Report in which the committee requests to be kept informed of development - Report No 362, November 2011

Case No 2836 (El Salvador) - Complaint date: 16-DEC-10 - Closed

Allegations: The dismissal of a trade union official who worked for the Legislative Assembly following the establishment of a trade union; the non-recognition of this trade union; and the pressure put on members to leave the union

1. 668. The complaint is contained in communications from the Democratic Workers’ Confederation (CTD) and the Trade Union of Workers of the Legislative Assembly (SITRAL), dated 16 December 2010 and 6 February 2011 respectively.
2. 669. The Government sent its observations in a communication dated 23 May 2011.
3. 670. El Salvador has 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).

A. The complainants’ allegations

1. 671. In their communications of 16 December 2010 and 6 February 2011, the CTD and SITRAL claim that the trade union SITRAL was established on 31 July 2010 and was granted legal personality in September 2010.
2. 672. The members of the Legislative Assembly have taken a negative attitude to the establishment of the trade union SITRAL. Moreover, the trade union’s requests to open a dialogue with the authorities of the Legislative Assembly and, in particular, with the members of the Farabundo Martí National Liberation Front (FMLN), have met with the party members’ refusal. Furthermore, the anti-union attitude of the party members has also been negative, insofar as pressuring trade union members to leave the union or else face dismissal has led to more than a dozen withdrawals from SITRAL. In addition, there has been an orchestrated campaign to attribute the establishment of SITRAL to an FMLN initiative to put pressure on FMLN party member Sigfrido Reyes to assume the presidency of the Legislative Assembly. The fervour of the anti-union campaign was such that, on 5 November 2010, the members of the Legislative Assembly’s governing body refused to have dealings with the trade union officials, on the grounds that its members did not belong to the institutional system and were simply public servants taken into the confidence of certain members of Parliament, and thus did not recognize their right to freedom of association.
3. 673. Furthermore, the complainant organizations claim that, on 1 December 2010, the Director of Human Resources of the Legislative Assembly sent a written communication to the Secretary-General of SITRAL, Mr Luis Alberto Ortega Ortega, notifying him of the termination of both his employment relationship with the Legislative Assembly and his employment contract. While the trade union has made repeated attempts to alert the members of the Legislative Assembly to the need to open a dialogue in order to resolve the contradictions arising from the exercise of the right to freedom of association, efforts to hold a hearing for that purpose have proved futile and the Legislative Assembly’s governing body still refuses to recognize the trade union.
4. 674. The evidence of this refusal and of interference with the right to freedom of association consists of the letters of withdrawal from the union (copies of which have been enclosed with the complaint) that Mr Fidel Crespín, Mr Héctor Santiago Fernández Carballo, Mr José Ebanan Quintanilla Gómez and Mr Luis Alonso Lara Guillen, were pressured into tendering by the party members. Other similar cases will be brought to the Committee’s attention in due course. The CTD points out that the Constitution provides that, for the duration of the election period and mandate of trade union officials, and for one year from them having left service, they may not be dismissed, suspended for disciplinary reasons, transferred or given less favourable employment conditions other than for a just cause as previously determined by the competent authority.
5. 675. The complainant organizations claim that the Secretary-General of SITRAL was dismissed for having been elected Secretary-General by the members of the trade union for a term lasting until July 2011. The governing body’s refusal to conduct a hearing and the anti-union measures and practices to which affiliated workers within the Legislative Assembly were subject prompted SITRAL to send a written communication to the Office of the Human Rights Procurator. Subsequently, the Minister of Labour urged the parties to come together and take steps to restore social harmony. However, this initiative did not yield the desired results.
