Report in which the committee requests to be kept informed of development - Report No 304, June 1996

Case No 1853 (El Salvador) - Complaint date: 05-OCT-95 - Closed

Allegations: Acts of anti-union discrimination and refusal to grant legal personality

1. 287. The complaint in this case is contained in a communication from the International Confederation of Free Trade Unions (ICFTU) dated 5 October 1995. Subsequently, the ICFTU sent additional information in a communication dated 20 October 1995.
2. 288. The Government sent partial observations in communications dated 12 February and 16 April 1996.
3. 289. El Salvador has not ratified either the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), or the Right to Organise Collective Bargaining Convention, 1949 (No. 98).

A. The complainant's allegations

1. 290. In its communication of 5 October 1995, the International Confederation of Free Trade Unions (ICFTU) alleges the dismissal of more than 100 workers from the Mandarín International S.A. de C.V. enterprise, located in the free zone of San Marcos, following the establishment of a trade union as well as various acts of violence against the members of this organization. (The Committee already examined these allegations within the framework of Case No. 1824 at its meeting in March 1996; see 302nd Report, paras. 142 to 160.)
2. 291. In its communication of 20 October 1995, the ICFTU states that on 12 March 1995 the SETBAES trade union was set up in the Ssangbangwool Apparel de El Salvador S.A. de C.V. enterprise, located in the free zone of El Pedregal, Zacatecoluca, in the department of La Paz. The complainant organization alleges that after its establishment, a group of workers, founder members of the trade union and its entire executive committee were arbitrarily dismissed and that despite all the attempts made, the enterprise refused to reinstate the members of the executive committee and the other members of the trade union. The complainant allegation alleges that the trade union was finally dissolved (the complainant organization appends to its complaint the names of 42 workers and founder members of the trade union who had been dismissed).
3. 292. Finally, the trade union organization states that on 30 July 1995 the Trade Union of Workers of the Rayders Textiles enterprise (SETRAT) was set up in the Rayders Textiles S.A. de C.V. enterprise, located in the free zone of San Marcos, El Salvador, with a group of 40 workers and that the Ministry of Labour and Social Insurance refused to grant legal personality to this trade union. The complainant organization adds that it lodged an appeal which was rejected. The complainant organization adds that the employer has systematically refused any dialogue with the trade union and that it has dismissed 300 workers affiliated to the workers' organization and members of the executive committee, without any kind of economic compensation and without granting any of their social benefits.

