Informe provisional - Informe núm. 259, Noviembre 1988

1. 307. This case has already been examined by the Committee on four previous
   • occasions (236th, 243rd, 251st and 256th Reports approved by the Governing
   • Body, respectively, in November 1984, February 1986, May 1987 and May 1988) on
   • all of which it came to interim conclusions. This case also figured among the
   • ten cases against the Government of El Salvador examined jointly by the direct
   • contacts mission which visited the country in January 1986. The World
   • Federation of Trade Unions (WFTU) presented further information relating to
   • the case in a communication dated 25 May 1988. The Government supplied its
   • observations on the case in a letter of 8 July 1988.
2. 308. El Salvador has ratified neither the Freedom of Association and
   • Protection of the Right to Organise Convention, 1948 (No. 87) nor the Right to
   • Organise and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the case

1. 309. At its latest examination of Case No. 1273 (256th Report, paras.
2. 238-254) the following questions remained pending before the Committee:
   • - The Committee requested the Government to supply additional information
     • on the alleged murder by members of the armed forces of the trade unionists
     • Francisco Méndez (on 11 October 1986) and Marco Antonio Orantes (on 29 January
   • 1985), and to carry out a judicial inquiry into these matters. The Committee
     • also requested information on the progress of the trial of two accused before
     • the Fourth Criminal Court on charges of the murder of the trade union leader
     • José Arístides Mendez, which had commenced in July 1986.
   • - The Committee requested the Government to provide additional information
     • on the arrests of Adalberto Martínez (23 June 1986), Andrés Miranda (27 June
   • 1986), Gregorio Aguillón Ventura (1 February 1986), and José Antonio Rodríguez
3. (18 August 1986); as well as on the raid on the premises of ANDES and
   • confiscation of its documents by the armed forces on 29 April 1986, and the
   • dismissal of six union leaders in the telecommunications sector as the result
   • of a strike called on 15 April 1986.
     • - The Committee deeply deplored the violent acts that had occurred on 8
   • July 1987 between military and police forces and workers of the Social
   • Security Institute and urged the Government to set up an independent judicial
   • inquiry with a view to determining responsibilities, punishing the guilty
   • parties and preventing the repetition of such acts, and to keep the Committee
   • informed of any steps taken to open a judicial investigation.
     • - The Committee requested the Government to send its observations on the
   • allegations made by the United Trade Union Federation of El Salvador (FUSS)
   • and the World Federation of Trade Unions (WFTU) on 11 and 27 April 1988,
   • respectively. In the FUSS communication it was alleged that on 10 April the
   • house (at No. 21, Colonia Lamatepec, Pasaje F, Zona D, in the town of Santa
     • Ana) of Mrs. Marta Castaneda, a member of the Coffee Union (SICAFE) and leader
   • of the Women's Committee of that union, was blown up and that five minutes
   • after the attack a unit of the Second Infantry Brigade, accompanied by the
   • police, appeared on the scene; that on 7 and 8 April the Colonia had been
   • surrounded and searched by members of the Second Infantry Brigade who had kept
   • it sealed off until 2.00 p.m. on 8 April when the trade unionist Castaneda was
   • allowed to leave; and that trade unionist Marta Alicia Sigüenza, a member of
   • the general executive committee of SICAFE, had been unable to come to her
   • place of work and had been forced to hide for fear of being killed by the
   • government forces. The WFTU communication alleges the persecution of members
   • of the Union of Salvadorian Telecommunications Workers (ASTTEL), in particular
   • its General Secretary, Mr. Raphael Sanchez, who was dismissed on 10 January
4. 1986, and the current General Secretary, Mr. Humberto Centeno, who was
   • arrested and beaten on 10 March 1988. It also alleges the detention and
   • torture of Mr. Centeno's two sons as a means of pressuring the Union, and the
   • death by shooting at the hands of death squads of the unionists Victor Manuel
   • Hérnandez Vasquez (on 13 January 1988), Medardo Ceferino Ayala (on 18 December
5. 1987) and José Herbert Guardado (on 1 March 1988).
