Effect given to the recommendations of the committee and the Governing Body - Report No 364, June 2012

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

Effect given to the recommendations of the Committee and the Governing Body

1. 38. At its March 2010 meeting, the Committee made the following recommendations on the questions still pending [see 356th Report, para. 699]:
   • (a) As regards the dissolution of the Sweets and Pastries Industrial Trade Union (SIDPA), the Committee, noting that a criminal complaint has been lodged with the Third Magistrate’s Court of San Salvador for falsification of documents and facts used to justify judicial dissolution of the union, expects that the court proceedings will be concluded without delay and will make it possible to identify and punish those responsible. The Committee requests the Government to keep it informed in this regard and of any further decision or action taken by the Human Rights Ombudsman.
   • (b) As regards the allegations concerning acts of interference by the employer in a trade union’s affairs by means of economic incentives and the anti-union dismissals, between 12 March and 7 May 2007, of 16 trade unionists following the dissolution of the trade union, the Committee regrets that the Government has not sent its observations in that regard. The Committee recalls that no one should be subjected to prejudicial measures because of his or her legitimate trade union membership or activity. The Committee urges the Government to carry out an in-depth investigation of these matters without delay 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. The Committee urgently requests the Government to keep it informed of developments in this regard.
2. 39. In its communications dated 21 October and 19 December 2011, the Government refers firstly to the Committee’s recommendation (a) (complaint lodged by Mr Óscar Antonio Roque, in his capacity as a rank-and-file member of the Sweets and Pastries Industrial Trade Union (SIDPA), and specifically its branch in the enterprise Productos Alimenticios DIANA, SA de CV, for falsification of documents and facts by Mr Carlos Hernán Méndez Pérez, who was General Secretary of the abovementioned branch). The Government reports that, according to a communication from the Attorney-General’s Office, the case has been closed and no judicial investigations are pending given that, on 8 February 2010, the accused, Mr Carlos Hernán Méndez Pérez and Mr Pablo Ernesto Sánchez Pérez, were publicly convicted of the offence of use or possession of false documents constituting a breach of public trust, and sentenced to a three-year prison term. Mr Pablo Ernesto Sánchez Pérez was also convicted of the offence of falsification of facts and sentenced to a three-year prison term. The court substituted community service days for the prison term. It was also acknowledged in the abovementioned decision that the document on the basis of which SIDPA was dissolved was a forgery and the corresponding court proceedings intended to annul the document should proceed.
3. 40. The Government adds that following the dissolution of the abovementioned trade union, no attempt has been made to set up a new trade union in the enterprise. Regarding the request by the Committee on Freedom of Association to be kept informed of any further decision or action taken by the Human Rights Ombudsman, the Government reports that the only final decision taken by the Ombudsman was the one transmitted to the Committee in previous replies.
4. 41. As regards the dismissal of 16 trade unionists between 12 March and 7 May 2007, the Government states that it has conducted an investigation into these matters in the General Directorate for Labour Inspection, and that the Industrial and Commercial Inspection Department of the General Directorate for Labour Inspection has a file (reference No. 07-09-05) on worker and SIDPA Disputes Secretary Mr Daniel Ernesto Morales Rivera. According to the inspection report in the file, this worker had that capacity and had been dismissed without regard for the legally required procedure. As a result, the employer party was advised to reinstate the worker, but the parties eventually agreed that sums equivalent to the wages that remained unpaid for reasons ascribable to the employer would be paid. As regards the cases of the other dismissed trade unionists, namely, Mr José Álvaro Castillo López, Mr Julio César Martínez Ramírez, Ms Josefa del Carmen Samayoa López, Mr Santos Osmín García Martínez, Mr Óscar Alfredo Ramírez and Ms Judith Beatriz Evangelista Navarro, there are no records of requests for conciliation or legal complaints concerning their dismissal. As regards the seven dismissed trade union officials, namely, Mr Daniel Ernesto Morales Rivera, Ms Irma Antonia Linares Mendoza and Mr Juan Antonio Vargas, the administrative authority was asked to take conciliatory action but the application was abandoned when a settlement was agreed upon with the enterprise without the involvement of the Ministry.
5. 42. The Committee takes note of this information. The Committee notes with interest the criminal conviction related to the falsified document that was used as the basis for the legal dissolution of SIDPA. The Committee fears that the dissolution of SIDPA may have a dissuasive effect on the workers and their capacity to form unions and invites the Government to promote and encourage the principles of freedom of association and collective bargaining. The Committee further observes that, of the dismissed trade unionists, six did not seek an intervention by the Ministry of Labour, whereas four others did do so but abandoned their applications after agreeing on a settlement with the enterprise. The Committee requests the Government to keep it informed of the situation of the six remaining dismissed trade unionists.