Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 344, Marzo 2007

914. The Committee examined this case at its meeting in May–June 2006, when it presented an interim report to the Governing Body [see 342nd Report, paras 437–498, approved by the Governing Body at its 296th meeting (June 2006)].

1. 915. The Government subsequently sent additional observations in communications dated 20 June and 6 October 2006.
2. 916. El Salvador 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. 917. At its meeting in May–June 2006 the Committee made the following recommendations on the issues that were still pending [see 342nd Report, para. 498]:
2. (a) The Committee urges the Government to grant legal personality to Dockworkers’ Union of El Salvador (STIPES) and the Private Security Workers’ Union of El Salvador (SITRASSPES) without delay and firmly trusts that the Ministry of Labour will allow the appeal against the decision of the Ministry of Labour refusing such legal personality. The Committee requests the Government to keep it informed in this regard.
3. (b) Taking into account the Government’s assertions that certain companies do not belong to the metal engineering industry, the Committee requests the complainants to provide their comments in this regard and to clarify the status of metal engineering worker of each of the founders of the Salvadorian Metal Engineering Workers’ Union (SITRASAIMM) (except those of Sociedad Metalúrgica Sarti, SA de C.V. whose metal engineering status is recognized by the Government). The Committee requests the Government to inform it of the result of the administrative appeal by SITRASAIMM against the refusal to grant legal personality.
4. (c) The Committee urges the Government to continue, as it has been doing up to now, to seek the reinstatement of the 34 founders of STIPES, the founder of the Private Security Workers’ Union of El Salvador (SITRASSPES), Mr Juan Vidal Ponce and the trade union official of the Education Workers’ Union of El Salvador (STEES), Mr Alberto Escobar Orellana and to inform it of the result of the proceedings for the imposition of a fine undertaken by the Ministry of Labour. The Committee also requests the Government to continue to seek the transfer of Santiago Sión and Raúl Deleón Hernández, founders of SITRASSPES, back to the posts which they previously occupied in their companies and suggests to the complainant organizations that they invite Mr Carlos Antonio Cushco Cunza and Mr Ricardo Hernández Cruz, also founders of SITRASSPES, to lodge a complaint about their alleged transfer with the Ministry of Labour so that it can take action in their case. The Committee requests the complainant organizations to submit their comments on the Government’s statement that nine of the founders of SITRASAIMM were dismissed in June 2005 while the trade union’s application for legal personality was submitted on 9 August 2005, thus suggesting that those dismissals were not related to the formation of the trade union.
5. (d) The Committee requests the Government to send its observations on the alleged dismissal of the founders of SITRASAIMM, Mr Manuel de Jesús Ramírez and Mr Israel Ernesto Avila on 1 September 2005, i.e. after the application for legal personality submitted by the founders of the trade union.
6. (e) As regards the dismissal of 64 trade unionists in the Hermosa Manufacturing company (among them seven trade union officials designated by name), the Committee notes the Government’s statements that the company has ceased operations indefinitely and that the Ministry of Labour is taking steps and carrying out inspections to investigate and try to reach agreement on the failure to implement their labour rights. The Committee requests the Government to ensure that those dismissed received all the legal compensation due and invites the complainant organizations, as requested by the Government in its reply, to communicate the names of the 57 trade unionists to which the complaint refers (the names of the seven officials are already given in the allegations).
7. (f) As regards the alleged dismissal of seven trade union officials in the CMT clothing company branch of the General Union of Seamstresses (SGC), the Committee notes that the Labour Inspectorate has sought the reinstatement of the dismissed workers and payment of wages unpaid for reasons imputable to the employer. The Committee requests the Government to continue seeking the reinstatement of the seven trade union officials and payment of the wages due.
8. (g) The Committee reminds the Government that it may avail itself of ILO technical cooperation for the preparation of future trade union legislation. The Committee considers that, among other things, the new legislation should guarantee the right to form trade unions without restrictions, that proceedings in the case of anti-trade union discrimination should be rapid and effective, and should avoid the Ministry of Labour informing the employer of the names of the founders of a trade union in order for the employer to indicate whether or not they are employees. This type of check should be carried out in another way, for example by requiring companies to provide the Ministry of Labour with the full list of workers on its payroll so that it can check whether or not the founders are employees.
