Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 358, Novembre 2010

1. 462. The complaint is contained in a communication dated 20 February 2010, presented by the National Confederation of Workers of El Salvador (CNTS) and the Union of Construction Workers (SUTC). The complainant organizations provided additional information by means of a communication dated 12 April 2010.
2. 463. The Government sent its observations in a communication dated 31 May 2010.
3. 464. 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. 465. In their communications dated 20 February and 12 April 2010, the CNTS and the SUTC state that they are lodging a formal complaint against the Government of El Salvador for refusing to register the executive committee of the SUTC, infringing on the union’s operating capacity and functioning and its right to collective bargaining because of interference by the State restricting the rights and guarantees covering trade unions.
2. 466. The complainant organizations explain that on 17 December 2009 – in accordance with the trade union’s statutes – the official summons was published announcing that on 9 January 2010, an ordinary general assembly would be held at which the election of the general executive committee of the trade union for the period from 26 January 2010 to 25 January 2011 would take place.
3. 467. With a view to greater objectivity and transparency in the election procedure, delegates from the Ministry of Labour and Social Security were invited to attend as observers in the ordinary general assembly for the election of a general executive committee; 488 members were present.
4. 468. On 14 January 2010, the Organization and Statistics Secretary in office requested, before the Office of the National Department of Social Organizations of the Ministry of Labour and Social Security, the registration of the executive committee and the issuing of the respective credentials recognizing the elected persons as members of the executive committee. Attached to the request were the summons and the minutes of the general assembly, and a list of the workers who attended.
5. 469. As the Administration did not reply, on 19 January 2010 the SUTC presented a letter addressed to the head of the National Department of Social Organizations invoking the right to a reply within a reasonable period of time, which, although the law does not set out a defined period, is linked to being granted the credentials before the end of the mandate of the outgoing executive committee in order to ensure its functioning.
6. 470. On 1 February 2010, the trade union was notified of the decision of the head of the aforementioned department rejecting the application for registration of the general executive committee of the trade union, underlining that the delegates of the Ministry who attended the general assembly produced a report in which they stated the following: a group of around 150 people, duly identified as trade union members, had been prevented from attending the assembly because they owed trade union dues, without mentioning the trade union cards the so-called members should have had with them so as to be recognized as members of the trade union. The complainant organizations point out that the report of the delegates of the Ministry mentions that some people were considered as members because the day prior to the general assembly meeting they had paid the membership fee which was used to check the payment of trade union dues, which is impossible given that the payment of the trade union dues should follow the procedure established in section 252 of the Labour Code.
7. 471. The complainant organizations allege that among the people who were denied the right to participate in the assembly there was a group of people who did not belong to the trade union and whose intention was to destabilize and sabotage the event. The said persons, who were allegedly denied the right to participate in the assembly for owing their trade union dues – the payment of which is a condition in order to be able to exercise their political rights as trade union members – were sanctioned with the suspension of the enjoyment of their trade union rights for the period of 60 days pursuant to the trade union statute. However, the procedural mechanism for this sanction requires that the complaint made by the trade union members must first be reviewed by the executive committee before it can be imposed and enforced. The complainant organizations clarify that the executive committee is precluded by law from unofficially imposing the said sanction.
8. 472. The head of the National Department of Social Organizations, in the exercise of her mandate to monitor procedures and legal standards under section 256 of the Labour Code, considered that the assembly was held in violation of the trade union rights of a group of trade union members who were illegally prevented from attending the general assembly. In the complainant organizations’ opinion, this stance, however, constitutes an act of interference by the State restricting the rights and guarantees covering trade unions.
9. 473. The complainant organizations also highlight that the members of the outgoing executive committee, whose mandate has ended, were in conflict about the revision and conclusion of a collective agreement with the Directorate General of Labour of the Ministry of Labour and Social Security. Not having an executive committee in office has had the direct result of slowing down the said negotiations on the collective agreement, affecting more than 30,000 workers in the construction sector. Clearly this made it impossible for the bargaining committee, made up of members of the executive committee, to continue negotiating given that at the moment nobody has been able to become an accredited member of the executive committee and therefore of the bargaining committee. The complainant organizations underline that the collective agreement was effective until 31 December 2009.
10. 474. On 12 February 2010, after lodging an appeal which did not lead to any administrative decision, the trade union lodged an administrative appeal before the Administrative Court of the Supreme Court of Justice claiming that the resolution refusing the registration of the executive committee issued by the head of the National Department of Social Organizations is unlawful.

