Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 375, Junio 2015

1. 211. The Committee examined this case at its November 2012 and May–June 2014 meetings and, on the latter occasion, presented an interim report [see 372nd Report, paras 157–173, approved by the Governing Body at its 321st Session (June 2014)].
2. 212. The Government sent new observations in a communication dated 27 February 2015.
3. 213. 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. 214. At its May–June 2014 meeting, the Committee made the following recommendations on the matters still pending [see 372nd Report, para. 173]:
   • …
   • (b) The Committee once again requests the Government to keep it informed of the revision requested by the trade union of the collective agreement at LIDO SA de CV, which is due to expire.
   • (c) The Committee once again requests the Government to clarify whether union leader Guadalupe Atilio Jaimes Pérez (whose release was ordered by the judicial authority) is still facing charges and, if so, to inform it of the court ruling.
   • (d) With respect to the allegation relating to the declaration of the strike as illegal, the Committee observed in its previous examination of this case that the objective of the strike was a wage increase and that the declaration of the illegality of the strike on this basis did not appear to be justified. The Committee once again expresses its concern and requests the Government to inform it of the judicial ruling declaring the workers’ strike at LIDO SA de CV to be illegal.
   • (e) The Committee once again observes that the Government has still not responded to the allegation regarding the dismissal of trade unionists Ana María Barrios Jiménez, María Isabel Oporto Jacinta and Oscar Armando Pineda, and once again requests it to send its observations without delay.
   • (f) The Committee requests the Government to send its observations relating to the complainants’ additional information dated 9 July 2013.
   • (g) The Committee requests the Government to obtain the company’s comments on the pending questions via the employers’ organization concerned.
2. 215. With respect to the information provided on 9 July 2013, mentioned in recommendation (g), the complainants stated that, on 2 September 2011, as part of the collective bargaining taking place as the collective agreement was due to expire, the SELSA trade union requested the Ministry of Labour to invite the company to the direct negotiation and conciliation stages. Article 1 of the preliminary draft of the collective agreement which SELSA was expecting to negotiate included all workers working directly or indirectly for LIDO SA de CV at the Boulevard plant who were subcontracted by FAMOLCAS SA de CV (which shared the same owners as LIDO SA de CV). This also contributed to the company’s intransigence, since it maintained a double standard by paying subcontracted workers less. The wages of the workers in the company are among the lowest in the industry in the country, at only US$281.40 per month plus some benefits payable under the collective agreement. The wages of workers subcontracted by FAMOLCAS are even lower, at between $229 and $240 per month without any additional benefits.
3. 216. The complainants also state that the enterprise did not attend the direct negotiations or the conciliation meetings organized by the Ministry of Labour in 2012, nor did it respond to the trade union’s proposal of voluntary arbitration. As a result, the union was legally entitled to call a strike from 21 February to 20 March 2012. Following a personal intervention from the Minister of Labour, the company participated in a dialogue forum. However, its representatives attended merely to argue that, as a result of family disputes, the companies, which were under the control of their family members, owed them $5 million, and that, in order to absorb the debt, they had planned to recover $1.2 million in expenses annually over four years between 2010 and 2014, during which period they were not in a position to increase wages. In other words, the company’s proprietors requested the workers to accept a pay freeze, which had so far lasted four years, and it would take a further two years to pay the costs of the family dispute.
4. 217. In view of the company’s intransigence concerning participation in the collective bargaining stages, SELSA completed all of the legal procedures and informed the Director General of Labour that the strike had broken out on 19 March 2012. SELSA, through its General Secretary, requested that the action be characterized as a strike since the company did not wish to do so. Thus began the proceedings of the Fourth Labour Court of San Salvador. The bargaining unit party to the dispute leading to the strike comprised 151 workers of the company, 57 per cent of whom supported the strike, thus exceeding the 51 per cent required by law. However, as a result of undue influence from the company, the Fourth Labour Court unlawfully included the subcontracted workers in the count. (It was the union’s intention to include them in the future, but they did not belong to the bargaining unit at that time.) The Court also included in the count 14 company directors who are registered with the company for social security purposes but who are its proprietors. The judge declared the strike unlawful without considering all these irregularities. This demonstrates, once again, the shortcomings of the existing mechanisms in the legislation of El Salvador.

