Report in which the committee requests to be kept informed of development - Report No 346, June 2007

Case No 2514 (El Salvador) - Complaint date: 23-AUG-06 - Closed

Allegations: Dismissal of union leaders for having formed a trade union in the Baterías de El Salvador enterprise and other anti-union acts, such as offering money to or pressuring workers to leave the trade union, and threats of dismissal

931. The complaint is contained in a joint communication of the Trade Union Confederation of El Salvador Workers (CSTS) and the Baterías de El Salvador Workers’ Trade Union (SITRAEBES) dated 23 August 2006. These organizations sent additional information in a communication dated 4 October 2006. The Government sent its observations in a communication dated 23 November 2006.

1. 932. El Salvador has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainants’ allegations

1. 933. In their communication dated 23 August 2006, the CSTS and the SITRAEBES allege that, in view of persistent and repeated violations of labour rights and health problems caused by inadequate occupational safety and health programmes, a group of 36 workers decided to form a trade union in the Baterías de El Salvador enterprise, which has an assembly plant in San Juan Opico, employing some 800 workers.
2. 934. It should be pointed out that, from the outset, the CSTS supported the efforts of the workers employed in Baterías de El Salvador SA de CV, and on 28 January 2006 the trade union was established – on a weekend because the enterprise had threatened to dismiss three workers who were preparing the membership campaign.
3. 935. The complainants state that the constituent assembly of the SITRAEBES was held on 28 January 2006, and Rafael Méndez was elected provisional President and Salvador Mejía provisional Vice-President. The documentation was duly submitted on Monday, 30 January 2006 to the Ministry of Labour, including the founding document, by-laws and list of founding members. The enterprise began dismissing the founding members on the same day. Arnulfo Cáceres, one of the founding members, was dismissed on the pretext of inefficiency. On 31 January, Salvador Mejía was informed that 15 February would be his last day at work. On 2 February 2006, the following founding members were dismissed: Juan Antonio Pulunto, Melvin Alvarado and José Roberto Blanco.
4. 936. On 4 February 2006, the Ministry of Labour officially transmitted the list of founding members of SINTRAEBES to the enterprise. Starting on that date, the enterprise began to call in the founding members one by one to offer them money in exchange for signing a letter of withdrawal of membership.
5. 937. On 8 February 2006, the enterprise called Rafael Cáceres to offer him money. Others reported that he was offered more than the amount due for length of service. He took it and left the enterprise, never to return. The enterprise made him sign an irrevocable letter of withdrawal, dated 28 February, as a means of cancelling his status as founding member of the trade union. Representatives of the enterprise began asking for signed letters of withdrawal, which they then blatantly altered by erasing the original date of the signature with correcting fluid and replacing it with 29 January. On the same day, the following founding members were dismissed: Armando de Jesús Bojorquez, Porfirio Pérez Saldaña and Juan de Dios Sánchez. The enterprise hired a lawyer who is well known for his anti-union stance in El Salvador, and his participation in a number of cases has been reported in several complaints to international organizations.
6. 938. The trade unions point out that eight of the 36 founding members accepted the money, including Rafael Méndez, provisional President of the trade union. After making the same offer to 12 more persons and realizing that the workers were not accepting it, the enterprise stopped offering money but continued looking for ways of forcibly dismissing founding members of the trade union and making them sign letters of withdrawal.
7. 939. On 15 February 2006, Salvador Mejía (Vice-President of the union), who had been carrying out the duties of provisional President, was dismissed on grounds of inefficiency. At the time, 11 of the founding members had been dismissed and 13 were still working in the plant. Complaints were filed with the Ministry of Labour, requesting inspections. The Ministry only responded many days later. The enterprise began threatening the 13 members who were still employed with dismissal without compensation.
8. 940. On 16 March 2006, the members of SITRAEBES held a peaceful demonstration in front of the enterprise in protest against the situation and calling for reinstatement of the dismissed workers. The enterprise stated that the protesters were not employed in the enterprise. The police arrived, saying that they were not employees and were blocking the entrance to the enterprise; fortunately, no acts of violence were committed.
