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- 307. This case has already been examined by the Committee on four previous
- occasions (236th, 243rd, 251st and 256th Reports approved by the Governing
- Body, respectively, in November 1984, February 1986, May 1987 and May 1988) on
- all of which it came to interim conclusions. This case also figured among the
- ten cases against the Government of El Salvador examined jointly by the direct
- contacts mission which visited the country in January 1986. The World
- Federation of Trade Unions (WFTU) presented further information relating to
- the case in a communication dated 25 May 1988. The Government supplied its
- observations on the case in a letter of 8 July 1988.
- 308. El Salvador has ratified neither the Freedom of Association and
- Protection of the Right to Organise Convention, 1948 (No. 87) nor the Right to
- Organise and Collective Bargaining Convention, 1949 (No. 98).
A. Previous examination of the case
A. Previous examination of the case
- 309. At its latest examination of Case No. 1273 (256th Report, paras.
- 238-254) the following questions remained pending before the Committee:
- - The Committee requested the Government to supply additional information
- on the alleged murder by members of the armed forces of the trade unionists
- Francisco Méndez (on 11 October 1986) and Marco Antonio Orantes (on 29 January
- 1985), and to carry out a judicial inquiry into these matters. The Committee
- also requested information on the progress of the trial of two accused before
- the Fourth Criminal Court on charges of the murder of the trade union leader
- José Arístides Mendez, which had commenced in July 1986.
- - The Committee requested the Government to provide additional information
- on the arrests of Adalberto Martínez (23 June 1986), Andrés Miranda (27 June
- 1986), Gregorio Aguillón Ventura (1 February 1986), and José Antonio Rodríguez
- (18 August 1986); as well as on the raid on the premises of ANDES and
- confiscation of its documents by the armed forces on 29 April 1986, and the
- dismissal of six union leaders in the telecommunications sector as the result
- of a strike called on 15 April 1986.
- - The Committee deeply deplored the violent acts that had occurred on 8
- July 1987 between military and police forces and workers of the Social
- Security Institute and urged the Government to set up an independent judicial
- inquiry with a view to determining responsibilities, punishing the guilty
- parties and preventing the repetition of such acts, and to keep the Committee
- informed of any steps taken to open a judicial investigation.
- - The Committee requested the Government to send its observations on the
- allegations made by the United Trade Union Federation of El Salvador (FUSS)
- and the World Federation of Trade Unions (WFTU) on 11 and 27 April 1988,
- respectively. In the FUSS communication it was alleged that on 10 April the
- house (at No. 21, Colonia Lamatepec, Pasaje F, Zona D, in the town of Santa
- Ana) of Mrs. Marta Castaneda, a member of the Coffee Union (SICAFE) and leader
- of the Women's Committee of that union, was blown up and that five minutes
- after the attack a unit of the Second Infantry Brigade, accompanied by the
- police, appeared on the scene; that on 7 and 8 April the Colonia had been
- surrounded and searched by members of the Second Infantry Brigade who had kept
- it sealed off until 2.00 p.m. on 8 April when the trade unionist Castaneda was
- allowed to leave; and that trade unionist Marta Alicia Sigüenza, a member of
- the general executive committee of SICAFE, had been unable to come to her
- place of work and had been forced to hide for fear of being killed by the
- government forces. The WFTU communication alleges the persecution of members
- of the Union of Salvadorian Telecommunications Workers (ASTTEL), in particular
- its General Secretary, Mr. Raphael Sanchez, who was dismissed on 10 January
- 1986, and the current General Secretary, Mr. Humberto Centeno, who was
- arrested and beaten on 10 March 1988. It also alleges the detention and
- torture of Mr. Centeno's two sons as a means of pressuring the Union, and the
- death by shooting at the hands of death squads of the unionists Victor Manuel
- Hérnandez Vasquez (on 13 January 1988), Medardo Ceferino Ayala (on 18 December
- 1987) and José Herbert Guardado (on 1 March 1988).
