Causes that determine the limitation of freedom of association in the public sector

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Summary

Freedom of association is of particular importance among the freedoms and rights that fall within the International Labour Organization (ILO) and the rule of law and the Constitution. Constitutes the foundation of any democratic society, allows workers to express their aspirations and places them in a better position in collective bargaining to restore the balance of power between the parties is a useful counterbalance the power of government to give workers the opportunity to participate in the development and implementation of economic and social policy. As the State being one of the entities while protecting one that should promote this fundamental right is not interested in giving effect to such devices such as the ILO Conventions and the Constitution, on the contrary, the right to freedom of association in recent years has tried to undermine with certain limitations preventing its proper development and exercise in the public sector.

ABSTRACT

Re-union freedom The unique dresses Importance Between the fundamental rights and freedoms That competition to the International Organization of the Work (ILO) and of a state Constitutional and Constitutional. It establishi the foundation of Democratic Any company, it Allows Workers to Demonstrate to the historical Aspirations, places it in Them Better Conditions in the collective bargaining on having restored the balance of forces Between the parts, it is to Useful counterweight of the power of the State Workers to Give to the The Possibility of Taking part in the production and the execution of the Economic and social politics. For What Being the one of the Protective State Entities and Simultaneously one of That They Must Promote Such a fundamental right, it Has Not Been Interested efficiency for Giving him to such device Since They Are to the Agreements of the ILO and the Constitution, on the Contrary, the union the right to freedom During The Latter years have tried to Be Reduced by good historical Preventing Certain Limitations Development and Exercise in the frame of the public sector.

Introduction

This article aims to establish those causes that limit freedom of association in the public sector because today the right to freedom is being eroded by the State through the enactment of legal rules that supposedly bring development to Public Administration, however, in its regulation implicitly points out certain limitations, which makes membership or access to a trade union for the workers who work for the state.

Thus in this paper will try to establish the causes that determine the limitation of freedom of association in the public sector also is examining security measures that protect workers belonging to a union, so we must make a brief study of this important law that has evolved internationally and nationally.

Therefore the work is designed as follows: freedom of association as a fundamental right and the exercise of freedom of association and their causes that limit. To do this we source all the necessary information, limiting ourselves only to our national legislation and doctrine would make a poor job because it has rarely been the subject of study, the right to freedom of association under the public sector, although, is a matter of legal significance because it is a fundamental right under the rule of law and democratic.

Freedom of association as a fundamental right

2.1. General notions

Since the seventies of the changes affecting the community and seem to envision the creation of a new social order cycle are evident. Thus, there is a new development model based on economic deregulation, downsizing the public sector, improving the competitiveness and openness to foreign markets (and still is discussed not having achieved the desired effects, especially in the social field), along with new forms of work organization that modify the structure of employment as a result of the use of new technologies and the need for new skills. Add to that an obvious change in the rules came to govern the labor market, to be considered (known relaxation), at least in principle, constraints to production and economic growth. (Martinez & Vega, 2001, p. 11).

In the workplace (economic and social), the emergence of the welfare state involves the development of safeguards to balance the existing balance of forces in any productive relationship, seeking essentially equal in order to ensure harmony and overcoming conflict that is, to balance the state’s action allowing equal access for all members of society to common services. (Martinez & Vega, 2001, pp. 11-12).In this area of state protection combined with freedom of action from a gender perspective, the concept acquires singular importance of human rights as it is as an ensemble of faculties and institutions which give expression to the demands of dignity, freedom and social equality, recognized as essential for the proper functioning of the state and, therefore, necessary to comply with the development of the whole human community. (Martinez & Vega, 2001, p. 12)

By nature, human rights have been classified into different aspects around the projection of man in society. Thus, after recognition (with the French Revolution) in a series of political and civil rights inherent in the role of citizen of every human being (zoon politikon while the conception of Aristotle), the conquests of the working class in a society class, generated the need to embody the highest level on a range of economic and societal issues that are the result of a joint action of the most disadvantaged and the scope of the liberal ideology itself able to overcome their social limitations. (Martinez & Vega, 2001, p. 12).

In the framework of collective labor relations, the new democratic societies recognize the strike, freedom of association and the right to collective bargaining as a fundamental basic rights, reflecting the centrality of collective value and balancing class and associations its means of action. (Martinez & Vega, 2001, p. 12).

