Informe provisional - Informe núm. 349, Marzo 2008

1. 756. The complaint is contained in a joint communication from the Trade Union Confederation of El Salvador Workers (CSTS), the Trade Union Federation of Food, Beverage, Hotel, Restaurant and Agro-Industry Workers of El Salvador (FESTSSABHRA) and the Sweets and Pastries Industrial Trade Union (SIDPA), dated 29 January 2007. SIDPA sent further information in a communication dated 8 May 2007, as did FESTSSABHRA and SIDPA in a joint communication dated 20 September 2007.
2. 757. The Government sent its observations in communications dated 31 May and 24 October 2007.
3. 758. 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. The complainants’ allegations

1. 759. In their communication dated 29 March 2007, CSTS, FESTSSABHRA, (the Salvadoran affiliate of the International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers’ Associations (IUF)) and SIDPA allege that the freedom of association of the workers of the Productos Alimenticios Diana SA de CV enterprise has been violated by the irregular dissolution of SIDPA by the Second Labour Court, instigated by three former leaders of the trade union, in agreement with the general manager of the enterprise and the collaboration of the Ministry of Labour and Social Security.
2. 760. The complainants claim that this is a serious precedent for El Salvador, since SIDPA has existed for over 40 years and has faced constant anti-union activity and acts of interference by the enterprise in trade union matters since the 1980s.
3. 761. Specifically, the complainant organizations indicate that on 12 March 2007 various members of SIDPA at Productos Alimenticios Diana SA de CV were informed by the human resources manager that the trade union no longer existed and hence the enterprise was dismissing them. The dismissals continued over the following three days. This occurrence was merely an indication of a process instigated without the knowledge of the majority of workers but of which the leaders had informed the competent authority – the Ministry of Labour and Social Security – at the proper time.
4. 762. The complainant organizations recount the following sequence of events:
   • (a) On 24 October 2006, the former General Secretary of SIDPA, Mr Francisco Flores, received a verbal offer from the Chairman of Productos Alimenticios Diana SA de CV, Mr Hugo Barrera (former Minister for Public Safety and for the Environment, and current Director of the autonomous state enterprise CEPA), to dissolve the trade union in exchange for a financial settlement. On 28 October, at a general meeting of union members, Mr Flores conveyed the enterprise Chairman’s proposal to his SIDPA colleagues. The majority decided not to accept it. However, Mr Carlos Hernán Méndez Pérez, the SIDPA General Secretary, and Mr Pablo Ernesto Sánchez, the SIDPA secretary responsible for records and agreements, accepted it and initiated a fraudulent process to dissolve the trade union behind the backs of the other union leaders and members, as is now known.
   • (b) On 28 November 2006, a first attempt at dissolving the union was rejected by the Fourth Labour Judge.
   • (c) On 21 December 2006, the General Secretary of the Productos Alimenticios Diana SA de CV branch of SIDPA and the Secretary in charge of dispute procedures on the SIDPA Executive Committee notified the Ministry of Labour’s Department of Social Organizations in writing of the intentions of the two former leaders to dissolve the union in collusion with the enterprise. They also asked the Ministry of Labour not to supply any documentation on behalf of the union to the two abovementioned persons as the latter were involved in proceedings for expulsion by SIDPA on account of their actions. They corroborated this with documentation stating that the former leaders were being expelled for actions endangering the security and smooth operation of the organization and had even been replaced by the general meeting held on 16 December.
   • (d) On 8 January 2007, the National Department of Social Organizations of the Ministry of Labour and Social Security supplied various records and documents to the leaders being expelled from SIDPA despite the written request made on 21 December. The Department not only supplied the documentation – vital to the fraudulent dissolution process – but also omitted to notify the legitimate leaders of SIDPA of this fact.
   • (e) On 5 February 2007, the leaders who were being expelled initiated proceedings for “voluntary” dissolution in the Second Labour Court of San Salvador. The proceedings were supposedly endorsed by a general meeting held on 13 January 2007, the record of which contains 28 signatures, ten of them forged, including that of a person resident in the United States since November 2006.
   • (f) According to section 73 of the SIDPA statutes, voluntary dissolution requires the votes of two-thirds of the union membership. Even if the ten forged signatures are added to the 18 genuine ones, the number of signatures does not constitute the stated majority required for dissolution, given that SIDPA has 43 members at Productos Alimenticios Diana SA de CV alone.
   • (g) The proceedings reveal that the abovementioned general meeting was not convened with eight days’ notice or advertised in the newspapers, as prescribed by the SIDPA statutes. Three days’ notice are said to have been given by means of a simple note without even the minimum formalities required for due process, given that there was also no agreement from the executive committee to convene such a meeting, this being a further requirement of the statutes.
