Effect given to the recommendations of the committee and the Governing Body - Report No 354, June 2009

Case No 2423 (El Salvador) - Complaint date: 18-MAY-05 - Closed

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

1. 73. At its March 2008 session, the Committee made the following recommendations on the matters that were pending [see 349th Report, paras 98, 99 and 100]:
   • – with respect to the refusals to grant legal personality to the private security trade unions SITRASSPES and SITISPRI, the Committee recalls that only members of the police and the armed forces can be excluded from the sphere of application of Convention No. 87 and requests the Government to take the necessary measures – including the amendment of the Constitution of the Republic if necessary – to grant legal personality to the trade union organizations SITRASSPES and SITISPRI;
   • – the Committee requests the Government to inform it about the current status of the process for the registration of the trade union SITRASAIMM;
   • – the Committee urges the Government to take the necessary measures for the reinstatement of the 34 founders of the STIPES trade union, of Mr Alberto Escobar Orellana at the José Simeón Cañas Central American University, and of the seven trade union leaders at the clothing company CMT SA de CV. The Committee also asks the Government to inform it of the result of the legal proceedings relating to the dismissals of trade unionists at the enterprise Hermosa Manufacturing SA de CV. The Committee once again reminds the Government that ILO technical assistance is at its disposal so as to ensure adequate protection against acts of anti-union discrimination;
   • – lastly, the Committee invites the complainant organizations to lodge a complaint with the Ministry of Labour concerning the dismissal of the founders of SITRASAIMM, Manuel de Jesús Ramirez and Israel Ernesto Avila, after they had submitted a request for the union to be granted legal personality, so that the Ministry of Labour can carry out an investigation into the matter.
2. 74. In its communication dated 7 May 2008, the Government states once again that SITRASSPES was denied legal personality for the second time on the grounds that article 7(3) of the Constitution of the Republic prohibits the existence of armed groups of a trade union nature and that private security workers hold positions of trust and under the Labour Code may not therefore participate as constituent members of a trade union organization (trusted employees may however join a trade union organization provided that the general assembly of that union accepts them as such). Legislation provides for other legal mechanisms of appeal against rulings that are considered to be against the claimants. Therefore, the refusal to grant legal personality to this union had a legal basis and is not a violation of freedom of association.
3. 75. The Government recalls that, on 16 October 2007, the Supreme Court of Justice issued a ruling, the text of which literally states: “It is hereby decided in general and binding terms that the expression ‘without distinction whatsoever’ in Article 2 of the ILO’s Freedom of Association and Protection of the Right to Organise Convention is unconstitutional because it contravenes article 47(1) of the Constitution, inasmuch as the wording of the Convention in question extends the right of freedom of association to public employees who are not covered by the constitutional definition of those who enjoy that right”.
4. 76. The Government states that it takes note of the Committee’s conclusions and of its suggestion with regard to amending article 7(3) of the Constitution of the Republic, which prohibits the existence of armed groups and which was the legal basis for the Ministry of Labour and Social Welfare’s refusal to grant legal personality to the unions in question.
5. 77. In its communication dated 4 March 2009, the Government states in relation to the union SITRASAIMM (which is in the process of being established) that, since 28 March 2006 (when the ruling of 4 October 2005, dismissing the appeal against the ruling to deny SITRASAIMM legal personality, was upheld), no applications have been filed with an administrative body to resume the process of granting legal personality to this union.
6. 78. With regard to the union STEES, concerning the dismissal and reinstatement of the worker Mr Alberto Escobar Orellana, the Labour Inspection Directorate sought his immediate reinstatement but as this was not achieved the violations of domestic labour legislation were specified and steps were taken to apply the appropriate penalties and a fine of US$114.28 was imposed for violating article 248 (dismissing a union official) and article 29(2) (owing outstanding pay for reasons attributable to the employer) of the Labour Code. In view of the situation, the worker was recommended to seek recourse through legal channels as well, although this did not mean that he could not continue to use the inspection services to claim outstanding pay for reasons attributable to the employer.
