Report in which the committee requests to be kept informed of development - Report No 365, November 2012

Case No 2851 (El Salvador) - Complaint date: 18-APR-11 - Closed

Allegations: Arrest of trade unionists for striking at the Mayor’s Office of Ilopango, use of violence to expel the striking workers

1. 583. The complaint is contained in the communication of April 2011 presented by the Federation of Independent Associations or Trade Unions of El Salvador (FEASIES). The organization sent additional information on 14 June 2011.
2. 584. The Government sent its observations in a communication dated 14 June 2011.
3. 585. 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. 586. In its communications of April 2011 and dated 14 June 2011, the FEASIES alleges that, ever since it was established on 5 December 2009, the Workers’ Trade Union of the Mayor’s Office of Ilopango (SITTAMI) has been the victim of anti-union pressure.
2. 587. The FEASIES states that in April 2010 SITTAMI presented a list of demands for improved safety and health at the workplace and full compliance with the Administrative Career Act and that, with the Mayor’s Office, it set up a joint integration forum (five members from SITTAMI and five from the administration), of which very little eventually came.
3. 588. The FEASIES alleges that in January 2012 the Ilopango Municipal Council unilaterally decided to invite representatives of another association (ATRAM), which supports the Mayor’s Office, to join the forum and granted it a number of local and other advantages. This meant that the forum could no longer deal with the issues before it properly, and SITTAMI therefore decided not to take part.
4. 589. The complainant alleges that SITTAMI accordingly called a strike at the Mayor’s Office on 28 March 2011. The next day the workers were expelled from the area by the police without the trade unionists putting up any opposition. The same day the Mayor rejected the FEASIES’ offer of mediation on the grounds that a forum for dialogue already existed; this the trade union had already rejected for the reason stated above.
5. 590. The complainant states that on 30 March 2011 workers who had remained in front of the Mayor’s Office were beaten and attacked with tear gas by police from other municipalities. As a result, five trade unionists (including the union’s general secretary, disputes secretary and press officer) sustained injuries that left them unable to work for two to five days. In response, they initiated legal proceedings with the Public Prosecutor. On 29 March 2011 the Mayor in turn brought criminal charges against the 14 members of the union’s Executive Committee and other trade unionists for public disorder. The union took the matter to the Office of the Ombudsman for Human Rights, which set up a meeting with the Mayor and with the leaders of SITTAMI. On 1 April 2011 the two parties signed an agreement in which both undertook to enter into a dialogue and to defuse the conflict; the strikers would return to work and would not have to face reprisals.
6. 591. Finally, on 4 April 2011 the administration denied trade unionists (including members of the union’s Executive Committee) access to the Mayor’s Office and the police arrested them for their alleged involvement in crimes of public disorder, the violent exercise of trade union rights and damaging public property. The trade unionists concerned appealed to the Constitutional Chamber for their release.
7. 592. The complainant emphasizes that the incidents referred to occurred during the peaceful, democratic and legal exercise of the right to strike and constituted a violation of the agreement between the parties whereby the Mayor’s Office had undertaken not to take reprisals.

