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Report in which the committee requests to be kept informed of development - Report No 358, November 2010

Case No 2724 (Peru) - Complaint date: 18-MAY-09 - Closed

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Allegations: The complainant organization alleges non-compliance with the collective agreement concluded with the State Health Service (ESSALUD), objects to the decision by ESSALUD to refund to union members the amounts deducted for union dues, using union funds for this purpose, and alleges that ESSALUD imposed sanctions on two union leaders for making statements to the press
  1. 798. The complaint is contained in a communication from the National Union of State Health Service Nurses (SINESSS) dated 18 May 2009. SINESSS sent new allegations in communications dated 21 August and 13 October 2009.
  2. 799. The Government sent its observations in communications dated 17 November 2009, 25 May and 20 October 2010.
  3. 800. 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

A. The complainant’s allegations
  1. 801. In its communication of 18 May 2009, SINESSS alleges non-compliance with a collective agreement concluded with the State Health Service (ESSALUD). The complainant organization indicates that ESSALUD is a public body attached to the Ministry of Labour and Employment Promotion that offers coverage to policy holders and their dependants through the provision of preventive, supportive and restorative health-care benefits and economic and social benefits under the contributory social health insurance scheme in Peru. SINESSS is a primary-level trade union organization which is duly entered and recorded in the register of trade union organizations of public servants of the Ministry of Labour, assembling and representing 8,000 nurses who work across the entire network of ESSALUD health establishments in all regions of Peru.
  2. 802. On 16 February 2002, the Government of Peru promulgated Act No. 27669 (the Nursing Act) and on 22 June 2002 it approved, through the Ministry of Health and by Supreme Decree No. 004-2002-SA, the regulations relating to Act No. 27669. These legal standards (section 19 of Act No. 27669 and section 17 of Supreme Decree No. 004-2002-SA, respectively) provided that and imposed regulations to the effect that the time spent on handovers (nursing reports) forms part of a nurse’s daily working hours. Prior to the promulgation of Act No. 27669 and its regulations as approved by Supreme Decree No. 004-2002-SA, nurses in all nursing positions were required at the end of a shift to spend time not considered to be part of the working hours on a change-of-shift handover, which would take 20–30 minutes and was intended to relay information on the status of the patients, equipment and property entrusted to their care during their time in a given department or work position, known as a “nursing report”. As this time was not considered to be part of the working day, this meant, in practice, that nurses were required to work hours in excess of those established by law, without these even being considered as overtime, which, in practice, constituted an act of discrimination with regard to other workers. This situation was corrected by the abovementioned legal provisions.
  3. 803. The complainant organization indicates that, during the collective bargaining process carried out in 2005, ESSALUD and SINESSS concluded a collective agreement on 26 May, comprising 22 points settling matters relating to the pay and working conditions of ESSALUD nurses. Point 9 of this agreement provided for the recognition of a 20-minute period for handover purposes (nursing report) in accordance with the provisions of section 19 of Act No. 27669 and section 17 of Supreme Decree No. 004-2002-SA. The collective agreement in question was approved by ESSALUD’s highest authority on 2 June 2005, by Executive Board Decision No. 390-PE-ESSALUD-2005. As a result of the collective agreement, the recognition of a 20-minute handover period as part of a nurse’s daily working hours has applied with effect from 16 February 2002 (when Act No. 27669 entered into force), as reflected in point 9 of the collective agreement; this continues to apply to date.