* History of Freedom

Throughout the history of union activity, has championed the rights of workers and the adequacy of working conditions. But society has evolved, incorporating changes (not only progress has been made) at breakneck speed. Unfortunately, unions have not echoed this fast race and their demands are not best suited to the present historical moment.

The history of trade unionism and the evolution of freedom of association shows that this spread always extend to the organization itself and its activities, as aimed at the protection and promotion of professional interests. Freedom of association would be truncated if it would recognize only with respect to the individual and not also on the collective level, the union itself. (Krotoshim, 1979).

Freedom of association is the right person who has everything together in a union, and carry out associated with it. This consists of the following rights: the freedom to form unions, freedom to manage, organization, and the freedom to carry out the purposes of this. Most important sources are several policy instruments and the Constitution. (Rendon, 1994).

The collective freedom is indeed the most important element of freedom in general. As noted (Villavicencio, 2010):

“The protection of the union is the paramount element of freedom of association and the complement inseparable from individual freedom, since nothing will guarantee the right of workers to form, join, not join or leave a trade union if it is not going to enjoy sufficient autonomy to regulate their internal composition, operation and performance. For this reason, the collective freedom implies a ban on the state and employers to monitor or intervene in the life of the trade unions ”

As institutions that trade unions represent thousands or millions of workers are in themselves a source of social power that many governments seek to “control” through various mechanisms, often visible and some hidden. It is for this reason that the relationship between unions and governments should take care of any attempt to “intervention” from the powers that be.

* The Trade Union Law and Regulation International and National level

Freedom of association as a fundamental labor law that can be understood as “right of workers to form and join unions of their choice, and the right of trade unions and made the free exercise of the constitutional functions assigned to defend the interests of workers. ” (Palombo, 1986, p. 73).

Its importance has been that all statements and general international treaties on human rights that have been developed in the world, from the second post – war, have set out explicitly.

Among the principal of these we mention:

* I. Universal Declaration of Human Rights (art. 23.4). [1] The International Covenant on Civil and Political Rights (art. 22). [2]

* Ii. The International Covenant on Economic, Social and Cultural Rights (art. 8). [3]

* Iii. The OAS Charter (Art. 29) [4]

* Iv. The American Convention on Human Rights (art. 16) [5].

* V. International Labour Conventions of the ILO No. 87, 98, 135 and 151.

We know that the fact that freedom of association is recognized as a fundamental labor law by almost all international legal instruments does not mean that workers and trade unions are able to exercise without restrictions. Quite the contrary, to achieve this need, now more than ever, to strengthen their organization, but this is hampered and repressed by employers.

The defense of freedom of association warrants that workers and managers have a holistic view of content that the right engages in two main areas: individual and collective. In this way, they can refine their strategies of action in each of these areas.

A variety of legal sources that aim to enable freedom of association. Starting with our supreme law is the Constitution of the State to (Art. 28 inciso1) [6] and (Art. 42) [7] In the lower-level rules is established by Legislative Decree 276-Base Act Civil Service and Public Sector Pay-in (Art. 24) [8], in Law No. 24029 as amended by Law No. 25,212, Law Faculty, at (art. 13 ~n) [9], in Law No. 27,337-Code of Children and Adolescents-at (Art. 66) [10], in Supreme Decree N o 010-2003-TR-Law Collective Labour Relations, at (Art. 2) [11 ], and additionally, are the rules contained in the Civil Code relating to associations (Art. 80 et seq.), all of them and among others are designed to recognize workers’ right to unionize without permission and to protect this right, while encouraging the free exercise thereof.

* The Right of Association of Public Servants

The ILO Convention 151 “Concerning the Protection of the Right to Organise and Procedures for Determining Conditions of Employment in Public Administration”, was specifically ratified by Peru in the Seventeenth of General and Transitional Provisions of the Constitution 1979, entered into force on October 27, 1981, with the force of law of the Republic and its provisions are applicable to all persons employed by the government (and thus also to the Magisterium), on matters such as Protection of the Right to Organise, facilities to be granted, and procedures for determining conditions of employment and conflict resolution. (Malpass, 2007)

As for the unions of public servants, they are an explicit recognition in the Constitution, in Article 42, which says “It recognizes the right to organize and strike of public servants are not covered by state officials with power decision and in positions of trust or management, as well as members of the Armed Forces and National Police. ”

This constitutional provision has its legislative development in the rules infra, such as Supreme Decrees No. 03-82-PCM and 026-82-JUS (rules partly in force), Law 27556 – Law Creating the Register of Trade Unions of public servants and the Supreme Decrees. No. 003-2004-TR, which requires these unions can register with the Registrar of Trade Unions of Civil Servants – ROSSP, by the Registrar General Branch and Expertise of the Ministry of Labour and Employment Promotion for all legal purposes, being understood as a labor or trade union purposes, not mentioning these standards whether or not registration in the Public Records for civil purposes, like trade unions of private servers, so we have a gap in the law, and specifically to a regulatory vacuum. (Ramirez, s / f).

