Interim Report - Report No 343, November 2006

Case No 2435 (El Salvador) - Complaint date: 15-JUN-05 - Closed

Allegations: Anti-union dismissals at Industria de Hilos de El Salvador, S.A. de C.V., CMT, S.A. de C.V., and Diana, S.A., other anti-union practices (“offer of money” to union officials, harassment of trade union members, illegal work stoppages by companies, etc.)

649. The complaint is contained in a communication dated 15 June 2005 from the National Federation of Workers of El Salvador (FENASTRAS), which sent additional information and new allegations in communications dated 20 and 26 July, 25 August and 22 September 2005. The International Confederation of Free Trade Unions (ICFTU) supported FENESTRAS’ complaint in a communication dated 2 December 2005.

1. 650. The Government sent its observations in communications dated 21 and 29 September 2005.
2. 651. El Salvador ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), the Workers’ Representatives Convention, 1971 (No. 135), and the Labour Relations (Public Service) Convention, 1978 (No. 151), on 6 September 2006.

A. The complainants’ allegations

1. 652. In communications dated 15 June and 26 July 2005, FENASTRAS states that the Executive Board of a section of the Trade Union of Workers in the Cotton, Synthetics, Clothing, Textiles and Allied Products Industry (STITAS) was constituted on 3 April 2005 and that on 7 April 2005 the Ministry of Labour and Social Welfare recognized the Executive Board’s credentials. On 18 April 2005 the Secretary General of the section’s Executive Board requested the intervention of the Ministry of Labour to settle a list of demands (full payment of wages, payment of contributions to the administrators of pension funds and payment of contributions to the Social Security Institute of El Salvador); during an inspection of the company its legal representative stated that the debts were due to a shortage of money because of the lack of orders from its clients, that no decision had yet been taken to close down the company and that it was looking for new clients so as to be able to pay the wages owed. The trade union representative complained that the company’s legal representative had offered the union officials money (30,000 colones) through their supervisors to leave the organization or to speak out against it.
2. 653. The complainant organization, FENASTRAS, adds that on 2 May 2005, during a tripartite meeting, the company’s legal representative recognized that the situation was unjust and requested a temporary halt in order to be able to meet the workers’ demands; however, representatives of the company took advantage of this temporary halt to take legal steps shortly thereafter to order a “work stoppage for lack of raw materials” so as to sidestep the Executive Board’s request to the Ministry of Labour to order the payment of wages and other benefits due. Following this “work stoppage” the company’s owner and legal representative began removing the machinery from the plant and transporting it to another company that he owned. The workers therefore decided to hold a permanent meeting in front of the plant so as to prevent any other machinery being removed, as it was their only means of securing payment of the wages and benefits owed to them by the company.
3. 654. The complainant organization adds that, at a tripartite meeting on 26 May 2005, the employer claimed that he had followed the legal procedure for declaring a work stoppage for lack of raw materials. The trade union side argued that the stoppage had not been authorized by the Ministry of Labour and proposed that the workers receive due compensation. The Director-General of Labour stated that the Ministry had not issued any resolution regarding a work stoppage and that the workers should be paid compensation. On 3 June 2005 the workers employed by the company, together with the trade unions of two other companies (Mobilia S.A. de C.V., and Servipronto de El Salvador, S.A.), met at the plant of one of the companies and held a demonstration calling for the company to settle the dispute. On 6 June 2005 the workers of Hermosa Manufacturing, S.A. de C.V., closed off the street in front of the plant in order to bring pressure to bear on the company to settle the workers’ demands. On 7 June 2005 the Fourth Labour Judge informed the workers of Hermosa Manufacturing, S.A. de C.V., that the company had submitted a request that the strike be declared illegal. This was a surprise to the workers since they had never been on strike but had simply been holding a permanent meeting in front of the plant because of the company’s declaration of a work stoppage for lack of raw materials. On 8 June 2005 the Fourth Labour Judge informed the 64 workers of Hermosa Manufacturing, S.A. de C.V., that the strike had been declared illegal and ordered the workers to return to work on 10 June 2005. The section’s Executive Board therefore wrote to the judge the next day to explain the facts of the matter and the real reason behind the dispute. Twenty-four hours later the 64 company employees returned to work, but they were surprised to discover that the company refused to comply with the court order to reinstate them and denied them access to the plant. A ruling by the Ministry of Labour confirmed the illegal nature of the company’s “work stoppage”. On 6 July 2005 the Fourth Labour Judge informed the trade union that she had revoked her earlier ruling that the strike was illegal, but the company continued to refuse to resume operations.