   • (h) On 15 February 2007, the acting Second Labour Judge decided on the voluntary dissolution, despite the process being totally flawed. What is extremely surprising is that an acting judge, aware of the temporary nature of his duties, reached a decision in only ten days, whereas labour cases generally take months or even years in El Salvador. On 16 February, the same judge contacted the Ministry of Labour requesting the registration of SIDPA to be revoked. The remaining legal representatives of SIDPA were never informed; only the two persons who had fraudulently instigated the proceedings and were in the process of being expelled from the union were notified.
   • (i) On 12 March 2007, the enterprise dismissed Mr Daniel Ernesto Morales, the SIDPA Disputes Secretary; on 14 March, it dismissed another eight members of SIDPA; and on 15 March, it dismissed one more, the General Secretary of the SIDPA branch at Productos Alimenticios Diana SA de CV, Mr José Antonio Guillén.
   • (j) These dismissals and the supposed dissolution of the union were confirmed to the SIDPA leaders by the enterprise representative, after the human resources manager offered minimum financial compensation to avoid any legal proceedings or denunciation of the acts committed.
   • (k) On 20 March 2007, Mr Oscar Antonio Roque, a member of SIDPA, filed a criminal complaint at the Attorney-General’s Office for falsification of documents by the former leaders, who allegedly submitted a fake record of the general meeting of 13 January 2007 with ten forged signatures, including his own. This is one of the legal steps being taken to quash the dissolution of the union. The proceedings are currently before the Attorney-General as Case No. 208-UDAJ-2007.
5. 763. In its communication dated 8 May 2007, the SIDPA trade union alleges that on 7 May 2007 the enterprise dismissed six members of the union: José Alvaro Castillo López, Julio César Martínez Ramírez (former union leader in his additional year of immunity), Josefa del Carmen Samayoa López (affected by occupational disability, which makes dismissal prohibited by law), Santos Osmin García Martínez (former union leader in his additional year of immunity), Oscar Alfredo Ramírez (SIDPA branch press and public relations officer at Productos Alimenticios Diana SA de CV) and Judith Beatriz Evangelista Navarro. This demonstrates that those seeking the fraudulent dissolution of the union shared an interest with Productos Alimenticios Diana SA de CV to be rid of all SIDPA members at the enterprise.
6. 764. By a communication dated 20 September 2007, FESTSSABHRA and SIDPA stated that on 27 August 2007 the El Salvador Human Rights Prosecutor’s Office issued a ruling to the effect that it had decided, as part of an investigation into the fraudulent dissolution of SIDPA, to request reports from the Director-General for Labour at the Ministry of Labour, the Second Labour Judge of San Salvador, and the head of the unit at the Attorney-General’s Office dealing with offences relating to the administration of justice (the complainants attach the aforementioned ruling issued as a result of a complaint by the General Secretary of the SIDPA branch at the enterprise).

B. The Government’s reply

1. 765. In its communication dated 31 May 2007, the Government states that on 16 February 2007 the Department of Social Organizations at the Ministry of Labour and Social Security received Notice No. 0117 from the Second Labour Court of San Salvador requesting the revocation of the registration of SIDPA, on account of its dissolution pursuant to a ruling of this court dated 15 February 2007.
2. 766. On account of the abovementioned request and in view of the court ruling, the Department of Social Organizations decided on 2 March 2007 to: (a) deem SIDPA dissolved; (b) cancel by means of a note in the margin the registration entry in Volume 1 of the register of occupational associations maintained by the Department; and (c) cancel by means of a note in the margin the registration entry in Volume 19 of the register of general trade union executive committees maintained by the Department, in which the current executive committee of the aforementioned union is registered.
3. 767. The Government adds that the Director-General for Labour, in accordance with section 235 of the Labour Code, sent communications to both the Minister for Labour and Social Security and the Minister for Economic Affairs, and also to the latest executive committee of the union, so that each could appoint a delegate to the Liquidation Board.
4. 768. With regard to the alleged violation of the guaranteed immunity of the SIDPA leaders, and also of the members who, according to the complaint, were dismissed in May 2007, the Government states that both the Directorate-General of Labour and the Directorate-General of Labour Inspection checked their registers and did not find any records of requests or complaints concerning dismissal from those concerned with a view to claiming legal protection in connection with breached labour rights.