  4. 804. In implementing the collective agreement, and pursuant to the provisions of section 2 of Decision No. 390-PE-ESSALUD-2005, the general management of ESSALUD issued circular letter No. 058-GG-ESSALUD-2005 dated 8 September 2005. In this document, it is stated that: “As specified in letter No. 6252-GDP-ESSALUD-2005, given that the criteria established in the Act in question and its regulations (in reference to Act No. 27669 and Supreme Decree No. 004-2002-SA) include information not only with regard to patients, but also with regard to property and handovers between professionals, all nursing positions shall require a reporting system, taking into account that nurses other than those who take over outpatient care must submit a nursing report to the department head, supervisor or coordinator, as appropriate, and/or to the professional responsible for the establishment.” Similarly, by circular letter No. 57-GG-ESSALUD-2006, dated 13 November 2006, the general management of ESSALUD specified that letter
  5. No. 058 GG-ESSALUD-2005 remained applicable. The complainant organization indicates that, nevertheless, on 4 March 2009, ESSALUD issued Decision No. 217-GG-ESSALUD-2009, by which it approved Directive No. 002-GG-ESSALUD-2009 “Guidelines for preparing care schedules for health workers with and without professional qualifications in the care centres of the social health insurance system (ESSALUD)”. Section XIII of this directive, on nursing staff, states in paragraph XIII.3 that “the nursing report (20 minutes) is given within working hours and in the inpatient and intensive care departments …”.
  6. 805. According to SINESSS, through the abovementioned provision, ESSALUD has violated the collective agreement concluded with SINESSS by unilaterally limiting the recognition of a 20-minute handover period as part of the working day only to nurses who work in inpatient and intensive care departments, while point 9 of the collective agreement and circular letter No. 058-GG-ESSALUD-2005, dated 8 September 2005, implementing it, provide that the recognition of a 20-minute handover period (nursing report) as part of the working day is applicable for all nursing positions. This has meant the exclusion of nurses who work in the outpatient departments of health establishments and the reintroduction of working hours longer than those established by law for this group of nurses, which is illegal and discriminatory. This situation had been corrected and rectified by Act No. 27669 and its regulations (Supreme Decree No. 004-2002-SA), under which agreement was reached on point 9 of the collective agreement between ESSALUD and SINESSS.
  7. 806. The application of paragraph XIII.3 of Directive No. 002-GG-ESSALUD-2009 means in practice that nurses who work in outpatient departments have a working day of six hours and 20 minutes, which added together make a working week of 37 hours and 20 minutes and, consequently, a working month of 156 hours, which is in violation of the provisions of section 17 of Act No. 27669 (the Nursing Act) and its regulations as approved by Supreme Decree No. 004-2002-SA under which the nurses’ working hours shall not exceed 36 hours per week or the equivalent of 150 hours per month.
  8. 807. According to the complainant organization, it should be noted that, in accordance with point 9 of the collective agreement concluded between ESSALUD and SINESSS and the additional ratifying documents issued by ESSALUD from 2005 to date, a 20-minute handover period has been recognized as being part of the working day for nurses in all nursing positions, without exception, in the health establishments operated by ESSALUD, and for this reason the issuance of Directive No. 002-GG-ESSALUD-2009 and, in particular, its paragraph XIII.3 is a blatant violation of the collective agreement. In these circumstances, SINESSS submitted a complaint to the Chief Executive of ESSALUD and the Minister of Labour, requesting the annulment of Directive No. 002-GG-ESSALUD-2009, and specifically paragraph XIII.3, for violating the collective agreement, which was concluded in the form of a written undertaking dated 26 May 2005. In the absence of a reply to this complaint, SINESSS called a nationwide strike to be held for an indefinite period from 18 May 2009, involving more than 8,000 nurses working in 325 health establishments throughout the country.