9. (h) The Committee requests the Government to send its observations on the communication of FENASTRAS dated 28 April 2006, with regard to the legal personality of the SITISPRI trade union.
10. B. The Government’s reply
11. 918. In its communication dated 20 June 2006, the Government refers to the allegations of the National Federation of Salvadorian Workers (FENASTRAS) dated 28 April 2006 and states that the Ministry of Labour and Social Security, in accordance with the legal procedure laid down in the Labour Code and in the light of its consideration of the case, issued a resolution on 3 April 2006 dismissing the request for legal personality submitted by the Private Security Services Workers’ Union (SITISPRI). The administrative resolution cites the following reasons:
12. – as they themselves state, the founding members of the trade union in the process of being established carry out their activities for, and under the orders of, Protección de Valores, SA de CV and Protecciones Industriales, SA de CV, two companies that provide private security services at the national level; by the very nature of their work, in performing their duties the employees of these companies are inevitably called upon to carry firearms and all kinds of other arms, the main purpose of their job being to protect the physical integrity of people as well as of fixed and moveable assets;
13. – in its article 7, paragraph 3, the Constitution of the Republic – the primary law governing the juridical system of El Salvador – explicitly prohibits the existence of armed groups; for the Ministry of Labour to grant the said union juridical personality would therefore be a violation of the aforementioned constitutional principle;
14. – by the very nature of the activities they carry out, private security workers hold positions of trust on two counts: just as their employers trust them to perform the duties requested of them, which are discretionary, so too the beneficiaries of their services place their entire trust in them, whether as users, inhabitants of a residential compound, company executives, public officials or employees, private, state or autonomous institutions, banks, etc.: in other words, all the beneficiaries of their services trust these workers to perform the specific task they have been assigned, which is why they themselves describe themselves as trustworthy; technically, these workers are defined as “persons who, by virtue of their responsibilities, the delicate nature of their work and the honesty that is demanded of them, enjoy the trust and special support of the owner or management of the company”.
15. 919. Article 221 of the Labour Code regulates the possibility of an employee in a position of trust joining a trade union, provided the union’s general assembly accepts him or her as a member. This necessarily implies the prior existence of a trade union organization that is not made up of employees in a position of trust and whose legal personality has been recognized by the Ministry of Labour. It can be concluded from the foregoing that, under the existing legislation, employees in a position of trust cannot participate as founding members of a trade union organization, since no union general assembly body yet exists that has the authority to allow them to join.
16. 920. In its communication dated 6 October 2006, the Government refers to the allegations concerning the Dockworkers’ Union of El Salvador (STIPES) and states that resolution 16–2005 of the Ministry of Labour and Social Security ruled in favour of the appeal against the resolution that had initially denied the union legal personality.
17. 921. Accordingly, on 7 July 2005 the General Directorate of Labour of the Ministry of Labour and Social Welfare granted the union legal personality and approved its by-laws.
18. 922. As to the denial of legal personality for the Private Security Workers’ Union of El Salvador (SITRASSPES), the Government states that Nicolás Pineda Escobar, in his capacity as Vice-Chairman of the provisional Executive Board of the union in the process of being established, lodged an appeal to annul the resolution issued by the Ministry of Labour on 3 October 2005, which denied the aforementioned union legal personality; the appeal was deemed receivable under article 11 of the Constitution and article 1270 of the Code of Civil Proceedings. The Government adds that, since the appeal was dismissed, the Ministry’s 3 October 2005 resolution denying the union legal personality for the reasons given, and which have already been communicated to the Committee, was confirmed.
19. 923. Regarding the denial of legal personality for the Salvadorian Metal Engineering Workers’ Union (SITRASAIMM), the Government states that José Amilcar Maldonado Castillo, in his capacity as Vice-Chairman of the provisional Executive Board of the union in the process of being established, lodged an appeal to annul the resolution issued by the Ministry of Labour, which denied the aforementioned union legal personality for reasons already communicated to the Committee. The Government adds that on 8 December 2005 the appeal was declared receivable and, in accordance with the law, was communicated to the union in the process of being established and to the companies involved, pursuant to article 11 of the Constitution and article 1270 of the Code of Civil Proceedings; however, neither of the parties concerned responded to the notification before the official deadline.
