Effect given to the recommendations of the committee and the Governing Body - Report No 337, June 2005

Case No 2299 (El Salvador) - Complaint date: 11-SEP-03 - Closed

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

1. 66. The Committee last examined this case at its March 2004 meeting and, on that occasion, requested the Government to take steps urgently to ensure that the competent authorities carry out an investigation into the alleged death threats against five trade union officials from STITAS by one of the owners of the J.R.C. Manufacturing S.A. of C.V. company and, if the alleged facts were confirmed, to punish those responsible and to guarantee adequate protection to these officials. The Committee considered that the trade union official, José Alirio Pérez Cañenguez, should be reinstated in his post without loss of pay and be authorized to exercise his trade union activities, and requested the Government to keep it informed of any new legal ruling handed down relating to the accusation of robbery against this trade union officer which, to date, had been provisionally put aside in the absence of sufficient evidence. The Committee considered that the denial of legal personality for the Private Security Services Industry Workers’ Trade Union of El Salvador (SITRASEPRIES) was a violation of freedom of association, and urged the Government to recognize this trade union and to keep it informed in this respect. Lastly, the Committee requested the Government to provide without delay information on the specific facts that led to the dismissal of 17 trade union officials from the J.R.C. Manufacturing S.A. of C.V. company in October 2003 and to indicate whether these trade union members remained dismissed; the Committee also requested the Government to indicate the reasons for the dismissal of trade union official, Juana Ramírez, in February 2002, and, if it were proven that any of these officials had been dismissed by reason of their trade union activities, to ensure that they were reinstated in their posts without loss of pay [see 333rd Report, para. 564, approved by the Governing Body at its 289th Session (March 2004)].
2. 67. In its communication of 10 March 2005, the complainant (FENASTRAS) sent a copy of the Ministry of Labour resolution of 29 October 2004 according to which the appeal by SITRASEPRIES was not admissible.
3. 68. In its communications of 8 October 2004 and 20 January 2005, the Government states that the J.R.C. Manufacturing S.A. of C.V. company closed down its operations definitively in February 2004. As regards the workers laid off, the parties agreed to a settlement regarding payment of compensation at the General Labour Directorate on 15 and 23 June 2004.
4. 69. With regard to the case of SITRASEPRIES, the Government maintains that two fundamental principles are at stake: the principle of legality, and the principle that the law must be respected to the letter. Both of these principles have contributed to what is known as the “rule of law”, according to which any judicial authority, executive power and activities of individuals must be consistent with the law. It is therefore claimed, quite properly, that the essential characteristic of a state based on the rule of law is the fact that the law is above the government and the governed. The Government maintains that the Department of Labour and Social Security, in denying legal personality for SITRASEPRIES, was only adopting a constitutionally valid decision, given that article 7, paragraph 3, of the Constitution expressly “prohibits the existence of armed groups of a political, religious or professional nature”; it is clear that a trade union falls into the last of these categories, and the union in the present case is indeed a professional body formed by persons who use and possess firearms and thus come expressly within the terms of the constitutional prohibition. The Government adds that, in this context, it decided on 28 October to declare inadmissible the application by Juan José Huezo, General Secretary of the complainant organization, to rescind the resolution declaring null and void the application for legal personality made by SITRASEPRIES, for the legal reasons set out in a note dated 29 October 2003. The Government adds that the Act concerning the organization and functions of the labour and social security sector and the Labour Code do not provide for any administrative mechanisms for challenging such resolutions and, given that an application to acquire legal personality for a trade union is a unilateral petition to the public administration and does not involve any dispute between the parties, section 602 of the Labour Code is not applicable. If no appeal is considered, the administrative channel is deemed to be exhausted once the resolution rejecting the petition is adopted. Consequently, it would be for the complainant to initiate the appropriate judicial proceedings to challenge the supposed violation. The final paragraph of article 86 of the Constitution stipulates that public officials have no powers other than those expressly accorded to them by law; consequently, admitting an appeal not provided for under the terms of the relevant legislation would constitute a violation of that legislation. The Government finally gives its assurance that freedom of association is protected in El Salvador by the laws in force.
5. 70. In its communication of 22 April 2005, the Government again urges the complainant to use existing legal mechanisms for obtaining redress.
6. 71. The Committee takes note of the Government’s observations to the effect that that the Department of Labour and Social Security, in denying legal personality for SITRASEPRIES, was only adopting a constitutionally valid decision, given that article 7, paragraph 3, of the Constitution expressly “prohibits the existence of armed groups of a political, religious or professional nature”; it is clear that a trade union falls into the last of these categories, and the union in the present case is indeed a professional body formed by persons who use and possess firearms. The Committee notes that, according to the Government, the administrative decision can be challenged before the judicial authority. In this regard, the Committee reiterates that, in accordance with the principles of freedom of association, only the armed forces and the police can be excluded from the right to establish trade unions – which is a fundamental right. Consequently, all other workers, including private security agents should freely be able to establish trade union organizations of their own choosing. Under these circumstances, the Committee emphasizes once again that the denial of legal personality for the trade union SITRASEPRIES is a serious violation of freedom of association, and urges the Government to recognize that legal personality without delay and keep it informed of developments. The Committee also requests the Government to inform it of any future judicial ruling on this matter.
7. 72. The Committee notes that the Government has not sent any information on the dismissal of the trade union official, José Alirio Pérez Cañenguez, and once again requests the Government to keep it informed of any new decision handed down concerning the charge of robbery brought against him. As regards the allegations regarding the company J.R.C. Manufacturing S.A. of C.V. company, the Committee notes that the questions still pending relate above all to the dismissal of the trade union official, Juana Ramirez, in February 2002, the dismissal of 17 union officials in October 2003, the dismissal of the union official, José Alirio Pérez Cañenguez, and the accusation of robbery made against him. The Committee notes the Government’s statement to the effect that the company closed down its operations definitively in February 2004, and adds that the dismissed workers agreed on a settlement regarding compensation. The Committee notes that the Government’s communication does not indicate which workers are referred to. It also notes that the Government does not give any response regarding the accusation of robbery made against the trade union official, José Alirio Pérez Cañenguez. In this regard, the Committee requests the Government to ensure that the dismissed trade union officials receive the statutory compensation, and to communicate any judicial ruling handed down concerning the criminal charge brought against José Alirio Pérez Cañenguez.
8. 73. As regards the alleged death threats against five officials of the union STITAS by one of the owners of the J.R.C. Manufacturing S.A. of C.V. company, the Committee notes that the Government has not sent any observations and again requests it, as a matter of urgency, to take measures to ensure that the competent authorities carry out an inquiry into the matter and, if the allegations are shown to be true, to punish those responsible.