  9. 808. In its communication dated 21 August 2009, SINESSS alleges acts of interference in the internal affairs of the trade union organization by the ESSALUD authorities. The complainant organization indicates that, pursuant to an agreement by the highest decision-making body of the trade union organization adopted under sections 8, 10(d), 24, 26 and 31(a) of its constitution, as reflected in the minutes of the national meeting of SINESSS stewards dated 13 and 21 May 2009, it requested by letter
  10. No. 285-S-ORG-CEN-SINESSS-2009 the deduction of members’ dues through a check-off system. These deductions were made from the July 2009 payroll, with the corresponding transfer of funds being made to the union. It is worth noting that, as such deductions are made pursuant to an agreement of the highest decision-making body of the union, the individual authorization of the nurses belonging to SINESSS is not required. According to SINESSS, the ESSALUD authorities, in a communication containing false and biased statements circulated to ESSALUD establishments across the country and in letter No. 3990-GCRH-OGA-ESSALUD-2009 to the union, have questioned and objected to the deduction of members’ dues. Furthermore, they have indicated that they will refund the amounts deducted from each of the members and, in this regard, have announced their unilateral decision to use the funds raised through regular contributions for this purpose. SINESSS, in letters Nos 236 and 237-S.DEF.CEN-SINESSS-2009, has contacted the General Manager and the Head of Human Resources of ESSALUD indicating its objection to this plan and pointing out that the ESSALUD authorities have neither the right nor the legal authority to evaluate, question, monitor or disregard acts pertaining to the internal affairs of the union (including requirements relating to financial deductions made by SINESSS from its members under its constitution and pursuant to the agreements adopted by the decision-making bodies of the trade union organization). SINESSS requested ESSALUD to refrain from taking such action, yet ESSALUD has ignored this request and committed its violation in August 2009.
  11. 809. In its communication of 13 October 2009, SINESSS indicates that the Peruvian newspaper El Comercio published a report in its 15 June 2009 edition alleging that disposable medical equipment was being reused in ophthalmic and laparoscopic surgeries performed at ESSALUD’s Edgardo Rebagliati Martins National Hospital, seriously endangering the health and lives of thousands of patients receiving care in that hospital. The complainant organization states that, given that the newspaper report made reference to the nurses at the Edgardo Rebagliati Martins National Hospital as the users responsible for operating and cleaning the disposable equipment and to the seriousness of the case, and after having filed a complaint with the authorities without receiving a response (thereby first of all exhausting the administrative channels involving the responsible officials), and with the aim of safeguarding the health of patients, SINESSS, through Ms Cecilia Grados Guerrero, the General Secretary of its National Executive Council, together with Ms Carmen Chávez Cabrera, the General Secretary of the Edgardo Rebagliati Martins National Hospital Nurses’ Union, called a press conference on 19 June 2009, with a view to confirming the newspaper report. At that conference, it was confirmed that disposable medical equipment was being reused, alerting the authorities and the public of this risk to the health of patients. Likewise, the limits of the nurses’ responsibility with regard to the hazardous practice of reusing disposable equipment were clearly defined.
  12. 810. SINESSS indicates that, on 7 August 2009, the ESSALUD authorities, by Management Decision No. 178-GAP-GCRH-OGA-ESSALUD-2009, ordered the initiation of administrative disciplinary proceedings against Ms Cecilia Grados Guerrero and Ms Carmen Chávez Cabrera, on charges of serious misconduct for having made statements to the press and making it public knowledge that surgical medical equipment was being reused in an ESSALUD hospital. SINESSS considers that this was inadmissible because the day after the complaint the ESSALUD authorities stopped the reuse of medical equipment at the national level, in particular at the hospital where this practice was widespread, indicating that the union was right. SINESSS adds that, on 28 September 2009, ESSALUD’s Standing Committee on Administrative Disciplinary Proceedings decided by a majority vote and against the workers’ representative, to impose a disciplinary sanction of a six-month suspension without pay against Ms Cecilia Grados Guerrero, General Secretary of the SINESSS National Executive Council, and a 12-month suspension without pay against Ms Carmen Chávez Cabrera, General Secretary of the Edgardo Rebagliati Martins National Hospital Nurses’ Union, charging them with serious misconduct for making their statements without the authorization of the ESSALUD authorities. They were accused of having breached the ban preventing public servants from expressing their views in the media with regard to state affairs, as is provided for under the legal regulations for public servants set out in Legislative Decree No. 276; they were also accused of having removed from the hospital the surgical medical equipment that was falsely used as evidence of the charges.
