legislation and the constitutional tribunal decision, the right to strike may be exercised in the education sector but minimum services must be maintained. Bearing in mind the principles set out in the preceding paragraph, the Committee considers that establishing a minimum service in the education sector is not contrary to the principles of freedom of association. However, the Committee observes that section 82 of the Collective Labour Relations Act grants the administrative labour authority the power to establish minimum services in the event of a disagreement between the parties concerned, in the case of a strike in essential public services. In this regard, the Committee observes that, following an analysis of the conformity of Peru’s legislation with Convention No. 87, in its 2008 observation, the Committee of Experts on the Application of Conventions and Recommendations noted that the Government indicated in its report that: (1) in September 2006, the Labour Committee of the Congress of the Republic entrusted the National Council for Labour and Employment Promotion (CNTPE) with the task of revising the General Labour Act, and (2) the CNTPE appointed to that end an ad hoc committee whose work was ratified by the CNTPE plenary meeting on 27 October 2006 and referred to the Congressional Labour Committee and that the draft is currently on the agenda of the Congress plenary for discussion.
5. 1059. The Committee recalls that “the determination of minimum services and the minimum number of workers providing them should involve not only the public authorities, but also the relevant employers’ and workers’ organizations. This not only allows a careful exchange of viewpoints on what in a given situation can be considered to be the minimum services that are strictly necessary, but also contributes to guaranteeing that the scope of the minimum service does not result in the strike becoming ineffective in practice because of its limited impact, and to dissipating possible impressions in the trade union organizations that a strike has come to nothing because of over-generous and unilaterally fixed minimum services [see Digest, op. cit., para. 612]. The Committee expects that the revision of the General Labour Act will be adopted and will be in full conformity with the Convention so that in the event of a strike in essential services the determination of minimum services and the minimum number of workers providing them involves not only the public authorities, but also the relevant employers’ and workers’ organizations.
6. 1060. With regard to Supreme Decree No. 017-2007-ED which regulates Act No. 28988 and provides inter alia that the Ministry of Education or the Regional Directorate of Education may issue an opinion on the admissibility of a strike or declare a strike illegal (sections 19 and 20), the Committee notes that the strike staged by FENTASE in the education sector was declared inadmissible by the administrative authority for failure to comply with the legal requirements laid down in the amended consolidated text of the Collective Labour Relations Act concerning the notification of the strike ten working days in advance when the strike concerns essential public services and the need to ensure that the staff required to prevent the total interruption of the service and ensure the continuity of the services remain in their posts. However, the Committee recalls that responsibility for declaring a strike illegal should not lie with the government, but with an independent body which has the confidence of the parties involved [see Digest, op. cit., para. 628]. In these circumstances, the Committee requests the Government to take the necessary steps to amend Supreme Decree No. 017-2007-ED regulating Act No. 28988, so that responsibility for declaring a strike inadmissible or illegal in the education sector lies with an independent body which has the confidence of the parties involved.
7. 1061. With regard to the creation of the National Register of Substitute Teachers to replace teachers on strike, mentioned in sections 7–10 of Supreme Decree No. 017-2007-ED regulating Act No. 28988. The Committee notes the Government’s statements that the Register of Substitute Teachers was created by ministerial resolution in 2007 as a register of professionals who should be ready to provide educational services in case of a paralysis of labour in the education sector. The Government indicated that it does not understand in what way the creation of this Register violates freedom of association rights. The Committee recalls that strikers should be replaced only: (a) in the case of a strike in an essential service in the strict sense of the term in which the legislation prohibits strikes; and (b) where the strike would cause an acute national crisis. In these circumstances, recalling that the basic education sector is not an essential service in the strict sense of the term (although as noted previously, minimum services may be established in the event of a strike and should be determined with the participation of the relevant workers’ organizations), the Committee requests the Government to take the necessary steps to repeal sections 7–10 (National Register of Supply Teachers) of Supreme Decree No. 017-2007-ED regulating Act No. 28988 and to focus its policy on effective observance of minimum services rather than on preparing lists of replacements for strikers.
8. 1062. With regard to the requirement to which the complainant organizations object, namely the obligation to notify the employer and the administrative labour authority of the decision to call a strike ten working days in advance in the case of a strike in essential services, in accordance with Supreme Decree No. 010-2003-TR, the amended consolidated text of the Collective Labour Relations Act, which declared the national strike staged on 10 July 2007 by FENTASE inadmissible, the Committee considers that the period established does not undermine the principles of freedom of association.