5. 769. Moreover, the Government states that it is important that the Committee on Freedom of Association is aware of the legal action pursuant to sections 283 and 284 of the Penal Code initiated at the Attorney-General’s Office on 20 March 2007 by Mr Oscar Antonio Roque, in his capacity of rank-and-file member of the SIDPA branch at Productos Alimenticios Diana SA de CV, against Mr Carlos Hernán Méndez Pérez, former General Secretary of SIDPA, for alleged falsification of documents and facts (the complainant organizations refer to Mr Méndez Pérez as one of the persons responsible for the allegedly fraudulent process to dissolve the union). According to a communication from the Deputy Director of the Protection of Social Interests Division at the Attorney-General’s Office, investigation of the case is at present fully under way, with the following steps pending: (1) interviews to be held with all persons whose signatures were allegedly forged; (2) official records to be provided (order for confiscation) in order to carry out the relevant examination; (3) a report to be requested from the Ministry of Labour and Social Security (Department of Social Organizations) regarding the registered status of the abovementioned union; and (4) interviews to be held with the members of the union who agreed that it should be dissolved.
6. 770. The Government considers that there is no violation of trade union rights in the present case, since the procedures for voluntary dissolution undertaken by the Second Labour Court of San Salvador at the request of Mr Carlos Hernán Méndez Pérez, acting in his capacity of General Secretary of SIDPA at the time, were correctly observed on the basis of documentation submitted by Mr Méndez. For this reason Mr Oscar Antonio Roque initiated criminal proceedings, not against the ruling of the Second Labour Court but against the documentation used as the basis for the proceedings to dissolve the union submitted by Mr Carlos Hernán Méndez Pérez, who faces prosecution if he is found to have committed irregularities.
7. 771. Despite the above, the Government will request information from the employers’ organization concerned and will forward its reply, together with the results of the criminal proceedings which have been initiated.
8. 772. In its communication of 24 October 2007, the Government refers to the decision issued by the Human Rights Prosecutor’s Office, requesting the Director-General for Labour to indicate what steps were taken with regard to the matter in question (dissolution of SIDPA). In this regard, the Government provides a verbatim transcription of the report submitted by the Director-General of Labour to the Human Rights Ombudsperson in relation to the present case:
   • – At 11.09 hours on 22 February 2007, the National Department of Social Organizations of the Directorate-General of Labour was notified of Case No. 0017, dated 16 February 2007, whereby the Second Labour Judge of San Salvador, Mr José Guillermo Ramos Chorro, ordered the revocation of the registration of SIDPA, in compliance with the ruling issued at 09.20 hours on 15 February 2007 by the said court, in which the aforementioned trade union was declared judicially dissolved and a communication was sent to the Chief of the National Department of Social Organizations.
   • – In compliance with the aforementioned ruling, by means of a decision issued at 15.00 hours on 2 March 2007, the National Department of Social Organizations decided: (a) to deem SIDPA dissolved; (b) to cancel by a note in the margin registration entry No. 80 (page 28 verso – page 29 recto) in Volume 1 of the Register of Occupational Associations maintained by the Department, in which the aforementioned trade union was registered; and (c) to cancel by a note in the margin registration entry No. 204 (page 205, Volume 19 of the Register) relating to the executive committee of the aforementioned trade union.
   • – The abovementioned registration entries were cancelled by a note in the margin on 6 March this year.
   • – In accordance with section 235 of the Labour Code, the Directorate-General of Labour sent communications to the Minister for Labour and Social Security and the Minister for Economic Affairs, and also to the latest executive committee of the said occupational organization, so that they could appoint a delegate to the Liquidation Board.
   • – By means of an order dated 2 July this year, the Directorate-General of Labour acknowledged receipt of the appointments of the Liquidation Board delegates from the Ministry of Labour and Social Security and the Ministry of Economic Affairs. This was not the case with the delegate from the latest SIDPA executive committee, which, having been sent a communication on two occasions, neither made an appointment nor adopted a position in this respect. Hence the terms of section 235 of the Labour Code were observed and proceedings were undertaken solely with the presence of the two ministerial delegates, swearing them in and assigning them their duties as members of the Liquidation Board on 9 July of this year. The respective procedures were undertaken and a deadline of 60 days was set for completion of the liquidation process, in accordance with sections 235 and 236 of the Labour Code.
   • – The procedures for the liquidation of the abovementioned trade union were completed on 25 July of this year, according to the report submitted by the members of the Liquidation Board. On this date, the Liquidation Board handed the file to the Directorate-General of Labour, in accordance with section 244 of the Labour Code.
   • – By means of a communication issued at 14.00 hours on 7 August this year, this Directorate-General decided: (a) that the procedures completed by the Liquidation Board for SIDPA should be approved; and (b) that the aforementioned should be communicated to the Minister for Labour and Social Security, in accordance with section 247 of the Labour Code.
