Interim Report - Report No 353, March 2009

Case No 2557 (El Salvador) - Complaint date: 29-MAR-07 - Closed

Allegations: Fraudulent dissolution of a trade union with financial offers from the employer and dismissal of a large number of union members

1. 829. The Committee examined this case at its March 2008 meeting and presented an interim report to the Governing Body [see 349th Report, paras 756–781, approved by the Governing Body at its 301st Session (March 2008)].
2. 830. At its November 2008 meeting, the Committee noted that despite the time that had elapsed since the presentation of the complaint and since the most recent examination of the case, the information requested from the Government had still not been received. The Committee drew the Government’s attention to the fact that, in accordance with the procedural rules set out in paragraph 17 of its 127th Report, approved by the Governing Body, it might present a report on the substance of the case if the requested observations or information had not been received in due time. The Committee accordingly requested the Government to transmit the information requested as a matter of urgency.
3. 831. To date no such information has been received from the Government.
4. 832. 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. Previous examination of the case

1. 833. In its March 2008 meeting, the Committee made the following recommendations on questions still pending [see 349th Report, para. 781]:
   • (a) The Committee emphasizes the seriousness of the allegations made in the present case with regard to the dissolution of a trade union and anti-union dismissals.
   • (b) The Committee regrets that, even though the present case contains serious allegations of anti-union dismissals of a large number of trade union members (16), as well as allegations of acts of interference in union affairs by the employer in the form of financial offers, the Government has not undertaken an in-depth investigation of these matters. The Committee urges the Government to carry out an investigation without delay, to keep it informed in this regard and – if the allegations are proven – to take the necessary measures to reinstate the trade union members in their posts with back pay, as well as to take the measures and impose the sanctions provided for in the law so as to remedy such acts.
   • (c) In close connection with the dissolution of the SIDPA trade union, the Committee requests the Government to send the report of the Human Rights Ombudsperson on the present case as soon as the Ombudsperson reaches a decision, and also to send any decisions taken as a result of the criminal complaint filed at the Attorney-General’s Office by a union member for alleged falsification of documents and facts by the former General Secretary who instigated the allegedly fraudulent dissolution of the union.