  13. 811. When imposing the disciplinary sanction, the ESSALUD authorities disregarded their status as union leaders and representatives of 8,000 ESSALUD nurses, in which capacity they had made their statements to the press, thereby violating the right to freedom of association as enshrined in the Constitution of Peru and in the ILO Conventions ratified by the Government of Peru. According to SINESSS, it is a matter of serious concern that this disciplinary sanction was imposed and implemented despite the recommendations made by the Ombudsperson, given that this constitutes a violation of the fundamental rights to freedom of expression, opinion and information and freedom of association, and the right to work of trade union leaders as enshrined in the Constitution of Peru. SINESSS claims that union leaders at the national and grass-roots levels are now facing harassment aimed at silencing any allegations that run counter to the political interests of government officials.

B. The Government’s reply

B. The Government’s reply
  1. 812. In its communications of 17 November 2009 and 20 October 2010, the Government recalls that the observations it has been requested to provide refer to a complaint made by SINESSS for violation of the collective agreement concluded between that union and ESSALUD. The Government states that it is important to note that article 28 of Peru’s Political Constitution guarantees the right to organize and to bargain collectively. Furthermore, as the Government of Peru has ratified ILO Conventions Nos 87 and 98, the provisions of these international instruments are binding on national territory.
  2. 813. The Government, referring to the legislation in force on the subject, indicates that Act No. 27669 (the Nursing Act), dated 16 February 2002, stipulates the following in relation to working hours and handovers: section 17: The working hours of a nurse shall not exceed 36 hours per week or the equivalent of 150 hours per month, including time spent on day and night duties. Paid rest for holidays not worked will be counted within the weekly or monthly caregiving hours in the manner provided for by the regulations. Section 19 provides: The continuity of nursing care requires change-of-shift handovers between professionals. Furthermore, the regulations relating to the Nursing Act, dated 22 June 2002, approved by Supreme Decree No. 004-2002-SA provide in section 17: The working hours of nurses shall not exceed 36 hours per week or the equivalent of 150 hours per month, including the time spent on day and night duties, in accordance with the applicable labour regime. Paid rest for holidays not worked will be counted within the weekly or monthly caregiving hours in accordance with the applicable labour regime. Section 19: The handover period is the time used by a nurse at the end of a shift to report to the nurse on the next shift on the situation of patients and any developments, as well as on the staff, property and other matters. The handover forms part of the working day ... .
  3. 814. The Government adds that, by official letter No. 105-GCRH-OGA-ESSALUD-2009, ESSALUD demonstrated that the complaint filed by SINESSS predated the issue of General Management Decision No. 855-GG-ESSALUD-2009 of 3 August 2009, approving the consolidated text of Directive No. 002-GG-ESSALUD-2009, which amended various aspects of the original directive. Paragraph XIII.3 thereof states as follows: “The nursing report (20 minutes) is submitted within working hours and applies to all nursing positions that involve caregiving work. Nurses other than those taking over outpatient care must submit the nursing report to the department head, supervisor, coordinator and/or professional responsible for the establishment, as appropriate.”
  4. 815. The Government states in relation to the actions of the labour administrative authority that the National Directorate of Labour Inspection reported that the inspections concluded that the subject of the inspection – ESSALUD – has, since the entry into force of General Management Decision No. 855-GG-ESSALUD-2009 of 3 August 2009, been complying with the collective agreement with regard to handovers (20-minute nursing report) in the cities of Lima, Junín, Piura and Loreto.
  5. 816. The Government states that Peruvian labour legislation governing freedom of association is consistent with the rules and principles of the ILO. Therefore, in accordance with ILO Convention No. 98, the legislation protects the right to organize and provides that the employer should refrain from any acts aimed at obstructing, restricting or undermining workers’ right to organize. Article 28 of the Political Constitution of Peru states that collective agreements are binding in the areas covered by their provisions. In accordance with this constitutional provision, section 42 of the amended consolidated text of the Collective Labour Relations Act, approved by Supreme Decree No. 010-2003-TR, reaffirms the binding nature of the collective agreement. This feature reflects the dual nature of the collective agreement, i.e. its binding aspect (which places obligations on the parties that adopted it) and its normative aspect (which places obligations on the persons on whose behalf it was concluded, to whom it applies or will subsequently apply). According to the Constitutional Court, which is the highest authority with the power to interpret the Political Constitution of Peru, the notion of “binding in the areas covered by their provisions” is considered to refer to the normative nature of the labour agreement. Binding implies that in the collective agreement the parties may establish the scope and limitations, or exclusions, that may independently be agreed upon in accordance with the law.
