Report in which the committee requests to be kept informed of development - Report No 328, June 2002

Case No 2165 (El Salvador) - Complaint date: 22-OCT-01 - Closed

Allegations: Mass unfair dismissals following strike action and violence against demonstrators

1. 229. The complaints in this case are contained in communications from the Federation of Public Service Workers’ Trade Unions of El Salvador (FESTRASPES), dated 22 October 2001, and the Workers’ Union of the National Institute for Public Employees’ Pensions (SITINPEP), dated 10 and 11 January and 6 and 14 February 2002. Public Services International (PSI), the International Confederation of Free Trade Unions (ICFTU) and the International Transport Workers’ Federation (ITF) expressed their support for the complaint presented by FESTRASPES, in communications dated 26 October and 10 December 2001 and 21 January 2002. The Government sent its observations in communications dated 7 February and 8 May 2002.
2. 230. El Salvador has not ratified either the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), or the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainants’ allegations

1. 231. In its communication dated 22 October 2001, the Federation of Public Service Workers’ Trade Unions of El Salvador (FESTRASPES) alleges that at 11 p.m. on 23 September 2001, a contingent of Salvadoran armed forces, combined with military and riot police from the National Civil Police (PNC), burst without warning into El Salvador International Airport, in the municipality of San Luis Talpa, La Paz, and ordered workers to leave the terminal on the grounds that they had been dismissed. The complainant adds that on 24 September 2001, the armed and police forces prevented workers of the cargo and maintenance departments, all of whom were members of the El Salvador International Airport Workers’ Union (SITEAIES), which is affiliated to FESTRASPES, from entering the airport; on 25 September, the military personnel in charge informed the workers that only those from the maintenance department could enter the premises, and that the other 159 members of the cargo and security departments had been dismissed (according to FESTRASPES, all of the workers affected were members of SITEAIES and therefore their dismissal constituted a violation of the collective agreement with regard to the provisions on labour stability). There are approximately 500 workers at the international airport, 296 of whom, on 23 September, were members of SITEAIES.
2. 232. The complainant also contends that, at the same time, the airport administration began an intimidation campaign to attempt to force workers to withdraw from SITEAIES, and informed all those who had been suspended that their compensation cheques were available for collection or, in other words, that they had been dismissed, rather than suspended. The same applied to four trade union leaders and two members of the SITEAIES Honour and Justice Commission, who also enjoyed trade union immunity.
3. 233. The complainant asserts that, at the request of SITEAIES, an inspection was carried out by the Inspectorate of the Ministry of Labour, in which a series of violations of labour rights were found, including anti-union discrimination through the restriction of access to union premises and threats to trade union leaders. The complainants add that they requested a further inspection but that the Inspector-General of Labour refused to carry it out. They further allege that, at the same time, they lodged a complaint with the judicial authorities, with a view to achieving a ruling that the lockout was illegal. However, the civil court judge of Zacatecotuca, in an unlawful procedure, ruled that no lockout had occurred, and the Court of Appeal rejected the subsequent appeal to that decision.
4. 234. FESTRASPES also alleges that, on 12 October 2001, a cordon of armed military and riot police attempted to prevent the regular general meeting of SITEAIES from taking place; the union, in accordance with the collective agreement in force, had informed the airport administration that the meeting would take place in the landscaped area, away from the central area of airport activity. Eventually, the union held its meeting on a private lot of land, at the side of the road.