- B. Further information from the WFTU
- 310. On 25 May 1988 the WFTU provided further information concerning the
- persecution of members of the ASTTEL, already referred to in its April 1988
- letter mentioned above. It states that:
- - on 13 April 1988 Manuel de Jesus Rodas Barahona was shot dead outside his
- home by two men in civilian clothing "death squad style";
- - on 15 April José Mazariego was abducted by the police and interrogated
- about his union work for 36 hours;
- - on 18 March L.W. Barrios and Misael Flores were abducted by the First
- Infantry Brigade, beaten and threatened before their release in an effort to
- coerce them into leaving ASTTEL;
- - on 17 March Alberto Luis Alfaro disappeared around 6.30 a.m. when leaving
- for work and his whereabouts remain unknown;
- - since January 1986 ASTTEL has been working without a contract because the
- telecommunications company (ANTEL) reneged the collective agreement and,
- despite requests from the union and the 51-day (April 1986) strike referred to
- in previous examinations of this case, refuses to negotiate a new contract or
- meet with ASTTEL.
- 311. In general, the WFTU points out that despite article 47 of the El
- Salvadorian Constitution, which guarantees public sector employees the right
- to organise and bargain collectively, the authorities make use of the Labour
- Code to deny ASTTEL the status of a "union" having it only as an
- "association"; the telecommunications company workers are denied the right to
- strike and are punished under section 433 of the Penal Code or Decree No. 296
- for any absence from work; Decree No. 162 of 1985 permitting transfer of
- public sector workers is being used to break up branch unions and remove their
- leaders.
- 312. In addition, the WFTU alleges that the telecommunications company is
- controlled by the military (the alleged death squad founder, Defence Minister
- General Eugene Casanova, appointed his brother, Colonel Mauricio Casanova, as
- President of the company). It quotes the March 1988 American WATCH report
- "Labour rights in El Salvador" stating: "Government repression against
- organised workers in El Salvador ... is extensive, systematic and often brutal
- ... Although no one organisation has had a monopoly on victimisation, ASTTEL
- has in recent years emerged as a special target of the security forces. "
- C. The Government's reply
- 313. In its letter of 8 July 1988, the Government states that there is no
- trade union in the national telecommunications administration of the type
- covered by El Salvadorian legislation. The description "de facto union"
- referred to in this complaint is not known in Salvadorian law or industrial
- relations practice and it is therefore totally inappropriate to call ASTTEL
- (Asociación Salvadoreña de Trabajadores de Telecomunicaciones) a "union".
- According to the Government, this is not just a point of formality, but is of
- vital importance to the issue of legitimate representation of the workers. As
- an "association", under section 540(2) of the Civil Code, ASTTEL comes under
- the jurisdiction of the Ministry of the Interior, whereas "unions" are
- regulated by the Labour Code and administered by the Ministry of Labour.
- 314. According to the Government, ASTTEL claimed rights and powers which it
- could not enjoy as it is not a union; likewise, its leaders, not being trade
- union leaders, have no right to protection against dismissal. The Government
- points out that, despite this, the employer had allowed the workers'
- associations to carry out activities and ASTTEL had, in the past, had complete
- freedom for this. However, its mobility is somewhat restricted because of its
- constant agitation and infringements of the law. Whenever ASTTEL leaders
- challenged the employer's disciplinary measures before various jurisdictions
- (labour courts, Supreme Court), they have been unsuccessful.
- 315. The Government adds that there is a second similar body in the
- telecommunications company, namely the Salvadorian Association of Workers in
- ANTEL (ASTA), which also enjoys freedom of actions and movement. The basic
- difference between the two associations is that ASTA is not involved in
- political objectives. ASTTEL, on the other hand, states the Government, has
- called 45 illegal strikes just between 1987 and 1988 and has taken part in
- disturbances and street violence and a dozen street demonstrations which have
- resulted in damage to the employer's buildings and vehicles.
- 316. The Government explains certain of the specific WFTU allegations
- against the above background. For example, three telecommunications workers
- were dismissed after an illegal strike in November 1985 called for the release
- from criminal detention of an ASTTEL leader's (Mr. José Humberto Centeno) two
- sons; the employer had won from the labour court a declaration that the strike
- was illegal and had warned the strikers that they risked punishment for
- unjustified absences from work; it points out, however, that the strike
- leaders were not dismissed but merely were not paid for the days not worked.
