Report in which the committee requests to be kept informed of development - Report No 359, March 2011

Case No 2769 (El Salvador) - Complaint date: 18-MAR-10 - Closed

Allegations: The complainant organization alleges the anti-union dismissal of two of its leaders from the Salvadoran Institute for Teachers’ Welfare

1. 459. The complaint is contained in a communication of the Union of Family Physicians of the Salvadoran Institute for Teachers’ Welfare (SIMEFISBM) dated 18 March 2010.
2. 460. The Government sent its observations in a communication of 26 July 2010.
3. 461. 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 complainant’s allegations

1. 462. In its communication of 18 March 2010, the Union of Family Physicians of the Salvadoran Institute for Teachers’ Welfare (SIMEFISBM) states that, in accordance with the notarial certificate granted in San Salvador, on 29 June 2009, it was constituted as an occupation-based union, in the presence of 36 founder members, including Dr José Alberto Calidonio Burgos, who works for the Salvadoran Institute for Teachers’ Welfare (ISBM).
2. 463. The complainant organization adds that, in accordance with the procedure established under national law, on 3 September 2009, the labour inspector appointed to deal with the case of the trade union being formed visited the premises of the ISBM and met with the Head of the Contracts and Procurement Department of the Institute. The inspector explained the reason for his visit to the Head of the department, who, in turn, stated that the 36 workers in question “are not employees of the Salvadoran Institute for Teachers’ Welfare, given that they are contracted to provide professional services and participate in a public tender process in order to obtain contracts, in accordance with the Public Administration Procurement and Recruitment Act (LACAP)”. The trade union being formed was made aware of this act so that it might present the necessary documentation to the Ministry of Labour and Social Welfare of El Salvador, in order to prove the employment relationship.
3. 464. Through a document presented to the Ministry of Labour and Social Welfare, on 5 September 2009, Dr José Alberto Calidonio Burgos, acting in his capacity as president of the provisional executive committee of the trade union being formed, made the following statements: (1) that the workers providing services for and on the orders of ISBM are in a legal situation known in law as “fraudulent contract or simulated contract”, quoting the corresponding jurisprudence on which his argument is based; (2) based on the “Principle of the primacy of reality”, it is clear that an employment relationship exists between the founder members of the trade union and the ISBM, given that “what must prevail or determine the regulations to be applied is the actual situation on the ground; such as the clear employment relationship between the contracted worker and the employer institution, where all the elements of an employment relationship are combined in an undeniable fashion: the performance of certain duties, in conditions of subordination and in exchange for a salary...thus we find ourselves before a true individual labour contract”, and (3) the contracts concluded with the ISBM are individual labour contracts (according to section 17 of the Labour Code of El Salvador) and not administrative contracts governed by the LACAP, given that the contracts of the founding members contain the requirements established by national law and jurisprudence to be considered as such, and therefore a clear employment relationship exists given that the workers provide their services subject to an established schedule, subordinate to the institution and in exchange for remuneration.
4. 465. The complainant organization states that it was decided, through ruling No. 46/2009 of the Ministry of Labour and Social Welfare, in San Salvador, of 18 September 2009, to: “(a) approve the text of the 82 articles making up the statutes of the trade union being formed known as the Union of Family Physicians of the Salvadoran Institute for Teachers’ Welfare (SIMEFISBM), at the same time granting it the legal personality requested; (b) let the said statutes be published in the Official Journal, along with the present ruling; and (c) let said trade union be recorded in the corresponding register ...”.
5. 466. The complainant organization states that, on 9 November 2009, document No. 685/2009 of the Ministry of Labour and Social Welfare was issued ordering that the membership of the general executive committee of SIMEFISBM (which was elected on 10 October 2009) for the period beginning on 29 October 2009 and ending on 29 June 2010 be registered. One name on the list of members of the general executive committee was that of Dr José Alberto Calidonio Burgos, secretary general of SIMEFISBM. SIMEFISBM states that, even though the Ministry of Labour issued an official ruling recognizing the existence of fraudulent contracts or simulated contracts in the case of the doctors who provide services for and on the orders of ISBM, the institute continues to claim that said contracts are administrative