B. The Government's reply

1. 293. In its communication of 12 February 1996, the Government states in connection with the allegation concerning the Ssangbangwool Apparel de El Salvador S.A. de C.V. enterprise that according to the inquiries carried out and the statement made by the president of the enterprise, it was established that on 13 March 1995, due to considerable reductions in production, the workforce at the plant was cut by 10 per cent, i.e. 40 persons, each of whom was granted compensation for services rendered, as established by the Labour Code. The following week a workers' representative came to the factory, accompanied by eight persons, and demanded the return to work of all the workers, alleging that they were members of the recently established enterprise trade union; the enterprise had no knowledge of such an organization, and during his visit the workers' representative provided no documentation of any kind to back up his demand. After the latter was rejected, the representative and his colleagues entered the plant and brought pressure to bear on the workers to prevent them from carrying out their work and to instigate a work stoppage. The work stoppage was not supported by the rest of the workers, who remained at their workplaces. Subsequently, the workers' representative and his colleagues surrounded the main entrance to the installations of the El Pedregal free zone, harassed the workers from other factories who were finishing their work and threatened to prevent any Korean from leaving. The following day, the representative of the workers along with a group of picketers and photographers once again surrounded the main gate to the free zone from early morning and attempted to prevent workers from another six factories who had nothing to do with the dispute from entering.
2. 294. The Government states that although valid resignations had been received from each of the workers, the enterprise and the workers' representative initiated a round of discussions at the Ministry of Labour and Social Insurance with the participation of an interministerial committee, which resulted in a direct request from the workers' representative for a definitive solution of the labour dispute through a compromise settlement whereby the enterprise would pay the workers concerned an amount of money in exchange for the withdrawal of the individual proceedings initiated by each of them. The Government states that all the cheques were delivered to the workers' representative and that the respective proceedings were subsequently withdrawn, thus putting an end to the complaint (the Government appends to its reply a copy of the withdrawal of the legal proceedings which had been initiated). Finally, according to the Government, the enterprise stated that three trade union women workers, Morena Margarita Chávez Alfaro, Mirna del Carmen López Gattan and Glenda Rosmery Ramos Pérez, remained at their workplaces before, during and after the above-mentioned dispute, thus confirming that the staff reduction was based on production criteria and did not affect freedom of association.
3. 295. In its communication dated 15 April 1996, the Government states in connection with the allegations concerning the refusal to grant legal personality to the Trade Union of Workers of the Rayders Textiles S.A. de C.V. enterprise by the Ministry of Labour and Social Insurance that on 30 July 1995 a meeting was held for the establishment of the above-mentioned trade union with the presence of 35 persons who worked for and under the instructions of the Rayders Textiles S.A. de C.V. enterprise, and that the meeting was held without the presence of a notary or one or more delegates of the Ministry of Labour and Social Insurance and that the act of constitution was drawn up in the form of a private document by the secretary of the provisional executive committee. The Government adds that in accordance with the procedure established in section 219(2), as amended, of the Labour Code, an official request was made to the Rayders Textiles S.A. de C.V. enterprise requesting certification, within five working days following receipt of the request, that the founder members of the above-mentioned trade union were employed in the enterprise. The latter replied that 19 workers of the 35 members of the trade union were active members of another trade union which violates section 204 of the Labour Code which prohibits being a member of more than one union, and that two other women workers had never been employed in the enterprise. The Government adds that the persons involved in the establishment of the trade union presented 19 documents containing the incorrectly formulated resignation of the same number of workers from the Rayders Textiles S.A. de C.V. of STITAS.
4. 296. The Government states that the act of constitution of the trade union does not mention that several of its founder members were affiliated to another trade union and that some of them were even active trade union officials. The Government adds that the procedure followed by the persons in question concerning the 19 resignations related to the establishment of the Trade Union of Workers of the Rayders Textiles S.A. de C.V. enterprise was not that established by the Labour Code, since section 253 of this legal instrument stipulates: "that resignations of membership in a trade union shall be presented in writing to the corresponding committee and the member of the latter receiving the notification shall provide the person concerned with a document certifying the date and time of its presentation". Finally, the Government states that the Trade Union of Workers of the Rayders Textiles S.A. de C.V. enterprise was not set up with the minimum number of members required by the law, such as section 211(1) of the Labour Code, and thus its application for legal personality was refused.