4. 655. The complainant organization adds that on 11 June 2005 the members of STITAS and of its section’s Executive Board at Hermosa Manufacturing, S.A. de C.V., received $15 in payment of two-and-a-half days’ wages and 50 per cent for three days’ work stoppage. This action by the owner of Hermosa Manufacturing, S.A. de C.V., illustrates his inhumane treatment of the workers, since the amount paid – which supposedly covered a period of some three months – amounted in fact to not even 0.05 per cent of the cost of the basic household basket.
5. 656. On 13 July 2005, as agreed with the Ministry of Labour and Social Welfare, the members of the STITAS section’s Executive Board at Hermosa Manufacturing, S.A. de C.V., and their colleagues returned to work, where they found notices posted on the main gate informing them of a new work stoppage, in clear violation and defiance of the legal institutional framework and of their labour rights.
6. 657. To date, the section’s Executive Board has not received any reply to the letter it sent to the President of the Republic on 30 May 2005, nor from the Office of the Attorney General. In the complainant organization’s opinion, the action described above was designed to restrict the workers’ freedom of association and to intimidate them into abandoning their legitimate demands.
7. 658. In its communication dated 2 December 2005, the ICFTU endorses the complaints submitted by FENASTRAS and states that, on 8 May 2005, 57 members of the trade union section of Hermosa Manufacturing, S.A. de C.V., were suspended, in addition to the following seven officials: Estela Marina Remírez, Flor Jazmín Zometa, Sara Guadalupe Beltrán de Fuentes, Sonia Marily Reyes Linares, Julia Estarada Rosa, Tomasa Martínez and María Raquel Cornejo de Véliz.
8. 659. In its communications dated 20 July and 25 August 2005 the complainant organization alleges the unjustified dismissal by Industria de Hilos de El Salvador, S.A. de C.V., of union official Oscar López Cruz, Secretary for Education and Culture of the Trade Union of Workers of the Textile Cross-Border Industries of El Salvador (SITRAMATEX) on 12 November 2004, i.e. the month following recognition of the credentials of the members of the Executive Board. The complainant organization states that, when the owner of the company dismissed him, he said that he would not allow any trade union to operate anywhere in his company, no matter who was concerned.
9. 660. The complainant organization states that, from the moment that Oscar López Cruz became a trade union official, his freedom of association started to be curtailed by his immediate superior in the company, who picked on every single mistake – and invented mistakes when he could not find any – in order to find something wrong with the maintenance of the machinery for which Oscar López Cruz was responsible. The owner of the company also aggressed him verbally every time he requested to attend FENASTRAS union meetings, told him he had to leave the trade union if he wanted to keep his job and offered him all kinds of sums of money to do so.
10. 661. The complainant organization states that the owner of the company did not attend the conciliation meetings convened by the Ministry of Labour and that, during a labour inspection of the company in February 2005, he said that he would not reinstate the union official or pay him the wages due to him. The Ministry of Labour simply initiated proceedings to have the company fined.
11. 662. The complainant organization states that on 25 August 2005 Oscar López Cruz had still not been reinstated. It enclosed a statement written by him describing the difficult circumstances he and his family had faced since his dismissal on 12 November 2004; he adds that he is sick and that he would prefer the company to pay him the compensation to which he is entitled because he is afraid of being killed if he returns to work.