9. 773. The Government explains that the dissolution of a trade union is subject to a legal procedure laid down in the Labour Code. Section 232(c) states that the dissolution of a trade union proceeds by virtue of a decision of its members in conformity with the corresponding statutory rules, and section 233(2) states that, under section 232, any interested party may initiate the corresponding legal procedure. Therefore the dissolution of a trade union is the subject of court proceedings.
10. 774. However, in view of the fact that the registration and establishment of legal status of a trade union are administrative acts under section 219(5) of the Labour Code, the Ministry of Labour and Social Security, in compliance with a court ruling, revoked the registration of the aforementioned trade union, pursuant to section 234 of the Labour Code.
11. 775. Finally, the Government points out that trade unions have the possibility of appealing against a labour court ruling, and workers may also have recourse to the legal mechanisms established in the country, such as the courts. Moreover, they have been informed that they can also seek legal protection with regard to securing unpaid benefits for which the employer is responsible. The Ministry of Labour will continue to assist workers whenever they request it.

C. The Committee’s conclusions

1. 776. The Committee observes that, in the present complaint, the complainant organizations allege that three leaders of SIDPA, after a financial offer from the Chairman of the Productos Alimenticios Diana SA de CV enterprise was accepted by two of them, initiated fraudulent proceedings for the “voluntary” dissolution of the trade union without the knowledge of the other union leaders and members. These proceedings, supposedly endorsed by a general meeting held on 13 January 2007, culminated in an official record containing 28 signatures, ten of which were forged and including that of a person resident in the United States. Hence the consent of two-thirds of the membership required by the union statutes to dissolve the union was not obtained (in this respect, the complainants point out that the union has 43 registered members at Productos Alimenticios Diana SA de CV alone). Moreover, contrary to the union statutes, the requisite eight-day notice period prior to the general meeting in question was not given, either by publication in the press or further to agreement by the union’s executive committee. The Committee observes that, according to the allegations, on 15 February 2007 the acting Second Labour Judge approved the dissolution (whereas labour proceedings generally take months or even years), and between 12 and 15 March 2007 the enterprise dismissed two union leaders and eight union members, offering them financial compensation in order to avoid any legal proceedings or denunciation of the acts committed. Finally, on 7 May 2007 the enterprise dismissed one union leader, two former leaders and three other members.
2. 777. The Committee notes the Government’s statements, particularly to the effect that: (1) the judiciary requested the Ministry of Labour and Social Security to revoke the registration of the SIDPA trade union, and on 2 March 2007 this request was complied with by the Ministry, which deemed the union dissolved, revoked the registration of the union and its executive committee and, in accordance with the law, appointed the Liquidation Board, whose proceedings were completed on 25 July 2007 and approved by the Ministry of Labour; (2) the court ruling ordering the dissolution of the union can be appealed against and dismissed workers can have recourse to the courts or – something they did not actually do – request the Directorate-General of Labour Inspection for legal protection of the breached labour rights; (3) a member of the trade union filed a criminal complaint against one of the instigators of the dissolution of the union (its general secretary at the time) for alleged falsification of documents and facts; and (4) as regards the complaint submitted to the Human Rights Ombudsperson by the General Secretary of the Productos Alimenticios Diana SA de CV branch of SIDPA on account of the dissolution of the union and the dismissals, the Ministry of Labour sent a document in which it essentially reiterates points (1) and (2) above, emphasizing that it (the Ministry of Labour) had merely complied with the court ruling.
3. 778. The Committee observes that the Government has not replied to the complainant organizations’ claims that on 21 December 2006 two SIDPA officials (including the General Secretary of the union’s enterprise branch) informed the Ministry of Labour in writing of the violations committed by two former leaders in dissolving the union in collusion with the enterprise and requested that no documentation on behalf of the union should be made available to those persons who had been replaced at the general meeting of 16 December 2006 and were being expelled from the union. Nevertheless, the Ministry supplied various records and documents to those persons.
4. 779. The Committee regrets that, even though the present case contains serious allegations of anti-union dismissals of a large number of trade union members (16), as well as allegations of acts of interference in union affairs by the employer in the form of financial offers, the Government has not undertaken an in-depth investigation of these matters. The Committee urges the Government to carry out an investigation without delay, to keep it informed in this regard and – if the allegations are proven – to take the necessary measures to reinstate the trade union members in their posts with back pay, as well as to take the measures and impose the sanctions provided for in the law so as to remedy such acts.
5. 780. The Committee also requests the Government to send the report of the Human Rights Ombudsperson on the present case as soon as the Ombudsperson reaches a decision, and also to send any decisions taken as a result of the criminal complaint filed at the Attorney-General’s Office by a union member for alleged falsification of documents and facts by the former General Secretary who instigated the allegedly fraudulent dissolution of the union.