5. 235. Lastly, the complainant states that meetings have been held between SITEAIES, FESTRASPES and the Autonomous Port Executive Commission (CEPA) in the Ministry of Labour, with a view to securing the mediation of the Ministry in the dispute, but that the parties have yet to reach an agreement. The complainant contends that during the dispute, threats have been made to trade union leaders and, at the time the complaint was presented, 159 members of SITEAIES had been dismissed, more than 40 workers had received compensation and more than 100 were refusing to give in, without having been paid throughout the whole period, thereby placing themselves and their families in a very vulnerable situation; furthermore, 35 members of SITEAIES, having held on to their jobs, have taken steps to resign from the union as a result of pressure from the administration.
6. 236. In its communications of 10 and 11 January and 6 and 14 February 2002, the Workers’ Union of the National Institute for Public Employees’ Pensions (SITINPEP) alleges that on 21 December 2001, a total of 92 workers, 56 of whom were members of the union, were dismissed from the National Institute for Public Employees’ Pensions (INPEP). Of the 56 members of the union, three were federal leaders enjoying trade union immunity, and 24 were members of the Honour and Justice and Finance Commissions, the Family Sustenance Committee, the Labour Relations Committee, the Women’s Affairs Committee or the Department Union Representatives Committee.
7. 237. SITINPEP describes how the dismissal notice reads as follows: "You are hereby informed that, in accordance with administrative and financial measures, within the legal framework of INPEP’s new role pursuant to the law concerning the pension savings system, having regard to government staff-reduction policies for this institution, your post of employment has been terminated, as from 31 December 2001, as part of the administrative cost-reduction plan adopted by the board of governors in resolution No. 289/2001 at the meeting of 17 December 2001. You are therefore invited to collect your compensation cheque from the counter at the San Miguelito branch of Cuscatlán bank, from 2 January 2002." The complainant adds that, while the advice of the Human Rights Procurator was to attempt to engage in dialogue with government officials, this turned out to be impossible, owing to the failure to make contact with the officials responsible for the dismissals.
8. 238. Lastly, SITINPEP alleges that the authorities violated the collective labour agreement in force, particularly with regard to the following clauses: No. 5, concerning "trade union representatives", which guarantees the immunity of union representatives; No. 27, concerning the "creation and abolition of posts", which stipulates that no post of employment may be abolished without prior notice from the INPEP Labour Relations Committee, and a consensus being reached between the parties, rendering null and void any such measure that does not respect the agreed conditions; No. 16, concerning "meetings with the administration of INPEP", which provides for meetings to be held to address problems requiring urgent attention -- a measure that has not been taken in the present case; No. 1, concerning "name, object, purpose and domicile", which stipulates that the trade union must be informed of any changes to the institution, without prejudice to any of the rights and obligations of the parties to the agreement; No. 14, concerning "special rights for trade union leaders", which grants union leaders the right to enter INPEP premises outside working hours, on non-working days and public holidays; No. 37, concerning the "right to a hearing regarding the motive for dismissal", which stipulates that every worker has the right to be heard; and No. 39, concerning "voluntary or involuntary retirement payments", which stipulates that the Labour Relations Committee or the competent judge shall decide whether or not a dismissal is justified.