C. The Committee's conclusions

1. 297. The Committee notes that the allegations made in this case refer to anti-union dismissals following the establishment of workers' organizations in two enterprises and the refusal to grant legal personality to one trade union.
2. 298. As regards the allegation concerning the dismissal of more than 40 workers following the establishment of a workers' trade union in the Ssangbangwool Apparel de El Salvador S.A. de C.V. enterprise on 12 March 1995 and the subsequent dissolution of the union as a result of these dismissals, the Committee notes the Government's statement that:
3. (1) on 13 March 1995, due to a substantial reduction in production, the enterprise cut its workforce by 10 per cent - approximately 40 persons;
4. (2) the enterprise had no knowledge of the existence of the trade union;
5. (3) three trade unionists remained in their workplaces;
6. (4) the compensation established by the Labour Code was paid; and
7. (5) the representatives of the workers reached a compromise settlement with the enterprise whereby the workers resigned from their workplaces in July 1995 and subsequently withdrew the legal proceedings which they had initiated in exchange for a sum of money.
8. 299. In this respect, although it notes that the enterprise states that it had no knowledge of the existence of the trade union (although the Government states that three women workers mentioned by the complainant were not dismissed and that they are trade unionists), the Committee notes that the reduction of staff 24 hours after the establishment of a trade union in the enterprise affecting exclusively, according to the complainant organization, the founder members of the trade union. The Committee therefore cannot exclude that the reduction of staff made in Ssangbangwool Apparel de El Salvador S.A. de C.V. enterprise might have prejudiced the founder members of the trade union, having had an anti-union purpose and violated freedom of association. The Committee reminds the Government that even when legislation provides legal protection against acts of anti-union discrimination, in practice "acts of anti-trade union discrimination should not be authorized under the pretext of dismissals based on economic activity" and draws attention to the fact that "acts of anti-union discrimination, in particular dismissals, may lead to the actual disappearance of trade unions composed only of workers in an undertaking" (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, paras. 700 and 718).
9. 300. In these circumstances, and emphasizing that no person should be dismissed or prejudiced in his or her employment by reason of trade union membership or legitimate trade union activities, and the importance of forbidding and penalizing in practice all acts of anti-union discrimination in respect of employment (see Digest, op. cit., para. 748), the Committee requests the Government to take measures for an investigation to be carried out in this regard and, if the allegations are proven, to apply the appropriate sanctions in this case in conformity with the legislation in force and to take measures to enable the dismissed workers to be reinstated in their jobs. The Committee requests the Government to keep it informed in this respect.
10. 301. As regards the allegations that the Ministry of Labour and Social Insurance refused to grant legal personality to the Trade Union of Workers of the Rayders Textiles S.A. de C.V. enterprise (SETRAT) and that the enterprise dismissed 300 workers who were members of the trade union organization, the Committee notes the Government's statement that:
11. (1) 19 workers amongst the 35 founder members of the trade union were active members of another STITAS trade union and that two others did not work in the enterprise;
12. (2) the procedure for the resignation from the previous trade union of the founder members of the new SETRAT trade union was not in accordance with that established by the Labour Code (i.e. in writing); and
13. (3) there was a failure to respect the provisions of section 211(1) of the Labour Code which stipulate that any workers' trade union requires for its establishment and functioning a minimum of 35 members, and the provisions of section 204 of the same Code which prohibit a worker from being a member of more than one trade union.
14. 303. In this respect, although the Government has emphasized that there were irregularities which prevented the granting of trade union personality to the trade union in question, the Committee notes that the Government has not denied the alleged massive dismissal of workers who were members of the trade union organization and merely emphasizes the fact that the new trade union did not have the legal minimum membership of 35 workers. In these circumstances, since it cannot be sure that the alleged dismissals were made as a result of the trade union membership of workers, the Committee requests the Government to take the necessary measures for an investigation to be carried out in this regard and, in the event that the allegations are proven, to take the necessary measures to enable the dismissed persons to be reinstated in their jobs and for the respective legal sanctions to be applied. The Committee requests the Government to keep it informed in this respect.

The Committee's recommendations

1. 303. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) As regards the allegation concerning the dismissal of the founder members of the trade union in the Ssangbangwool Apparel de El Salvador S.A. de C.V. enterprise, located in the free zone of El Pedregal, Zacatecoluca, in the department of La Paz, not being able to exclude that the staff reduction made in this enterprise, 24 hours after the establishment of a trade union, might have had an anti-union purpose, the Committee requests the Government to take measures for an investigation to be undertaken in this regard and, if the allegations are proven, to apply the appropriate sanctions in this case, in accordance with the national legislation in force, and to take measures to enable the dismissed workers to be reinstated in their posts.
   • (b) As regards the allegations concerning the massive dismissal of members of the Trade Union of Workers of the Rayders Textiles S.A. de C.V. enterprise (SETRAT), the Committee, not being in a position to be sure that the alleged dismissals were made as a result of trade union membership, requests the Government to take the necessary measures for an investigation to be undertaken in this regard and, in the event that the allegations are proven, to take measures to enable the dismissed persons to be reinstated in their jobs and for the respective legal sanctions to be applied. The Committee requests the Government to keep it informed in this respect.