   • B. Further information from the WFTU
6. 310. On 25 May 1988 the WFTU provided further information concerning the
   • persecution of members of the ASTTEL, already referred to in its April 1988
   • letter mentioned above. It states that:
     • - on 13 April 1988 Manuel de Jesus Rodas Barahona was shot dead outside his
   • home by two men in civilian clothing "death squad style";
     • - on 15 April José Mazariego was abducted by the police and interrogated
   • about his union work for 36 hours;
     • - on 18 March L.W. Barrios and Misael Flores were abducted by the First
   • Infantry Brigade, beaten and threatened before their release in an effort to
   • coerce them into leaving ASTTEL;
     • - on 17 March Alberto Luis Alfaro disappeared around 6.30 a.m. when leaving
   • for work and his whereabouts remain unknown;
     • - since January 1986 ASTTEL has been working without a contract because the
   • telecommunications company (ANTEL) reneged the collective agreement and,
   • despite requests from the union and the 51-day (April 1986) strike referred to
   • in previous examinations of this case, refuses to negotiate a new contract or
   • meet with ASTTEL.
7. 311. In general, the WFTU points out that despite article 47 of the El
   • Salvadorian Constitution, which guarantees public sector employees the right
   • to organise and bargain collectively, the authorities make use of the Labour
   • Code to deny ASTTEL the status of a "union" having it only as an
   • "association"; the telecommunications company workers are denied the right to
   • strike and are punished under section 433 of the Penal Code or Decree No. 296
   • for any absence from work; Decree No. 162 of 1985 permitting transfer of
   • public sector workers is being used to break up branch unions and remove their
   • leaders.
8. 312. In addition, the WFTU alleges that the telecommunications company is
   • controlled by the military (the alleged death squad founder, Defence Minister
   • General Eugene Casanova, appointed his brother, Colonel Mauricio Casanova, as
   • President of the company). It quotes the March 1988 American WATCH report
   • "Labour rights in El Salvador" stating: "Government repression against
   • organised workers in El Salvador ... is extensive, systematic and often brutal
   • ... Although no one organisation has had a monopoly on victimisation, ASTTEL
   • has in recent years emerged as a special target of the security forces. "
   • C. The Government's reply
9. 313. In its letter of 8 July 1988, the Government states that there is no
   • trade union in the national telecommunications administration of the type
   • covered by El Salvadorian legislation. The description "de facto union"
   • referred to in this complaint is not known in Salvadorian law or industrial
   • relations practice and it is therefore totally inappropriate to call ASTTEL
   • (Asociación Salvadoreña de Trabajadores de Telecomunicaciones) a "union".
   • According to the Government, this is not just a point of formality, but is of
   • vital importance to the issue of legitimate representation of the workers. As
   • an "association", under section 540(2) of the Civil Code, ASTTEL comes under
   • the jurisdiction of the Ministry of the Interior, whereas "unions" are
   • regulated by the Labour Code and administered by the Ministry of Labour.
10. 314. According to the Government, ASTTEL claimed rights and powers which it
    • could not enjoy as it is not a union; likewise, its leaders, not being trade
    • union leaders, have no right to protection against dismissal. The Government
    • points out that, despite this, the employer had allowed the workers'
    • associations to carry out activities and ASTTEL had, in the past, had complete
    • freedom for this. However, its mobility is somewhat restricted because of its
    • constant agitation and infringements of the law. Whenever ASTTEL leaders
    • challenged the employer's disciplinary measures before various jurisdictions
    • (labour courts, Supreme Court), they have been unsuccessful.
11. 315. The Government adds that there is a second similar body in the
    • telecommunications company, namely the Salvadorian Association of Workers in
    • ANTEL (ASTA), which also enjoys freedom of actions and movement. The basic
    • difference between the two associations is that ASTA is not involved in
    • political objectives. ASTTEL, on the other hand, states the Government, has
    • called 45 illegal strikes just between 1987 and 1988 and has taken part in
    • disturbances and street violence and a dozen street demonstrations which have
    • resulted in damage to the employer's buildings and vehicles.