B. The Government’s reply

1. 239. In its communication dated 7 February 2002, the Government refers to the complaint presented by the trade union SITINPEP, concerning the dismissal, through notification from the INPEP employers, of a group of workers on 21 December 2001, including three trade union leaders who were currently enjoying a year of union immunity. The Government states that the public pension system was created in 1975, with a view to providing civil servants with the means to retire comfortably from working life and to offer protection to their families, through the pension scheme administered by the National Institute for Public Employees. The law concerning the pension savings system for private, public and municipal workers entered into force in 1997, which persuaded 80 per cent of contributors to switch to the new pension system. This caused a dramatic reduction in revenue for social security, which has led to a reliance on the "technical reserve" since 1999. In view of this situation, as well as the possible issuance of a decree on the retirement of public servants, which would lead to an even greater reduction in social security revenue and an increase in the expense of pension payments, the board of governors decided to carry out a study with a view to establishing a new organizational structure, designed to make the Institute sustainable in the light of INPEP’s new role, and in accordance with the law concerning the pension system for private, public and municipal workers.
2. 240. The Government further points out that the new organizational structure of INPEP, designed to adapt to its new role and financial situation, made it essential to abolish superfluous posts. Thus, on 21 December 2001, a note was sent out to each one of the persons affected, informing them that, from 31 December, they would be made redundant and that they would be entitled to compensation according to the terms of the collective labour agreement between the National Institute for Public Employees’ Pensions and the Workers’ Union of the National Institute for Public Employees’ Pensions, a measure which was taken in due course.
3. 241. According to the Government, three federal trade union leaders during their year of union immunity were part of the group of workers made redundant, but at no time did they make their status known in the course of labour relations with the Institute; nevertheless, the Institute subsequently paid them, in addition to their compensation entitlement, lost wages for the remainder of the period of their union immunity, on the basis of a written agreement dated 31 January 2002, signed at the Ministry of Labour and Social Security by Mr. Roger Hernán Gutiérrez and Mr. Elías Misael Cáceres López, on behalf of the Federation of Independent Trade Unions and Associations of El Salvador (FEASIES) and representing the workers and union leaders Mr. José Antonio Menjivar Crespín, Ms. Clelia Evelyn Velásquez de Corvera and Ms. Marta Guadalupe Zaldaña, and by Ms. Mercedes Guadalupe Payes Valdez, on behalf of INPEP. The amounts paid, corresponding to compensation and wages lost owing to the action of the employers, are as follows: (1) José Antonio Menjivar Crespín $8,633.90; (2) Clelia Evelyn Velásquez de Corvera $17,947.75; (3) Marta Guadalupe Zaldaña $9,632.84. The Government adds that once the trade union leaders received these sums, their working relationship with INPEP was deemed terminated.
4. 242. Lastly, the Government maintains that at no time have trade union rights been violated in respect of officials of the Workers’ Union of the National Institute for Public Employees’ Pensions, since those concerned continue to work at the Institute as usual and maintain good labour relations with their employer.
5. 243. As regards the alleged dispute at the El Salvador International Airport, in a long communication of 8 May 2002, the Government states that: (1) following the work interruption in the airport’s cargo and maintenance areas on 24, 25 and 26 September 2001, the contracts of 159 workers have been suspended; (2) 95 of these workers have opted for the "voluntary retirement" provided for in the collective agreement, and the remaining 64 workers concluded an agreement with the General Directorate of Labour, which put an end to the labour dispute (the Government attaches a copy of the settlement); (3) the SITEAIES also undertook to withdraw all claims that would be outstanding with any official institution (according to the Government, this commitment is included in the complaint submitted to the Committee).