12. 663. In its communication dated 26 July 2005 the complainant organization further alleges that, since the convening of a meeting on 18 April 2005 to set up a section of STITAS at Inversiones Fortex, S.A. de C.V., and to elect the section’s Executive Board, the company has dismissed a total of 28 workers (including the eight organizers of the section), claiming that it was calling a work stoppage for lack of raw materials and hiding behind a letter from one of the company’s suppliers. In fact, this was nothing but a boycott of the trade union section, since the company’s decision came immediately after the workers had been convened to set up the section. The Ministry of Labour recognized the credentials of the members of the section’s Executive Board on 6 May 2005.
13. 664. The complainant organization adds that, at a conciliation meeting of all the parties to the dispute on 26 May 2005, the section’s list of demands calling for the immediate reinstatement of the workers who had been suspended (including the union officials) had been discussed. The company’s legal representative said that he had no conciliatory measure to offer and that the workers who had been dismissed were entitled to lodge an appeal through any channels they wished. On its side, the union section argued that, by taking that attitude, the company was violating the legal provisions of the Constitution, the Labour Code and international conventions, and that it therefore reserved the right to defend the workers’ rights by means of legal and direct action in order to obtain payment of the wages that they had not received through a fault on the part of the employer.
14. 665. The complainant organization states that on 28 May 2005 the owner of Inversiones Fortex, S.A. de C.V., telephoned each one of the union officials to ask them to come to her office. Since the owner insisted on meeting with the officials alone, the unionized workers decided that they would go to the company too. The owner told them that they had to leave the trade union because they would never find any work so long as they remained members. Subsequently, the company made the union officials “an offer” and, on 17 June 2005, the members of the section’s Executive Board received their compensation. In the opinion of the complainant, by taking advantage of the reduced financial circumstances of the dismissed officials the company infringed their freedom of association.
15. 666. In its communication dated 22 September 2005 the complainant organization alleges that on 20 July 2005 a group of 12 workers from the production plant of CMT, S.A. de C.V., decided to request the general Executive Board of STITAS to hold a meeting of all the workers employed by the company in order to set up an Executive Board of the STITAS section there. On 13 August 2005, at the request of the workers, the general Executive Board of STITAS agreed to set up a union section at CMT, S.A. de C.V.
16. 667. On 15 August 2005 the general Executive Board of STITAS convened the workers of CMT, S.A. de C.V., to the first session of an extraordinary general meeting (which was held on 21 August 2005) in order to set up a STITAS union section at the company and to elect the section’s Executive Board.
17. 668. At that extraordinary general meeting, once the section had been set up and the members of the Executive Board appointed, the Secretary General elect proposed that, as soon as their credentials were recognized, the workers’ list of demands should be submitted to the company.
18. 669. On 22 August 2005 a group of workers who had been dismissed following the shutdown of Indústrias Textiles Cuscatlán, S.A. de C.V., a factory under the same ownership as CMT, S.A. de C.V., held a demonstration in front of the latter’s plant (both factories being under the same owner). The workers of Indústrias Textiles Cuscatlán, S.A. de C.V., were protesting against the fact that the owner, who had closed the factory, had promised to pay them 40 per cent of the compensation due to them, but he had lied to them because for around four months he had never paid them. At the demonstration the workers of CMT, S.A. de C.V., expressed their support for the workers of Indústrias Textiles Cuscatlán, S.A. de C.V., who finally got the owner to pay them what they were owed. The owner’s lawyer told the workers of CMT, S.A. de C.V., at the time that they would be accused of misappropriation of company assets and illegal entry and that they would go to jail.
19. 670. The complainant organization states that on 29 August 2005 the Ministry of Labour and Social Welfare recognized the credentials of the section’s Executive Board of CMT, S.A. de C.V., but that on 31 August 2005 María Esperanza Reyes Sifontes, reporter for the Executive Board, was dismissed on the grounds that there was no work for her at the company. In fact, she was dismissed for being an official of the trade union. Between 1 and 6 September 2005, 11 other workers, all of them members of the trade union or of the union section, were dismissed: Felicita Amalia Orantes Córdova, Lorena Elizabeth Campos Flores, Rosa Antonia Gonzalez de Franco, Rutilia Esperanza Ortíz López, Zulma Jeannette Rivas Granados, Mélida Ester Navarro, María de los Angeles García Nieto, Edith Noemí Castro García, Zulma Yanira Meléndez Pérez, Ninfa Bonilla Alvarado and Margarita Elizabeth Lozano Figueroa. Despite the situation, the company failed to attend either of the two conciliation meetings convened by the Ministry of Labour, following which the Ministry merely informed the company that it would be fined if it did not attend.
