Definitive Report - Report No 365, November 2012

1. 624. The complaint is contained in a communication from the Union of Workers of the Salvadoran Institute for Rehabilitation of the Disabled (SITRAISRI) dated 30 May 2011.
2. 625. The Government sent its observations in a communication dated 22 October 2012.
3. 626. El Salvador has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and the Workers’ Representatives Convention, 1971 (No. 135).

A. The complainant’s allegation

1. 627. In its communication dated 30 May 2011, the SITRAISRI alleges that on 21 March 2011 it wrote to the National Department of Social Organizations of the Ministry of Labour and Social Welfare (as required under clause 1 of article 252 of the Labour Code, which stipulates: “All employers with workers affiliated to a trade union are required to deduct union dues and remit them to the union, provided the latter has provided it with a list of unionized workers, through the National Department of Social Organizations of the Ministry of Labour and Social Welfare, which must transmit the communication within five days”). The complainant requested that arrangements be made as soon as possible to deduct SITRAISRI members’ union dues.
2. 628. The complainant adds that on 30 March 2011 it was notified of a ruling handed down by the National Department of Social Organizations requiring the union to ascertain within three working days from the date of notification that the workers whose names appeared on the list it attached were indeed union members. On 31 March 2011 the union wrote to the National Department of Social Organizations of the General Labour Directorate claiming non-compliance with article 252 of the Labour Code.
3. 629. On 31 March 2011 the union wrote to the Minister of Labour and Social Welfare informing her of the problem that had arisen with the Chief of the National Department of Social Organizations, who was not following the rapid procedure provided for in the law and that so far nothing had been resolved. On 11 April 2011 the Ministry notified the union of its ruling of 5 April 2011 reiterating the requirement that it submit the relevant documents certifying that the workers whose union dues it wished to have deducted were indeed union members, for which purpose it granted a further deadline of three working days from the date of notification. Some days later, on 15 April 2011, the Ministry issued the following ruling: “the request presented by Nohemy Carmen Hidalgo Germán de Tochez is hereby declared irreceivable, and the request for deduction of union dues will have to be resubmitted”. The complainant objects to the refusal to deduct union dues on such whimsical grounds, for which there is no justification in the Labour Code, and which are prejudicial to the union’s interests. The Ministry’s ruling, which diverges from the criteria applied hitherto to such a request, is a violation of freedom of association, inasmuch as it unjustifiably prevents the union from obtaining the financial resources due to it, particularly since its 209 members are scattered about the country.

B. The Government’s reply

1. 630. In its communication dated 22 October 2012, the Government indicates that the Minister of Labour issued a resolution on 29 November 2011 ordering the deduction of union dues from the wages in favour of the complainant organization, in application of article 252 of the Labour Code.

C. The Committee’s conclusions

1. 631. The Committee observes that in the present case the complainant alleges that the Ministry of Labour and Social Welfare has made the deduction of union dues from a list of workers conditional on a requirement that is not provided for in the legislation (certification within three days that the workers whose dues the union asks to be deducted are indeed union members). The Committee observes that the complainant points out that article 252 of the Labour Code clearly stipulates that “all employers with workers affiliated to a trade union are required to deduct union dues and remit them to the union, provided the latter has provided it with a list of unionized workers, through the National Department of Social Organizations of the Ministry of Labour and Social Welfare (which must transmit the communication within five days)”. The complainant states that the Ministry’s position is an obstacle to the functioning of the organization, whose 209 members are scattered about the country. The Committee takes note of the points made in the Ministry of Labour and Social Welfare’s ruling of 5 April 2011 (which the complainant attached to its complaint), indicating that “the mere presentation of a list of names without documents attesting that the workers are members of the union and that they joined voluntarily, could undermine freedom of association in any number of ways if it were found that a worker was listed without the union itself having been consulted”.
2. 632. The Committee wishes to point out that both legislation which imposes accreditation or proof of affiliation of members of the trade union for their union dues to be deducted from their wages, and legislation which stipulates that it suffices for a union to submit a list of members for the union dues to be deducted, are compatible with Conventions Nos 87 and 135 ratified by El Salvador. In this particular case, the Committee observes that the complainant indicates that, in addition to failing to comply with the provisions of article 252 of the Labour Code (which requires only that a list be submitted – and not proof of affiliation), the Ministry has unilaterally modified the criteria and practice that have been followed in the past.
3. 633. The Committee notes the indication of the Government that the Minister of Labour finally ordered, on 29 November 2011, the deduction of union dues from the wages in favour of the complainant organization.