By: Mr. Javier José Vallarino
The entry into force of the polemical Law 30 of June 16th, 2010 generated serious doubts concerning the deduction of the union dues by the employers, mainly in relation to the mandatory aspect of said deduction: is it sufficient that the employer had been obligated through the labor collective bargaining agreement to deduct the union dues from the salary of its workers or on the contrary, this deduction only proceeds if the worker previously authorizes it and in writing?
Before the validity of Law 30 of 2010, the article 373 of the Labor Code expressly established that “every employer is obliged to deduct to the affiliates of a union the regular and special dues that it establishes and deliver them monthly”. For such purposes, it shall be sufficient that the union makes the corresponding request and establishes the affiliated status of each worker…”
Notwithstanding, Article 12 of Law 30 of 2010 modified entirety the text of Article 373 of the Labor Code, which established the following “the employer is not obliged to deduct from its workers the regular and special union dues established by a union in favor of the same. The worker that wishes to pay the regular and special union dues established by its union must pay them voluntarily”.
From the preceding paragraphs, we must infer that before the validity of Law 30 of 2010, the mandatory deduction of the union dues by the employer was subject to the affiliated condition of the worker in the respective union. In other words, when the affiliated condition of the worker to the union was credited, the employer was obliged to deduct from its monthly salary, the amount or value of the union dues and submit it monthly to the union.
Thus, by virtue of Article 373 of the Labor Code, the employers and unions got used to negotiate and include in their labor collective bargaining agreements, a clause where the employer was formally obliged or agreed to be obliged to make the deduction of the union dues from its workers affiliated to the union and deliver them monthly to the respective social organization.
Nevertheless the aforementioned, with the entry into force of Law 30 of 2010, the mandatory deduction of the union dues remained directly conditioned upon the prior written authorization of deduction by the worker.
In this manner, the doubt immediately arose in relation to the validity of the clause of the labor collective bargaining agreements where the employer was obliged to deduct the union dues. In our opinion, even with the entry into force of Law 30 of 2010, said clauses remain to be valid and effective for the following reasons:
a) As it is provided by Article 407 of the Labor Code, the Labor Collective Bargaining Agreement is law among the parties and consequently its provisions are of mandatory compliance both for the employer as for the union.
b) The clause where the employer is obliged to deduct the union dues was adopted before the validity of Law 30 of 2010, reason why this clause is not affected by the meaning and scope of this new law.
c) When the union negotiated said clause in the labor collective bargaining agreement, it made it under the name and behalf of all the workers of the company affiliated to this social organization; consequently, said mandate (authorization to negotiate the labor collective bargaining agreement) had implied the authorization of deduction of the union dues on behalf of the workers.
d) The aforementioned Article 407 of the Labor Code also provides that the labor collective bargaining agreement not only governs those workers that were affiliated to the union at the moment of verifying their negotiation and registration before the MITRADEL, but also it governs future affiliates to the union that begin to work at the company at a later date after the negotiation of the labor collective bargaining agreement.
Even though the National Government, after the entry into force of law 30 of 2010 maintained an interpretative criterion very different from ours, to the point that their authorized spokespersons publicly and in several occasions set forth that no employer was obliged to continue deducting the union dues from the salary of their workers, unless he had prior written authorization of each worker to do so. The force measures and violent acts that occurred during the first days of the month of July 2010 motivated the Government to reconsider their initial position regarding the mandatory aspect of the deduction of the union dues by the employers.
Concerning this matter, it is important to add that on the 9th day of July 2010, the Ministry of Labor and Labor Development enacted Executive Decree No. 193 that established that “with the entry into force of Law 30 of June 16th, 2010, the provision that the employers are obliged to deduct the respective union dues from the salary of its workers is maintained. Nevertheless, in those cases in which the workers express in writing to the employer their will of leaving without effect the direct deduction of the union dues from its salary, the employer is obliged forthwith to suspend the discount…”.
The provision contained in Executive Decree No. 193 that in our opinion argues directly with was is established by Law 30 of 2010, recognizes full validity and effect to the clauses of the labor collective bargaining agreement where the obligation of the employer to deduct the union dues to its workers has been agreed and only in the event that they request in writing the deduction suspension may the company proceed to suspend it.
Being it so, we consider that Executive Decree No. 193 brings certain juridical security to the employers of the country, who may continue to deduct the union dues directly from the salary of its workers as long as they do not request in writing the suspension of same, without fearing to incur in an illegal salary deduction.
Finally it is important to clarify that if the National Government decides to suspend provisionally the effects of Law 30 of 2010 to initiate a dialogue process with the different union groups of the country, the obligation of the employers in relation to the deduction of union dues shall remain intact and effective.
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