12. 316. The Government explains certain of the specific WFTU allegations
    • against the above background. For example, three telecommunications workers
    • were dismissed after an illegal strike in November 1985 called for the release
    • from criminal detention of an ASTTEL leader's (Mr. José Humberto Centeno) two
    • sons; the employer had won from the labour court a declaration that the strike
    • was illegal and had warned the strikers that they risked punishment for
    • unjustified absences from work; it points out, however, that the strike
    • leaders were not dismissed but merely were not paid for the days not worked.
    • In this connection, the Government observes that article 221 of the
    • Salvadorian Constitution bans strikes by workers in public and municipal
    • services. Moreover, the Labour Code (sections 527, 528, 547, 553 and 555) sets
    • out the legal formalities required for strike action and Decree No. 296 of 24
    • June 1980 also bans strikes by government employees. It is thus
    • incomprehensible that ASTTEL claimed rights that it could not enjoy under the
    • law.
13. 317. According to the Government, the WFTU letter of 27 April 1988 is
    • incorrect in alleging that Mr. Centeno's two sons were still detained "as a
    • means of pressuring the union", since José and Jaime Centeno were released in
    • November 1987 under an Amnesty Decree applying to criminals sentenced for
    • political offences. It stresses that the November 1985 strike called by ASTTEL
    • had nothing to do with labour matters, but was used for the liberation of
    • these two individuals who had no link to the employer involved.
14. 318. The Government states that over the last year, the ASTTEL leadership
    • has introduced a new element to its systematic confrontation with the
    • employing public enterprise ANTEL, namely the false and malicious accusation
    • that its president is responsible for the death of three workers carried out
    • by unknown persons. Although the Government has given full replies to various
    • national and foreign bodies on this, it has requested the Public Prosecutor to
    • clarify the facts. The Government stresses that even the widow of the late
    • José Herbert Guardado has requested, through the national press, that ASTTEL
    • cease manipulating the tragic death of her husband for political and
    • propaganda ends. A copy of the press clipping publishing her letter to the
    • employer dated 14 March 1988 is enclosed in which she states that the leaders
    • of ASTTEL "... are trying - without any basis and only for their own interests
      • - to make (her husband's) death look like a result of labour struggles in
    • which they are also making false accusations against the authorities of ANTEL,
    • who deserve our respect and gratitude".
15. 319. The Government claims that to link these deaths to the
    • labour-management problems shows the particular bad faith of the persons
    • concerned since ANTEL, being a huge undertaking employing almost 6,000 workers
    • and given the circumstances reigning in the country, would most probably have
    • some workers getting involved in events liable to lead to tragic deaths. It
    • gives the following specific information on the deaths:
      • - Mr. Guardado was, according to newspaper reports, attacked in a bus by
    • thieves;
      • - Victor Manuel Hernandez Vasquez was the son of one of ANTEL's section
    • chiefs and had been on an internship for 15 days when he died; he cannot
    • therefore be called a permanent employee or an ASTTEL member;
      • - Medano Ceferino Ayala had never been an ASTTEL leader and it is not known
    • whether he was even a member or participated in the association's activities.
16. 320. In conclusion, the Government states that the claims against the
    • telecommunications company form part of an orchestrated disinformation
    • programme at the international level and go beyond the legitimate interests of
    • safeguarding workers. It recalls that certain ASTTEL leaders, such as Mr. J.H.
    • Centeno, are members of the Unidad de los Trabajadores Salvadorenos (UNTS)
    • which supports and promotes acts of provocation and disrespect for the forces
    • of law and order. It explains that the March 1988 strike at the Ministry of
    • Labour and Social Security saw Mr. Centeno beat members of the military. He
    • was detained because of his violent behaviour and later released. According
    • to press clippings from "Latino" and "La Prensa Grafica" supplied by the
    • Government, on 10 March 1988, 200 or so persons arrived in buses and grouped
    • themselves around the Ministry shouting insults at and threatening the
    • military personnel who were present to protect the buildings; after Mr.
    • Centeno attacked one soldier there was general tumult which left various
    • people injured and led to Mr. Centeno's arrest; he was taken to a police
    • station and from there by the police to a private hospital for treatment of
    • the blows he had received during the disturbance at the Ministry.