B. The Government’s reply

1. 218. In its communication dated 27 February 2015, the Government states, with regard to recommendation (b) from the previous examination of the case, that the revision of the collective agreement at LIDO SA was requested by SELSA on 2 September 2011. The list of demands was sent to the enterprise on 5 October 2011, but no rapprochement with the trade union was reached within the following 24 hours. The enterprise did not attend the direct negotiations and conciliation meetings organized by the Ministry of Labour on 25 October 2011 and 20 January 2012, nor did it respond to the trade union’s request for voluntary arbitration. In light of the foregoing, the trade union adopted a decision to call a strike at a meeting attended by 87 of the company’s 151 workers and the Ministry of Labour notified the company accordingly on 20 February 2012.
2. 219. The Government adds that subsequently (on 16 March 2012) the two parties met to begin the revision of the collective labour agreement. They agreed to proceed on a clause-by-clause basis and to meet again on 19 March 2012. However, the Ministry of Labour received a letter from the trade union, notifying, pursuant to article 531 of the Labour Code, the beginning of the strike. The Director-General of Labour decided to inform the parties, and particularly the company, of the strike and notified them that they must declare, within the legal time limit, whether they wished to exercise the right, enshrined in article 532 of the Labour Code, to meet with the trade union and determine the number, type and names of the workers who would remain on the job at the company; the two parties received this notification on the same day.
3. 220. The administrative proceedings in the General Directorate of Labour ended when, at the request of the competent court, it was certified that the necessary procedures for characterizing the action as a strike had been completed; it would be for the court to decide whether the strike was lawful. Since only the parties to the dispute were notified of the court’s ruling, the Government has no knowledge of it.
4. 221. With respect to recommendation (c), in which the Committee requested the Government to clarify whether union leader Guadalupe Atilio Jaimes Pérez (whose release was ordered by the judicial authority) is still facing charges and, if so, to inform it of the court ruling, the Government reproduces the ruling in question:
   • At 2.30 p.m. on 13 June 2011, in an initial hearing, the First Magistrates’ Court of the Soyapango Integrated Judicial Centre issued judgment No. 1298-UDV-SOY-11, in which the court decided “(a) to move to the next (pre-trial) stage of these proceedings; and (b) to order the pre-trial detention of Guadalupe Atilio Jaimes Pérez, charged under article 154 of the Penal Code with threats of physical violence against José Heriberto Pacas, and, in lieu of pre-trial detention, that the accused shall: (i) appear before the First Magistrates’ Court every 15 working days throughout the pre-trial stage of the proceedings; (ii) be prohibited from leaving the country without the authorization of the First Magistrates’ Court; (iii) continue to reside at the same address; and (iv) not approach or communicate with the alleged victim; (v) The request that a time limit be set for the pre-trial stage of the proceedings shall be referred to the First Magistrates’ Court, which shall issue a ruling on the matter; (vi) the related civil proceedings shall be deemed to be brought at the request of the Public Prosecutor’s Office; (c) the proceedings in the present case shall be referred to the First Magistrates’ Court of this city pursuant to the last paragraph of article 300 of the Code of Criminal Procedure and the accused, who has been released, shall remain at liberty; and (d) the accused, Guadalupe Atilio Jaimes Pérez, shall follow the foregoing instructions”.