7. 79. With regard to the procedures to impose penalties on the enterprise CMT SA de CV, the Government reports that the appropriate procedures have been carried out and that the following fines have been imposed: (a) a fine of US$114.28 for violating articles 248 and 29(1) and (2) of the Labour Code relating to the de facto dismissal (despido de hecho) of union officials and outstanding pay and financial benefits equivalent to pay for reasons attributable to the employer; (b) a fine of US$857.10 for violating articles 248 and 29(1) and (2) of the Labour Code relating to the de facto dismissal of union officials and outstanding pay for reasons attributable to the employer; and (c) a fine of US$45 for violating article 248 of the Labour Code relating to the dismissal of trade union officials. These fines have already been paid. The Government reiterates that it has no knowledge of any legal proceedings initiated by the workers of the enterprise CMT SA de CV and that the authorities of the Ministry of Labour and Social Welfare have not been requested to intervene in any dispute arising subsequent to the reported events.
8. 80. Nevertheless, it is important to mention that, by making use of the legal mechanisms in place, Mr José Amílcar Maldonado Castillo, founding member of the union in question, initiated judicial administrative proceedings before the Supreme Court of Justice against the Ministry of Labour in relation to the abovementioned ruling. These proceedings are currently in the second round of pleadings, which is why a ruling has not yet been handed down, but as soon as the Government is notified in this regard, it will pass this information on to the Committee without delay.
9. 81. With regard to the procedures that are still pending to impose penalties on four enterprises in which the Trade Union of Port Workers of El Salvador (STIPES) operates, the Government indicates that a fine of US$2,149.96 has been imposed on the enterprise Operadora General SA de CV for violating articles 2, 3 and 47(1) of the Constitution; Article 1(b) of ILO Convention No. 111; and articles 30(5), 248, 29(2) and 142(2) of the Labour Code.
10. 82. Furthermore, steps are being taken to impose penalties on two other enterprises where STIPES operates, in connection with violations of articles 248 and 29(2) of the Labour Code for dismissal of union officials and outstanding pay for reasons attributable to the employer; the Committee will be informed as soon as rulings are handed down.
11. 83. With regard to the dismissal of the SITRASSPES union member, Mr Juan Vidal Ponce Peña, the Government indicates that he was reinstated in his post after having reached an agreement with the enterprise (this information was provided by the Government during the previous examination of the case).
12. 84. The Committee takes note of the Government’s statements concerning the grounds for the refusal to grant legal personality to the private security unions SITRASSPES and SITISPRI but observes that such grounds have already been examined by the Committee, which had indicated to the Government that only members of the police and the armed forces may be excluded from the guarantees provided under Convention No. 87. The Committee therefore requests the new Government to take the necessary measures – including the amendment of the Constitution if necessary – to guarantee the right of private security workers to organize and to grant legal personality to SITRASSPES and SITISPRI. The Committee requests the Government to keep it informed in this regard and in this context to guarantee as well the right of public employees to organize, which according to the Government has been declared unconstitutional by the Supreme Court of Justice. Furthermore, the Committee requests the complainant organizations to confirm the Government’s claim that no further legal action has been taken to obtain legal personality for the union SITRASAIMM.
13. 85. With regard to the dismissal of the 34 founders of the STIPES trade union, of Mr Alberto Escobar Orellana at the José Simeón Cañas Central American University, of the seven trade union leaders at the clothing company CMT SA de CV and, of the trade unionists at the enterprise Hermosa Manufacturing, the Committee takes note of the fines imposed by the Ministry of Labour after finding violations of the legal provisions relating to trade union officials but notes with regret that the amount of the fines imposed in the different cases does not appear to serve as a deterrent against acts of anti-union discrimination. The Committee notes the inefficiency of the system of redress for acts of anti-union discrimination, which moreover is too slow if account is taken of the date of the submission of the complaints, and requests the Government to review the system to make it faster and more effective so as to ensure adequate protection. The Committee also requests the Government to continue to promote the reinstatement of the dismissed trade unionists and to keep it informed in that regard, as well as with regard to the outcome of the application for judicial administrative proceedings filed by Mr José Maldonado Amílcar (enterprise CMT SA de CV) and the pending administrative procedures to impose penalties relating to the dismissal of STIPES members.
14. 86. Lastly, the Committee once again invites the complainant organizations to lodge a complaint with the Ministry of Labour concerning the dismissal of the founders of SITRASAIMM, Manuel de Jesús Ramírez and Israel Ernesto Avila, after they had submitted a request for the union to be granted legal personality, so that the Ministry of Labour can carry out an investigation into the matter.