Report in which the committee requests to be kept informed of development - Report No 337, June 2005

Case No 2293 (Peru) - Complaint date: 06-AUG-03 - Closed

Allegations: Refusal by health and social security authorities to recognize SINACUT ESSALUD and excessive requirements for the deduction of trade union dues from wages

1124. The Committee examined the substance of this case at its November 2004 meeting and presented an interim report [see 335th Report, paras. 1216-1239, approved by the Governing Body at its 291st Session (November 2004)].

1. 1125. Subsequently, the National Trade Union of Health Social Security Workers (SINACUT ESSALUD) sent new allegations in a communication dated 4 January 2005.
2. 1126. The Government sent further observations in a communication dated 10 January 2005.
3. 1127. 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. Previous examination of the case

1. 1128. In its previous examination of the case, the Committee made the following recommendations [see 335th Report, para. 1239]:
2. (a) As concerns the freezing of salaries pursuant to Act No. 28034, to which the complainants object, the Committee notes that, according to the Government’s statements, this Act expired on 31 December 2003 since it was only applicable to the 2003 tax and budget year and that, according to PETROPERU S.A., negotiations are still being conducted with the unions to reach a collective agreement. The Committee recalls that if, as part of its stabilization policy, a government considers that wage rates cannot be settled freely through collective bargaining, such a restriction should be imposed as an exceptional measure and only to the extent that is necessary, without exceeding a reasonable period, and it should be accompanied by adequate safeguards to protect workers’ living standards.
3. (b) The Committee recalls that any limitation on collective bargaining on the part of the authorities should be preceded by consultations with the employers’ and workers’ organizations in an effort to obtain their agreement and hopes that in future the public authorities will be able to guarantee fully the right to collective bargaining in the public sector.
4. (c) As regards the new allegations presented by SINACUT ESSALUD concerning the non-recognition of that organization because it does not represent 20 per cent of all workers entitled to unionize, the Committee requests the Government to send its observations in this respect.
5. 1129. The allegations referred to in paragraph (c) of the recommendations were sent by SINECUT ESSALUD in a communication of 2 August 2004, and refer to a letter from the Central Human Resources Authority for Social Services dated 1 July 2004, in which the Secretary-General of SINECUT ESSALUD was given the following information:
6. Re: Recognition as a trade union
7. It is my duty to inform you of the following:
8. – In accordance with the provisions of article 9 of Presidential Decree No. 003-82-PCM, for a trade union of public officials to be set up and to exist, it must represent at least 20 per cent of the total number of officials entitled to unionize in the department concerned.
9. – According to the assessment carried out by this office, the association known as the National Trade Union of Health Social Security Workers (SINACUT) does not represent this number of officials within the system of public workers as a proportion of the total number of officials in that system employed by the institution at this time.
10. – Therefore, the association currently represented by you has not met the requirements laid down in the aforementioned Decree, which must be fulfilled for the trade union to be established and to exist.
11. – For this reason, we inform you that until you succeed in attaining the minimum legal number of members, applications relating to strikes, trade union dues, trade union leave, collective bargaining etc. by the association known as SINACUT will not be considered for processing, and, in general, the association will not be covered by institutional and legislative standards pertaining to trade union organizations.
12. B. New allegations by the trade union
13. SINACUT ESSALUD
14. 1130. In its communication of 4 January 2005, the National Trade Union of Health Social Security Workers (SINACUT ESSALUD) encloses a letter from the Central Director of Human Resources for Health Social Security dated 5 August 2004, which states the following:
15. Re: Procedure for deduction of trade union dues
16. Dear Sir or Madam,
17. I have the honour of writing to you to request that you inform this Central Authority and/or transmit information to it regarding increases and decreases in the number of workers affiliated to your trade union organizations. To this end, you must send the information electronically, in the established format, with the following enclosures:
18. – When new workers join, each trade union or association of workers under your auspices must attach the membership card (original) and a copy of the National Identity Document (DNI) of the worker.
19. – Furthermore, an appropriate affidavit by the General-Secretary of the union must be enclosed with the list of members, declaring the veracity of the information contained in the list in question.
20. – Each union under your auspices must add a copy of the time and date certificate [cargo] or the letter of application of the voluntary disaffiliation of a worker from that union, in order that the Central Authority, through the Compensations Subdepartment, may terminate deductions for that worker.
21. – Each union affected by a worker’s affiliation must enclose not only [a statement of] the express intention of the worker but also, where appropriate, a copy of the letter containing the relevant membership stamp and a copy of the [statement of] resignation of the same worker from the other union.
22. – Please note that the request for the aforementioned documentation is made in virtue of the provisions contained in section 46 of Act No. 27209, the Act on management of the state budget, and in section 4(a) of Presidential Decree No. 001-98-TR, which states that any deductions made from a worker’s wages shall be authorized by her/him. Where a worker does not approve the deduction, it shall not be made, and, if made, shall lead to the appropriate legal action for the recovery of improper deductions.
23. – Lastly, in accordance with Act No. 27806, as amended by Act No. 27927, the Act on transparency and access to public information, this institution will publish a list of all trade union members, as reported by the representative of each union, in the official periodical of ESSALUD.
24. 1131. The complainant organization finds these forms of registration for the deduction of trade union dues from workers’ wages to be in violation of trade union rights.
25. C. The Government’s reply
26. 1132. In its communication of 10 January 2005, the Government states that the organization SINACUT was entered onto the register of trade union organizations on 2 July 2004, and enjoys full legal personality. Thus, the union can oppose this acquisition of legal personality for reasons deemed appropriate by Health Social Security. The Government highlights the fact that the state of affairs to which the complainant objects, in citing the 1 July 2004 letter from Health Social Security, has since been altered with the registration of the complainant on 2 July 2004. With reference to the contents of the letter in question, the Government explains that it is not for the employer to verify fulfilment of the legal requirements for the establishment of trade unions in the public services; that is the duty of the registration authority.