- In this connection, the Government observes that article 221 of the
- Salvadorian Constitution bans strikes by workers in public and municipal
- services. Moreover, the Labour Code (sections 527, 528, 547, 553 and 555) sets
- out the legal formalities required for strike action and Decree No. 296 of 24
- June 1980 also bans strikes by government employees. It is thus
- incomprehensible that ASTTEL claimed rights that it could not enjoy under the
- law.
- 317. According to the Government, the WFTU letter of 27 April 1988 is
- incorrect in alleging that Mr. Centeno's two sons were still detained "as a
- means of pressuring the union", since José and Jaime Centeno were released in
- November 1987 under an Amnesty Decree applying to criminals sentenced for
- political offences. It stresses that the November 1985 strike called by ASTTEL
- had nothing to do with labour matters, but was used for the liberation of
- these two individuals who had no link to the employer involved.
- 318. The Government states that over the last year, the ASTTEL leadership
- has introduced a new element to its systematic confrontation with the
- employing public enterprise ANTEL, namely the false and malicious accusation
- that its president is responsible for the death of three workers carried out
- by unknown persons. Although the Government has given full replies to various
- national and foreign bodies on this, it has requested the Public Prosecutor to
- clarify the facts. The Government stresses that even the widow of the late
- José Herbert Guardado has requested, through the national press, that ASTTEL
- cease manipulating the tragic death of her husband for political and
- propaganda ends. A copy of the press clipping publishing her letter to the
- employer dated 14 March 1988 is enclosed in which she states that the leaders
- of ASTTEL "... are trying - without any basis and only for their own interests
- - to make (her husband's) death look like a result of labour struggles in
- which they are also making false accusations against the authorities of ANTEL,
- who deserve our respect and gratitude".
- 319. The Government claims that to link these deaths to the
- labour-management problems shows the particular bad faith of the persons
- concerned since ANTEL, being a huge undertaking employing almost 6,000 workers
- and given the circumstances reigning in the country, would most probably have
- some workers getting involved in events liable to lead to tragic deaths. It
- gives the following specific information on the deaths:
- - Mr. Guardado was, according to newspaper reports, attacked in a bus by
- thieves;
- - Victor Manuel Hernandez Vasquez was the son of one of ANTEL's section
- chiefs and had been on an internship for 15 days when he died; he cannot
- therefore be called a permanent employee or an ASTTEL member;
- - Medano Ceferino Ayala had never been an ASTTEL leader and it is not known
- whether he was even a member or participated in the association's activities.
- 320. In conclusion, the Government states that the claims against the
- telecommunications company form part of an orchestrated disinformation
- programme at the international level and go beyond the legitimate interests of
- safeguarding workers. It recalls that certain ASTTEL leaders, such as Mr. J.H.
- Centeno, are members of the Unidad de los Trabajadores Salvadorenos (UNTS)
- which supports and promotes acts of provocation and disrespect for the forces
- of law and order. It explains that the March 1988 strike at the Ministry of
- Labour and Social Security saw Mr. Centeno beat members of the military. He
- was detained because of his violent behaviour and later released. According
- to press clippings from "Latino" and "La Prensa Grafica" supplied by the
- Government, on 10 March 1988, 200 or so persons arrived in buses and grouped
- themselves around the Ministry shouting insults at and threatening the
- military personnel who were present to protect the buildings; after Mr.
- Centeno attacked one soldier there was general tumult which left various
- people injured and led to Mr. Centeno's arrest; he was taken to a police
- station and from there by the police to a private hospital for treatment of
- the blows he had received during the disturbance at the Ministry.
D. The Committee's conclusions
D. The Committee's conclusions
- 321. Before examining the various allegations which relate to anti-union
- harassment by the telecommunications company ANTEL, the Committee reminds the
- Government that it has neither replied to the recent allegations concerning
- threats to two female members of the Coffee Union (SICAFE) in April 1988, nor
- has it supplied further information on progress in the trial of two persons
- accused of the murder of the trade union leader José Aréstides Mendez which
- commenced in July 1986. It accordingly requests the Government to reply as
- rapidly as possible, particularly as regards the trial before the Fourth
- Criminal Court and recalls in this connection that governments should do
- everything possible to avoid excessively lengthy trials. The Committee has
- stated in past cases that it should be the policy of every government to
- ensure observance of human rights and especially the right of all detained or
- accused persons to receive a fair trial at the earliest possible moment. (See,
- for example, 236th Report, Case No. 963 (Grenada), para. 78, and 247th Report,
- Cases Nos. 997, 999 and 1029 (Turkey), para. 20.)