5. 222. Concerning the Committee’s recommendation (d), requesting to be informed of the judicial ruling declaring the strike to be illegal, the Government states that, on 23 March 2012, the Fourth Labour Court of San Salvador heard the arguments for characterization of a strike against LIDO SA de CV made by union leader Guadalupe Atilio Jaimes Pérez in his capacity as General Secretary of the trade union SELSA. In a judgment issued on 12 April 2012, the court “(1) in order to settle the dispute pursuant to article 566, paragraph 3, of the Labour Code and, in accordance with articles 528, 546, 551 and 553(f) of the Code, declares that the strike called by Guadalupe Atilio Jaimes Pérez in his capacity as General Secretary of the LIDO SA de CV Company Trade Union is unlawful (Section 9, article 553(f), of the Labour Code) since, as demonstrated and determined by the aforementioned inspection, of the company’s 321 workers, only 68 are striking peacefully while 253 remain on the job, 78 of them working for LIDO SA de CV and 175 working for FAMOLCAS SA de CV. Thus, the striking workers do not constitute at least 51 per cent of the employees of LIDO SA de CV or of the affected enterprise or establishment; (2) declares unfounded the request to stop work and orders all workers at the plant where the strike occurred to leave the premises peacefully; and (3) orders the striking workers to report for work at their usual time on 17 April of the present year in order to carry out their respective tasks”.
6. 223. With respect to the alleged dismissal of trade unionists Ana María Barrios Jiménez, María Isabel Oporto Jacinta and Oscar Armando Pineda (the Committee’s recommendation (e)), the Government indicates that the records kept by the general labour inspectorate in the Ministry of Labour and Social Welfare have been reviewed and that no record of a request for a labour inspection by the persons in question has been found. It also states that the unfair dismissal of a member of a trade union’s executive committee may be appealed not only through administrative channels, but also through the courts; thus, the claimants could have elected to initiate judicial proceedings. Therefore, according to the Government, the Committee should urge the claimants to provide additional information on the action taken so as to enable it to formulate the requested observations.
7. 224. Concerning the Committee’s recommendation (g), the Government provides a copy of the company’s comments on the pending questions via the employers’ organization concerned:
   • (a) Owing to the death of the brother of its Director, Manuel Roberto Molina Martínez, the company was not functioning properly. Some workers were affected by this and reported alleged criminal offences. In order to address their complaints, Mr Molina Martínez, as a shareholder in the company, entered into conciliation proceedings with all the complainant workers in the Fifth Magistrates’ Court and, out of his own pocket, reimbursed them for the unpaid amounts retained by the then administrators of DIGAPAN SA de CV.
   • (b) It is true that LIDO SA de CV was bound by a three-year collective labour agreement with SELSA, registered with the National Department of Social Organizations in the Ministry of Labour and Social Welfare General Directorate of Labour in September 2008, which expired in September 2012. The trade union subsequently requested the Ministry to authorize a revision of the collective agreement – not one clause, as the complainants maintain – and since the temporary extension of the collective labour agreement was not effected as it had been agreed when requesting for revision, and in order to keep the agreement in force during the revision pursuant to article 276, paragraph 2, of the Labour Code, it was decided that it would remain in provisional effect for the duration of the revision process. During this period, no understanding on a new agreement was reached since the trade union itself walked away from the bargaining table that it had demanded; it surprised the company by calling an unlawful strike, which was declared unlawful by the Fifth Labour Court of San Salvador in 2011 and the Fourth Labour Court of San Salvador in 2012.
   • (c) Concerning the alleged anti-union activities, particularly with regard to Guadalupe Atilio Jaimes Pérez, the company states that it did not bring charges against him; he committed a crime by threatening and injuring another of the company’s workers and it was the victim who complained to the authorities, who initially took Mr Jaimes Pérez into custody.
   • (d) Concerning the union representatives’ statement that the company was guilty of exerting undue influence on the Fourth Labour Court and that the court responded positively to such influences, this implies that the judge also committed an offence. The company therefore considers that, pursuant to article 232, paragraph 1, of the Code of Criminal Procedure, the matter should be referred to an examining magistrate and the signatories of the complaint should be asked to substantiate their claim or face charges of slander. Lastly, the company states that some trade union leaders have not reported for work since 22 July 2012 for no apparent reason or for frivolous reasons.
8. 225. In conclusion, the Government states that, for the foregoing reasons, the complainant’s allegations concerning the unlawful nature of the strike, the arrest of a trade union leader and the dismissal of workers’ representatives are unfounded.
9. 226. The Committee notes that the allegations in the present case concern the period 2011–12.
