Report in which the committee requests to be kept informed of development - Report No 356, March 2010

Case No 2630 (El Salvador) - Complaint date: 03-MAR-08 - Closed

Allegations: Request by the Confitería Americana SA de CV Enterprise to dissolve and cancel the registration of the complainant trade union; promotion of another trade union organization by the enterprise and pressure on the members of the complainant trade union to resign their membership

1. 718. The Committee last examined this case at its meeting in March 2009 [see 353rd Report, approved by the Governing Body at its 304th Session, paras 899–916].
2. 719. The Government sent new observations in communications dated 28 May, 15 July and 13 October 2009.
3. 720. 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. 721. During its last examination of the case, the Committee made the following recommendations [see 353rd Report, para. 916]:
   • (a) The Committee highlights the seriousness of the allegations and regrets that the Government has not sent its observations on this case even though it has been invited to do so on several occasions and was issued with an urgent appeal.
   • (b) The Committee urges the Government to send its observations on the allegations and all the administrative decisions without delay – in particular those which relate to anti-union discrimination and interference – and rulings on this case, including those relating to the application filed by the enterprise to dissolve the trade union and the issue of union accreditation for the collective agreement, and expects that, through the employers’ organization concerned, it will also benefit from the comments of the enterprise.
   • (c) Given the lack of observations on the part of the Government, the Committee underscores in general that Convention No. 98 prohibits all acts of anti-union discrimination and interference in union matters and, therefore, any practice that involves pressure to join or leave a trade union, the promotion of workers’ organizations by the employer and measures aimed at dissolving a trade union by an employer, which, according to the allegations, used pressure to bring about a reduction in union membership. The Committee requests the Government to guarantee that these principles are respected and to ensure an effective remedy for the workers and the trade union.

B. The Government’s reply

1. 722. In its communications of 28 May, 15 July and 13 October 2009, the Government sent the following observations.
2. 723. On 5 April 2006, the labour inspectorate carried out an inspection based on a complaint from the Trade Union of Workers of the Confitería Americana SA de CV Enterprise (STECASACV) about the lowering of standards set out in the economic clauses of the collective labour agreement signed between the parties. In the course of that inspection, and with the aim of harmonizing labour relations, the issue of adherence to the terms of the collective agreement was considered, despite the fact that section 35 of the Act on organization and functions in the labour and services sector stipulates that the scope of inspection does not include collective legal disputes arising from the application or interpretation of legal provisions, the resolution of which falls within the purview of labour judges. Attempts were also made to warn the legal representative not to pursue the actions brought by the union.
3. 724. The Government adds that subsequent inspections requested by the union identified the following violations of current labour legislation: acts that indirectly restrict the rights of workers conferred by the Labour Code and other sources of labour obligations; coercion of workers to resign from a representative organization of which they are member; violation of section 305 of the Labour Code through failure to draw up internal work regulations and submit them to the Director-General for Labour for approval; and violation of section 165 of the same legal instrument by making changes to working hours without submitting them to the Director-General for Labour for approval.
4. 725. The Government states that, with respect to the allegations concerning the process of resignation from their union to which workers at the enterprise were allegedly subjected under threat of dismissal, the National Department for Social Organizations has processed the resignations from 39 workers at their own request and in accordance with the procedure established in sections 253 and 254 of the Labour Code, without any indication by the workers concerned that they have been coerced or threatened by the enterprise to resign from their union. In this regard, the Government points out that a worker must personally submit a request to resign before the National Department for Social Organizations can begin the process of resignation.
5. 726. As regards the union accreditation for the collective agreement concluded between Confitería Americana SA de CV Enterprise and STECASACV requested by the Trade Union Association of Workers of the Confitería Americana SA de CV Enterprise (ASTECASACV), the Government states that the Secretary-General of ASTECASACV requested accreditation for the above collective agreement and submitted to that end the minutes of the extraordinary general assembly on first summons, which record the unanimous agreement reached by the assembly. In view of this, and in accordance with the provisions of section 270(3) of the Labour Code, a visit was made to the enterprise in order to obtain documentation to support the application by ASTECASACV, and it was found that, of the 53 workers providing services to the enterprise, 36 were ASTECASACV members. For this reason, on 21 February 2007, the National Department for Social Organizations replaced the declining trade union and declared ASTECASACV accredited for the purpose of the collective agreement. This decision has been appealed before the Chamber of Administrative Dispute of the Supreme Court of Justice, whose ruling is still pending.