in nature and governed by the LACAP, with those workers providing their services to said institute being obliged to participate in public calls for tender (as they have been doing for years) in order to be recruited to provide medical services for another year. The complainant organization adds that, in the light of the refusal by the institute to recognize the true legal status of the doctors and the verbal warning issued by the president of the ISBM to Doctors Carlos Mauricio Rivera and José Alberto Calidonio Burgos that their respective contracts would no longer be renewed, the two doctors, in their capacity as SIMEFISBM representatives, submitted a request on 12 November 2009 with the Minister of Labour and Social Welfare, based on section 18 of the Constitution of El Salvador, for a meeting with the Minister of Labour as soon as possible, to set up a forum for dialogue with the aim of resolving the labour issues existing between the doctors and the said institute. Following this request, the respective governmental authorities failed to do enough to reconcile the parties or to mediate effectively in the dispute.
6. 467. The complainant organization states that, on 2 December 2009, at the request of SIMEFISBM, negotiations began on the premises of the ISBM involving the trade union and the executive council of the ISBM, in order to prevent the definitive and arbitrary dismissal of doctors Carlos Mauricio Rivera and José Alberto Calidonio Burgos, an antiunion measure which poses a threat to all the rights to organise freely enjoyed by the doctors of the trade union. The aim was to convince the executive council that proceeding with the dismissal of the doctors (members of the general executive committee of the trade union) would constitute a serious violation of the Constitution, the international agreements on trade union rights and the national labour law in force, given that the Constitution and labour legislation guarantee employment stability for those doctors members of the general executive committee of SIMEFISBM (including Dr José Alberto Calidonio Burgos, secretary general) for the period during which they occupy official trade union positions (they also enjoy protection for up to a year after they have left their trade union posts). During said negotiations, the Office of the Attorney for the Defence of Human Rights of El Salvador was asked to attend as a mediator, together with a legal expert from the Institute of Human Rights of the Central American “José Simeón Cañas” University as an observer. The negotiations did not produce any solutions to the dispute between the parties and the only undertaking obtained from the executive council of the ISBM was that talks would continue to be held in order to resolve the dispute. However, at the time that this complaint to the ILO was drafted this undertaking had not been fulfilled, neither had the Office of the Attorney for the Defence of Human Rights of El Salvador played any role in conciliating the parties and thus resolving the dispute. This failure by the Office of the Attorney to act means that the dispute between the parties has become more serious, with the legal security of the doctors who provide their services to the ISBM being undermined.
7. 468. The complainant organization states that, on 18 December 2009, a special, unscheduled inspection of the premises of the ISBM was carried out by the Ministry of Labour and Social Welfare, which revealed that the contracts of the unionized doctors (including that of Dr José Alberto Calidonio Burgos, secretary general of the trade union, as well as those of all the other doctor who provide services at the institute) meet the requirements for individual labour contract status. Furthermore, the same inspection uncovered the fact that Dr José Alberto Calidonio Burgos was subjected to labour discrimination in his capacity as trade union leader when it was arbitrarily decided not to renew his contract for a further year. It was also discovered that the clause in the ISBM contract, which establishes the duration of that same contract as being a year, violates the Constitution of the Republic, more specifically, section 52 which establishes that the rights of the workers are inalienable. In conclusion, according to the complainant organization, the Ministry of Labour and Social Welfare determined that the contracts of the doctors providing services at the ISBM fulfil the requirements set out for individual labour contracts. Therefore, Dr José Alberto Calidonio Burgos cannot be dismissed owing to his position as a trade union leader, given that the special procedure set out for such cases in section 248 of the Labour Code was not followed. The ISBM was given two days to rectify its mistakes, but once the deadline passed the institute had still not complied with the Ministry of Labour’s recommendation.