20. 924. On 21 February 2006 José Amilcar Maldonado Castillo again raised the matter, with a request that documentation concerning 17 individual contracts of people working for Reselcon, SA de CV and four people working for Servicios Talsa, SA de CV, be annexed to the file, in order to show that all 21 people were working in the said companies. In spite of this, the proceedings ended with the appeal being dismissed on account of the parties’ failure to respect the deadline, inasmuch as article 1270 of the Code of Civil Proceedings stipulates that the parties have three days from the date of notification in which to respond (the parties were notified on 8 December 2005 and the new documents were submitted on 21 February 2006).
21. 925. The request by the representatives of the trade union to have the resolution denying it legal personality annulled was accordingly dismissed, and the resolution issued by the Ministry of Labour on 4 October for the reasons given, which have already been communicated to the Committee, was upheld.
22. 926. The Government notes the Committee’s recommendation that it continue to seek the reinstatement of the 34 founders of STIPES, the founder of SITRASSPES, Juan Vidal Ponce, and the trade union official of STEES, Alberto Escobar Orellana. The Government provides the following information on the proceedings for the imposition of a fine undertaken by the Ministry of Labour:
23. – regarding the STIPES trade union, the Ministry of Labour has done everything possible to obtain the voluntary compliance of the private operators that are guilty of legal offences against the founders of the Dockworkers’ Union of El Salvador (STIPES): Servicios Técnicos del Pacífico, SA de CV; Representaciones Marítimas, SA de CV; Operadores Portuarios Salvadoreños, SA de CV; O & M Mantenimiento y Servicios, SA de CV; and Operadora General, SA de CV. Despite this and despite the efforts of the labour inspectorate to get the enterprises to reverse their illegal decision, i.e. reinstate the founders of STIPES in their previous jobs, it has proved impossible to have the workers reinstated and the procedure has now moved on to the initiation of proceedings to impose an appropriate fine; the Committee will be informed as soon as a decision has been handed down;
24. – regarding STEES, the company concerned has already been fined for infringing article 248 of the Labour Code by dismissing Alberto Escobar Orellana, Second Disputes Secretary of the General Executive Board of the Education Workers’ Union of El Salvador, and article 29 of the Labour Code by failing to pay the abovementioned worker his salary, for reasons attributable to the employer;
25. – regarding the violation of the labour rights of the founders of the Private Security Workers’ Union of El Salvador (SITRASSPES), the Government states that, in the case of the workers of Guardianes, SA de CV, a further inspection that was carried out was able to verify that Santiago Sión, a founding member of the trade union in the process of being established, was not transferred from the La Majada (Sonsonate) Cooperative to San Salvador, but was reinstated in his previous job in the same department of Sonsonate, and that his salary had not been cut; it was therefore considered that there was no infringement of the law. As to Raúl Delcón Hernández, who was transferred from his place of work for having allegedly participated in the founding of the said union, a further inspection carried out at Guardianes, SA de CV, established that the company had corrected the infringement of which it was guilty and the worker concerned had been reinstated in his previous job;
26. – regarding Manuel de Jesús Ramírez of Servicios Talsa, SA de CV, and Israel Ernesto Avila of Reselcon, SA de CV, founding members of SITRASAIM who were dismissed on 1 September 2005, it was established that they had not lodged any complaint or initiated any proceedings;
27. – regarding Hermosa Manufacturing, SA de CV, the Ministry of Labour has exhausted all possible channels (persuasion, recommendations, legal action) to bring about a favourable solution for the workers who lost their jobs as a result of the company ceasing operations indefinitely. It had proved to be a legal impossibility for the Ministry to resolve the problem, since although the company’s legal representative has been imprisoned he still does not have enough fixed or movable assets to pay the compensation, salaries and other benefits that the workers are owed. Consequently, the case has been brought before the courts and it will be for the labour tribunals to settle the individual labour disputes between Hermosa Manufacturing, SA de CV and its workers. At no point has the Ministry of Labour taken sides in the matter of the workers’ rights, including those of the union officials; rather, it has employed every legal means available to it to find a solution to the company’s problems; and
28. – regarding CMT, SA de CV, the company has been duly fined for infringing the law, namely (1) article 248 of the Labour Code for having dismissed workers and trade union officials (María Rosa Beltrán, Secretary-General; Blanca Araceli Fuentes Castro, Proceedings Secretary; Dora Alicia Rivas Osegueda, Finance Secretary; Morena Escobar de Paulino, Disputes Secretary; Eva Lorena Umaña Pacheco, Security and Social Welfare Secretary; and Teresa Martínez Guerra, Organization and Statistics Secretary – all members of the Section Executive Board for CMT, SA de CV), (2) article 29, section 2 of the Labour Code, for the company’s failure to pay the workers and trade union officials the salaries owed to them, and (3) article 29, section 2 of the Labour Code, in respect of salaries that remain unpaid for reasons attributable to the employer.