The Registrar of Trade Unions of Public Servants (ROSSP) was created by Law 27,556 (published on November 23, 2001) in the Ministry of Labour and Employment Promotion. The Act states that “The registration of a union is a formal act of incorporation and gives no legal status.” Regulation of Law 27556, approved by Supreme Decree No. 003-2004-TR states that the ROSSP is in charge of the Records Branch General and expertise, and establishes the procedure for registration in the register, its constitution of the payroll of the first board, the status of the complete list of its members, acts to change its statutes and changes of the members of the board. (Malpass, 2007)

The exercise of freedom of association and their causes that limit

3.1. The Exercise of Freedom of Association in Peru

Freedom of association and the right of association recognized by Article 28, subsection 1 of the Constitution and interpreted according to the Fourth Final and Transitory Provision of the Constitution, impose the obligation of states to adopt the measures necessary and appropriate to ensure that workers and employers the free exercise of trade union rights and prevent any act of discrimination aimed at undermining freedom of association, such as conditional employment of a worker who does not join or to relinquish membership of a trade union or dismiss workers or prejudice in any way because of union membership or participation in union activities outside working hours or, with the consent of the employer, within working hours. [12]

In the same lines, it made it clear that freedom of association is not only an individual dimension, on the establishment of a union and its membership, but also a plural or collective dimension is manifested in trade union autonomy and legal personality [13].

3.2. Causes that limit the exercise of Freedom

As we know the general objective of national and international instruments is to ensure the protection of the interests of workers. But the state has not taken much notice of such devices, therefore, sought to undermine with certain limitations for its smooth conduct, imposing rules that violate the right to freedom of association to discriminate against workers of their rights through labor, and workers on temporary contracts governed by Legislative Decree 276 does not have rules governing their right to freedom of association: the case of dismissal if a worker joins a union, the workers who have not passed the probationary period not can unionize, to form a union is required at least 20% of workers in the distribution, public labor unions can only join federations or confederations of public workers, there is no established minimum standards of facilities for exercise freedom of association (permits or licenses), among others.

Also something to keep in mind some of the limitations, prohibitions are therefore public officials, like all workers without distinction whatsoever, have the right to establish organizations of their choice and join them, without prior authorization for the promotion and defense of their interests.

As we see, there are several causes that limit the exercise of freedom of association, which is why we will only touch some of them to refer to our topic, in advance looking for a proposal to try to address those causes that are imposed as an obstacle to exercise this fundamental right, such as the right to freedom of association.

3.3. The Exercise of Freedom and its Limitations in the Public Sector

Well, although there are registered trade unions in the public sector are a minority, of course that this is because the state does not encourage workers to organize unions, because, unlike promulgates and publishes laws limiting the exercise of the right freedom. First one is the Legislative Decree No. 1057.

But the judiciary has already issued several statements on the CAS, disqualified as a procurement regime to violate the constitutional rights of workers.

A statement was issued the Civil Court of Cajamarca to meet No. 2008-1703 Exp. Here, the court considered that it is constitutionally permissible to ignore the dignity of the worker to understand the CAS regime, because when there is a relation derived from a personal services, subject to and paid, operates the presumption contained in the Law of Productivity and Competitiveness, which forms a block of constitutionality, to qualify for the CAS as an employment relationship.

Thus we see that the state imposed discrimination rules that labor rights are not recognized as such and makes it difficult for workers to associate and thus prevail and assert such rights under domestic law and international treaties [ 14]

As we consider that, although the collective rights of labor, are not regulated by Legislative Decree No. 1057, does not rid the CAS flying its ownership since the TC recognizes the regime CAS and labor [15] standards need to develop the relevant procedure to ensure their effective exercise.

