Report in which the committee requests to be kept informed of development - Report No 386, June 2018

Case No 3194 (El Salvador) - Complaint date: 20-JAN-16 - Follow-up

Allegations: The complainant reports the anti-union dismissal of several trade union officers for establishing a trade union branch at a school of engineering

1. 243. The complaint is contained in communications submitted by the Education Workers’ Union of El Salvador (STEES) on 20 January and 24 May 2016.
2. 244. The Government sent its observations in communications of 7 March 2017 and 15 March 2018.
3. 245. El Salvador has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), the Workers’ Representatives Convention, 1971 (No. 135) and the Labour Relations (Public Service) Convention, 1978 (No. 151).

A. The complainant’s allegations

1. 246. In its communications of 20 January and 24 May 2016, the STEES reports the anti-union dismissal of the members of the executive committee of the enterprise trade union branch in the Central American Technological Institute (ITCA) – Corporate Foundation for Educational Development (FEPADE) Specialized School of Engineering (hereinafter “the School”). The complainant alleges specifically that: (i) the first executive committee of the trade union branch was elected on 26 March 2015 and the Ministry of Labour and Social Welfare issued credentials to its members on 9 April 2015; (ii) as a consequence of the establishment of the trade union branch, the institution’s authorities dismissed the following members of the executive committee: Ms Ana Margarita Ortiz de Alvarado, finance secretary; Ms Jeannette Guadalupe Martínez Pineda, communications secretary; Ms Yanira Elizabeth Mena Vásquez, trade union relations secretary, on 13 November 2015; and Mr Roberto Rosales Alemán, organization and statistics secretary, on 18 December 2015; and (iii) from that point on, the institution’s security service refused to allow the members of the executive committee of the trade union branch to enter its premises, maintaining that their contracts had ended.
2. 247. The STEES adds that the Ministry of Labour, through the Special Unit for the Prevention of Discriminatory and Labour-related Actions, confirmed the dismissal of Mr Roberto Rosales Alemán through a special inspection conducted on 16 January 2016. The complainant provides a copy of the inspection report, which states that the School had violated section 248 of the Labour Code, having acted improperly in dismissing Mr Rosales Alemán because he held the post of organization and statistics secretary of the executive committee. The inspection report ordered the School to remedy this violation within three days. The STEES reports that the School did not follow the labour inspectorate’s reinstatement recommendation.
3. 248. In its communication of 24 May 2016, the complainant also provides the text of the court judgments concerning the dismissal of Ms Ana Margarita Ortiz de Alvarado, Ms Jeannette Guadalupe Martínez Pineda and Ms Yanira Elizabeth Mena Vásquez. In these judgments, issued on 5 and 12 April 2016, the labour court states that: (i) while the workers held service contracts, they had been performing ongoing labour-related functions in the institution for many years; (ii) the three workers had been appointed to membership of the executive committee of the trade union branch in April 2015 and therefore enjoyed the trade union immunity established in domestic law; and (iii) the three workers were dismissed in November 2015 without adequate justification by the employer. The complainant states that, based on these facts, the labour court ordered the School to pay the wages owed to each of the three workers from the date of her dismissal to the date on which her trade union immunity expired.
4. 249. Lastly, the complainant states that, despite the aforementioned labour inspectorate decisions and court judgments, the institution is refusing to reinstate the members of the executive committee who were dismissed.