B. The Government’s reply

1. 475. In its communication dated 31 May 2010, the Government states that in relation to the refusal to register the newly elected executive committee and according to the report of the delegates of the Ministry who attended, a group of around 150 people, who were duly identified as trade union members, were not able to access the place where the assembly was being held under the instructions of the SUTC’s executive committee. In addition, the trade union argued that the said members owed their trade union dues, which is why the executive committee did not give them the corresponding “solvency” document, which they needed in order to participate in the ordinary general assembly.
2. 476. The Government highlights that in this group of people there were members from different groups belonging to the SUTC – COMTRASUTC, the SUTC’s rescue committee, and the Restoration Movement of the SUTC – who were intending to run in the election as candidates for the trade union’s executive committee in order to challenge and replace the then general secretary of the SUTC, Mr Fredis Vásquez Jovel, who had led the trade union for 23 years. As a result, this group of trade union members could not exercise their right to freely elect their representatives, a right which is enshrined in Article 3 of Convention No. 87, or their right to be elected as members of the executive committee of the trade union.
3. 477. The Government declares that the SUTC’s statutes provide for the suspension of rights of trade union members for up to 60 days for failure to pay the trade union dues, whether regular or additional, without a valid reason, however, this sanction should be imposed after the general executive committee has verified the facts. In practice, the rights of the members were suspended de facto, without the executive committee verifying the facts for the application of the appropriate sanction, thus violating its own statutes and the provisions of section 217 of the Labour Code. In the disciplinary proceedings, no grounds were found for suspending the exercise of the trade union rights of the union members. The Government argues that the executive committee should give the members who allegedly owe their trade union dues the possibility to prove they did not owe any dues or justify the outstanding dues given that, in accordance with article 44 of the trade union’s statutes, the suspension of the exercise of trade union rights is only applicable in the case of unjustified outstanding dues.
4. 478. The Government points out that, in the event of trade union members owing dues and in order for this to be considered a disciplinary offence, at least one element must be attributable to them, otherwise trade union members would be arbitrarily and clearly unjustly receiving disciplinary sanction for a situation for which they are not responsible. In addition, the trade union itself recognizes in its argument that suspending the exercise of the rights because of outstanding trade union dues constitutes a disciplinary sanction which must be applied by the executive committee following the process established in article 50 of the trade union statute, which according to the complainants was not applied because there was no complaint to justify starting proceedings; this power to sanction cannot be used officiously by the executive committee, which confirms a serious violation of the due process. This non-observance could possibly lead to abuses against trade union members with regard to the exercise of their trade union rights and the exclusion from internal decisions of trade union members who might promote a change in the trade union’s leadership.
5. 479. To support its statements, the Government mentions the illegal and unlawful practices carried out by the previous executive committee of the SUTC, headed by Mr Fredis Vásquez Jovel. It is claimed that there are exclusion clauses that are, in fact, applied illegally in various companies in the construction sector. Often the workers are forced to leave the trade unions to which they belong in order to become SUTC members and thus be able to get work in this sector.
6. 480. Similarly, the Government notes that the previous executive committee, which is lodging the complaint, favoured the unlawful levying of trade union dues from salaries by the employers in order to pay the SUTC, despite workers not being members, thus appropriating the economic interests of workers of these companies, who saw their salaries reduced. In addition, trade union dues were levied from executive committee members of other trade unions in violation of the right of workers to pay their economic contributions to the trade union to which they belong, regardless of whether or not it is the most representative.
7. 481. With regard to the alleged interference of the State in the elections of the executive committee of the SUTC, the Government declares that the three delegates of the Ministry, who were appointed to attend the ordinary general assembly held on 9 January 2010, observed the assembly’s proceedings without interfering, respecting the principles of trade union autonomy, and scrupulously following the provisions in the law. The Government points out that the purpose of the labour administration’s undertaking – acting in accordance with section 256 which grants the power to check that electoral processes within trade unions are in line with legal requirements – was to defend democratic principles, which should be applied in trade unions and defend the trade union rights of SUTC members, whose fundamental trade union rights were arbitrarily violated, thus violating the principles of freedom of association. The supervision by the labour administration in accordance with its lawful mandate cannot be considered as interference by the State restricting trade union guarantees.
8. 482. With regard to the allegations concerning the impact on the trade union in the negotiations for the collective labour agreement in force in various companies in the construction industry, the Government states that, in accordance with legislation, the fact that a trade union might find itself without an executive committee does not affect the validity of collective labour agreements to which it is party because these are automatically extended. Currently, negotiations are suspended pending the election and registration of the new executive committee, which will be able to negotiate as normal. The Government underlines that the statutes of the trade union set out the procedure to follow in order to guarantee its operating capacity and functioning in the event of there not being an executive committee but, due to the negligence of the previous executive committee, the necessary conditions to carry out the appropriate procedures were not present and the complainant organizations could not use the said procedure.
9. 483. The Government indicates that the only way of remedying the situation is to collect the signatures of 25 per cent of the trade union members with the aim of calling an extraordinary general assembly to elect a new executive committee, specifying that this procedure depends exclusively on the willingness of trade union members, which is why the Government cannot intervene.