D. The Committee's conclusions

1. 321. Before examining the various allegations which relate to anti-union
   • harassment by the telecommunications company ANTEL, the Committee reminds the
   • Government that it has neither replied to the recent allegations concerning
   • threats to two female members of the Coffee Union (SICAFE) in April 1988, nor
   • has it supplied further information on progress in the trial of two persons
   • accused of the murder of the trade union leader José Aréstides Mendez which
   • commenced in July 1986. It accordingly requests the Government to reply as
   • rapidly as possible, particularly as regards the trial before the Fourth
   • Criminal Court and recalls in this connection that governments should do
   • everything possible to avoid excessively lengthy trials. The Committee has
   • stated in past cases that it should be the policy of every government to
   • ensure observance of human rights and especially the right of all detained or
   • accused persons to receive a fair trial at the earliest possible moment. (See,
   • for example, 236th Report, Case No. 963 (Grenada), para. 78, and 247th Report,
   • Cases Nos. 997, 999 and 1029 (Turkey), para. 20.)
2. 322. As regards the outstanding issue (see 243rd Report, para. 408) of the
   • alleged murder of the trade unionists Francisco Méndez (on 11 October 1986)
   • and Marco Antonio Orantes (on 29 January 1985), the Committee recalls that the
   • Government had previously replied that it - and the various security bodies -
   • had no information on them but they were trying to ascertain the whereabouts
   • of Mr. Méndez and to clarify the situation of Mr. Orantes. Since the Committee
   • has received no more recent information than these general denials and
   • protestations of ignorance, it can only deeply deplore the disappearance in
   • suspicious circumstances of these two trade union leaders. It draws the
   • Government's attention to the importance of vigilance in investigating such
   • cases since a climate of violence, such as that surrounding the murder or
   • disappearance of trade union leaders, constitutes a serious obstacle to the
   • exercise of trade union rights. (See, for example, 236th Report, Cases Nos.
3. 1157 and 1192 (Philippines), para. 299.)
4. 323. As regards the Committee's request for additional information on the
   • reasons which were the basis for the arrests of four named trade unionists in
   • February, June and August 1986 (see 251st Report, para. 332, May-June 1987),
   • it can only regret the Government's lack of co-operation in following up on
   • these events and draw its attention to the principle that the arrest and
   • detention of trade unionists, even for reasons of internal security, may
   • constitute a serious interference with trade union rights unless attended by
   • appropriate judicial safeguards such as a prompt and fair trial. (See, for
   • example, 233rd Report, Case No. 1211 (Bahrain), para. 589.)
5. 324. Likewise, as regards the Government's total silence on the alleged raid
   • by the armed forces on the headquarters of the National Association of
   • Educators of El Salvador (ANDES) on 20 April 1986 (first raised in the
   • Committee's 251st Report, para. 355, May-June 1987), the Committee can only
   • conclude that this raid and the accompanying confiscation of union property
   • infringed the principles of freedom of association. It draws the Government's
   • attention to the fact that the resolution on trade union rights and their
   • relation to civil liberties, adopted by the International Labour Conference at
6. its 54th (1970) Session, declares that the right to adequate protection of
   • trade union property is one of those civil liberties which are essential for
   • the normal exercise of trade union rights. (See, for example, 230th Report,
   • Case No. 1160 (Suriname), para. 548.)
7. 325. Turning to what now remains as the central group of allegations in Case
8. No. 1273, namely the various measures of harassment affecting members and
   • leaders of the Association of Salvadorian Telecommunications Workers (ASTTEL),
   • the Committee notes with concern that the management - allegedly in collusion
   • with the armed forces - is accused by the complainants of a wide variety of
     • anti-union acts. These acts range from repudiation of the collective agreement
   • in January 1986 to dismissals (six after a strike on 15 April 1986 and one on
9. 10 January 1986), arrests and beatings while in detention, disappearance (of
   • Mr. Alberto Luis Alfaro on 17 March 1988) and four murders (Mr. M.C. Ayala on
10. 18 December 1987, Mr. M.H. Vasquez on 13 January 1988, Mr. J.H. Guardado on 1
    • March 1988 and Mr. M. de Jesus Rodas Barahona on 13 April 1988).