10. 227. Concerning the alleged anti-union attitude of LIDO SA de CV, the Committee observes that the Government confirms the allegation that, when the trade union requested the Ministry of Labour to authorize a revision of the collective agreement of 2 September 2011, the company refused to attend the direct negotiations or the conciliation meetings and did not respond to the trade union’s request for compulsory arbitration; however, the Government notes that later, after the trade union had adopted a decision to call a strike and the union and the company had agreed (on 16 March 2012) to revise the collective agreement on a clause-by-clause basis and to meet again on 19 March 2012, the Ministry of Labour received a letter from the trade union reporting that a strike had broken out. The company, for its part, states that, by law, the collective agreement remained in force provisionally for the duration of the revision and that the trade union itself walked away from the bargaining table that it had demanded and called a strike, which the court declared unlawful. The complainants allege that the dialogue forum was established through the good offices of the Ministry of Labour, but the company argued economic problems, disputes between the owners and millions of dollars in debt in an attempt to justify freezing wages for the next six years. The Committee would like to point out that it is not called upon to evaluate the positions and strategies of the parties in a collective bargaining process and, in general, to draw attention to the principle that it is important that both employers and trade unions bargain in good faith and make every effort to reach an agreement: moreover, genuine and constructive negotiations are a necessary component to establish confidence between the parties [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 935]. It also underlines that the principle that both employers and trade unions should negotiate in good faith and make efforts to reach an agreement means that every unjustified delay in the holding of negotiations should be avoided [see Digest, op. cit., para. 937].
11. 228. With respect to the court’s ruling that the strike was unlawful, the Committee notes the content of the 12 April 2012 judgment in which the Fourth Labour Court of San Salvador declared the strike unlawful, ordered all the workers present at the plant to peacefully leave the premises and the striking workers to report for work at their usual time on 17 April 2012.
12. 229. The Committee observes that the court ruled that the strike was unlawful because it noted that, of the company’s 321 workers, only 68 were striking peacefully while 253 remained on the job, 78 of them working for LIDO SA de CV and 175 working for FAMOLCAS SA de CV. Therefore, the striking workers did not constitute at least 51 per cent of the employees of LIDO SA de CV or of the affected enterprise or establishment as required by law.
13. 230. The Committee observes a disparity in the numbers of striking workers provided by the complainant union; it maintains that 57 per cent of the company’s workers supported the strike and that the subcontracted workers should not have been counted; it also alleges that the company exerted undue influence on the Fourth Labour Court, which included 14 company directors in its count.
14. 231. The Committee is not in a position to verify the irregularities alleged by the complainants, but would nevertheless recall the principle that the conditions that have to be fulfilled under the law in order to render a strike lawful should be reasonable and in any event not such as to place a substantial limitation on the means of action open to trade union organizations [see Digest, op. cit., para. 547]. The Committee invites the Government to refer these legislative issues for tripartite dialogue.
15. 232. Concerning the criminal proceedings against Guadalupe Atilio Jaimes Pérez, General Secretary of the complainant trade union (whose release was ordered by the court), the Committee takes note of the company’s statement that he committed a criminal offence against another of the company’s workers, whom he threatened and injured, and that it was the victim who filed a complaint. The Committee also takes note of the judgment handed down on initial hearing by the First Magistrates’ Court of the Soyapango Integrated Judicial Centre on 13 June 2011, in which the aforementioned union leader was charged under article 154 of the Criminal Code with threats of physical violence against José Heriberto Pacas, and, in lieu of pre-trial detention, was granted conditional release and is still at liberty.
16. 233. Concerning the allegation regarding the dismissal of trade unionists Ana María Barrios Jiménez, María Isabel Oporto Jacinta and Oscar Armando Pineda, the Committee notes from the Government’s reply that the labour inspectorate’s involvement was not requested and that the Government, being unaware whether judicial proceedings have been initiated, would like the complainants to provide additional information. Since the company states in general terms, without mentioning specific names, that some trade union leaders have not reported for work since 22 July 2012 for no apparent reason or for frivolous reasons, the Committee requests the complainants to indicate whether the three trade unionists that they mention by name have initiated legal proceedings and, if so, to inform it of the judgment in the case.