9. 941. On 17 March 2006, the enterprise announced that it would give a “vacation” to all the founding members and the workers who had participated in the previous day’s protest. The leave was granted according to each worker’s length of service; it began on that day, although it was counted from 20 March. The workers suspected that those three days could be used by the enterprise to allege dereliction of duty. Faced with this situation, SITRAEBES again requested the Ministry of Labour to carry out an inspection to verify this irregularity.
10. 942. On 19 March 2006, the Ministry of Labour conducted an inspection. Faced with this situation, the enterprise decided to pay the three days (17, 18 and 19 March) in addition to the leave. It stated that it had granted leave for lack of raw materials. The trade union filed more complaints in view of the discriminatory measures.
11. 943. On 20 and 27 March 2006, the workers went to collect their leave pay. The enterprise demanded that if they wanted to be paid for their leave, they were to sign a receipt for an unspecified purpose as employees of Baterías Record, whereas that was the brand of batteries they produced, not the name of the enterprise. The workers refused to sign that document, as it could be used as proof that they had accepted severance pay.
12. 944. On 3 April 2006, the Ministry of Labour granted SITRAEBES legal personality and on 9 April the union held its first general assembly and elected its first executive: Douglas Guardado was elected General Secretary, Guillermo Antonio Zaravia, organizing secretary, José Nicandro Cerón, disputes secretary, and Arístides Zelaya, second disputes secretary. On 10 April, the enterprise announced that those who had taken leave had been dismissed as of that date (20 March) and refused to let them into the enterprise. On 11 April, the enterprise effectively dismissed six more workers, on grounds that their contract had come to an end. The enterprise claimed to be unaware that the union had obtained legal personality. The union attempted to talk to the plant manager, saying that, as the trade union, they wanted to resolve the situation of the dismissed workers; the manager refused to talk to them, pointing out that he had neither the power nor the authorization to reach settlements with the trade union.
13. 945. On 12 April 2006, the workers held another demonstration in front of the enterprise in protest against the dismissals, and to inform the other workers of the situation. Representatives of the enterprise brought in a bus and made the workers supporting the protest get in, after which they were taken to a nearby gas station; there, the representatives told the workers that those who had organized the protest were no longer employees of the enterprise. The organizers of the event had been at the factory entrance all day.
14. 946. The complainants emphasize that from mid-April to August, the dismissed workers filed a series of complaints with the Ministry of Labour. Finally, on 14 August 2006, the latter transmitted the reports of the inspections held in Baterías de El Salvador on 3 April 2006 – that interval clearly shows the excessive delay in providing the workers’ representatives with legal documents/instruments, such as certified reports which they needed to continue their legal proceedings to resolve their claims. It should also be noted that, as of 15 March, the enterprise had been issued with a recommendation to reinstate all the founding members of SITRAEBES pursuant to the recommendations of the special inspection conducted specifically on that matter. The Ministry of Labour itself noted that that recommendation had been disregarded and began proceedings to impose a fine; the certified reports of the inspections carried out on 15 March were given to the workers five months later, on 14 August 2006. During another inspection by the Ministry of Labour on 13 June, it was noted that the recommendations to reinstate the trade union officers had not been complied with. Accordingly, on 7 June, SITRAEBES requested the Ministry of Labour in writing to inform the Attorney-General’s Office that the offence of “labour discrimination” described in section 246 of the Penal Code had been committed. To date, the Ministry of Labour has not informed the Attorney-General’s Office of that offence, which is deemed by the complainants to constitute another offence, that of “failure to notify”, also provided for in the Penal Code.
15. 947. On 31 July 2006, Baterías de El Salvador paid compensation to the entire workforce of the enterprise, with the clear intention of casualizing employment and transferring the employees to ten different enterprises of Baterías de El Salvador.
