Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 346, Juin 2007

903. The Committee examined this case at its November 2006 meeting and on that occasion submitted an interim report to the Governing Body [see 343rd Report, paras 649–688, adopted by the Governing Body at its 297th Session (November 2006)].

1. 904. The Government sent its observations in a communication dated 18 January 2007.
2. 905. El Salvador ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), the Workers’ Representatives Convention, 1971 (No. 135), and the Labour Relations (Public Service) Convention, 1978 (No. 151), on 6 September 2006.

A. Previous examination of the case

1. 906. At its November 2006 meeting, the Committee made the following recommendations on the issues that were still pending [see 343rd Report, para. 688]:
2. …
3. (b) Regarding the alleged anti-union dismissal of trade union official Oscar López Cruz on 12 November 2004, the Committee requests the Government to inform it of the outcome of the proceedings to impose a fine on Industria de Hilos de El Salvador SA de CV, and to continue urging the company to reinstate this official and to pay him the wages that are due to him, or – as Oscar López Cruz reportedly appears to prefer, due to the death threats he received – only to pay him the wages and compensation due to him by law for dismissal by fault of the employer.
4. …
5. (d) The Committee regrets that the Government has not sent its observations on the allegations described below and calls on it to do so without delay:
6. – an illegal work stoppage “for lack of raw materials” by Hermosa Manufacturing SA de CV, without a proper ruling by the Ministry of Labour, in order to avoid the list of demands submitted by the Executive Board of the STITAS union section, and the transfer of machinery to another company belonging to the same owner; the ruling of a – supposed – strike as illegal by the judicial authority at the request of the enterprise (the ruling was subsequently revoked by the said authority); another illegal work stoppage by the company affecting 64 union officials or members; and the offer of money to officials of the Executive Board of the section to leave the trade union or speak out against it;
7. – the anti-union dismissal of María Esperanza Reyes Sifontes, an official of the STITAS section’s Executive Board at CMT, SA de CV, and of another 11 members of the union section in September 2005, as well as the harassment and hounding at their home of other officials of the section (Blanca Lucia Osorio and María Esperanza Reyes Sifontes); the dismissal of seven other trade union officials in October 2005; and
8. – the anti-union dismissal of four officials and two members of the SIDPA trade union section at the Diana, SA, company.
9. B. The Government’s reply
10. 907. In its communication of 18 January 2007, the Government states the following:
11. – Industria de Hilos de El Salvador, SA de CV: in this case, as previously stated, the Ministry has made use of all the legal machinery provided by labour legislation to endeavour to have the worker and trade union official Oscar López Cruz reinstated in his post and to provide legal assistance to the worker at his request. Two procedures are currently under way to impose fines in connection with the dismissal proceedings and the payment of wages owed because of a fault on the part of the employer of worker and trade union official Oscar López Cruz. The Government will report on the outcome of the abovementioned proceedings in due course.
12. – Hermosa Manufacturing SA de CV: the results obtained through legal channels are being investigated in order to follow up on the rulings made in connection with the payment of compensation, wages and other benefits owed to the workers by the enterprise; these results will be made known as soon as they are available. In addition, the third court of the first instance found the legal representative of Hermosa Manufacturing SA de CV guilty of retaining workers’ contributions and imposed a criminal sentence of two years’ imprisonment and a civil fine of US$144,724.05.
13. – CMT, SA de CV: the outcome of the proceedings was that the enterprise was required to pay a fine amounting to US$342.84. Notwithstanding the above, the Ministry of Labour and Social Welfare will provide legal assistance to the workers concerned upon their request.
14. – Diana, SA: with regard to the dismissal of four officials from the trade union section at Diana, SA de CV (Yanira Isabel Chávez Rodríguez, Heidi Sofía Chávez Leiva, José Alfredo Ramírez Merino and Daniel Ernesto Morales Rivera), it is reported that, although Daniel Ernesto Morales Rivera has not been reinstated in his post, the enterprise is still paying the wages owed to him because of a fault on the part of the employer as well as the other benefits of the collective labour agreement between the enterprise and the trade union. However, with regard to the dismissal of Yanira Isabel Chávez Rodríguez, Heidi Sofía Chávez Leiva and José Alfredo Ramírez Merino, the employer’s representative indicated that they had been dismissed because of repeated disciplinary offences and could not therefore be reinstated, as it would set a bad precedent for the other employees. Furthermore, on 18 August 2005, the day on which they were dismissed, they did not hold the status of trade union officials and there was therefore no breach of trade union immunity. Furthermore, as the certificates of medical incapacity submitted by the workers in question were issued on 18 August, hours after the time of dismissal, they did not lead to the suspension of work contracts, as the contracts had already been terminated. In a decision of 3 February 2006, the General Labour Inspection Directorate waived the fine imposed on Diana, SA de CV as the enterprise had proved that there had been no breach of section 248 or section 29 of the Labour Code, because at the time of their dismissal, José Alfredo Ramírez Merino, Yanira Isabel Chávez Rodríguez and Heidi Sofía Chávez Leiva had the status of ordinary workers and were not entitled to the guarantee of stable employment provided under section 248 of the Labour Code. In the case of Carlos Mauricio Flores Saldaña and Rafael Antonio Soriano of Diana, SA de CV, who were dismissed from that enterprise and were members of the Sweets and Pastry Industrial Trade Union (SIDPA), after reviewing the record of complaints, it was found that they have not initiated any proceedings or action.