B. The Committee’s conclusions

1. 834. The Committee regrets that, despite the time that has elapsed, the Government has not sent the information requested, despite being invited on a number of occasions, including by means of an urgent appeal, to present its comments and observations on the case.
2. 835. Under these circumstances and in accordance with the applicable procedural rules [see 127th Report, para. 17, approved by the Governing Body at its 184th Session], the Committee feels obliged to present a report on the case without the information it had hoped to receive from the Government.
3. 836. The Committee recalls that the purpose of the whole procedure established by the International Labour Organization for the examination of allegations of violations of freedom of association is to promote respect for this freedom in law and in fact. The Committee remains confident that, if the procedure protects governments from unreasonable accusations, governments on their side will recognize the importance of formulating, for objective examination, detailed replies concerning allegations made against them.
4. 837. The Committee notes with regret the Government’s failure to cooperate with the procedure, and, given the seriousness of the allegations, regrets that the Government has not responded to the urgent appeal made at its November meeting. Consequently, the Committee urges the Government to send without delay the information requested and to be more cooperative in the future.
5. 838. The Committee notes that in the present complaint, according to the allegations, three trade union leaders of the Sweets and Pastries Industrial Trade Union (SIDPA), following the acceptance by two of them of a financial offer by the President of the Productos Alimenticios Diana SA de CV enterprise, instigated a fraudulent “voluntary” procedure to dissolve the trade union behind the backs of the other union officers and members; the procedure was initiated, supposedly with the support of a general meeting held on 13 January 2007, with 28 signatures on the relevant document, although ten of these signatures are forged and one of the signatories is resident in the United States. In other words, the condition stipulated by the trade union’s own statutes, of having the agreement of two-thirds of the union’s membership for the union to be dissolved, was not met (the complainants indicate that the union has 43 registered members at the Productos Alimenticios Diana SA enterprise alone); in contravention of the trade union’s statutes, the general meeting was not announced eight days in advance in the press and was not agreed by the union’s executive body. The Committee notes that according to the allegations, the Second Labour Judge on 15 February 2007 approved the dissolution of the union (although labour proceedings generally take months or even years), and between 12 and 15 March 2007, the company dismissed two union leaders and eight other union members and offered financial compensation in order to avert proceedings or complaints. Lastly, on 7 May 2007, the company dismissed a trade union leader, two former officials and three other members.
6. 839. In the absence of the information requested from the Government at its March 2008 meeting, the Committee wishes to recall the conclusions it formulated on that occasion [see 349th Report, paras 777–780].
   • – The Committee notes the Government’s statements, particularly to the effect that: (1) the judiciary requested the Ministry of Labour and Social Security to revoke the registration of the SIDPA trade union, and on 2 March 2007 this request was complied with by the Ministry, which deemed the union dissolved, revoked the registration of the union and its executive committee and, in accordance with the law, appointed the Liquidation Board, whose proceedings were completed on 25 July 2007 and approved by the Ministry of Labour; (2) the court ruling ordering the dissolution of the union can be appealed against and dismissed workers can have recourse to the courts or – something they did not actually do – request the Directorate-General of Labour Inspection for legal protection of the breached labour rights; (3) a member of the trade union filed a criminal complaint against one of the instigators of the dissolution of the union (its general secretary at the time) for alleged falsification of documents and facts; and (4) as regards the complaint submitted to the Human Rights Ombudsperson by the General Secretary of the Productos Alimenticios Diana SA de CV branch of SIDPA on account of the dissolution of the union and the dismissals, the Ministry of Labour sent a document in which it essentially reiterates points (1) and (2) above, emphasizing that it (the Ministry of Labour) had merely complied with the court ruling.
   • – The Committee observes that the Government has not replied to the complainant organizations’ claims that on 21 December 2006 two SIDPA officials (including the General Secretary of the union’s enterprise branch) informed the Ministry of Labour in writing of the violations committed by two former leaders in dissolving the union in collusion with the enterprise and requested that no documentation on behalf of the union should be made available to those persons who had been replaced at the general meeting of 16 December 2006 and were being expelled from the union. Nevertheless, the Ministry supplied various records and documents to those persons.
   • – The Committee regrets that, even though the present case contains serious allegations of anti-union dismissals of a large number of trade union members (16), as well as allegations of acts of interference in union affairs by the employer in the form of financial offers, the Government has not undertaken an in-depth investigation of these matters. The Committee urges the Government to carry out an investigation without delay, to keep it informed in this regard and – if the allegations are proven – to take the necessary measures to reinstate the trade union members without delay in their posts with back pay, as well as to take the measures and impose the sanctions provided for in the law so as to remedy such acts.
   • – The Committee also requests the Government to send the report of the Human Rights Ombudsperson on the present case as soon as the Ombudsperson reaches a decision, and also to send any decisions taken as a result of the criminal complaint filed at the Attorney-General’s Office by a union member for alleged falsification of documents and facts by the former General Secretary who instigated the allegedly fraudulent dissolution of the union.
7. 840. The Committee once again reiterates these conclusions, and expects that the Government will take steps to send the requested information. The Committee recalls in general terms that no one should be dismissed or subjected to anti-union discrimination because of legitimate trade union membership or activities, and that the authorities must ensure adequate protection against interference by employers in union affairs [see, for example, Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, paras 770 and 771]. The Committee requests the Government to ensure that these principles are respected.

The Committee's recommendations

1. 841. In the light of its foregoing interim conclusions, the Committee invites the Government to approve the following recommendations:
   • (a) The Committee emphasizes the seriousness of the allegations in this case, concerning the dissolution of a trade union and anti-union dismissals, and regrets the Government’s failure to cooperate with the procedure by not sending the information requested, despite the urgent appeal sent in November 2008; the Committee expects that the Government will be more cooperative in future.
   • (b) The Committee regrets that, even though the present case contains serious allegations of anti-union dismissals of a large number of trade union members (16), as well as allegations of acts of interference in union affairs by the employer in the form of financial offers, the Government has not undertaken an in-depth investigation of these matters. The Committee urges the Government to carry out an investigation without delay, to keep it informed in this regard and – if the allegations are proven – to take the necessary measures to reinstate without delay the trade union members in their posts with back pay, as well as to take the measures and impose the sanctions provided for in law so as to remedy such acts.
   • (c) In close connection with the dissolution of the SIDPA trade union, the Committee urges the Government to send the report of the Human Rights Ombudsperson on the present case as soon as the Ombudsperson reaches a decision, and also to send any decisions taken as a result of the criminal complaint filed at the Attorney-General’s Office by a union member for alleged falsification of documents and facts by the former General Secretary who instigated the allegedly fraudulent dissolution of the union.
   • (d) The Committee recalls in general that no one should be dismissed or be subjected to anti-union discrimination because of trade union membership or activities, and the authorities must ensure that adequate protection is provided against acts of interference by employers in trade union affairs. The Committee requests the Government to ensure that these principles are respected.
   • (e) The Committee requests the Government to send the information requested, and expects that it will do so without delay, and that it will obtain information from the enterprise concerned by the questions under examination through the national employers’ organization.