Effect given to the recommendations of the committee and the Governing Body - Report No 318, November 1999

Case No 1987 (El Salvador) - Complaint date: 26-AUG-98 - Closed

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

1. 51. At its March 1999 meeting, the Committee made the following recommendations:
   • (a) Observing that legislation imposes a series of excessive formalities for the recognition of a trade union and the acquisition of legal personality that are contrary to the principle of the free establishment of trade union organizations (the requirement that the trade unions of independent institutions should be works unions), that make it difficult to set up a trade union (minimum number of 35 workers to establish a works union) or that in any case make it temporarily impossible to establish a trade union (the requirement for six months to have passed before applying to establish another trade union even if the previous one did not obtain legal personality), the Committee:
     • -- concludes that the legislation seriously infringes the principles of freedom of association;
     • -- regrets that in applying this legislation the authorities have refused legal personality to a number of trade unions in the process of being set up in the ANTEL enterprise and in the Telecommunications Company of El Salvador SA de C.V.; and
     • -- regrets that the application for recognition and registration made by SITTEL in August 1998 has not been dealt with and is still pending. The Committee requests the Government to accelerate the procedure and register the union;
     • -- urges the Government to take measures with a view to amending the legislation so that the current excessive formalities that apply to the establishment of trade union organizations are removed and so that workers do not have to constitute enterprise-based works unions if they do not consider this to be appropriate.
   • (b) The Committee requests the Government to take steps with a view to reinstating the trade unions leaders Mr. Luis Wilfredo Berrios and Mrs. Gloria Mercedes González in their posts and to guarantee that in future proprietorial changes that occur in the framework of privatization do not directly or indirectly threaten unionized workers and their organizations.
     • (See 313th Report, para. 117.)
   • 52. In its communication dated 10 October 1999, Communications International (CI) pointed out that the Government has not taken any steps to reinstate the trade union leaders Luis Wilfredo Berrios and Gloria Mercedes González in their posts, nor to guarantee recognition of the unions, nor to amend the legislation along the lines of the Committee's recommendations.
2. 53. In its communications dated 8, 23 and 27 October 1999, the Government stated, in respect of the provisions which the Committee had recommended amending, that the constitutional requirements and those concerning the acquisition of legal personality of a trade union were set forth by the National Coordinating Forum, a tripartite body, which had been assisted by an ILO technical mission. The previous legislation has been improved and, according to the information provided in a document published by the International Labour Office which covers El Salvador, the text is in an advanced stage. There is therefore no basis for considering that the legislation seriously violates the principles of freedom of association.
3. 54. The Government adds that legal personality was granted to the Works Union of Telecommunications Employees of El Salvador (SITTEL) on 26 October 1998.
4. 55. As concerns the reinstatement of Luis Wilfredo Berrios and Gloria Mercedes González, the Government states that it cannot interfere with the decisions of the Telecommunications Company of El Salvador SA, which is a private enterprise regulated by its own social rules (the Government appended a letter from the enterprise indicating that the dismissed persons had not fulfilled international standards of productivity, nor did they meet the minimum requirements concerning efficient service and quality).
5. 56. The Committee notes the information provided by the Government, in particular concerning the granting of legal personality to the SITTEL union. As concerns the Government's statement that it is unfounded to say that the legislation seriously violates the principles of freedom of association, the Committee emphasizes that its conclusions had referred only to three aspects of the legislation. Moreover, the fact that the legislation is currently being elaborated within a tripartite forum and that ILO technical assistance has been provided does not necessarily signify that every single provision adopted is in conformity with the principles of freedom of association. The Committee therefore reiterates its previous recommendations concerning the need to amend the legislation. As concerns the Committee's recommendation to the Government to take steps with a view to the reinstatement in their posts of the abovementioned trade union leaders, the Committee notes the Government's statement that it cannot interfere with the decisions of a private enterprise. In this respect, the Committee draws the Government's attention to the principle according to which, where cases of alleged anti-union discrimination are involved, the competent authorities dealing with labour issues should begin an inquiry immediately and take suitable measures to remedy any effects of anti-union discrimination brought to their attention (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 754). The Committee thus once again requests the Government to take steps with a view to reinstating the trade union leaders Luis Wilfredo Berrios and Gloria Mercedes González in their posts.