D. The Committee’s conclusions

1. 1133. The Committee observes the complainant’s allegation that Health Social Security (ESSALUD) does not recognize the complainant (SINACUT ESSALUD), as well as the allegations of excessive requirements for the deduction of trade union dues from wages.
2. 1134. With regard to the first allegation, the Committee notes that it emerges from the allegations and the Government’s reply that the refusal to recognize the complainant organization on the part of ESSALUD (on the basis of a claim by ESSALUD that the union did not meet the legal minimum membership required by section 9 of Supreme Decree No. 003-82-PCM for public departments, of 20 per cent of the workers), as stated in the letter of 1 July 2004, related to a legal situation that has since changed, since on 2 July of that year, the competent authority entered the complainant on the register of trade unions. The Committee is satisfied to note this information. The Committee, however, requests the Government, in consultation with the employers’ and workers’ organizations concerned, to take the necessary measures so as to avoid obstacles to the establishment of trade unions in the public sector and to keep it informed in this regard.
3. 1135. As regards the allegation concerning the requirements made by ESSALUD to the union for the deduction of trade union dues from workers’ wages, the Committee observes that the Government has not sent its observations on this matter. In respect of such requirements as the demand that the union provide a copy of a worker’s identity document and her/his membership card (for new members), a list of members, an affidavit by the General-Secretary of the union stating the veracity of the list of members and a copy of an affiliated worker’s request to leave the union, the demand that a worker leave one union on joining another and the requirement for ESSALUD to publish the list of members in its official periodical, the Committee considers that all these requirements combine to violate the principles of freedom of association and underlines that, in deducting trade union dues from wages, ESSALUD should restrict itself to requesting evidence for members’ affiliation and disaffiliation. Furthermore, as regards ESSALUD’s plan to publish the list of trade union members in its official periodical, the Committee finds this practice particularly unacceptable; it has nothing to do with the deduction of trade union dues and, moreover, violates the privacy of union members. Under these circumstances, the Committee requests the Government to take steps to ensure that health and social security authorities comply with the criteria laid down in respect of the deduction of trade union dues from wages and to keep it informed of all measures taken in this respect.

The Committee's recommendations

1. 1136. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government, in consultation with the employers’ and workers’ organizations concerned, to take the necessary measures so as to avoid obstacles to the establishment of trade unions in the public sector and to keep it informed in this regard.
   • (b) The Committee requests the Government to take steps to ensure that health and social security authorities comply with the criteria laid down in respect of the deduction of trade union dues from wages and to keep it informed of all measures taken in this respect.