- 322. As regards the outstanding issue (see 243rd Report, para. 408) of the
- alleged murder of the trade unionists Francisco Méndez (on 11 October 1986)
- and Marco Antonio Orantes (on 29 January 1985), the Committee recalls that the
- Government had previously replied that it - and the various security bodies -
- had no information on them but they were trying to ascertain the whereabouts
- of Mr. Méndez and to clarify the situation of Mr. Orantes. Since the Committee
- has received no more recent information than these general denials and
- protestations of ignorance, it can only deeply deplore the disappearance in
- suspicious circumstances of these two trade union leaders. It draws the
- Government's attention to the importance of vigilance in investigating such
- cases since a climate of violence, such as that surrounding the murder or
- disappearance of trade union leaders, constitutes a serious obstacle to the
- exercise of trade union rights. (See, for example, 236th Report, Cases Nos.
- 1157 and 1192 (Philippines), para. 299.)
- 323. As regards the Committee's request for additional information on the
- reasons which were the basis for the arrests of four named trade unionists in
- February, June and August 1986 (see 251st Report, para. 332, May-June 1987),
- it can only regret the Government's lack of co-operation in following up on
- these events and draw its attention to the principle that the arrest and
- detention of trade unionists, even for reasons of internal security, may
- constitute a serious interference with trade union rights unless attended by
- appropriate judicial safeguards such as a prompt and fair trial. (See, for
- example, 233rd Report, Case No. 1211 (Bahrain), para. 589.)
- 324. Likewise, as regards the Government's total silence on the alleged raid
- by the armed forces on the headquarters of the National Association of
- Educators of El Salvador (ANDES) on 20 April 1986 (first raised in the
- Committee's 251st Report, para. 355, May-June 1987), the Committee can only
- conclude that this raid and the accompanying confiscation of union property
- infringed the principles of freedom of association. It draws the Government's
- attention to the fact that the resolution on trade union rights and their
- relation to civil liberties, adopted by the International Labour Conference at
- its 54th (1970) Session, declares that the right to adequate protection of
- trade union property is one of those civil liberties which are essential for
- the normal exercise of trade union rights. (See, for example, 230th Report,
- Case No. 1160 (Suriname), para. 548.)
- 325. Turning to what now remains as the central group of allegations in Case
- No. 1273, namely the various measures of harassment affecting members and
- leaders of the Association of Salvadorian Telecommunications Workers (ASTTEL),
- the Committee notes with concern that the management - allegedly in collusion
- with the armed forces - is accused by the complainants of a wide variety of
- anti-union acts. These acts range from repudiation of the collective agreement
- in January 1986 to dismissals (six after a strike on 15 April 1986 and one on
- 10 January 1986), arrests and beatings while in detention, disappearance (of
- Mr. Alberto Luis Alfaro on 17 March 1988) and four murders (Mr. M.C. Ayala on
- 18 December 1987, Mr. M.H. Vasquez on 13 January 1988, Mr. J.H. Guardado on 1
- March 1988 and Mr. M. de Jesus Rodas Barahona on 13 April 1988).
- 326. The Committee notes that the Government disputes the occupational
- nature of ASTTEL and argues that its complaints concerning collective
- agreements and lack of protection against dismissals are legally without basis
- since the association is not a "union" and is thus not entitled to the rights
- and protections accorded to unions. Moreover, according to the Government,
- ASTTEL is pursuing political objectives through violent means.
- 327. While it is difficult for the Committee to take a stand when faced with
- directly contradictory descriptions of the industrial relations climate in a
- particular sector, it nevertheless is in a position to guide the parties in
- this case since it has repeatedly decided that where public employees -
- especially in public enterprises and nationalised undertakings - are not
- involved directly in the administration of the State, the national legislation
- should allow them to bargain collectively (see, for example, 211th Report,
- Case No. 965 (Malaysia), para. 206). The Committee has indeed specifically
- pointed out in past cases that employees of the telecommunications services
- should enjoy this aspect of freedom of association (see 139th Report, Case No.