6. 676. The complainant organizations’ claim that the dismissal of the Secretary-General of SITRAL violates ILO Conventions Nos 98 and 135, as well as of the Constitution (as mentioned above) and section 248 of the Labour Code, which provides that trade union officials are to receive special protection for the duration of, and for, a year following the fulfilment of their mandate. The only way to dismiss, suspend or give trade union officials less favourable working conditions is through obtaining prior consent from the Minister of Labour and Social Security. This consent was never obtained in the case of Mr Luis Alberto Ortega Ortega, thereby proving that the Legislative Assembly acted arbitrarily.
7. 677. The complainant organizations enclose a copy of the legal advice obtained, in the form of a note requested by the governing body of the Legislative Assembly, containing considerations relating to SITRAL), which reveals the existence of certain discriminatory tendencies towards the trade union. The recommendations contained therein include requesting a formal document detailing the process of establishing the trade union from the Ministry of Labour and Social Security, a legal investigation of the trade union, an investigation of each union member and the potential dissolution of SITRAL. Also enclosed is a copy of the communication from the Director of Human Resources, dated 3 December 2010, addressed to the coordinator of the FMLN parliamentary group, which states that effect was given to the instructions issued by the group not to extend certain contracts, including that of Mr Luis Alberto Ortega Ortega, who is a press officer. Copies of three letters from workers who are members of SITRAL notifying their irrevocable withdrawal from the union have also been enclosed. In the letters, the workers explain that they have received explicit orders from their superiors forbidding them from joining such an organization. This is proof of the continual efforts to repress the trade union.
8. 678. Lastly, SITRAL encloses a copy of the communication sent by the Secretary-General of the union to the Ministry of Labour and Social Security, denouncing his dismissal for having been elected by the workers to serve as Secretary-General of SITRAL, which violated established union and labour rights. He requested that the Ministry of Labour and Social Security investigate the case in order to show that his labour rights had been violated.
9. B. The Government’s reply
10. 679. In its communication of 23 May 2011, the Government indicates that, on 21 September 2010, the Secretary of State for Labour and Social Security passed Resolution No. 56/2010, which granted legal personality to and called for the registration of SITRAL, a professional association of workers providing a service to, or on behalf of, the Legislative Assembly. In this regard, it is important to point out that the members of the aforementioned trade union have a labour relationship with the legislative body, which is a state institution, irrespective of its parliamentary components, to which the unionized employees are attached.
11. 680. On 9 December 2010, the National Department of Social Organizations called for the registration of SITRAL’s governing body, which was to carry out its functions from 27 November 2010 to 30 July 2011 and, incidentally, led to Mr Luis Alberto Ortega Ortega being elected President of the provisional governing body by the founding assembly of the trade union and to him taking up the post of Secretary-General.
12. 681. The Government adds that, on 1 December 2010, the Legislative Assembly, without having instituted the necessary legal and administrative proceedings, determined not to extend the employment contract between Mr Luis Alberto Ortega Ortega and the legislative body, which was to expire on 31 December 2010. He was notified of the decision by means of a note from the Director of Human Resources of the aforementioned institution.
13. 682. In this regard, the Government points out that the final paragraph of article 47 of the Constitution guarantees trade union immunity, the aim of which is to preserve the job security of the members of trade union governing bodies, and reads as follows: “The members of trade union governing bodies shall be Salvadoran by birth and, for the duration of the election period and their mandate and for one year from having left service, they shall not be dismissed, suspended for disciplinary reasons, transferred or given less favourable employment conditions other than for a just cause as previously determined by the competent authority.” Furthermore, the Government recalls that both Article 1 of ILO Convention No. 98 and Article 4 of ILO Convention No. 151 provide that:
14. 1. Workers shall enjoy adequate protection against acts of anti-union discrimination in respect of their employment.
