Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 371, Mars 2014

1. 733. The present complaint is contained in a communication from the Central Mixed Trade Union of Workers in Enterprises providing services to ESSALUD (SMCUTSERVICES) dated 30 October 2012.
2. 734. The Government sent its observations in a communication dated 5 July 2013.
3. 735. 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. 736. In its communication dated 30 October 2012, the SMCUTSERVICES alleges that the public employer ESSALUD has been provoking large-scale dismissals with a view to reducing the membership of the union. The complainant organization refers to the dismissal of Gustavo Roger Ospinal Rivadeneyra, labour defence secretary of SMCUTSERVICES in the Alberto Sabogal Hospital, who began working there in January 2007 and whose employment relationship was terminated on 15 August 2012.
2. 737. The union refers to numerous dismissals in several hospitals of workers recruited under the terms of the Act respecting labour supply work that is non-permanent and not principally for the enterprise, although in practice those requirements are not met, for which reason the labour inspectorate acceded to the request to monitor these cases of abuses of rights. Cases have also been denounced to the labour inspectorate concerning deception or fraud in relation to temporary contracts (the legislation provides that they are considered to be without limit of time if the employment relationship continues).
3. 738. The complainant organization alleges that, despite decisions by the Ministry of Labour and Employment Promotion (following interventions by the labour inspectorate) concerning the various enterprises suggesting that the workers concerned should be integrated into ESSALUD, the latter has terminated the employment of 1,200 workers (the complainant provides names of 100 workers in various hospitals).

B. The Government’s reply

1. 739. In its communication of 5 July 2013, the Government reports the indications by ESSALUD that: (1) Gustavo Roger Ospinal Rivadeneyra does not and has not worked for ESSALUD and that he had provided services under a labour supply arrangement, that is as an employee of a third enterprise which was responsible for his recruitment and dismissal; and (2) that ESSALUD has not been in violation of freedom of association.
2. 740. The Government adds that the cases denounced by the complainant do not relate to violations of freedom of association, but to workers in an abusive labour supply situation. It adds that the Ministry of Labour and Employment Promotion has undertaken numerous inspections in enterprises and hospitals, where appropriate recognizing of the employment relationship of the workers concerned took place in cases where there have been breaches of the law. Accordingly, as a first step, the situations have been regularized of 118 workers, and inspections continue to be undertaken in enterprises used by ESSALUD. The Government provides information supplied by ESSALUD explaining that the irregularities had their origins in earlier administrative decisions, and that to give effect to the instructions of the labour administration a high-level commission has been established with a view to the adoption for the workers concerned of the system of administrative service contracts.

C. The Committee’s conclusions

1. 741. The Committee, in the first place, wishes to recall that its competence relates to cases of violations of freedom of association, and not cases of abuse of labour supply services or the misuse of temporary contracts, even though many workers may be affected, and that it is only competent to examine allegations made by the complainant union where a connection is established between such cases and the trade union membership or activities of the persons concerned. However, the Committee notes the action taken to regularize the workers who have been victims of the abuse of labour supply services and the establishment of a high-level commission. In this regard, the Committee wishes to draw the attention that in examining similar allegations it recalled that “it does not have the mandate and will not pronounce itself with respect to the advisability of recourse to fixed-term or indefinite contracts. Nevertheless, the Committee wishes to draw to attention that, in certain circumstances, the renewal of fixed-term contracts for several years may alter the exercise of trade union rights“ [see 368th Report, Case No. 2884, Chile, para. 213]. However, this was not the situation alleged in this case.
2. 742. With regard to the alleged dismissal on 15 August 2012 of Gustavo Roger Ospinal Rivadeneyra, labour defence secretary of the complainant organization in the Alberto Sabogal Hospital, the Committee notes that the Government has provided information supplied by the public institution ESSALUD according to which there has been no violation of freedom of association and that the abovementioned person was not and had not been a worker at the institution, and had provided services under a labour supply arrangement, that is as an employee of a third enterprise which was responsible for his recruitment and dismissal. The Committee regrets the lack of additional information from the complainant organization concerning its allegation, despite it being invited by the Office to provide such information in accordance with the established procedure. The Committee requests the complainant organization and the Government to indicate whether this union officer, who had been providing services since 2007, is covered by any of the regularization plans referred to by the Government for workers dismissed from enterprises related to ESSALUD (in cases relating to abuses of labour supply services), and whether any legal action has been initiated against his dismissal.