C. The Committee’s conclusions

1. 908. The Committee observes that the allegations pending in this case refer to anti-union dismissals, the work stoppage by an enterprise in order to avoid a list of demands, the declaration that a strike was illegal, the offer of money to trade union leaders to leave the trade union, and the harassment and hounding at their homes of trade union officials.
2. 909. Regarding the alleged anti-union dismissal of trade union official Oscar López Cruz on 12 November 2004, at its November 2006 meeting, the Committee requested the Government to inform it of the outcome of the proceedings – to impose a fine that had been initiated on Industria de Hilos de El Salvador SA de CV and to continue urging the enterprise to reinstate the official and to pay him the wages due to him or – as Oscar López Cruz reportedly appears to prefer, due to the death threats he received – only to pay him the wages and compensation due to him by law for dismissal by fault of the employer. The Committee notes that, according to the Government, the Ministry has made use of all the legal machinery provided by labour legislation to endeavour to have the worker and trade union official Oscar López Cruz reinstated in his post and to provide him with legal assistance at his request. Two procedures are currently under way to impose fines in connection with the dismissal proceedings and the payment of wages owed because of a fault on the part of the employer of the worker and trade union official Oscar López Cruz. The Government will report on the outcome of these proceedings in due course. The Committee requests the Government to keep it informed of the final outcome of the proceedings, which should be expeditious, relating to the fine imposed on the enterprise for its dismissal of the trade union official Oscar López Cruz and to the payment of the wages owed to him and appropriate compensation.
3. 910. With regard to the allegations pending concerning the illegal work stoppage “for lack of raw materials” by Hermosa Manufacturing SA de CV, without a proper ruling by the Ministry of Labour, in order to avoid the list of demands submitted by the Executive Board of the STITAS union section, and the transfer of the firm’s machinery to another enterprise belonging to the same owner; the ruling of a – supposed – strike as illegal by the judicial authority at the request of the enterprise (the ruling was subsequently revoked by the said authority) and of another illegal work stoppage by the enterprise affecting 64 union officials or members, and the offer of money to officials of the Executive Board of the section to leave the trade union or to defame it, the Committee notes that, according to the Government, the results obtained through legal channels are being investigated to follow up on the rulings made in connection with the payment of compensation, wages and other benefits owed to the workers by the enterprise. In addition, the Third Court of the First Instance found the legal representative of Hermosa Manufacturing SA de CV guilty of withholding workers’ contributions and imposed a criminal sentence of two years’ imprisonment and a civil fine of US$144,724.05. The Committee requests the Government to keep it informed of the final outcome of these legal proceedings. Moreover, the Committee requests the Government to take the necessary measures to conduct an investigation without delay to determine whether, as claimed by the complainants, the work stoppages in the enterprise were carried out in order to avoid the list of demands submitted by the STITAS trade union and to keep it informed of the outcome of that investigation.