C. The Committee’s conclusions

1. 727. The Committee recalls that, as can be seen from the previous examination of the case, the complainant alleges that it initiated sanctions proceedings against the Confitería Americana SA de CV Enterprise because of the enterprise’s intention of lowering the standards set out in ten clauses of the collective agreement. As a result: (1) the enterprise coerced members of the union to resign from it and join an alternative organization, the ASTECASACV, which has been granted legal personality and union accreditation for the purpose of the collective agreement by the Ministry of Labour and Social Provision. The administrative decision granting this accreditation has been appealed before the courts, which have not yet ruled in the case brought by the complainant; (2) the coercion led to the resignation of 33 members (the complainant has emphasized that these resignations were submitted in the same format and had been completed by the same person); and (3) as a result of these resignations, the enterprise requested the courts to dissolve the complainant union and cancel its registration in October 2007, on the grounds that it no longer had the minimum number of members required by legislation, the number having fallen from 180 to eight as a result of pressure from the enterprise; the court ruled against the dissolution of the union, as a year had not elapsed from the time when the trade union’s membership had fallen below the minimum required by the Labour Code. The Committee takes note of the fact that the labour inspection report supplied by the complainant establishes that there has been coercion of workers belonging to STECASACV through (direct quotation) “indirect inducement, persuasion or coercion of workers to resign their membership of the Trade Union of Workers of the Confitería Americana SA de CV Enterprise … ”.
2. 728. The Committee first of all regrets that the Government did not indicate whether it consulted the enterprise concerned in relation to these allegations, as it had requested during the previous examination of the case. The Committee takes note of all the Government’s observations, in particular that: (1) during the inspections carried out by the labour inspectorate at the request of STECASACV on the basis of a complaint about the lowering of standards set out in the economic clauses of the collective agreement concluded between the parties, violations of current labour legislation were identified, including acts indirectly restricting the rights conferred on workers by the Labour Code and other sources of labour obligations, and coercion of workers to resign from the representative organization to which they belong; and (2) the National Department for Social Organizations has processed resignations from 39 workers, at their own request and in accordance with the procedure established in sections 253 and 254 of the Labour Code (according to the Government, those concerned gave no indication that they were being coerced or threatened by the enterprise to resign from the union).
3. 729. The Committee requests the Government to state whether, as a consequence of the coercion of workers to resign their union membership, as identified by the labour inspectorate, the sanctions provided for in national legislation, in the case of anti-union practices, have been imposed on the enterprise.
4. 730. The Committee further observes that, according to the allegations, the reduction in the number of members belonging to the complainant organization, STECASACV, enabled the other existing trade union, ASTECASACV (which, according to the allegations, is supported by the enterprise), to request and successfully obtain accreditation for the purpose of the collective agreement, which had previously been held by STECASACV (before the resignation of 33 of its members). The Committee notes that, according to the Government, since the Secretary-General of ASTECASACV requested accreditation for the collective agreement, a visit to the enterprise was made, which established that, of the 53 workers providing services to the enterprise, 36 were members of ASTECASACV. On 21 February 2007, the National Department for Social Organizations therefore declared ASTECASACV accredited for the purpose of the collective agreement, replacing STECASACV; this decision has been appealed before the Chamber of Administrative Contention of the Supreme Court of Justice, whose ruling is still pending. The Committee expects that this case will be resolved without delay and that the court will have access to all elements of the case when reaching its decision. The Committee requests the Government to keep it informed in this regard.
5. 731. The Committee also observes that, on the grounds of the reduction in the number of members belonging to STECASACV, the enterprise requested the courts to dissolve the union in September 2007. The Committee notes that, according to the court ruling supplied by the Government, it appears that the request was rejected because legal requirements had not been met.
6. 732. In general, the Committee observes that this case deals with serious allegations of interference by the enterprise in the complainant’s activities in order to promote another union organization, which, according to the allegations, is close to the enterprise, and to grant it accreditation for the purpose of the collective agreement. In anticipation of a ruling on this matter, the Committee underlines the importance of effective compliance with Article 2 of Convention No. 98, which establishes the obligation to ensure adequate protection against acts of interference in workers’ organizations.

The Committee's recommendations

1. 733. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government to state whether, as a consequence of the coercion of workers to resign their union membership, as identified by the labour inspectorate, the sanctions provided for in national legislation in the case of anti-union practices have been imposed on the enterprise.
   • (b) With regard to granting accreditation for the purpose of the collective agreement to ASTECASACV, the Committee expects that the action brought by STECASACV to challenge the decision to grant accreditation, currently before the Chamber of Administrative Dispute of the Supreme Court of Justice, will be resolved without delay and that the court will have access to all elements of the case in reaching its decision. The Committee requests the Government to keep it informed in this regard.