  6. 817. In its communication dated 25 May 2010, the Government states with regard to the deduction of SINESSS members’ dues through a check-off system that official letter No. 124-GCRH-ESSALUD-2009 from ESSALUD central human resources management indicates the following:
    • – ESSALUD was notified of the fines imposed on SINESSS members for failure to observe its statutes by letter No. 285-S-ORG-CEN-SINESSS-2009 so that the respective deductions from wages could be made. ESSALUD made the deductions and then the supporting documents were checked and found to include only the minutes of the national plenary assembly of stewards and not the individual authorizations from the workers concerned regarding the deduction of special dues that had been requested;
    • – ESSALUD received numerous complaints from SINESSS members stating that the deductions from their wages had not been authorized, that they were excessive and an undue burden on their family finances. These communications were received by phone and in writing;
    • – SINESSS was informed by letter No. 3990-GCRH-OGA-ESSALUD-2009 that, since a key legal requirement for payment by the check-off system had not been established, the deductions made would be refunded, and a deadline of 48 hours was imposed for rectifying the omission;
    • – according to ESSALUD, this personnel-related action does not constitute interference. On the contrary, it is strictly in line with the law (third transitional provision of Act No. 28411 (General Act concerning the national budget system) and section 28 of Supreme Decree No. 010-2003-TR (single consolidated text of the Collective Labour Relations Act), which state that the employer, at the request of the union and with the written authorization of the union member concerned, is obliged to deduct legal, ordinary and special trade union dues from wages);
    • – ESSALUD points out that the claim by SINESSS that individual authorizations from members of the union are not necessary when the union’s highest decision-making body (the national plenary assembly of stewards) has adopted a decision is completely unfounded and contrary to the regulations; and
    • – it is incorrect to claim that ESSALUD’s refusal to deduct the special dues, when no permission was given by the workers, has interfered in the decision-making of the union leaders.
  7. 818. The Government adds that the Lima–Callao Regional Directorate of Labour and Employment Promotion indicated in report No. 715-2009-MTPE/2/12.1 that:
    • – pursuant to inspection order No. 18058-2009-MTPE/2/12.3 ESSALUD was inspected in relation to freedom of association, and the investigations and checks undertaken established that 1,974 workers are SINESSS members, according to the payroll for September 2009;
    • – SINESSS provided the written authorization from the union members for the deduction of ordinary union dues (these being deducted as usual as shown in the payrolls and payslips for August 2009); however, as regards the deduction of special dues, the union did not present any evidence of written authorization from the nurses belonging to the union, and the inspected entity [ESSALUD] was therefore under no obligation to deduct special trade union dues from the workers’ wages;
    • – the terms of section 28 of Supreme Decree No. 010-2003-TR approving the single consolidated text of the Collective Labour Relations Act were not complied with. This piece of legislation applies to the statements made by SINESSS in its letter No. 329-S-ORG-CEN-SINESSS-2009 informing ESSALUD that membership affects the deduction of special dues, which it wishes to implement pursuant to the agreement adopted at the special national plenary assembly of stewards and ratified in a special plenary (since it is regarded as an agreement adopted by the highest decision-making body, it does not require individual authorization by the SINESSS nurses, which also contravenes article 51 of the Constitution, Article 8 of ILO Convention No. 87 and sections 10 and 27 of Supreme Decree No. 010-2003-TR); and
    • – in the light of the above, it should be pointed out that the inspections conducted at ESSALUD failed to reveal any infringements in the area of collective labour relations with respect to the 1,974 workers on the payroll for September 2009.