15. 2. Such protection shall apply more particularly in respect of acts calculated to:
16. [...]
17. (b) cause the dismissal of or otherwise prejudice a worker by reason of union membership or because of participation in union activities outside working hours or, with the consent of the employer, within working hours.
18. 683. The Government adds that, in the light of the above considerations, it is obvious that the Legislative Assembly has violated the right to freedom of association of the public servants who are members of SITRAL, as well as the guarantees to preserve the job security of the members of trade union governing bodies. This situation must be rectified by means of the legal mechanisms available to affected workers within the framework of the institutional legal order.
19. 684. In this regard, the Government indicates that, on 9 March 2011, Mr Luis Alberto Ortega Ortega submitted the corresponding application for amparo against the Legislative Assembly to the Constitutional Chamber of the Supreme Court of Justice on the grounds that his constitutional right to freedom of association and occupational stability had been violated. His application was assigned the reference number 94/2011 and is currently being examined to determine its legality and admissibility. Therefore, a final decision has yet to be taken on the case.
20. 685. With regard to the complainant organizations’ call for the Secretary of State for Labour to fulfil their legal mandate to protect workers’ labour rights, the Government explains that, in accordance with article 86 of the Constitution, “Public servants shall have no powers other than those expressly conferred upon them by law” and, in this respect, it is important to point out that it is outside the competence of the Ministry of Labour and Social Security to hear or take decisions on public sector labour disputes (article 1 of the Civil Service Act and section 2 of the Labour Code). The authorities competent in hearing and settling such disputes are those that make up the civil service system, in this case, the civil service commissions and tribunal or, failing that, the administrative litigation division or the Constitutional Chamber of the Supreme Court of Justice. The parties have brought their case before this authority in the manner described previously and within a framework of respect for the institutional structure of the Salvadoran legal system. For this reason, there was no failure on the part of the Secretary of State to comply with their institutional obligations by not carrying out the investigation called for by the complainant organizations. The Government wishes to draw attention to the fact that the Secretary of State met with representatives of SITRAL’s governing body in order to explain the legal reasons preventing the Ministry from conducting the investigation.
21. 686. As regards the allegations by the complainant organizations that public servants of the Legislative Assembly pressured several members of the trade union into leaving the union, the Government indicates that, apart from the letters of withdrawal in which some members cite personal reasons for leaving the union, and, in one case, even management responsibilities, there is no evidence to suggest that these members were indeed put under pressure. However, if such pressure was applied, it would undoubtedly constitute a serious violation of the right to freedom of association.
22. 687. As has been outlined above, it remains outside the competence of the branch of the public administration responsible for labour, in other words the Ministry of Labour and Social Security, to hear this type of complaint, as it relates to situations that occurred in the public sector, and there are separate regulations for settling this type of dispute. However, those persons who were allegedly put under pressure have the possibility of instituting legal proceedings before the competent jurisdictional authorities with a view to restoring those union rights that were allegedly violated.
23. 688. Lastly, the Government emphasizes that the State, within the framework of its constitutional obligations and of respect for the country’s democratic institutions, is currently taking the appropriate legal steps to honour its obligation of guaranteeing the full exercise of the right to freedom of association within the national territory, and will keep the Committee on Freedom of Association informed of any developments and the content of the Constitutional Chamber of the Supreme court of Justice’s final ruling on the application for amparo submitted by Mr Luis Alberto Ortega Ortega.