B. The Government’s reply

1. 250. In its communication of 7 March 2017, the Government transmits its observations on the complainant’s allegations. It indicates, first, that the labour inspectorate carried out a total of 13 inspections of the School in connection with the events reported in the complaint. On this point, the Government mentions specifically that: (i) the inspection conducted on 11 November 2015 established that although the functions performed by the members of the executive committee of the trade union branch were ongoing, the School’s employees held service contracts, a fact that was inconsistent with the Labour Code; and (ii) the inspection conducted on 16 January 2016 established that the wrongful dismissal of Mr Roberto Antonio Rosales, member of the STEES executive committee, on 18 December 2015 had violated section 248 of the Code. With regard to the latter violation, the Government states that a penalty was imposed and the School was fined pursuant to a judgment of 23 August 2016. However, the Government indicates that the enterprise appealed this judgment on 22 November 2016 and that the appeal is still ongoing.
2. 251. In its communication of 15 March 2018, the Government provides additional information on the outcome of the labour inspection activities related to the allegations set out in the complaint. The Government notes in particular that an administrative procedure relating to the wrongful dismissal of seven leaders of the trade union branch (including Ms Ana Margarita Ortiz de Alvarado, Ms Jeannette Guadalupe Martínez Pineda and Ms Yanira Elizabeth Mena Vásquez) and to several anti-union discrimination actions, is in the sanctioning phase of the proceedings – the final resolution of the matter currently pending. As to the pending judicial procedures, the Government indicates that: (i) the Second Court of Santa Tecla ruled in favour of three leaders of the trade union branch, ordering the payment of salaries not received due to the employer’s actions and noting that it did not address the reinstatement of the workers in so far as it considered that their employment relationship had not been terminated; (ii) the Second Chamber of Labour Matters revoked certain first instance rulings favourable to the workers; and (iii) such second instance decisions of the Second Chamber have been appealed before the Administrative Chamber of the Supreme Court.
3. 252. The Government also indicates that on 1 July 2016, the STEES again wrote to the Ministry of Labour and Social Welfare, requesting it to intervene in the dismissal of the trade union officers. In light of this request, the Department of Labour summoned the parties to three hearings (on 19 June, 7 September and 1 November 2016, respectively) in order to resolve the dispute concerning the dismissals and the Minister of Labour held an additional meeting in her own office on 9 March 2017 for the same purpose. However, the Government indicates that none of these meetings led to an agreement because the School maintained its position that the dispute could not be resolved administratively because the institution had already referred the cases to the courts and would wait for the labour judge to settle them.
4. 253. The Government indicates, on the other hand, that in a communication of 8 March 2017, the Ministry of Education states that: (i) although the School is an institution of higher education operating under the aegis of the Ministry of Education, it is privately administered and is governed by its own statutes; and (ii) the trade union officers mentioned in the complaint are not public servants, but rather former teachers; thus, the wages that they received for their professional services did not derive from public resources managed by the School.
5. 254. In its 15 March 2018 communication, the Government adds that the Ministry of Labour and Social Welfare undertook the following additional measures: (i) the Ministry of Labour convened for 4 April 2017 a new conciliation meeting to seek the reinstatement of the trade union leaders but the school did not attend; (ii) on 25 April 2017, the Ministry of Labour convoked a press conference to make public the violations to freedom of association which had occurred in the school; (iii) on 22 August 2017, the Minister of Labour and Social Welfare addressed a communication to the President of the Republic, informing that its Ministry had followed up on the case of unfair dismissal of several trade union leaders in the school, and that, in so far as the school receives funds from the State, it should lead by example in guaranteeing freedom of association; and (iv) the Ministry of Labour continues supporting the trade union branch in the actions seeking the restitution of its labour rights.