16. 948. The Ministry of Labour is clearly guilty of a serious omission with regard to its responsibilities since, at the trade union’s request, its representatives visited the enterprise on 31 July, but only for a moment, and accepted the explanation given by the company lawyer saying that all was well and that the workers would benefit from that measure. The Ministry failed to verify whether at least six of the enterprises to which the Baterías de El Salvador employees were transferred had been duly registered, whether they had internal employment regulations, whether they had been authorized by the competent ministries to operate as companies employing workers and engaging in the production of batteries, whether the workers were receiving the amount due for length of service, and whether the new contracts did not undermine the workers’ length of service and benefits.
17. 949. A further aggravating circumstance is that SITRAEBES requested the Ministry of Labour, on 14 July, to carry out a special inspection to verify all the above concerns since, by that time, the mass payment of compensation was more than just a rumour. That inspection was conducted on 25 July and was also supposed to ascertain the reasons for the abusive working conditions and acts of anti-union intimidation. The Ministry of Labour did not manage to complete the inspection, which gave the enterprise the time it needed to carry out its plans for the mass payment of compensation and transfer of all the employees to new companies.
18. 950. The complainants sent a number of attachments with their communication dated 4 October 2006, including labour inspection reports.
19. B. The Government’s reply
20. 951. In its communication dated 23 November 2006, the Government states that on 29 March 2006, the Ministry of Labour and Social Welfare granted the application for legal personality submitted by the members of the SITRAEBES; in addition, the executive committee was registered and its members issued with the appropriate credentials certifying their status as trade union officers.
21. 952. Concerning the allegations of violation of trade union rights, and specifically the reprisals by representatives of the enterprise against members of the executive of the SITRAEBES in the form of unjustified dismissal of the officers and members of the trade union, the Government states that the complainant sought legal protection from the General Labour Directorate, with the aim of engaging in conciliation proceedings. To that end, the Labour Directorate summoned the employer’s representative in order to reach a conciliatory settlement with the aim of reinstating the workers who had been dismissed without justification and securing the payment of wages that had not been paid for reasons imputable to the employer. In view of the negative outcome of the conciliation hearings, and of the refusal by the employer’s representative to recognize the existence of a trade union and the dismissed workers’ status as trade union officers and members, the complainant requested that labour inspections be carried out at the enterprise to verify non-compliance with sections 248 and 214 of the Labour Code.
22. 953. The Government adds that the inspections carried out since 7 February found that Baterías de El Salvador had infringed the abovementioned provisions by dismissing, without justification, the 11 trade union officers and a group of members, and determined the wages that had not been paid for reasons imputable to the employer; accordingly, proceedings to impose a fine were instituted. It is important to point out that despite the fact that the trade union officers had not been reinstated, the enterprise continued to pay the wages that had been unpaid for a reason imputable to the employer, in the same amount and manner as they had been when the workers were employed by the enterprise.
23. 954. Notwithstanding the above, the Government points out that on 28 September 2006, another inspection was carried out in the Baterías de El Salvador, SA de CV enterprise, which found that on 31 July 2006 the enterprise had paid the statutory compensation to all of the workers still employed by it, after the workers had presented notarized letters of resignation and the applicable benefits had been calculated.
24. 955. The Government states that despite the fact that the administrative procedure was complied with, the complainants have the right to seek redress in the courts in order to claim their labour rights that had been infringed, of which they have been duly informed.
25. 956. Lastly, the Government reiterates categorically that the Ministry of Labour has not failed to provide the legal protection sought by the complainants, and that its interventions have complied with the requirements laid down in the law.

