Effect given to the recommendations of the committee and the Governing Body - Report No 349, March 2008

Case No 2423 (El Salvador) - Complaint date: 18-MAY-05 - Closed

Effect given to the recommendations of the Committee and the Governing Body

1. 97. The Committee last examined this case at its meeting in March 2007, when it made the following recommendations [see 344th Report, paras 914–939]:
   • (a) The Committee regrets that the Ministry of Labour, when it examined the appeal lodged by the private security sector union SITRASSPES, did not resolve to grant it legal personality, despite the Committee’s recommendation that it do so. The Committee considers that this situation is incompatible with the requirements of Convention No. 87, and specifically Article 2 of the Convention which provides for the right of workers without distinction to establish organizations of their own choosing. The Committee therefore once again urges the Government to grant the said trade union legal personality.
   • (b) The Committee draws attention to the very short time allowed by law for the parties concerned to produce the information requested by the Ministry of Labour in the appeals proceedings in respect of the granting of legal personality and regrets that the trade union SITRASAIMM was denied legal personality on such grounds. The Committee calls on the Government to take steps to review the legislation with respect to the time allowed and to reconsider SITRASAIMM’s request to be registered as a trade union.
   • (c) The Committee urges the Government to grant the SITISPRI trade union legal personality and to keep it informed in this respect.
   • (d) The Committee requests the Government to pursue its efforts to have the 34 founders of the STIPES trade union and the founder of the SITRASSPES trade union, Juan Vidal Ponce, the official of the STEES trade union, Alberto Escobar Orellana, and seven union officials at the CMT, SA de CV, clothing company reinstated in their jobs, and to impose additional sufficiently dissuasive fines in accordance with national legislation if they are not reinstated, and also to ensure that the salaries and other labour benefits owed to them are paid.
   • (e) The Committee invites the complainant organizations to lodge a complaint with the Ministry of Labour concerning the dismissal of the founders of SITRASAIMM, Manuel de Jesús Ramírez and Israel Ernesto Avila, after they had submitted a request for the union to be granted legal personality, so that the Ministry of Labour can carry out an investigation into the matter.
   • (f) The Committee is obliged to note once again that the present case shows that the exercise of trade union rights – whether the right to establish trade union organizations or the right to adequate and effective protection against acts of anti-union discrimination – is guaranteed neither in the legislation, whose fines do not appear to have any dissuasive effect, nor in practice. The Committee reiterates its earlier recommendations and reminds the Government once again that it may avail itself of ILO technical cooperation in the context of the preparation of future trade union legislation. The Committee considers that, among other things, the new legislation should guarantee the right to establish trade unions without restrictions, and that proceedings in the case of anti-union discrimination should be rapid and effective providing for sufficiently dissuasive sanctions. Moreover, the new legislation should avoid the Ministry of Labour informing the employer of the names of the founders of a trade union in order for the employer to indicate whether or not the founders are employees.
   • (g) Finally, the Committee requests the Government to keep it informed of the decisions handed down by the courts with respect to the trade unionists who were dismissed by Hermosa Manufacturing, SA de CV.
2. 98. In a communication dated 11 June 2007, the Government sent the following information.
   • Refusal by the Ministry of Labour to grant legal personality to the trade unions SITRASAIMM, SITRASSPES and SITISPRI (recommendations (a), (b) and (c))
   • SITRASAIMM: The Government states that account should be taken of the fact that the only documents to be submitted by SITRASAIMM were copies of 17 individual work contracts, which were presumably readily available, and therefore the short deadline is reasonable. With respect to reviewing the legislation concerning the time allowed, it should be recalled that this legislation differs from labour legislation in that the residual law to process SITRASAIMM’s application for reconsideration was the Civil Proceedings Act, and for this reason the Government will not commit itself to promoting legal reforms in this area of civil law, as it would be entering into an area outside the scope of labour issues and amending civil procedures pertaining to applications for reconsideration. Notwithstanding the above, it is important to mention that within the framework of the report entitled “The labour dimension in Central America and the Dominican Republic, building on progress: strengthening compliance and developing capacity”, known as the White Paper, the Ministry of Labour adopted a series of measures to facilitate the granting of legal personality to trade unions and to make legal deadlines more efficient, handing down rulings in less time than established in the Labour Code. An instrument has also been drawn up that contains all the information concerning the functions performed by the Department of Social Organizations of the Ministry of Labour, particularly those relating to the granting of legal personality to trade unions. In addition, the Government has committed itself to reviewing articles 211 and 248 of the Labour Code relating to the reduction in the number of members required to constitute a trade union and the reduction of the waiting period so that a trade union that has been refused legal personality does not have to wait six months before trying to form another trade union. It has also expressly committed itself to conducting national consultations with ILO technical assistance in order to evaluate fully the administrative procedures for the registering of trade unions, and the recommendations resulting from that process will be promptly implemented by the Ministry of Labour and Social Welfare. The Committee notes this information and asks the Government to inform it about the current status of the process for the registration of the SITRASAIMM.