8. 469. The complainant organization adds that, on 4 January 2010, the Ministry of Labour and Social Welfare carried out a further inspection of the premises of the ISBM to check whether said institute had rectified the violations identified during the unscheduled inspections carried out on 12, 17, 20 and 26 of November 2009. The results of the new inspection were also negative, with the institute continuing to carry out anti-union and discriminatory acts against Dr José Alberto Calidonio Burgos, secretary general of SIMEFISBM. The institute arbitrarily refused to renew Dr José Alberto Calidonio Burgos’ employment contract, leaving him unemployed as of 31 December 2009. The complainant organization states that, on not being reinstated in his post, Dr José Alberto Calidonio Burgos, secretary general of SIMEFISBM, requested a conciliatory hearing before the Ministry of Labour (file No. 11/2010), on 4 January 2010. The doctor requested the hearing with the sole aim of being reinstated in his post. The hearing was scheduled for 11 and 12 of January 2010, but the institute yet again refused to reinstate Dr José Alberto Calidonio Burgos, maintaining its anti-union and discriminatory behaviour.
9. 470. The complainant organization states that, on 13 January 2010, Dr José Alberto Calidonio Burgos, in his capacity as secretary general of SIMEFISBM (his term of office was due to end on 29 October 2010), received an official notification from the president of the ISBM stating that, as of 31 December 2009, he was no longer employed by the institute, owing to the fact that he had failed to participate in the respective call for tender set out under the LACAP. This decision violates the unionized doctors’ employment stability and other trade union rights, which are recognized by the Constitution of the Republic, as well as international legislation and agreements. On 14 January 2010, Dr José Alberto Calidonio Burgos denounced the ISBM to the Office of the Superintendent of Pensions for failing to provide social benefits to the doctors providing services at said institute, such as Pension Funds Administrator payments or invalidity/old age/survivor pension contributions. To date, the Office of the Superintendent of Pensions has delayed the processing of the denunciation and finally, the Office made a verbal announcement that it would not act upon the denunciation given that the ruling issued by the Minister of Labour and Social Welfare recognizing the existence of individual employment contracts was not sufficient to initiate proceedings. On 22 January 2010, Dr José Alberto Calidonio Burgos went to the premises of the Office of the Attorney General of the Republic in order to file labour proceedings against the IBSM for unfair dismissals. This procedure is ongoing.
10. 471. On 28 January 2010, another unscheduled inspection was carried out at the premises of the IBSM, at which time it was established that: (a) an employment relationship exists between the doctors and the institute, and therefore, the LACAP does not apply; (b) based on the labour legislation, the doctors at the institute, and in particular Dr Calidonio and Dr Rivera, cannot be forced to tender for their posts, given that those posts are permanent in nature and individual employment contracts are open ended; and (c) Dr José Alberto Calidonio Burgos, in his capacity as a trade union leader, may not be dismissed, or subject to a worsening in his conditions of work, etc, during his term of office , and until after one year from having ceased his functions other than for just cause as previously determined by the competent authority, unless the special proceedings set out under section 248 of the Labour Code are brought against him before the Ministry of Labour. Therefore, it was again found that the institute had committed a violation in the form of the dismissal of Dr José Alberto Calidonio Burgos, a member of the general executive committee of the trade union, and it was recommended that the institute should reinstate the doctor in his post within three working days. Despite said violation and recommendation, the institute refused to reinstate the dismissed trade union leaders, again reiterating its anti-union, discriminatory stance.
11. 472. On 12 February 2010, a special inspection was carried out at the premises of the ISBM, as a result of which it was determined that said institute had committed another violation in the form of non-payment of salary arrears for the month of January 2010 to Dr José Alberto Calidonio Burgos due to causes attributable to the employer. The institute again denied the accusation that it had committed a violation, ignoring it and reiterating its anti-union stance (a stance which contravenes the laws of the Republic). On 8 March 2010, an inspector of the Department of Membership and Inspection of the Salvadorian Social Security Institute (ISSS) told Dr José Alberto Calidonio Burgos that the ISBM was being fined for failing to pay the workers’ (the doctors) contributions, given that, in the opinion of the ISSS, the legal basis put forward by the Ministry of Labour in its respective inspection actions was sufficient. The complainants are waiting for the ISS to notify the parties officially of this ruling in writing. According to the complainant organization, the Constitution of El Salvador, Conventions Nos 87, 98 and 135 and the Labour Code have all been violated.