C. The Committee’s conclusions

1. 484. The Committee notes that in this case the complainant organizations allege the unjustified refusal – by means of a resolution of the National Department of Social Organizations of the Ministry of Labour and Social Security – to register the newly elected general executive committee of the SUTC and thus hindering the exercise of the right to collective bargaining.
2. 485. The Committee notes that according to the complainant organizations: (1) the delegates of the Ministry of Labour and Social Security, who, at the request of the trade union, attended the general assembly, produced a report in which they stated the following: a group of around 150 people, duly identified as trade union members, were prevented from attending the assembly because they owed their trade union dues (however, they did not mention the trade union card which the so-called members should have had in their possession identifying them as trade union members); (2) the said report points out that some people were considered to be trade union members due to having made a bank transfer the day prior to the meeting of the general assembly through which the payment of the trade union dues were checked (which is, however, impossible given that the payment of the dues must follow the procedure described in section 252 of the Labour Code); and (3) among the group of people who were denied the right to participate in the said assembly, there was a group of people who did not belong to the trade union and whose intention it was to destabilize and sabotage the event.
3. 486. The Committee notes the statements of the Government, according to which: (1) the executive committee prevented 150 trade union worker members from participating in the assembly of the trade union, arguing that they were behind on the payment of their trade union dues as noted by the delegates from the Ministry of Labour and Social Security (who were present at the election in the trade union assembly at the voluntary invitation of the executive committee); (2) in this group of people, there were members of different groups affiliated to the SUTC who had the intention of running in the election as candidates for the executive committee of the trade union; (3) the aim of these candidates was to challenge and replace the then general secretary of the SUTC, who had led the trade union for 23 years, but by preventing them from participating in the assembly they were not able to exercise their right to freely elect their representatives as enshrined in Article 3 of Convention No. 87 or their right to be elected; (4) the previous executive committee had carried out illegal, unlawful and abusive practices, which according to the Government’s observations violated certain trade union rights of workers in the construction sector in respect of access to employment and the levy of trade union dues to the trade union of their choice, among others; (5) the statutes of the SUTC provide for the suspension of rights of trade union members for up to 60 days for failure to pay trade union dues, both regular and additional, without a valid reason. However, this sanction must be imposed after verification of the facts by the executive committee in line with the provisions of the trade union statutes, which did not occur in this case, thereby violating the rules and regulations of the said statutes by not allowing the members concerned to participate in the elective assembly; (6) a number of trade union members paid their trade union dues the day before the assembly, thereby gaining access to the hall in order to vote; and (7) the authorities’ actions and the resolution through which registration of the executive committee is refused were therefore seeking to respect the democratic principles which should be applied in trade unions.
4. 487. In this regard, taking into account that the Government claims trade union statutes have been violated by the executive committee in order to prevent other candidates from running for election, that the Government’s version and the complainants’ version of the alleged facts are different (including the fact regarding the right to participate in the trade union elections of a large group of workers) and that the executive committee itself decided to bring an administrative appeal in February 2010 before the Administrative Court of the Supreme Court of Justice against the resolution containing the refusal for registration of the elected executive committee, the Committee requests that the Government provide a copy of the ruling that is handed down and firmly expects that it will be handed down in the near future.
5. 488. With regard to the second allegation, the Committee notes that the complainant organizations indicate that the bargaining committee, made up of executive committee members, was unable to continue with the collective bargaining process under way because, as a result of the executive committee not being registered, nobody can currently become a member of the executive committee and, therefore, a member of the bargaining committee. The Committee notes that according to the Government the fact that a trade union could end up without an executive committee does not affect the validity of the collective labour agreements to which it is party because these are automatically extended in accordance with section 276 of the Labour Code. The Committee notes that according to the Government the negotiations are suspended pending the judicial decision on the validity or non-validity of the elected executive committee.
6. 489. The Committee recalls that in order to avoid the danger of serious limitation on the right of workers to elect their representatives in full freedom, complaints brought before labour courts by an administrative authority challenging the results of trade union elections should not – pending the final outcome of the judicial proceedings – have the effect of suspending the validity of such elections [see Digest of decisions and principles of the Committee on Freedom of Association, fifth edition, 2006, para. 441]. Under these circumstances, in order to avoid the negative consequences of the trade union not having an executive committee and excessive delays as a result of ongoing judicial proceedings and possible appeals which cause prolonged disruption to the functioning of the trade union, the Committee requests the Government to respect the principle of collective bargaining and to continue negotiations with the newly elected executive committee at least until the Higher Administrative Court of the Supreme Court of Justice has handed down a decision regarding the validity of these elections. The Committee requests the Government to keep it informed in this respect.