C. The Committee’s conclusions

1. 927. The Committee observes that the allegations still pending refer to the following matters: refusal by the Ministry of Labour to grant legal personality to the Dockworkers’ Union of El Salvador (STIPES), the Salvadorian Metal Engineering Workers’ Union (SITRASAIMM), the Private Security Workers’ Union of El Salvador (SITRASSPES) and the Private Security Workers’ Union (SITISPRI), and reprisals for the formation of these trade unions (34 dismissals in the case of STIPES, 18 dismissals in the case of SITRASAIMM and two dismissals and five transfers in the case of SITRASSPES); dismissal of Alberto Escobar Orellana, an official of the Education Workers’ Union of El Salvador (STEES); dismissal of 64 members or officials of the trade union branch operating in Hermosa Manufacturing, SA de CV; and dismissal of seven trade union officials at the CMT, SA de CV, clothing company, all members of the General Union of Seamstresses.
2. Allegations regarding the refusal to grant
3. trade unions legal personality
4. 928. The Committee notes with satisfaction that on 7 July 2005 the Ministry of Labour and Social Security ruled in favour of the appeal lodged by the STIPES trade union against the resolution which initially denied it legal personality.
5. 929. The Committee regrets, however, that the Ministry of Labour, when it examined the appeal lodged by the private security sector union SITRASSPES, did not resolve to grant it legal personality, despite the Committee’s recommendation that it do so. The Committee considers that this situation is incompatible with the requirements of Convention No. 87, and specifically Article 2 of the Convention which provides for the right of workers without distinction to establish organizations of their own choosing. The Committee therefore once again urges the Government to grant the said trade union legal personality.
6. 930. With regard to the other allegations concerning the refusal to grant legal personality to the private security sector trade union SITISPRI, the Committee notes the Government’s statement that: (1) the workers concerned are engaged in positions of trust vis-à-vis their employers and the users of security services; article 221 of the Labour Code stipulates that an employee in a position of trust can only join a trade union if the union’s general assembly accepts him or her as a member, thereby implying that a trade union organization already exists that is not made up of employees in a position of trust; (2) the Constitution of El Salvador prohibits the existence of armed groups (article 7, 3.º) and employees of private security companies to carry firearms. The Committee observes that the Government has invoked similar reasons in other cases of refusal to grant legal personality to trade unions of private security workers (for example, the case cited in the previous paragraph concerning SITRASSPES) and that it has already had occasion to reject those reasons on the grounds that the only possible exceptions to the right to establish trade unions provided for in Article 9 of Convention No. 87 concern members of the armed forces and the police. The Committee urges the Government to grant the SITISPRI trade union legal personality and to keep it informed in this respect.