B. The Government’s reply

1. 473. In its communication of 26 July 2010, the Government states that the Ministry of Labour and Social Welfare granted legal personality to SIMEFISBM through ruling No. 46/2009, dated 18 September 2009. In the light of the request for registration of the executive committee of the trade union, submitted by the interested parties on 9 November 2009, and the documentation contained in an annex to said request, in which it is stated that as a result of the process of election of the executive committee Doctors José Alberto Calidonio Burgos and Carlos Mauricio Rivera took office as secretary general and organization and statistics secretary respectively, it was ruled that the executive committee of the trade union in question should be registered.
2. 474. The Government states that in the ruling through which the secretary of State granted legal personality to SIMEFISBM, it was established that an employment relationship existed between the doctors who participated in the founding of the trade union and the ISBM, with this fact being confirmed during the respective labour inspections which determined that services were being provided in conditions of subordination, a key characteristic of employment relationships. This situation suggests that an individual employment contract exists in accordance with section 20 of the Labour Code, contradicting the statements made by the employer to the effect that the institute is linked to the founders of the trade union by administrative, rather than employment, contracts. Consequently, it having been demonstrated that the founders of the trade union are employees of the institute, they enjoy the right of association for trade union purposes recognized by section 47 of the Constitution of the Republic, Article 2 of ILO Convention No. 87 and section 204 of the Labour Code, with the inclusion of said trade union in the register kept by the Ministry being admissible.
3. 475. The ruling issued by this Ministry of State granting legal personality to SIMEFISBM is irrefutable proof, as stated by the complainants, that in its role as the regulatory body which implements labour standards, the Government recognizes and protects the right to freedom of association, ensuring that the necessary conditions exist to allow the doctors to exercise fully their right to organise freely, in compliance with the mandate set out in article 8(b) of the Labour and Social Welfare Sector Organization and Functions Act, which states that: The specific functions of the Ministry of Labour and Social Welfare are: (b) to facilitate the constitution of trade union organizations, complying fully with Articles 2,3, 7 and 8 of ILO Convention No. 87.
4. 476. As to the dismissals of Dr José Alberto Calidonio Burgos, secretary general of SIMEFISBM, and Carlos Mauricio Rivera, organization and statistics secretary of the trade union, the interventions of the Ministry of Labour and Social Welfare were designed to protect the right to organise of the abovementioned trade union leaders, in accordance with Article 1 of ILO Convention No. 98. The following administrative actions were carried out in the same spirit:
   • (a) On 9 November 2009, Doctors Calidonio Burgos and Rivera, SIMEFISBM trade union leaders for the period 29 October 2009 – 29 June 2010, lodged the corresponding request for special labour inspection, in which they claimed that they were being discriminated against owing to their status as trade union members and that, owing to the fact that they were unionized, the employer had taken the decision not to renew their respective contracts for the January-December 2010 period. This decision was made because the doctors were founder members of the trade union. The ISBM also pointed to the fact that the contract with the doctors was administrative rather than one of employment and that they must participate in a public tender process in order to compete for another contract with the institute. In response to the doctors’ request, the General Labour Inspection Directorate carried out the corresponding inspection procedure, noting in the respective inspection records contained in file No. 631-UD-11-09, dated 18 December 2009, that the ISBM had infringed: section 30(5) of the Labour Code, which states that “Employers are forbidden to: directly or indirectly discriminate against workers owing to their unionized status or take reprisals against them for the same reason”; Article 1(b) of ILO Convention No. 111; and section 248 of the Labour Code which states that “Members of executive committees of trade unions with legal personality or in the process of obtaining such legal personality may not be dismissed transferred or subject to a worsening in their conditions of work nor suspended for disciplinary reasons during the period of their election and term of office and until after one year from having ceased their functions other than for just cause as previously determined by the competent authority.” Consequently, the ISBM was warned to rectify the abovementioned violations by immediately reinstating the trade union leaders in their posts in the light of the trade union immunity which gives them job security and protects them from dismissal for anti-union motives.
   • (b) On 4 January 2010, the General Labour Inspection Directorate carried out a further inspection to check whether the employer had complied with the warning issued by the labour inspectors regarding the reinstatement of the dismissed trade union leaders. On that occasion it was noted in the corresponding inspection record that the ISBM had not rectified the violation noted during the special inspection of 18 December 2009. Consequently, sanctions proceedings were initiated, in accordance with articles 53 and 59 of the Labour and Social Welfare Sector Organization and Functions Act and section 627 and the following sections of the Labour Code.
   • (c) In addition to the inspection procedures carried out by the Ministry of State, the General Labour Directorate was requested by the illegally dismissed trade union leaders to intervene in a conciliatory capacity in an attempt to restore their trade union rights. The General Labour Directorate summoned the parties in dispute with the aim of brining about a conciliation that would lead to the reinstatement of the abovementioned trade union representatives in their respective posts. A conciliatory hearing was held on 11 January 2010, but no solution to the labour dispute was found, despite the fact that the ministerial delegates were determined to resolve said labour dispute through dialogue and negotiation.
   • (d) In the light of the refusal by the employer to reinstate the trade union representatives in their posts, on 22 January 2010, Dr. Carlos Mauricio Rivera requested the legal assistance and support of the Office of the Attorney General of the Republic, in order to bring the corresponding legal action against ISBM for his unfair dismissal. These proceedings are currently ongoing before the labour courts.
5. 477. As can be seen from the facts referred to in this report, the Ministry of Labour and Social Welfare, in its capacity as Ministry of State responsible at the administrative level for safeguarding labour rights, duly carried out all the institutional actions within its remit in order to bring about the reinstatement of the illegally dismissed trade union leaders. The administrative authority duly noted the violations and initiated sanctions proceedings against the employer. Conciliatory interventions were also carried out to resolve the dispute, but no satisfactory outcome has to date been achieved owing to the position adopted by the ISBM.
6. 478. In accordance with its mandate to safeguard the labour rights of the workers of the country, the Ministry of Labour shall continue to carry out nay necessary institutional actions, in order to achieve the reinstatement of the dismissed doctors in the shortest possible time and to ensure that they are granted the guarantees and facilitates necessary for the full exercise of the trade union rights recognized by law in the case of both workers and employers. The legal proceedings initiated by Dr Rivera will be monitored and their outcome reported on.
7. 479. The Government states that it will continue to work to ensure that this case is resolved and the rights of the trade unionists of the country are not violated and that it is aware of its obligation to promote and guarantee respect for the rights of the workers, as an indispensable element in achieving peace and social justice. Furthermore, the Government renews its undertaking to make the necessary effort to guarantee the practical observance of trade union freedoms in the country.