   • SITRASSPES and SITISPRI: With respect to the refusals to grant legal personality to these private security trade unions, in its communication of December 2007, the SITRASSPES indicates that in September 2007 it submitted a new request for legal personality, which was once again refused by the authorities. The Government states that while it is true that Conventions Nos 87 and 98 have been ratified (they have not yet entered into force), the situation will not change as article 7(3) of the Constitution of the Republic, which expressly prohibits the existence of armed groups, has not been amended, and therefore the refusal of the administrative authorities will continue to have a legal basis. The Committee notes this information. It recalls that only members of the police and the armed forces can be excluded from the sphere of application of Convention No. 87 and requests the Government to take the necessary measures – including the amendment of the Constitution of the Republic if necessary – to grant legal personality to the trade union organizations SITRASSPES and SITISPRI.
   • Dismissals and transfers of the founders of the trade union organizations STIPES and SITRASSPES, and dismissals of other trade unionists
   • STIPES: With regard to the Trade Union of Port Workers of El Salvador (STIPES), the procedures to fine the enterprises where the dismissed founders of STIPES worked have been applied, resulting in a fine of US$3,429.92 being imposed on the enterprise Operadores Portuarios Salvadoreños, SA de CV. The other enterprises involved are also in the process of being fined, and the ILO will be informed once the respective fines have been imposed. To date, a review of the files does not reveal any request for conciliatory action having been registered by the founders of the trade union.
   • SITRASSPES: With respect to the reinstatement of the worker Juan Vidal Ponce Peña, founder of the Private Security Workers’ Union of El Salvador (SITRASSPES), on 7 September 2005, on the request of Mr Ponce Peña, the Minister of Labour, through the General Directorate of the Labour Inspectorate, carried out a special inspection at the enterprise Sociedad de Servicios Administrativos de Seguridad de Empresas, SA de CV. It concluded that the enterprise in question had infringed article 248 of the Labour Code by dismissing Mr Ponce Peña and recommended that he be reinstated immediately in his usual position. It had also infringed article 29, obligation 2, of the same legal text, owing the worker outstanding pay for reasons attributable to the employer. On 26 September 2005, a further inspection was carried out to check whether the infringements specified during the special inspection had been rectified: the infringement relative to reinstatement had not been rectified; the infringement relating to the pay due to Mr Ponce had been rectified, with the enterprise depositing the pay in question into escrow accounts with the Ministry, which were subsequently withdrawn by the worker in question. Despite the above, and making use of the various legal mechanisms available to apply for legal protection, Mr Ponce requested the Directorate General of Labour to convene the Sociedad de Servicios Administrativos de Seguridad de Empresas, SA de CV to discuss his reinstatement during a conciliatory hearing. Following up on the request, the Directorate convened the legal representative of the enterprise on 3 February 2006; the employer’s attorney appeared as the employer representative and stated that his principal had not dismissed Mr Ponce and that furthermore both parties had reached an extra ministerial agreement. This statement was endorsed by Mr Ponce Peña, who was present at the conciliation hearing.
   • STEES: With respect to the reinstatement of the worker Alberto Escobar Orellana, Second Disputes Secretary of the Education Workers’ Union of El Salvador (STEES), who worked at the José Simeón Cañas Central American University (UCA), despite ongoing efforts by the labour inspectorate to make the University rectify the infringement committed, that is to say reinstate Mr Escobar Orellana in his position of work, such reinstatement did not occur, and as a result the corresponding fine was imposed. In spite of the efforts of the Ministry of Labour to ensure compliance with labour legislation through administrative channels (i.e. the labour inspectorate), the worker has been informed of his right to go through judicial channels and to use the available legal machinery; he has also been informed that he can apply for legal protection. The Government will go on assisting the worker if he so requests.
   • CMT SA de CV: There has been no change in the actions taken by the Ministry of Labour since the Committee was last informed.
   • Hermosa Manufacturing, SA de CV: A letter was sent to the Attorney-General of the Republic through the Directorate General of Labour requesting information about the cases brought before the courts concerning the complaints made by workers dismissed from the enterprise.
3. 99. The Committee notes this information. The Committee urges the Government to take the necessary measures for the reinstatement of the 34 founders of the STIPES trade union, of Mr Alberto Escobar Orellana at the José Simeón Cañas Central American University, and of the seven trade union leaders at the clothing company CMT SA de CV. The Committee also asks the Government to inform it of the result of the legal proceedings relating to the dismissals of trade unionists at the enterprise Hermosa Manufacturing, SA de CV. The Committee once again reminds the Government that ILO technical assistance is at its disposal so as to ensure adequate protection against acts of anti-union discrimination.
4. 100. Lastly, the Committee invites the complainant organizations to lodge a complaint with the Ministry of Labour concerning the dismissal of the founders of SITRASAIMM, Manuel de Jesús Ramirez and Israel Ernesto Avila, after they had submitted a request for the union to be granted legal personality, so that the Ministry of Labour can carry out an investigation into the matter.