C. The Committee’s conclusions

1. 689. The Committee notes that in the present case the complainant organizations claim that the members of the governing body of the Legislative Assembly have refused to recognize and open a dialogue with SITRAL since it was granted legal personality on 29 September 2010, and have, in particular through the members of a political party, mounted an anti-union campaign and engaged in anti-union practices aimed at forcing trade union members to leave the union, 12 cases of which have been recorded (the complainant organizations enclose a copy of three letters of withdrawal). Furthermore, they have taken the decision not to extend the contract of the Secretary-General, Mr Luis Alberto Ortega Ortega, which violates the Constitution, the relevant ILO Conventions and the Labour Code.
2. 690. The Committee takes note of the Government’s statement, according to which: (1) it is obvious that the Legislative Assembly (by taking the decision not to extend the employment contract of SITRAL’s Secretary-General) has violated the right to freedom of association, as well as the guarantees to preserve the job security of the members who form trade union governing bodies; (2) The Secretary-General of SITRAL has submitted an application for amparo to the Constitutional Chamber of the Supreme Court of Justice on the grounds that his constitutional right, to freedom of association and occupational stability have been violated, the admissibility of which is currently being determined. The Committee will be kept informed of any developments in proceedings and the final ruling on the case; and (3) The Ministry of Labour and Social Security was not in a position to follow up the request it received to investigate whether union rights had indeed been violated, given that hearing and taking a decision on public sector labour disputes is outside its area of competence (the Government states that the competent authorities are the civil service commissions and tribunal or, failing that, the administrative litigation division or the Constitutional Chamber of the Supreme Court of Justice).
3. 691. With regard to the failure by the governing body of the Legislative Assembly to recognize SITRAL and its refusal to open a dialogue with the union, the Committee notes that the Government has made no specific reply to this allegation. The Committee wishes to recall that freedom of association is a fundamental labour right and that all State bodies should therefore recognize and open a dialogue with trade unions that have been legally established within this framework, as is the case with SITRAL.
4. 692. The Committee firmly expects that the governing body of the Legislative Assembly will recognize the trade union SITRAL without delay and will open a constructive dialogue with this organization.
5. 693. With regard to the alleged decision not to renew the employment contract of SITRAL’s Secretary-General, Mr Luis Alberto Ortega Ortega, the Committee notes that the Government views this decision as having violated the right to freedom of association and the guarantees to preserve the job security of trade union officials and is awaiting the ruling of the Constitutional Chamber of the Supreme Court of Justice after the trade union official, Mr Luis Alberto Ortega Ortega submitted an application for amparo. The Committee requests the Government to inform it of the contents of the final ruling. The Committee stresses that the public authorities must lead by example in guaranteeing the exercise of the trade union rights enshrined in ILO Conventions Nos 87, 98, 135, and 151, especially when the Legislative Assembly is the branch of the State that approved and ratified these fundamental Conventions and when both the Constitution and national legislation protect trade union officials against anti-union dismissal.
6. 694. In the light of the above, the Committee considers that, in order to ensure compliance with both national legislation and ILO Conventions Nos 87, 98, 135 and 151, the employment contract of the Secretary-General of the trade union should, pending the final ruling, be extended so that he is reinstated without loss of pay.
7. 695. With regard to the alleged pressure applied by the members of a political party of the Legislative Assembly, causing various members of SITRAL to leave the union, the Committee emphasizes that, according to these allegations, this proved effective in a dozen cases and that the complainant organizations have enclosed copies of three letters of withdrawal. The Committee notes the Government’s statement regarding these allegations and, moreover, that the Government indicates that, apart from the letters of withdrawal in which some members cite personal reasons for leaving the union and, in one case, even management responsibilities, there is no evidence to suggest that these union members were indeed put under pressure. However, if such pressure was applied, it would undoubtedly constitute a serious violation of the right to freedom of association. Furthermore, the Government reiterates that it remains outside the competence of the branch of the public administration responsible for labour, in other words, the Ministry of Labour and Social Security, to deal with this type of complaint, which relates to situations that occurred in the public sector. However, there remains the possibility of instituting legal proceedings before the competent jurisdictional authorities with a view to restoring those union rights that were allegedly violated. The Committee considers the complainant organizations’ allegations, which are consistent with the anti-union context depicted in the preceding paragraphs, to be serious enough to justify the conduct of a rapid investigation in order to clarify the facts. Should the allegations of anti-union pressure prove to be founded, this practice should be remedied and sufficiently dissuasive sanctions should be imposed. The Committee takes note of the Government’s statement to the effect that matters involving labour relations in the public sector remain outside the competence of the Secretary of State for Labour, which prevents the Secretary from ordering an investigation, but points out that failure to investigate is tantamount to absolving in this case those allegedly responsible for pressuring members of the trade union SITRAL into leaving the union. An independent authority should therefore be in a position to investigate these allegations in order to gather sufficient evidence to support the case when it is brought before the jurisdictional authorities. The Committee requests that measures be taken to carry out the aforementioned investigation.
8. 696. While the Committee is fully aware of the consequences of the separation of powers, it requests that the Government communicate its conclusions to the Legislative Assembly and firmly expects that the governing body of the Legislative Assembly will immediately extend the employment contract of the Secretary-General of SITRAL, Mr Luis Alberto Ortega Ortega, pending the final outcome of this official’s application for amparo, recognize the trade union without delay, and open a constructive dialogue with that organization.
9. 697. Lastly, the Committee requests the Government to keep it informed of any measures taken to follow up the aforementioned conclusions and recommendations.

The Committee's recommendations

1. 698. In light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) While the Committee is fully aware of the consequences of the separation of powers, it requests that the Government communicate its conclusions and recommendations to the Legislative Assembly and firmly expects that the governing body of the Legislative Assembly will, pending the final outcome of this official’s application for amparo, immediately extend the employment contract of the Secretary-General of SITRAL, Mr Luis Alberto Ortega Ortega so that he is reinstated without loss of pay, recognize the trade union without delay and open a constructive dialogue with that organization.
   • (b) The Committee requests the Government to keep it informed of any measures taken to follow up the aforementioned conclusions and recommendations.