7. 931. The Committee further observes that the complainant organizations have not sent the information that was requested concerning the reasons given by the Government for not granting SITRASAIMM legal personality and takes note of the Government’s statement that the appeal against the refusal to grant legal personality was dismissed by the Ministry of Labour, mainly because the trade union in the process of being established did not respect the three-day deadline laid down in the Code of Civil Proceedings, as the Ministry had requested, when it submitted documents concerning the individual labour contracts of 17 people (the documents were submitted but only after the deadline). The Committee draws attention to the very short time allowed by law for the parties concerned to produce the information requested by the Ministry of Labour in the appeals proceedings in respect of the granting of legal personality and regrets that the trade union was denied legal personality on such grounds. The Committee recalls that, although the founders of a trade union should comply with the modalities prescribed by legislation, these formalities should not be of such a nature as to impair the free establishment of organizations [Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 276]. The Committee requests the Government to take steps to review the legislation with respect to the time allowed and to reconsider SITRASAIMM’s request to be registered as a trade union.
8. Dismissal of founders of trade union organizations
9. and other trade unionists
10. 932. The Committee takes note of the Government’s statement that proceedings for the imposition of fines have been undertaken in connection with the dismissal by several companies of 34 founding members of the STIPES trade union, as a consequence of its failure to obtain their reinstatement in their previous jobs, despite constant efforts by the Ministry of Labour. The Committee requests the Government to keep it informed in this respect and to pursue its efforts to see that these trade unionists are reinstated in their jobs or to impose sufficiently dissuasive fines if they are not reinstated.
11. 933. The Committee notes that a fine was imposed on the employer who dismissed Alberto Escobar Orellana, a union official of STEES (education sector), for dismissing him and for not paying him the salaries due to him. The Committee requests the Government to ensure that the salaries and other benefits due to this official are paid and to pursue its efforts to have him reinstated in his job and impose further fines in accordance with national legislation if he is not reinstated.
12. 934. The Committee notes with satisfaction the Government’s statement that the founding members of SITRASSPES referred to in the complaints, Santiago Sión and Raúl Delcón Hernández, were eventually reinstated in their previous jobs and that the infringement of the law has thus been corrected. The Committee requests the Government to pursue its efforts to have Juan Vidal Ponce (founding member of SITRASSPES) reinstated in his job.
13. 935. The Committee also takes note of the Government’s statement, in connection with the allegations concerning Hermosa Manufacturing, SA de CV, that the company’s legal representative has been imprisoned and does not have sufficient assets to pay the salaries, compensation and other benefits owed to the dismissed workers (64 trade unionists, including seven union officials), and that, since the Ministry of Labour has exhausted all the legal and other channels available to it, the case has been brought before the courts. The Committee requests the Government to keep it informed in this respect.
14. 936. Regarding the alleged dismissal of seven union officials of the CMT clothing company branch of the General Union of Seamstresses (SGC), the Committee notes that, according to the Government, the Ministry of Labour imposed the fines provided for by law on the company for its dismissal of union officials (whose reinstatement the Ministry had endeavoured to bring about) and also for the non-payment of the salaries due to them. The Committee requests the Government to pursue its efforts to have these officials reinstated in their jobs, to continue imposing fines and to ensure that the salaries and other legal benefits due are paid.
15. 937. Regarding the alleged dismissal of the founders of SITRASAIMM, Manuel de Jesús Ramírez and Israel Ernesto Avila, on 1 September 2005, i.e. after the founders of the union had submitted a request for legal personality, the Committee invites the complainant organizations to lodge a complaint with the Ministry of Labour, which the Government says they have not yet done.
16. 938. Finally, the Committee is obliged to note once again that the present case shows that the exercise of trade union rights – whether the right to establish trade union organizations or the right to adequate and effective protection against acts of anti-union discrimination – is guaranteed neither in the legislation, whose fines do not appear to have any dissuasive effect, nor in practice. The Committee reiterates its earlier recommendations and reminds the Government once again that it may avail itself of ILO technical cooperation in the context of the preparation of future trade union legislation. The Committee considers that, among other things, the new legislation should guarantee the right to establish trade unions without restrictions, and that proceedings in the case of anti-union discrimination should be rapid and effective providing for sufficiently dissuasive sanctions. Moreover, the new legislation should avoid the Ministry of Labour informing the employer of the names of the founders of a trade union in order for the employer to indicate whether or not the founders are employees.