Report in which the committee requests to be kept informed of development - Report No 370, October 2013

Case No 2985 (El Salvador) - Complaint date: 13-AUG-12 - Follow-up

Allegations: The complainant organizations allege the dismissal of a trade union officer and coercion of workers of the TRUME SA de CV enterprise to withdraw their union membership

1. 413. The complaint in this case is contained in a communication from the General Trade Union of Transport Workers and Affiliated Industries of El Salvador (SGTITAS) and the Autonomous Confederation of Salvadorian Workers (CATS) dated 13 August 2012.
2. 414. In the absence of a reply from the Government, the Committee was obliged to postpone its examination of this case. At its May–June 2013 meeting [see 368th Report, para. 5], the Committee made an urgent appeal to the Government indicating that, in accordance with the procedural rules set out in paragraph 17 of its 127th Report, approved by the Governing Body, it could present a report on the substance of the case at its next meeting, even if the requested information or observations had not been received in time. To date, the Government has not sent any information.
3. 415. 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. 416. In their communication dated 13 August 2012, the SGTITAS and the CATS allege that, on 8 May 2012, the United Mexican Transport Enterprise (TRUME SA de CV) verbally dismissed without just cause the General Secretary of the SGTITAS branch, Mr Porfirio Andrés Marroquín Serrano. The complainants state that the Ministry of Labour and Social Security, through the Special Unit on Prevention of Discriminatory Labour Practices of the General Labour Inspection Directorate, conducted an initial inspection on 30 May 2012, during which it noted that the company’s legal representative had violated sections 248 and 29(2) of the Labour Code governing, respectively, trade union immunity and the obligation to pay compensation for any stoppage for which the employer bears responsibility; on that occasion, the enterprise claimed to be unaware of the union’s existence and of the dismissed employee’s status as union officer; the inspection report recommended that Mr Porfirio Andrés Marroquín Serrano be reinstated and that he be paid compensation in the amount of US$136, and set a time limit of three working days to remedy the reported violations. The Special Unit on Prevention of Discriminatory Labour Practices conducted a second inspection on 4 June 2012 and found that the violations noted during the first inspection had not been remedied.
2. 417. The complainant organizations state that in order to exert pressure on the enterprise to reinstate Mr Marroquín Serrano, they stopped work on 70 transport units on enterprise premises for approximately 12 hours on 18 June 2012. On that occasion, the Special Unit on Prevention of Discriminatory Labour Practices carried out a third inspection, during which it noted that the observed violations had still not been remedied and set a time limit of three working days to do so. On 25 June 2012, a meeting was held on enterprise premises which was attended by the General Secretary of the Autonomous Trade Union Federation of Salvadorian Workers; the General Secretary of the Trade Union Federation of Independent Workers; Mr Porfirio Andrés Marroquín Serrano; and the enterprise’s President and legal representative. The complainants state that, in the course of that meeting, the enterprise representative informed those present that it had been agreed in a meeting with the company partners not to reinstate Mr Marroquín Serrano. On 25 June 2012, the Special Unit on Prevention of Discriminatory Labour Practices carried out a fourth inspection, during which it noted that the observed violations had still not been remedied. The complainant organizations add that a complaint has been filed with the Fourth Labour Court of San Salvador and that the proceedings are in the evidence gathering phase.
3. 418. The complainant organizations also allege that the enterprise, through its legal representative, had coerced the workers to revoke their membership of the SGTITAS branch, including the members of the branch’s executive committee. The branch members submitted their membership cancellations to the General Secretary of the SGTITAS.

B. The Committee’s conclusions

1. 419. The Committee regrets that, despite the time that has passed since the complaint was presented, the Government has not replied to any of the allegations made by the complainant, although it has been invited several times, including by urgent appeal, to send its observations or information on this case. The Committee urges the Government to be more cooperative in the future.
2. 420. Under these circumstances, and in accordance with the applicable rules of procedure [see 127th Report, para. 17, approved by the Governing Body at its 184th Session], the Committee is obliged to present a report on the substance of the case without being able to take account of the information which it had hoped to receive from the Government.
3. 421. The Committee reminds the Government that the purpose of the whole procedure established by the International Labour Organization for the examination of allegations of violations of freedom of association is to promote respect for the freedom of association rights of workers and employers, both in fact and in law. The Committee is confident that, while this procedure protects governments against unreasonable accusations, they must recognize the importance of formulating, for objective examination, detailed replies concerning allegations brought against them [see First Report of the Committee, para. 31].
4. 422. The Committee notes that this case concerns allegations of dismissal of a trade union officer by TRUME SA de CV and allegations of coercion of workers to revoke their trade union membership.
5. 423. Concerning the first allegation, the Committee notes that the Special Unit on Prevention of Discriminatory Labour Practices of the General Labour Inspection Directorate carried out four inspections, on 30 May and 4, 18 and 25 June 2012, in which it found that Mr Porfirio Andrés Marroquín Serrano’s dismissal on 8 May 2012 violated articles 248 and 29(2) of the Labour Code, relating respectively to trade union immunity (prohibiting the dismissal of trade union officers during their term of office) and to payment of compensation for any stoppage (of work) for which the employer bears responsibility; and that the enterprise had hitherto (at the time of the fourth inspection) failed to remedy those violations. The Committee also notes that a complaint has been filed with the Fourth Labour Court of San Salvador and that the legal proceedings are in the evidence gathering phase. The Committee requests the Government to send its observations, obtain the enterprise’s comments through the relevant employers’ organization, and keep the Committee informed of the progress of the ongoing judicial proceedings. The Committee recalls in general terms that no person should be dismissed or prejudiced in employment by reason of trade union membership or legitimate trade union activities, and it is important to forbid and penalize in practice all acts of anti-union discrimination in respect of employment [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 771]. The Committee requests the Government to ensure that, if the court rules that the union officer’s dismissal was anti-union in nature, steps will be taken to reinstate him immediately.
6. 424. As regards the allegations that the enterprise coerced workers to revoke their union membership, the Committee notes that according to the allegations, the enterprise coerced all of its workers, including the members of the branch’s executive committee, to revoke their membership of the SGTITAS branch, resulting in the branch members submitting their membership cancellations to the General Secretary of the organization. The Committee requests the Government to send its observations in this regard and to obtain the enterprise’s comments on the allegations through the relevant employers’ organization. The Committee requests the Government and the complainant organizations to state whether any official complaints have been lodged with the authorities in relation to these allegations. In general terms, the Committee notes that any coercion of workers or trade union officers to revoke their union membership constitutes a violation of the principle of freedom of association, in violation of Convention No. 87.

The Committee’s recommendations

1. 425. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee regrets that, despite the time that has passed since the complaint was presented, the Government has not replied to any of the allegations made by the complainant organizations, although it has been invited several times, including by urgent appeal, to send its observations or information on this case. The Committee urges the Government to be more cooperative in the future.
   • (b) As regards the dismissal of the trade union officer, Mr Porfirio Andrés Marroquín Serrano, the Committee requests the Government to send its observations, obtain the enterprise’s comments through the relevant employers’ organization, and keep the Committee informed of the progress of the ongoing judicial proceedings. The Committee requests the Government to ensure that, if the court rules that the union officer’s dismissal was anti-union in nature, steps will be taken to reinstate him immediately.
   • (c) Concerning the allegations that the enterprise pressured workers to revoke their union membership, the Committee requests the Government to send its observations in this regard. It requests the Government and the complainant organizations to state whether any formal complaints have been lodged with the authorities in relation to these allegations.