C. The Committee’s conclusions

1. 480. The Committee notes that, in the present case, the Union of Family Physicians of the Salvadoran Institute for Teachers’ Welfare (SIMEFISBM) alleges the anti-union dismissal of the trade union leaders Doctors José Alberto Calidonio Burgos, secretary general, and Carlos Mauricio Rivera, organization and statistics secretary, of SIMEFISBM.
2. 481. The Committee notes that the Government confirms that the dismissals in question took place and states that: (1) on 18 December 2009, the General Labour Inspection Directorate informed the Salvadoran Institute for Teachers’ Welfare (ISBM) that, in the light of the trade union immunity which guarantees the doctors protection from dismissal and from dismissal for anti-union motives, the dismissed trade unionists should be reinstated in their posts; (2) on 4 January, the General Labour Inspection Directorate noted that the ISBM had not rectified the violation (the dismissal of the trade union leaders) and initiated sanctions proceedings; (3) the Minister of State attempted to restore the trade union rights of the dismissed trade union leaders through the General Labour Directorate and summoned the parties to a conciliatory hearing on 11 January with the aim of reconciling them and bringing about the reinstatement of the trade union leaders, but no agreement was reached; (4) in the light of the refusal by the ISBM to reinstate the trade union leaders, Dr Carlos Mauricio Rivera brought a legal action for unfair dismissal which is currently ongoing; and (5) the Ministry of Labour and Social Welfare carried out and shall continue to carry out all the necessary institutional actions to achieve the reinstatement of the dismissed trade union leaders.
3. 482. In this regard, the Committee recalls that no person should be dismissed or prejudiced in employment by reason of trade union membership or legitimate trade union activities, and that it is important to forbid and penalize in practice all acts of anti-union discrimination in respect of employment. It also recalls that in a case in which a trade union leader was dismissed and then reinstated a few days later, the Committee pointed out that the dismissal of trade union leaders by reason of union membership or activities is contrary to Article 1 of Convention No. 98, and could amount to intimidation aimed at preventing the free exercise of their trade union functions [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, paras 771 and 810]. The Committee profoundly regrets the dismissals of the trade union leaders in question and, while recognizing the efforts made by the Government to obtain their reinstatement, requests the Government to continue to take all the measures at its disposals to ensure that Carlos Mauricio Rivera and José Alberto Calidonio Burgos are reinstated in their posts at the ISBM, and that they are paid the lost wages and other legal benefits and, if reinstatement is not possible for objective and compelling reasons, to ensure that they are paid adequate compensation which would constitute a sufficiently dissuasive sanction. The Committee requests the Government to keep it informed in this regard. Furthermore, the Committee requests the Government to keep it informed of the result of the sanctions proceedings initiated by the General Labour Inspection Directorate and of the fine imposed. The Committee expects that said fine will be sufficiently dissuasive in nature to ensure that such anti-union acts do not occur in future at the concerned enterprise.
4. 483. Finally, the Committee requests the Government to keep it informed of the result of the legal procedure for unfair dismissal initiated by Carlos Mauricio Rivera, and to keep it informed regarding any legal proceedings initiated by José Alberto Calidonio Burgos.

The Committee's recommendations

1. 484. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government to take all measures at its disposal to obtain the reinstatement of José Alberto Calidonio Burgos and Carlos Mauricio Rivera in their posts at the ISBM, as well as the payment of the lost wages and other legal benefits and to keep them informed in that regard. If reinstatement is not possible for objective and compelling reasons the Committee requests the Government to ensure that they are paid adequate compensation which would constitute a sufficiently dissuasive sanction. Furthermore, the Committee requests the Government to keep it informed of the result of the sanctions proceedings initiated by the General Labour Inspection Directorate and of the fine imposed. The Committee expects that said fine will be sufficiently dissuasive in nature to ensure that such anti-union acts do not occur in future at the enterprise concerned.
   • (b) The Committee requests the Government to keep it informed of the result of the legal procedure for unfair dismissal initiated by Carlos Mauricio Rivera, and to keep it informed regarding any legal proceedings initiated by José Alberto Calidonio Burgos.