11. 326. The Committee notes that the Government disputes the occupational
    • nature of ASTTEL and argues that its complaints concerning collective
    • agreements and lack of protection against dismissals are legally without basis
    • since the association is not a "union" and is thus not entitled to the rights
    • and protections accorded to unions. Moreover, according to the Government,
    • ASTTEL is pursuing political objectives through violent means.
12. 327. While it is difficult for the Committee to take a stand when faced with
    • directly contradictory descriptions of the industrial relations climate in a
    • particular sector, it nevertheless is in a position to guide the parties in
    • this case since it has repeatedly decided that where public employees -
    • especially in public enterprises and nationalised undertakings - are not
    • involved directly in the administration of the State, the national legislation
    • should allow them to bargain collectively (see, for example, 211th Report,
    • Case No. 965 (Malaysia), para. 206). The Committee has indeed specifically
    • pointed out in past cases that employees of the telecommunications services
    • should enjoy this aspect of freedom of association (see 139th Report, Case No.
13. 725 (Japan), para. 278). The Committee accordingly requests the Government to
    • review the situation of ANTEL employees with a view to ensuring that their
    • rights to associate in workers' organisations and to carry out activities,
    • such as bargaining, to promote and defend their interests are protected.
14. 328. The Committee adds that the review requested above should include
    • coverage of the workers concerned by the appropriate legislation on protection
    • against acts of anti-union discrimination in employment. This is so since the
    • Committee has recalled on many occasions that one of the fundamental
    • principles of freedom of association is that workers should enjoy adequate
    • protection against all acts of anti-union discrimination in respect of their
    • employment, such as dismissal, particularly for trade union officials because,
    • in order to be able to perform their trade union duties in full independence,
    • they should have a guarantee that they will not be prejudiced on account of
    • the mandate which they hold from their trade unions. The Committee has
    • considered that the guarantee of such protection in the case of trade union
    • officials is also necessary in order to ensure that effect is given to the
    • fundamental principle that workers' organisations shall have the right to
    • elect their representatives in full freedom. (See, for example, 236th Report,
    • Case No. 1113 (India), para. 130, Case No. 1272 (Chile), para. 637.)
15. 329. As regards the disappearance and deaths, the Committee notes that
    • information is yet to be provided on that of Mr. Alberto Luis Alfaro and Mr.
    • M. de Jesus Rodas Barahona; it requests the Government to send its comments as
    • soon as possible. As for the other three deaths, the Committee notes that,
    • according to the Government, Mr. Guardado's murder at the hands of thieves had
    • nothing to do with his trade union activities and that the deaths of Messrs.
    • Vasquez and Ayala could not have been related to union functions or activities
    • since they were never union members. Since the complainants give no further
    • details in support of their allegations that these deaths by unknown armed
    • bandits were in retaliation for the labour unrest in the telecommunications
    • company, the Committee can only regret this loss of life and stress that a
    • genuinely free and independent trade union movement can only develop in a
    • climate free of violence and uncertainty. (See, for example, 205th Report,
    • Case No. 983 (Bolivia), para. 33.)
16. 330. Lastly, as regards the arrests of unionists and alleged beating while
    • in police custody, the Committee awaits the Government's comments on the
    • alleged arrests in March and April 1988 of Messrs. L.W. Barrios, Misael Flores
    • and José Mazariego, all ASTTEL members. It notes the Government's description
    • of the release of the two Centeno sons and of the violence started by Mr.
    • Humberto Centeno on 10 March 1988. It notes in particular that Mr. H.
    • Centeno's detention was due to his disorderly behaviour, that his injuries
    • were directly related to his attack on military guards and occurred before he
    • was taken into custody and that, after treatment at a private hospital, he was
    • released. It accordingly recalls that workers and their organisations, like
    • all other citizens, should respect the law of the land and considers that this
    • aspect of the case does not call for further examination.