20. 671. The representative of the trade union requested the Ministry of Labour at the beginning of September 2005 to settle a list of demands concerning labour conditions. These included the payment of wages owed, the payment of contributions to administrators of the pension fund, the payment of contributions to the Social Security Institute of El Salvador, etc. On 9 September the company again failed to attend a conciliation meeting, although summoned to do so; nor did it send its legal representative. In addition to the problems already described, the meeting had been called to discuss the case of two union officials, Blanca Lucía Osorio and María Esperanza Reyes Sifontes, who were being harassed and hounded at home by a company employee who went to their houses in person. This constituted a clear violation of sections 244, 245, 246 and 247 of the Penal Code.
21. 672. A conciliation meeting was held on 12 September 2005, at which the company representative cynically claimed that he had no idea that a trade union even existed and that the dismissals had nothing to do with that, but that the workers had been dismissed for “taking over the CMT, S.A. de C.V., plant, wreaking havoc and hurling insults” (which was quite untrue). He did not propose their reinstatement in their jobs.
22. 673. According to the ICFTU, seven union officials of the SGC cross-border plant were dismissed on 25 October 2005: María Rosa Beltrán Melendez, Teresa Martínez Guerra, Marena Escobar de Paulino, Dora Alicia Rivas Oseguera, Cecilia Lizeth Abarca de García, Eva Lorena Umaña Pacheco and Blanca Araceli Fuentes Castro.
23. 674. The ICFTU alleges that four officials of the trade union section of the Sweets and Pastry Industrial Trade Union (SIDPA) at Diana, S.A., were also dismissed (Yanira Isabel Chávez Rodríguez, Heidi Sofía Chávez Leiva, José Alfredo Rivas Merino and Daniel Ernesto Morales Rivera), along with two members of the section (Carlos Mauricio Flores Saldaña and Rafael Antonio Soriano).
24. 675. The ICFTU draws attention to the various instances of mass dismissal of workers without their being paid the social benefits to which they are entitled and expresses its grave concern at the steady deterioration of labour rights, and especially trade union rights, that is taking place in El Salvador.
25. B. The Government’s reply
26. 676. In its communication dated 21 September 2005 the Government states that no workers had at any time been dismissed from Inversiones Fortex, S.A.de C.V. What actually happened was that individual contracts were suspended for lack of raw materials. The company concerned found itself obliged to suspend the contracts of 28 individual workers because of a shortage of raw materials from 2 May to 12 June 2005; all the workers concerned were aware of this because they were duly informed at a meeting on 29 April 2005, and their wages had been paid in accordance with national labour legislation.
27. 677. The Government adds that, when a special inspection took place on 14 September 2005, it was obvious that the company was functioning normally and that the workers who had been suspended had already gone back to work on 13 June 2005, as agreed.
28. 678. The Government states that, of the 28 workers who had been suspended, Blanca Lilian Alberto Quintanilla and Carlos Alexander Ascencio González were not at work, as they had not returned to their posts even though they had been duly notified. The company is currently operating with a total of 126 workers, as the inspection unit was able to see; obviously, then, there had been no infringement of current labour legislation nor had there been any dismissals or violations of freedom of association.
29. 679. In a communication dated 29 September 2005 the Government further declares that the Ministry of Labour and Social Welfare has made use of the legal machinery provided by the labour legislation to endeavour to have trade union official Oscar López Cruz, who had been dismissed from Industria De Hilos de El Salvador, S.A. de C.V., on 12 November 2004, reinstated in his post. Two conciliation meetings had been held at the General Labour Directorate, but they had not been successful because the representatives of the employer did not attend either meeting. Consequently, proceedings were initiated to have the employer fined, as provided for in section 32 of the Act concerning the organization and functions of the labour and social welfare sector.
