Rapport définitif - Rapport No. 383, Octobre 2017

1. 505. The complaint is contained in a communication from the National Union of Social Health Service Nurses (SINESSS) dated 16 September 2015.
2. 506. The Government sent its observations in communications dated 25 July 2016 and 11 April 2017.
3. 507. 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. 508. By a communication dated 16 September 2015, the complainant organization states that the Social Health Service of Peru (ESSALUD, hereinafter: the public entity) has violated the autonomy of the National Union of Social Health Service Nurses (SINESSS) by suspending, as from 15 June 2015, the deduction of the “special financial contribution for contingencies of termination, resignation or death” (CAEE), which was a compulsory payment to be made by all SINESSS members. The complainant states specifically in this respect that: (i) on 25 October 2012, the ordinary national plenary meeting of SINESSS delegates amended the union’s constitution, incorporating, through section 7(g), the establishment of the special retirement/death fund, on the basis of the principles of solidarity and welfare; (ii) at the ordinary national plenary meeting of November 2013, the regulations governing the special financial contribution were adopted; (iii) under section 4 of the regulations, it was agreed to establish a financial benefit self-financed on a solidarity basis by all union members, to be known as the “special financial contribution for contingencies of termination, resignation or death” (CAEE), the contribution taking the form of a compulsory payment to be made by all SINESSS members; (iv) the aforementioned decision was not the subject of any challenge and the regulations were adopted by the SINESSS extraordinary national plenary meeting of 3 July 2015; (iv) the aforementioned plenary meeting decided that there was no need for SINESSS members to provide written consent for the deduction of the CAEE; (v) accordingly, the public entity deducted the CAEE from SINESSS members on four occasions; and (vi) the public entity, by official letter No. 57-SGC-GAP-GCGP-ESSALUD 2015 of 15 July 2015, unjustly and unlawfully ordered the deduction of the CAEE from SINESSS members to be suspended.
2. 509. The complainant organization adds that, by tradition and custom, the public entity used to deduct the amounts determined by the SINESSS plenary from the union members without the need to obtain explicit permission from each member, which would have caused major operational difficulties for the union, since it had a national membership of 8,585 persons. On the basis of the above, the complainant asserts that the entity was guilty of interference in the functioning and administration of SINESSS, in violation of Convention No. 98 and the Labour Relations (Public Service) Convention, 1978 (No. 151), by disregarding the legitimacy of decisions taken by the ordinary and extraordinary plenary meetings of the union.

B. The Government’s reply

1. 510. In a communication of 25 July 2016, the Government forwarded the reply of the public entity, which states that: (i) pursuant to the decisions of the SINESSS ordinary and extraordinary national plenary meetings, the public entity deducted the CAEE in January, March, April and May 2015 for all workers who were members of SINESSS; (ii) on account of complaints from a number of SINESSS members and on the basis of subsection (c) of the third transitional provision of Act No. 28411 (National Budget Act), ESSALUD, by official letter No. 50-SGC-GAP-GCGP-ESSALUD-2015, requested the documents giving evidence of consent to the special deduction on the part of each of the unionized workers; (iii) further to a complaint filed with the National Labour Inspection Superintendency (SUNAFIL) by 216 women workers who were members of SINESSS, the labour inspector of the Lima Metropolitana branch of SUNAFIL, referring to the decisions of the Committee on Freedom of Association, instructed the public entity to refund all outstanding CAEE deductions to the female members of SINESSS who had not consented to such deductions; and (iv) on the basis of both domestic legislation and international labour law, the public entity, by official letter No. 57-SGC-GAP-GCGP-ESSALUD-2015, decided to discontinue automatic CAEE deductions from all SINESSS members.
2. 511. The Government also provided its observations regarding the allegations made by the complainant organization, indicating that: (i) the suspension of CAEE deductions by the public entity was primarily based on subsection (c) of the third transitional provision of the National Budget Act, which provides that “the payroll may only be modified through deductions established by law, by court order or by any other terms agreed to by the serving or former official and with the approval of the Director-General of the Administration or the person acting on his/her behalf”; (ii) the abovementioned suspension was also based on section 28 of Act No. 25593 (Collective Labour Relations Act), which provides that the employer, at the request of the trade union and with the written consent of the unionized worker, is obliged to deduct lawful ordinary and extraordinary union dues from pay where these are common to all union members; and (iii) the complainant’s reference to the need to respect traditions and customs is not relevant inasmuch as customs, as a source of law, cannot contravene an already established legal provision.
3. 512. By a second communication of 11 April 2017, the Government, adding to its previous observations, refers to the issuing of Supreme Decree No. 003-2017-TR, which came into force on 6 March 2017 and amends the regulations implementing the Collective Labour Relations Act. The Government states that: (i) before the entry into force of Supreme Decree No. 003-2017-TR, section 28 of the Collective Labour Relations Act had been considered as open to interpretation in such a manner that non-individual consent to make deductions was not excluded, and for this reason the public entity effected mass CAEE deductions in January, March, April and May 2015; (ii) with the entry into force of the abovementioned Supreme Decree, the terms of section 28 of the Collective Labour Relations Act are implemented, with section 16-A(a) incorporated into the regulations implementing the Collective Labour Relations Act, which explicitly stipulate that deductions of union dues from union members’ pay require the express consent of each member. The Government concludes that the decision of the public entity to suspend the automatic deduction of the CAEE from all SINESSS members is in full conformity with the legislation in force and that the solution of requiring each unionized worker to give explicit consent prevents any disputes from arising, both within the union and between the union and the employer.