C. The Committee’s conclusions

1. 255. The Committee observes that in the present case, the complainant reports the anti-union dismissal of several trade union officers a few months after the establishment of a trade union branch in a school of engineering. The Committee notes that the complainant mentions, in particular, the dismissal of the trade union officers, Mr Roberto Rosales Alemán, Ms Ana Margarita Ortiz de Alvarado, Ms Jeannette Guadalupe Martínez Pineda and Ms Yanira Elizabeth Mena Vásquez, which took place on 13 November and 18 December 2015. The Committee also notes that, according to the complainant, the School failed to comply with the rulings of the labour inspectorate and the labour courts with regard to these dismissals.
2. 256. The Committee observes that both the complainant and the Government indicate that the events that prompted this complaint led to several interventions by the labour inspectorate and to several court judgments. The Committee notes that it is clear from the documents provided by the Government and the complainant that: (i) on 11 November 2015, the labour inspectorate found that the fact that the members of the executive committee held service contracts even though they were performing ongoing functions was inconsistent with the Labour Code; (ii) on 16 January 2016, the labour inspectorate found that the School had violated section 248 of the Labour Code by wrongfully dismissing the trade union leader, Mr Roberto Antonio Rosales Alemán, and ordered it to remedy the violation within three days; (iii) on 22 November 2016, the School appealed the ruling in which the labour inspectorate had fined it for violating section 248 of the Labour Code by wrongfully dismissing Mr Alemán, and that appeal is still under way; (iv) an administrative procedure relating to the wrongful dismissal of seven leaders of the trade union branch (among them three trade union leaders mentioned in the complaint) and to several anti-union discrimination actions, is in the sanctioning phase of the proceedings – the final resolution of the matter currently pending (v) the trade union officers, Ms Ana Margarita Ortiz, Ms Jeannette Guadalupe Martínez and Ms Yanira Elizabeth Mena, have brought judicial proceedings demanding reinstatement. On 5 and 12 April 2016, the labour court issued judgments in which it found that the employer had not adequately justified the dismissals and ordered the School to pay the claimants the wages owed to them from the date of their dismissal to the date on which their trade union immunity expired (the School appealed these judgments); and (vi) other first instance judicial rulings favourable to the workers revoked in second instance are pending resolution by the Supreme Court. The Committee also takes note of the following additional measures undertaken by the Ministry of Labour and Social Welfare: (i) on 1 July 2016, in light of the continued dismissal of the various members of the executive committee of the trade union branch, the STEES requested that the Ministry of Labour and Social Welfare intervene in order to resolve the situation; (ii) the Ministry summoned the parties to four conciliation hearings, the last of them in the presence of the Minister of Labour, in the hope of reaching an agreement on the status of the trade union officers; (iii) at these meetings, the School maintained its position that it could not agree to the officers’ reinstatement and would await the final rulings of the courts in the cases; and (iv) the Ministry of Labour has drawn the attention of the President of the Republic to the need for the school to respect the principles of freedom of association.
3. 257. The Committee observes that it is clear from the foregoing that: (i) the trade union officers’ dismissals that are the subject of the present complaint gave rise to interventions and rulings by the labour inspectorate that found violations of the provisions of the Labour Code concerning the protection of trade union officers. These interventions and rulings are not, however, final, whether because the fines have been appealed or because some of the administrative procedures are still under way; (ii) similarly, the lower labour courts have ruled that the dismissal of three of the trade union officers was not consistent with the provisions of the Labour Code concerning the protection of trade union officers, and these labour court judgments are the subject of an appeal that is pending; and (iii) the conciliation hearings and other initiatives undertaken by the Ministry of Labour were unable to resolve the situation.
4. 258. The Committee recalls that the dismissal of trade union officers on account of their trade union office or activities, even if they are subsequently reinstated, is contrary to Article 1 of Convention No. 98, and could, in cases where dismissal has been proven, amount to intimidation preventing the exercise of their trade union functions [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 1130]. While taking due note of the Government’s efforts to reach an agreement on reinstatement of the trade union officers who were dismissed, the Committee notes with concern that, two and a half years after the aforementioned dismissals, the final rulings of both the labour inspectorate and the labour courts are still pending. Therefore, while recalling that no one should be subjected to anti-union discrimination because of legitimate trade union activities and the remedy of reinstatement should be available to those who are victims of anti-union discrimination [see Compilation, op. cit., para. 1163], the Committee urges that the necessary measures be taken to ensure that the pending judicial proceedings in relation to the present case are concluded without further delay. The Committee requests the Government to keep it informed in this regard without delay.

The Committee’s recommendation

1. 259. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
   • The Committee urges that the necessary measures be taken to ensure that the pending judicial proceedings in relation to the present case are concluded without further delay. The Committee requests the Government to keep it informed in this regard without delay.