30. 680. The Government adds that four labour inspections have been carried out since 18 February 2005 and have recommended the reinstatement of the worker and the payment of the wages due to them because of a fault on the part of the employer. Here again there had been no positive outcome, despite the efforts of the labour inspectors, as the employer’s representative continued to refuse to reinstate Oscar López Cruz in his job and pay the wages due to him because of a fault on the part of the employer. Consequently, proceedings have been initiated to have the employer fined.
31. 681. The Government observes that the labour legislation does not contain any provision regarding reinstatement, which means that the Labour Inspectorate can do no more than make a recommendation. In spite of the efforts of the Ministry of Labour to ensure compliance with the labour legislation through administrative channels (i.e. the Labour Inspectorate), the worker has been informed of his right to go through judicial channels and to use the available legal machinery; he has also been informed that he can apply for legal protection.

C. The Committee’s conclusions

1. 682. The Committee welcomes the recent ratification by El Salvador of Conventions Nos. 87, 98, 135 and 151.
2. 683. The Committee notes that the allegations in this complaint refer to: (1) an illegal work stoppage “for lack of raw materials” by Hermosa Manufacturing, S.A. de C.V., without a proper ruling by the Ministry of Labour, in order to avoid the list of demands submitted by the Executive Board of the STITAS union section, and the transfer of machinery to another company belonging to the same owner; the ruling of a – supposed – strike as illegal by the judicial authority at the request of the enterprise (the ruling was subsequently revoked by the said authority); another illegal work stoppage by the company affecting 64 union officials or members; and the offer of money to officials of the section’s Executive Board to leave the trade union or speak out against it; (2) the anti-union dismissal by Industria de Hilos de El Salvador, S.A. de C.V.; of Oscar López Cruz, an official of SITRAMATEX; (3) the anti-union dismissal of 28 workers (including the eight founders of the STITAS trade union section) at Inversiones Fortex S.A. de C.V.; the pressure exercised by the company on the trade union officials to leave the trade union, followed by “an offer” of compensation which they accepted; (4) the anti-union dismissal of María Esperanza Reyes Sifontes, an official of the STITAS section’s Executive Board at CMT, S.A. de C.V., and of another 11 members of the union section in September 2005, as well as the harassment and hounding at their home of other officials of the section (Blanca Lucia Osorio and María Esperanza Reyes Sifontes); the dismissal of seven other trade union officials in October 2005; and (5) anti-union dismissal of four officials and two members of the SIDPA trade union section at the Diana, S.A., company.
3. 684. Regarding the alleged anti-union dismissal of trade union official Oscar López Cruz on 12 November 2004, the Committee notes the Government’s statement that the Ministry of Labour did on a number of occasions call for his reinstatement and the payment of wages due to him because of a fault on the part of the employer but that Industria de Hilos de El Salvador, S.A. de C.V., had refused, as a result of which the Ministry of Labour had initiated proceedings to impose the fines provided for by law. The Committee regrets that the company has taken such an attitude, and the resulting delay in resolving this question, and requests the Government to inform it of the outcome of the proceedings to impose a fine and to continue urging the company to reinstate this official and to pay him the wages that are due to him, or – as Oscar López Cruz reportedly appears to prefer, due to the death threats he received – only to pay him the wages and compensation due to him by law for dismissal by fault of the employer.
4. 685. Regarding the allegations concerning Inversiones Fortex S.A. de C.V. (dismissal of 29 workers, including eight founders of the STITAS union section, and the pressure exerted by the company to make them leave the union, followed by “an offer” to the union officials which they accepted), the Committee notes the Government’s statement that: (1) there had in fact been no dismissals but rather a suspension of individual contracts because of a shortage of raw materials from 2 May to 12 June 2005 affecting 28 workers (out of the 126 employed by the company), and their wages had been paid in accordance with the law; (2) the Labour Inspectorate had noted that they had gone back to work on 13 June; (3) of the 28 workers suspended only two had failed to turn up for work despite having received due notification; and (4) the Labour Inspectorate had noted that there had been no dismissals or violations of freedom of association.