We have the rules of the Legislative Decree 1025 – Legislative Decree Adopts Standards of Training and Public Sector Performance [16] which states in Article 20 paragraph five: “The Office of Human Resources, develop a training plan to address issues staff evaluated the performance category Personal subject to observation, to ensure an appropriate job training or updating. If, having received this benefit, the person in the service of the State was assessed a second time as income subject to personal observation, personnel will be classified as proven inefficient, constituting just cause resulting in the termination of employment or contract or termination of the race, as appropriate. ”

That analyzed this rule may be very conducive and productive for the institution, but in a country like ours, where insecurity is at least missing, and is always conditioned by successive governments to depart from a clear assessment regarding workers, and thus often lead to fraud, and seeking his disqualification as a pretext to fire on all those union workers who exercise their right to organize, thus imposing a limitation and weakened in its action.

Another standard, as grounds for limiting the right of freedom of association is the temporary employment, as established by Legislative Decree No. 1026-Legislative Decree Establishing a Special System Optional for regional and local governments wishing to implement Modernization Processes Institutional Integral [17] as prescribed in Article 5, subsection a, which states “As part of the process of institutional modernization, regional or local government may make changes in the organization, processes and staff referred to in the Record, which may include the following: a) Incorporation of new professional and occupational groups Professional Officer, via competition and through temporary contract of 3 years renewable, provided that the institution has to budget availability. ”

Well, not having a residence within an employment relationship, makes it difficult to exercise collective bargaining rights, it is logical, it is useless organize unions if within a specified period will be dismissed, so that every worker will not be found with the aim to meet and form a union to try to improve conditions in their workplace, since you always have in mind the precariousness of that institution works, originating in this way a cause of limitation for the exercise of freedom association.

3.4. Important Issues to Protect the Right to Freedom

We must consider that the state is the only employer in the various entities of Public Administration. And in an infringement on the exercise of freedom of association against the workers subject to the labor groups, are resorted to legal norms such as Article 4, subparagraph 6) of Law N o 27584, which governs the administrative proceedings in which provides that the administrative proceedings on the staff under the civil service be challenged through administrative proceedings. Consequently, the Constitutional Court considers that the normal way to resolve individual claims for legal disputes arising from the application of labor laws is public administrative proceedings, as it allows the reinstatement of fired workers and provides for the grant of interim relief. (Rivera, 2008).

Indeed, if under the labor laws public (Legislative Decree No. 276, Law No. 24041 and special schemes for civil servants subject to the civil service) and administrative proceedings can be the replacement, then the consequences arising from the dismissal of public officers or staff without such condition works to the public sector (Law No. 24,041) should be clarified in the legal action be the ideal administrative.

Similarly, the process will be under the appropriate route for cases involving dismissals of civil servants whose cause is, union membership or union office for discrimination, in the case of women for motherhood, and the physical condition prevented or mental.

The Constitutional Court considers that failure to do so, the process of replacing end under ordinary legal processes such as labor and administrative litigation, with its attendant inefficiencies, thus distorting its essence, characterized by their urgency, extraordinary, and residual summary.

Given this reality, trade unions should be aware that there are valid mechanisms to achieve effective exercise of this right. Although these mechanisms do not guarantee the complete overcoming of the violations suffered by the right to freedom of association, do constitute an important support to pressure governments and well developed to support the struggle to defend union rights labor.

Suggestions

* 1. Peru, part of the development of a free market economy in which state action is manifested as a body which regulates but does not intervene, you must find a harmony of interests between the collective mass of workers and Public Administration. The state must always promote the exercise of fundamental rights in the public sector scheme, within the framework of harmony and common prosperity beneficial to the community.

* 2. It is clear that there are restrictions, visible or hidden for the full exercise of freedom of association. This situation requires that unions rethink their strategies for asserting workers’ rights, while taking advantage of all the spaces for that purpose. One of these areas is provided by the Committee on Freedom of Association, which establishes the procedures necessary to allow channel complaints about violations of freedom of association. While this instance of the ILO is not a decision, if it can significantly push the offending States.

Conclusions

* 1. The freedom of association does not pass a good time, even if it might be said that never had a good time because the exercise of freedom of association was not very streamlined, and this is because it is very difficult to join or become in a union within the Civil Service.

* 2. Freedom of association is regulated and protected in all jurisdictions, but will not help if workers do not apply to protect their own interests, we believe that depend on them to enforce such rights, beginning with the dignity of workers as recognized by our State Constitution in his article.

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