  8. 819. As regards the alleged acts of harassment and violation of the freedom of expression of the SINESSS leaders, the Government states that by official letter No. 175-SG-ESSALUD-2010 of 5 April 2010, ESSALUD provided information on the administrative proceedings in progress concerning Ms Irma Cecilia Grados Guerrero and Ms Carmen Chávez Cabrera, with specific mention of the following:
    • – the human resources general management partially upheld the appeal lodged by Ms Carmen Chávez Cabrera and Ms Irma Cecilia Grados Guerrero against Management Decision No. 229-GAP-GCRH-ESSALUD-2009 imposing on them the respective sanctions of a 12-month suspension without pay and a six-month suspension without pay. Amending the aforementioned decision, General Management Decision No. 1053-GCRH-OGA-ESSALUD-2009 imposed on both workers the disciplinary sanction of a five-month suspension without pay for misconduct, in accordance with section 28(a) and (f) of Legislative Decree No. 276 (Basic Administrative Career and Public Sector Remuneration Act), on the grounds set forth in the preamble to the aforementioned decision; and
    • – Ms Carmen Chávez and Ms Irma Grados instituted amparo proceedings (for protection of their civil rights) and an injunction was issued in their favour. They have now been reinstated.
  9. 820. Finally, the Government indicates that: (1) in line with the statements made by ESSALUD and the labour inspectorate, seeking individual authorization from the members of SINESSS with regard to the deduction of special union dues is in accordance with the law and in general with Peruvian regulations governing collective labour law; (2) by the latest decision issued by the ESSALUD human resources management, the administrative sanction imposed on Ms Irma Grados and Ms Carmen Chávez has been amended to a five-month suspension without pay. Moreover, both union representatives have instituted amparo proceedings, an injunction has been issued in their favour, and as a result they have now been reinstated; and (3) as regards ESSALUD’s lack of compliance with the collective agreement concluded on 26 May 2005, which provided for recognition of a 20minute period for handover purposes (nursing report), two out of the three inspections undertaken in the country have concluded that the requirement to include the time for submission of the nursing report within working hours is being complied with in all areas providing hospital care.

C. The Committee’s conclusions

C. The Committee’s conclusions
  1. 821. The Committee notes that in the present case the complainant organization alleges non-compliance with the collective agreement concluded with ESSALUD, objects to the decision by ESSALUD to refund to union members the amounts deducted for union dues using union funds for this purpose and alleges that ESSALUD imposed sanctions on two union leaders for making statements to the press.
  2. 822. With regard to the alleged non-compliance with the collective agreement between SINESSS and ESSALUD (specifically, it is claimed that, pursuant to a decision by ESSALUD in March 2009, the application of point 9 of the collective agreement with regard to the recognition as working time of a 20-minute handover period is incorrectly restricted to nurses working in inpatient and intensive care departments), the Committee notes the Government’s statement that: (1) the filing of the complaint predated the issue of a new ESSALUD decision dated 3 August 2009, which provides that the nursing report is submitted during working hours and applies to all nursing positions; (2) the Fifth Labour Inspection Subdirectorate issued an inspection order and the National Directorate of the Labour Inspection indicated that the inspections concluded that ESSALUD has been complying with the collective agreement since the entry into force of the decision of 3 August 2009 concerning handovers (20 minutes) during the working day in the cities of Lima, Junín, Loreto and Piura. Taking all this information into account and observing in particular that the administrative authority appears to be monitoring compliance with the collective agreement concluded between the parties, the Committee will not pursue its examination of these allegations any further.