C. The Committee’s conclusions

1. 957. The Committee observes that in this case the complainants allege the dismissal of 11 founding members of SITRAEBES, the dismissal of another group of workers, offers of money to the founding members to make them leave the trade union (which eight of them allegedly accepted), threats of dismissal against those who did not agree to withdraw from membership of the trade union, interference by the enterprise in protest action by the workers and mass payment of compensation to the entire workforce in order to transfer it to ten different companies, thus dissolving the SITRAEBES (according to labour inspection reports, the Baterías de El Salvador enterprise concluded service contracts with ten different enterprises which hired former employees of Baterías de El Salvador). The complainants point out that the trade union was established by 36 workers and that there are some 800 workers in the enterprise.
2. 958. The Committee notes the Government’s statements to the effect that: (1) the Labour Directorate had sought to reach a conciliatory settlement with the aim of reinstating the workers who had been dismissed without justification and securing the payment of wages that had not been paid for reasons imputable to the employer; (2) the labour inspectorate found that the enterprise had infringed the Labour Code by dismissing, without justification, 11 trade union officers and a group of members; (3) proceedings to impose a fine were instituted; (4) the dismissed trade union officers continued to receive their wages despite having been dismissed; (5) on 31 July 2006, the enterprise had paid the statutory compensation to all of the workers still employed by it, and presented to the labour inspectorate notarized letters of resignation from the workers and the calculation of the applicable benefits; and (6) the trade union has the right to seek redress in the courts to claim its rights.
3. 959. The Committee deplores the dismissal of a large number of trade unionists by the Baterías de El Salvador enterprise on account of the establishment of the trade union, as well as the other anti-union practices referred to by the complainants, aimed at making the members withdraw from membership of the trade union (to which the Government did not reply; a report by the labour inspectorate provided by the complainants, however, points out that most of the workers interviewed denied that there had been threats of dismissal or blacklisting on account of trade union membership), including threats of dismissal, offers of money to get trade unionists to withdraw from the trade union and interference by the enterprise in protest action by the workers. In this respect, the Committee wishes to reiterate its conclusions in previous cases concerning El Salvador [see, for example, 344th Report, Case No. 2423, para. 938], in which it stated the following:
4. The Committee is obliged to note once again that the present case shows that the exercise of trade union rights – whether the right to establish trade union organizations or the right to adequate and effective protection against acts of anti-union discrimination – is guaranteed neither in the legislation, whose fines do not appear to have any dissuasive effect, nor in practice. The Committee reiterates its earlier recommendations and reminds the Government once again that it may avail itself of ILO technical cooperation in the context of the preparation of future trade union legislation. The Committee considers that, among other things, the new legislation should guarantee the right to establish trade unions without restrictions, and that proceedings in the case of anti-union discrimination should be rapid and effective, providing for sufficiently dissuasive sanctions.
5. 960. The Committee observes that the question of reinstating the dismissed trade unionists no longer arises in this case, given that, according to the Government, the entire workforce still employed by the enterprise agreed to terminate their contracts of employment subject to payment of their statutory benefits and to be transferred to ten different enterprises. The Committee nonetheless requests the Government to inform it of any administrative or judicial sanctions imposed on the Baterías de El Salvador enterprise for violating the trade union rights enshrined in the legislation, to indicate whether the Attorney-General’s Office has been notified of the facts, as requested by the complainants, to keep it informed in this respect, and to confirm that, in addition to the unpaid wages (which they had in fact received, according to the Government and the documents provided by the complainants), all the dismissed trade unionists have been paid their statutory dismissal compensation.
6. 961. Lastly, in regard to the alleged delays by the Ministry of Labour in taking action or in transmitting inspection reports to the trade unions, the Committee observes that the Government states that it has not failed to provide the legal protection requested by the complainants and that its interventions have complied with the law.
7. 962. Given the general nature of these statements and the different specific allegations made by the complainants concerning delays, in particular delays of up to five months in transmitting inspection reports, the Committee requests the Government to ensure in future that labour inspection reports are transmitted without delay to the enterprises and trade unions concerned.

The Committee's recommendations

1. 963. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) Deploring the serious anti-union nature of the dismissals of trade unionists of the SITRAEBES, the Committee requests the Government to inform it of any administrative or judicial sanctions imposed on the Baterías de El Salvador enterprise for violating the trade union rights enshrined in the legislation, as noted by the labour inspectorate, to indicate whether the Attorney-General’s Office has been notified of the facts, as requested by the complainants, to keep it informed in this respect, and to confirm that all the dismissed trade unionists have been paid their statutory dismissal compensation.
   • (b) Noting once again that the present case shows that the exercise of trade union rights – whether the right to establish trade union organizations or the right to adequate and effective protection against acts of anti-union discrimination – is guaranteed neither in the legislation, whose fines do not appear to have any dissuasive effect, nor in practice, the Committee reiterates its earlier recommendations and reminds the Government once again that it may avail itself of ILO technical cooperation in the context of the preparation of future trade union legislation. The Committee considers that, among other things, the new legislation should guarantee the right to establish trade unions without restrictions, and that proceedings in the case of anti-union discrimination should be rapid and effective, providing for sufficiently dissuasive sanctions.
   • (c) The Committee requests the Government to ensure in future that labour inspection reports are transmitted without delay to the enterprises and trade unions concerned.