Last March, bill 07267/2023-CR (Draft) was presented in the Congress of the Republic, which proposes to repeal Law No. 30057, Civil Service Law (LSC), with the purpose of "guaranteeing the protection of the labor rights acquired and recognized in favor of state workers". The initiative is authored by Congressman Waldemar Cerrón and passed to the Commissions of Labor and Social Security, as well as Decentralization.
It is a project that proposes the repeal of the LSC because -according to its author- it weakens and leaves State workers unprotected since it seeks their dismissal, incorporates personnel evaluations and eliminates collective bargaining in salary matters.
It is impressive to note that the project exposes an alleged unconstitutionality of the LSC, when this discussion was settled by the Constitutional Court (TC) in up to four rulings. The first one (Exp. 018-2013-AP/TC), the second one known as Civil Service Law 2 case (Exp. 025-2013-PI/TC, 0003-2014-PFTC, 0008-2014-PI/TC and 0017-2014-PI/TC), the others contained in files 010-2015-PI/TC and 013-2015-PI/TC. These rulings ratify the constitutionality of the LSC, although it declared that some articles were contrary to the Constitution such as the exclusion of some entities in the new civil service regime; it also declared that collective bargaining should contemplate economic compensation. It ratified in one of the rulings that performance evaluation is not at odds with the Constitution, pointing out that "the evaluation of public servants operates as a basis for determining equal access to the civil service, as well as permanence and promotion in it, taking into account capacity and merit". What was established at the time by the TC leaves the legislative initiative without valid legal grounds.
It is pertinent to reaffirm the need of the LSC for the construction of a better administration that meets the great national challenges. Before the approval of the aforementioned law, Peru was ranked 17th out of 21 countries in the IDB's Civil Service Development Index, and only with the approval of the law in 2013 did we move up several positions in the indicator. This is due to the fact that the reform contemplates a series of positive elements: meritocracy, career system, elimination of regulatory dispersion, creation of a central authority of the civil service (which is the governing body of a HR management system), search for order over the heterogeneity of salary scales, recognition of families of positions for the specialization of the civil service, improvement of skills through constant training, constant evaluations, among other contributions.
The great challenge of the LSC has been its implementation, as it has not advanced at the speed required by this reform. To date, there are only 18 entities in the merit-based competition phase (ONP, OEFA, DEVIDA, MEF, APCI, SERVIR, OSITRAN, JUNTOS, OSINFOR, SUNEDU, among others) and approximately 500 entities preparing to enter the law in its various stages.
Recently, Legislative Decree No. 1602 of December 2023 has introduced a series of rules to accelerate the process, which has been further concretized with Directive No. 001-2024-SERVIR-GDSRH, Guidelines for the implementation of the civil service regime of the LSC. As of 2024, all Executive Branch entities will have up to 270 calendar days to transition to the civil service regime, for which they must send their CPE to SERVIR and the Ministry of Economy for approval. In order to reach this goal, the mechanism for the construction of the CPE has been streamlined.
The LSC implements the provisions of Article 39 of the Constitution, which stipulates that all public officials and workers are at the service of the Nation, and this reform is in line with the National Policy for the Modernization of Public Management, which points to the need to strengthen the capacities of civil servants (Prioritized Objective 2).
It is true that the LSC is far from being a panacea or a "magic solution" to the existing problems concerning the regime of personnel in the service of the State, since its definitive implementation will not solve, for example:
- The existence of persons who were initially hired on a temporary basis but who, by law, now enjoy an indefinite term in their contracts and who do not necessarily have the ideal professional profile to provide services to the State. This happened with many civil servants under the regime of Legislative Decree No. 1057 "CAS" in pandemic and also with service providers with contracts denaturalized due to the responsibility of the State.
- The multiplicity of special regimes or careers with their own regulatory and personnel management problems. This, with the important precision that, as a whole, the number of civil servants linked to special careers or regimes (school teachers, teachers of institutes and colleges, university teachers, health professionals, prison officers, diplomats, judges, prosecutors, police, military, among others) are more than those who have already transitioned or may transition to the LSC (personnel of the Public Administration subject to Legislative Decrees Nos. 276, 728 and 1057).
However, we must be aware that the LSC has meant "taking several steps forward" in the management of human resources of the Peruvian State compared to the situation prior to its publication.
In this regard, the Peruvian government must stop "shooting itself in the foot" with regulatory reforms and counter-reforms that have no technical basis.
Let's hope that there is good sense in Congress so as not to affect what is a great bet to build a better administration.