  3. 823. As regards the allegation that ESSALUD decided to refund to union members the amounts deducted for union dues, using union funds for this purpose, the Committee notes the Government’s indication that ESSALUD made the following statements: (1) ESSALUD established that it had in its possession only the minutes of the national plenary assembly of stewards and not the individual authorizations from the workers concerned regarding the deduction of special dues that had been requested (section 28 of Supreme Decree No. 010-2003-TR provides that the authorization of the union members concerned is required); (2) ESSALUD received numerous complaints from SINESSS members, by phone and in writing, stating that the deductions from their wages had not been authorized and that they were excessive and an undue burden on their family finances; (3) by letter No. 3990-GCRH-OGA-ESSALUD-2009, SINESSS was informed that, since a key legal requirement for payment by the check-off system had not been established, the deductions made would be refunded, and a deadline of 48 hours was imposed for rectifying the omission; (4) this personnel-related action does not constitute interference but, on the contrary, is strictly in line with the law, and the claim by SINESSS that individual authorizations from members of the union are not necessary when the union’s highest decision-making body (the national plenary assembly of stewards) has adopted a decision is completely unfounded and contrary to the regulations. The Committee also notes the Government’s statement that ESSALUD was inspected, that on that occasion SINESSS provided the written authorization from union members for the deduction of standard union dues but, with respect to the deduction of special union dues, did not present any evidence of written authorization from the nurses belonging to the union, and that ESSALUD was therefore under no obligation to deduct special union dues from wages and hence no breach of labour legislation occurred.
  4. 824. The Committee recalls that on numerous occasions it has emphasized 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 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 edition, 2006, paras 475–476]. This being the case, the Committee requests the Government to ensure that ESSALUD continues to deduct union dues from the members of SINESSS who have requested it.
  5. 825. With regard to the allegation that the sanction of a six-month suspension without pay was imposed on Ms Cecilia Grados Guerrero, General Secretary of the SINESSS National Executive Board, and a 12-month suspension without pay was imposed on Ms Carmen Chávez Cabrera, General Secretary of the Edgardo Rebagliati Martins National Hospital Nurses’ Union, for their union activities, the Committee notes the Government’s statement that: (1) the human resources general management partially upheld the appeal lodged by the workers concerned against the sanctions that were imposed; (2) consequently, the decision in question was amended and the disciplinary sanction of a five-month suspension without pay for misconduct, in accordance with the Basic Administrative Career and Public Sector Remuneration Act, was imposed on both workers; and (3) the workers in question instituted amparo proceedings and an injunction was granted in their favour, as a result of which they have now been reinstated. The Committee notes that, according to the allegations, these leaders confirmed to the press a newspaper report on the use of equipment posing a health risk to patients but defined the limits of responsibility of the nurses mentioned by the press. The Committee notes that, according to the complainant organization, ESSALUD did not take measures to protect these nurses, which is why the union leaders, after exhausting administrative channels, decided to respond to the press. The Committee recalls the importance of the principle that “the right to express opinions through the press or otherwise is an essential aspect of trade union rights” [see Digest, op. cit., para. 155]. The Committee also points out that “in expressing their opinions, trade union organizations should respect the limits of propriety and refrain from the use of insulting language” [see Digest, op. cit., para. 154]. The Committee trusts that the final outcome of the amparo proceedings instituted by Ms Cecilia Grados Guerrero and Ms Carmen Chávez Cabrera against the administrative decision imposing on them the sanction of a five-month suspension without pay will take full account of these principles and will ensure that the freedom of expression which is essential for the meaningful exercise of trade union rights is respected. The Committee requests the Government to keep it informed in this regard.

The Committee's recommendations

The Committee's recommendations
  1. 826. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
    • (a) The Committee requests the Government to ensure that ESSALUD continues to deduct union dues from the members of SINESSS that have requested it.
    • (b) The Committee requests the Government to keep it informed of the final outcome of the amparo proceedings instituted by Ms Cecilia Grados Guerrero, General Secretary of the SINESSS National Executive Board, and Ms Carmen Chávez Cabrera, General Secretary of the Edgardo Rebagliati Martins National Hospital Nurses’ Union, against the administrative decision imposing on them the sanction of a five-month suspension without pay.
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