5. 686. The Committee draws attention to the contradictions between the allegations – which refer to dismissals – and the Government’s reply, which refers to a temporary suspension of individual contracts because of a shortage of raw materials without anyone having been dismissed (only two workers had failed to return to the company at the end of their temporary suspension although they had been duly notified) and, given the precise nature of the Government’s reply, considers that there is no call to pursue its examination of these allegations unless the complainant organization sends it new information.
6. 687. Finally, the Committee regrets that the Government has not sent its observations on the allegations described below and calls on it to do so without delay:
7. – an illegal work stoppage “for lack of raw materials” by Hermosa Manufacturing S.A. de C.V., without a proper ruling by the Ministry of Labour, in order to avoid the list of demands submitted by the Executive Board of the STITAS union section, and the transfer of machinery to another company belonging to the same owner; the ruling of a – supposed – strike as illegal by the judicial authority at the request of the enterprise (the ruling was subsequently revoked by the said authority); another illegal work stoppage by the company affecting 64 union officials of members; and the offer of money to officials of the Executive Board of the section to leave the trade union or speak out against it;
8. – the anti-union dismissal of María Esperanza Reyes Sifontes, an official of the STITAS section’s Executive Board at CMT, S.A. de C.V., and of another 11 members of the union section in September 2005, as well as the harassment and hounding at their home of other officials of the section (Blanca Lucia Osorio and María Esperanza Reyes Sifontes); the dismissal of seven other trade union officials in October 2005; and
9. – the anti-union dismissal of four officials and two members of the SIDPA trade union section at the Diana, S.A., company.

The Committee’s recommendations

1. 688. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
2. (a) The Committee welcomes the recent ratification of Conventions Nos. 87, 98, 135 and 151.
3. (b) Regarding the alleged anti-union dismissal of trade union official Oscar López Cruz on 12 November 2004, the Committee requests the Government to inform it of the outcome of the proceedings to impose a fine on Industria de Hilos de El Salvador S.A. de C.V., and to continue urging the company to reinstate this official and to pay him the wages that are due to him, or – as Oscar López Cruz reportedly appears to prefer, due to the death threats he received – only to pay him the wages and compensation due to him by law for dismissal by fault of the employer.
4. (c) Regarding the allegations concerning anti-union dismissals at the enterprise Inversiones Fortex S.A. de C.V., the Committee underlines the contradiction that exists between the allegations – which refer to dismissals – and the response of the Government, which refers to a temporary suspension of individual contracts because of a shortage of raw materials without anyone having been dismissed (only two workers had failed to return to the company at the end of their temporary suspension although they had been duly notified) and, given the precise nature of the Government’s reply, the Committee considers that it is no longer necessary to examine these allegations unless the complainant organization communicates new information in this respect.
5. (d) The Committee regrets that the Government has not sent its observations on the allegations described below and calls on it to do so without delay:
6. – an illegal work stoppage “for lack of raw materials” by Hermosa Manufacturing S.A. de C.V., without a proper ruling by the Ministry of Labour, in order to avoid the list of demands submitted by the Executive Board of the STITAS union section, and the transfer of machinery to another company belonging to the same owner; the ruling of a – supposed – strike as illegal by the judicial authority at the request of the enterprise (the ruling was subsequently revoked by the said authority); another illegal work stoppage by the company affecting 64 union officials or members; and the offer of money to officials of the Executive Board of the section to leave the trade union or speak out against it;
7. – the anti-union dismissal of María Esperanza Reyes Sifontes, an official of the STITAS section’s Executive Board at CMT, S.A. de C.V., and of another 11 members of the union section in September 2005, as well as the harassment and hounding at their home of other officials of the section (Blanca Lucia Osorio and María Esperanza Reyes Sifontes); the dismissal of seven other trade union officials in October 2005; and
8. – the anti-union dismissal of four officials and two members of the SIDPA trade union section at the Diana, S.A., company.