C. The Committee’s conclusions

1. 244. The Committee observes that in this case the complainants’ allegations concern (1) various acts of anti-union discrimination at El Salvador International Airport (the dismissal of 159 unionized workers, persecution and threats against leaders and members of the trade union SITEAIES, and the impossibility of gaining access to union premises as a result of the airport’s militarization), and (2) the dismissal of 92 workers (of whom 56 were members of the trade union SITINPEP, three were covered by trade union immunity and 24 occupied posts in various union committees and commissions) from the National Institute for Public Employees’ Pensions (INPEP), violating the terms of the collective agreement in force.
2. 245. With regard to the alleged dismissal of 92 workers (three of whom were union leaders and many of whom were unionists and members of SITINPEP) from the National Institute for Public Employees’ Pensions (INPEP), violating the terms of the collective agreement in force, the Committee notes that, according to the Government, (1) the new organizational structure of INPEP, designed to adapt to its new role and financial situation, made it essential to abolish superfluous posts and thus, on 21 December 2001, the persons concerned were informed of their dismissal and granted compensation in accordance with the terms of the collective agreement; (2) on the basis of an agreement dated 31 January 2002, signed at the Ministry of Labour and Social Security between representatives of the Federation of Independent Trade Unions and Associations of El Salvador, the union leaders affected and INPEP, payments were made, corresponding to compensation and lost wages for the remainder of the period of union immunity, to the three dismissed federal trade union leaders; and (3) at no time were trade union rights violated in respect of SITINPEP officials, who continue to work at the Institute as usual and maintain good labour relations with their employer.
3. 246. Firstly, with regard to the financial situation at INPEP that created the need for staff reductions, the Committee has indicated on previous occasions that "it can examine allegations concerning economic rationalization programmes and restructuring processes, whether or not they imply redundancies or the transfer of enterprises or services from the public to the private sector, only in so far as they might have given rise to acts of discrimination or interference against trade unions. In any case, the Committee can only regret that in the rationalization and staff-reduction process, the Government did not consult or try to reach an agreement with the trade union organizations" [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 935]. Furthermore, "in cases of staff reductions, the Committee has drawn attention to the principle contained in the Workers’ Representatives Recommendation, 1971 (No. 143), which mentions amongst the measures to be taken to ensure effective protection to these workers, that recognition of a priority should be given to workers’ representatives with regard to their retention in employment in case of reduction of the workforce (article 6(2)(f))" [see Digest, op. cit., para. 960].
4. 247. The Committee observes that the Government has not denied that over half of the workers dismissed (56 out of a total of 92) were members of SITINPEP, and that 24 of them were workers’ representatives in various commissions and committees. In this context, the Committee requests the Government to take the necessary measures urgently to ensure that an investigation is carried out to determine the reasons why such a high proportion of unionists were dismissed and, if it transpires that any of these dismissals were due to the worker’s trade union membership or legitimate union activities, that it takes the necessary measures urgently to ensure the reinstatement of those workers in their jobs without loss of pay. The Committee requests the Government to keep it informed in this regard as a matter of urgency.
5. 248. The Committee further notes that the Government has not referred to the alleged violation of the collective contract in force at INPEP (specifically the clauses relating to the non-abolition of posts without prior notice from the INPEP Labour Relations Committee, the right to a hearing regarding the motive for dismissal, etc.). In this context, the Committee underlines "that mutual respect for the commitment undertaken in the collective agreements is an important element of the right to bargain collectively and should be upheld in order to establish labour relations on stable and firm ground" [see 308th Report, Case No. 1919, Spain, para. 326] and that "agreements should be binding on the parties" [see Digest, op. cit, para. 818]. Under these circumstances, the Committee regrets that the terms of the collective agreement have not been respected and requests the Government to take the necessary measures to ensure that, in future, INPEP fully respects the terms of the collective agreements in force and, if it considers staff reductions to be necessary, that it holds in-depth consultations on the matter with the corresponding trade union organization.
6. 249. Lastly, concerning the allegations of anti-union discrimination acts at El Salvador International Airport (the dismissal of 159 unionized workers, persecution and threats against leaders and members of the trade union SITEAIES and the impossibility of gaining access to union premises as a result of the airport’s militarization), the Committee notes that, according to the Government: (1) following the work interruption in the airport’s cargo and maintenance areas on 24, 25 and 26 September 2001, the contracts of 159 workers have been suspended; (2) 95 of these workers have opted for the "voluntary retirement" provided for in the collective agreement, and the remaining 64 workers concluded an agreement with the General Directorate of Labour, which put an end to the labour dispute (the Government attaches a copy of the settlement); (3) the SITEAIES also undertook to withdraw all claims that would be outstanding with any official institution (according to the Government, this commitment is included in the complaint submitted to the Committee).
7. 250. Finally, as concerns the allegations of the militarization of the El Salvador International Airport, the Committee requests the Government to take measures to carry out an investigation to determine the reasons for the militarization and the extent to which it interfered with trade union activities. The Committee requests the Government to keep it informed urgently of the outcome of this investigation.

The Committee's recommendations

1. 251. 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 the necessary measures to ensure that, in future, the National Institute for Public Employees’ Pensions (INPEP) fully respects the terms of the collective agreements in force and, if it considers staff reductions to be necessary, that it holds in-depth consultations on the matter with the corresponding trade union organization.
   • (b) The Committee requests the Government to take the necessary measures urgently to ensure that an investigation is carried out to determine the reasons why such a high proportion of unionists and workers’ representatives were dismissed and, if it transpires that any of these dismissals were due to trade union membership or legitimate union activities, that it takes the necessary measures to ensure the reinstatement of those workers in their jobs, without loss of pay. The Committee requests the Government to keep it informed in this regard as a matter of urgency.
   • (c) As concerns the allegation of the militarization of the El Salvador International Airport on 24 and 25 September 2001, the Committee requests the Government to take measures to carry out an investigation to determine the reasons for this militarization and the extent to which it interfered with trade union activities and to keep it informed urgently of the outcome of this investigation.