4. 911. Regarding the alleged anti-union dismissal of María Esperanza Reyes Sifontes, an official of the STITAS section’s Executive Board at CMT, SA de CV, and of another 11 members of the union section in September 2005, as well as the harassment and hounding at their homes of officials of the section, Blanca Lucia Osorio and María Esperanza Reyes Sifontes, and the dismissal of seven other trade union officials in October 2005, the Committee notes that, according to the Government, the outcome of the fine proceedings against CMT, SA de CV was that a fine amounting to US$342.84 was imposed. The Government also stated that, notwithstanding the above, the Ministry of Labour and Social Security will provide legal assistance to the workers concerned, at their request. The Committee requests the Government to keep it informed of any legal action initiated by the officials of the STITAS trade union who were dismissed from CMT, SA de CV; furthermore, the Committee requests the Government to take the necessary steps to reinstate the officials in question without loss of salary, if it is found that they were dismissed on anti-union grounds. Likewise – noting that the Government has not replied to this allegation – the Committee requests the Government to take immediate action to stop the harassment and hounding at their homes of the STITAS trade union officials, where this is taking place, and punish those guilty of these acts and provide compensation to the victims.
5. 912. Finally, the Committee recalls the pending allegations concerning the anti-union dismissal of four officials and two members of the SIDPA trade union section at the Diana SA de CV enterprise. In this matter, the Committee notes that, according to the Government: (1) although Daniel Ernesto Morales Rivera has not been reinstated in his post, the enterprise is still paying the wages owed to him and the other benefits of the collective labour agreement between the enterprise and the trade union because of a fault on the part of the employer; (2) with regard to the dismissal of Yanira Isabel Chávez Rodríguez, Heidi Sofía Chávez Leiva and José Alfredo Ramírez Merino, the employer’s representative indicated that they were dismissed for a series of disciplinary offences and they could not therefore be reinstated, as it would set a bad precedent for the other employees. Furthermore, on 18 August 2005, the day on which they were dismissed, they did not have the status of trade union officials and there was therefore no breach of trade union immunity; moreover, as the certificates of medical incapacity submitted by the workers in question were issued on 18 August, hours after the time of dismissal, they did not lead to the suspension of work contracts, as the contracts had already been terminated; (3) in a decision of 3 February 2006, the General Labour Inspection Directorate waived the fine imposed on Diana, SA de CV as the enterprise had proved that there had been no breach of sections 248 or 29 of the Labour Code, because at the time of their dismissal, José Alfredo Ramírez Merino, Yanira Isabel Chávez Rodríguez and Heidi Sofía Chávez Leiva held the status of ordinary workers and were therefore not entitled to the guarantee of employment security provided under section 248 of the Labour Code; and (4) in the case of Carlos Mauricio Flores Saldaña and Rafael Antonio Soriano of Diana, SA de CV, who were dismissed from that enterprise and were members of the Sweets and Pastry Industrial Trade Union (SIDPA), after reviewing the record of complaints, it was found that they have not initiated any proceedings or action. The Committee requests the Government: (1) to keep it informed of the employment situation of Daniel Ernesto Morales Rivera who, according to the Government, is being paid wages but has not been reinstated in his post; (2) to initiate an investigation without delay to determine the reasons for which Carlos Mauricio Flores Saldaña and Rafael Antonio Soriano, members of the SIDPA trade union, were dismissed from Diana, SA de CV and to keep it informed on that matter; and (3) to initiate an investigation without delay to determine the specific facts which led to the disciplinary sanctions resulting in the dismissal of José Alfredo Ramírez Merino, Yanira Isabel Chávez Rodríguez and Heidi Sofía Chávez Leiva and to keep it informed on the matter.