- 725 (Japan), para. 278). The Committee accordingly requests the Government to
- review the situation of ANTEL employees with a view to ensuring that their
- rights to associate in workers' organisations and to carry out activities,
- such as bargaining, to promote and defend their interests are protected.
- 328. The Committee adds that the review requested above should include
- coverage of the workers concerned by the appropriate legislation on protection
- against acts of anti-union discrimination in employment. This is so since the
- Committee has recalled on many occasions that one of the fundamental
- principles of freedom of association is that workers should enjoy adequate
- protection against all acts of anti-union discrimination in respect of their
- employment, such as dismissal, particularly for trade union officials because,
- in order to be able to perform their trade union duties in full independence,
- they should have a guarantee that they will not be prejudiced on account of
- the mandate which they hold from their trade unions. The Committee has
- considered that the guarantee of such protection in the case of trade union
- officials is also necessary in order to ensure that effect is given to the
- fundamental principle that workers' organisations shall have the right to
- elect their representatives in full freedom. (See, for example, 236th Report,
- Case No. 1113 (India), para. 130, Case No. 1272 (Chile), para. 637.)
- 329. As regards the disappearance and deaths, the Committee notes that
- information is yet to be provided on that of Mr. Alberto Luis Alfaro and Mr.
- M. de Jesus Rodas Barahona; it requests the Government to send its comments as
- soon as possible. As for the other three deaths, the Committee notes that,
- according to the Government, Mr. Guardado's murder at the hands of thieves had
- nothing to do with his trade union activities and that the deaths of Messrs.
- Vasquez and Ayala could not have been related to union functions or activities
- since they were never union members. Since the complainants give no further
- details in support of their allegations that these deaths by unknown armed
- bandits were in retaliation for the labour unrest in the telecommunications
- company, the Committee can only regret this loss of life and stress that a
- genuinely free and independent trade union movement can only develop in a
- climate free of violence and uncertainty. (See, for example, 205th Report,
- Case No. 983 (Bolivia), para. 33.)
- 330. Lastly, as regards the arrests of unionists and alleged beating while
- in police custody, the Committee awaits the Government's comments on the
- alleged arrests in March and April 1988 of Messrs. L.W. Barrios, Misael Flores
- and José Mazariego, all ASTTEL members. It notes the Government's description
- of the release of the two Centeno sons and of the violence started by Mr.
- Humberto Centeno on 10 March 1988. It notes in particular that Mr. H.
- Centeno's detention was due to his disorderly behaviour, that his injuries
- were directly related to his attack on military guards and occurred before he
- was taken into custody and that, after treatment at a private hospital, he was
- released. It accordingly recalls that workers and their organisations, like
- all other citizens, should respect the law of the land and considers that this
- aspect of the case does not call for further examination.
The Committee's recommendations
The Committee's recommendations
- 331. In the light of its foregoing interim conclusions, the Committee
- invites the Governing Body to approve the following recommendations:
- a) The Committee must once again express its regret that the Government has
- not sent all the information requested on the pending allegations and requests
- its comments on:
- i)the threats against two female members of the Coffee Union (SICAFE) in
- April 1988; (ii) progress in the trial concerning the murder of José Aréstides
- Mendez which commenced in July 1986; (iii) the disappearance of Mr. Alberto
- Luis Alfaro on 17 March 1988 and the death of Mr. M. de Jesus Rodas Barahona
- on 13 April 1988; (iv) the brief arrests of ASTTEL members, Messrs. L.W.
- Barrios, Misael Flores and José Mazariego in March and April 1988.
- b) As regards the various measures of anti-union harassment aimed at the
- Association of Salvadorian Telecommunications Workers, the Committee notes
- with concern the poor industrial relations climate reigning in the
- telecommunications company (ANTEL) and recalls that a genuinely free and
- independent trade union movement can only develop in a climate free of
- violence and uncertainty.
- c) As regards the legislative aspect of the case, the Committee requests
- the Government to adopt legislative provisions ensuring that the workers of
- the telecommunications company (ANTEL) have the right to associate in unions
- and to carry out activities, such as collective bargaining, to promote and
- defend their interests and that they are protected against acts of anti-union
- discrimination in employment.