C. The Committee’s conclusions

1. 513. The Committee observes that the present case refers to the discontinuation of the deduction of a special trade union contribution by a public entity in the health sector, which, according to the complainant organization, violates the union’s autonomy. In this regard, the Committee notes the complainant’s allegations that: (i) through various decisions of its ordinary and extraordinary plenary meetings in 2013 and 2015, SINESSS made provision in its regulations for the payment, by each of its members, of a “special financial contribution for contingencies of termination, resignation or death” (CAEE), for the purpose of financing a special fund in relation to retirement and/or death; (ii) for practical reasons, the SINESSS plenary decided that it was not necessary to have individual written consent to the deduction from its members; (iii) accordingly, the public entity deducted the CAEE payment from all SINESSS members in January, March, April and May 2015; and (iv) the public entity unlawfully ordered the suspension in July 2015 of the deduction of the aforementioned payment, thereby violating both the autonomy of SINESSS and the traditions and customs governing relations between the public entity and SINESSS.
2. 514. The Committee also notes the Government’s observations to the effect that: (i) the deduction of the CAEE at the beginning of 2015 by the public entity gave rise to a complaint made to the labour inspectorate by 216 women workers who were members of SINESSS; (ii) on the basis of the third transitional provision of Act No. 28411 (National Budget Act) and section 28 of Act No. 25593 (Collective Labour Relations Act), the public entity, by a decision of 15 July 2015, approved the suspension of the automatic deduction of the CAEE on the grounds that the union had not provided evidence of individual consent to the deduction; and (iii) on 4 September 2015, the labour inspectorate instructed the public entity to make a full refund of the deducted CAEE contributions. The Committee further notes the Government’s statement that the SINESSS decision is supported by the entry into force of Supreme Decree No. 003-2017-TR, which implements the provisions of section 28 of the Collective Labour Relations Act and expressly provides that deductions of union dues applied to union members require explicit consent from each member.
3. 515. With regard to the deduction of union dues, the Committee recalls that it has emphasized on many occasions that the withdrawal of the check-off facility, which could lead to financial difficulties for trade union organizations, is not conducive to the development of harmonious industrial relations and should therefore be avoided, and also states that the requirement that workers confirm their trade union membership in writing in order to have their union dues deducted from their wages does not violate the principles of freedom of association [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, paras 475 and 476].
4. 516. The Committee also recalls that, in a previous case brought by the same complainant concerning failure by the same public entity to deduct a special contribution regarding which the SINESSS plenary had decided that there was no need for individual consent from its members, the Committee had asked the Government to ensure that the public entity would continue to deduct union dues from SINESSS members who had requested it [see 358th Report, Case No. 2724, para. 826]. As part of the follow-up to its recommendations, the Committee had been informed by the Government that the public entity was continuing to regularly deduct union dues from SINESSS members [see 367th Report, Case No. 2724, para. 91].
5. 517. In the present case, the Committee observes that, as in Case No. 2724, the suspension by the public entity of the deduction of a special contribution recently established by the SINESSS plenary occurred further to the filing of complaints by union members and was based on the absence of explicit consent to the new deduction by SINESSS members. This being the case, and in the light of the principles set out above, the Committee considers that the decision of the public entity does not violate the principles of freedom of association and trusts that the public entity will continue to deduct ordinary and extraordinary union dues from SINESSS members who have requested it. The Committee therefore considers that this case does not warrant further examination.