B. The Government’s reply

1. 593. In its communication dated 15 February 2012 the Government states that it appears from its inquiries that on 4 April 2011 the following 19 people were indeed placed under temporary arrest: José Walter Salas Rodríguez, Nubia Antonia Espinoza Posada, Rafael Humberto Placidón, Edgardo Evenor Aguilar, Juan Pablo Gallardo Salazar, Jorge Alberto García Flores, Rubén Antonio Araujo Guzmán, Teresa del Carmen Avilés Morán, Carlos Antonio Fuentes Menjívar, José Ricardo Moreno, José Gil Inglés, Sonia Aracely Calderón Rivera, Christian Alexander Cruz Cruz, René Galdámez Escobar, Hugo Alfredo Callejas de la Cruz, Arnulfo Federico Meléndez Cruz, José Roberto Hernández, Juan Bautista Castillo Martínez and Edwin Alberto Contreras Campos. Their arrest was subsequent to a complaint lodged with the Prosecutor’s Office by the Mayor of Ilopango, Alba Elizabeth Márquez. On 1 April 2011, in application of article 348 of the Penal Code, the Prosecutor formally requested the temporary arrest of the 19 people as a precautionary measure, on charges of causing public disorder (article 348 of the Penal Code) such as to disturb the peace, the violent exercise of their rights (article 319 of the Penal Code) such as to hinder the administration of justice, damaging public assets (article 221 of the Penal Code) and thereby causing prejudice to the Mayor’s Office of Ilopango, and the unlawful appropriation or possession of assets (article 217 of the Penal Code) belonging to the Mayor’s Office.
2. 594. The Government adds that, after due investigation by the Justice of the Peace of Ilopango, an initial hearing was set for 7 April 2011, as a result of which alternative precautionary measures were imposed on the 19 people concerned, one of them being a ban on their leaving the country without judicial authorization.
3. 595. That said, and according to information provided by the general labour directorate, it would appear from the latter’s records that at no time did the workers concerned apply to the Ministry of Labour and Social Welfare to intervene. On the other hand, it is on record that a plea of habeas corpus was entered by SITTAMI with the Constitutional Chamber of the Constitutional Court of Justice. The matter is being dealt with under the normal legal procedure, and the Committee will be informed of the outcome in due course.
4. 596. Finally, the Mayor’s Office of Ilopango was requested to report on the current state of its employment relationship with the 19 workers; in reply, the Mayor of Ilopango stated that they were currently working normally.
5. 597. In the light of the foregoing, and in accordance with Article 8 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), stipulating that workers and employers and their respective organizations must respect the law of the land, and since the incidents alleged by the complainant do not constitute a violation of the exercise of trade union rights, the Government feels justified in requesting that the complaint presented by the FEASIES be dropped.

C. The Committee’s conclusions

1. 598. The Committee observes in the present case that the complainant alleges the arrest and criminal prosecution of 19 trade unionists (including the members of the Executive Committee of SITTAMI, which operates in the Mayor’s Office of Ilopango) following the peaceful and legitimate exercise of their right to strike, as well as the expulsion of the strikers by the police on 29 and 30 March 2011, the violent and brutal expulsion of the strikers who were still in front of the Mayor’s Office and the use of tear gas against them by police from other municipalities; as a result, three union officials and two trade unionists were medically certified as being unable to work for two to five days. According to the allegations, the Mayor ignored an undertaking she had entered into with the trade union in the presence of the Ombudsman for Human Rights not to take reprisals, inasmuch as she brought criminal charges against 19 trade unionists (including the members of the union’s Executive Committee) for exercising their right to strike – legitimately and peacefully, according to the complainant. Because of the charges brought against them, the 19 trade unionists were arrested and taken to court, after which they entered a plea of habeas corpus. According to the complainant, the dispute stemmed from the failure to resolve a set of demands (safety and health in employment, compliance with the Administrative Career Act, and the decision of the Mayor’s Office to include representatives of a pro-employer association in the forum for dialogue (on this point, however, the complainant provides little information)).
2. 599. The Committee takes note of the Government’s statement that: (1) the arrests of the 19 employees followed the presentation of a complaint by the Mayor of Ilopango to the Public Prosecutor on 1 April 2011 which led to the temporary arrest of 19 people charged with public disorder, the violent exercise of their rights, damage to public property and the unlawful appropriation and possession of municipal assets; (2) in the dispute referred to by the complainant no request was made to the Ministry of Labour and Social Welfare to intervene; (3) the Constitutional Chamber of the Supreme Court of Justice examined a plea of habeas corpus presented by SITTAMI, the outcome of which the Government will inform the Committee; (4) the 19 employees concerned have now returned to their workplace; and (5) the alleged incidents are a violation of the exercise of trade union rights inasmuch as Article 8 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), stipulates that trade unions must respect the law in the exercise of their rights.
3. 600. The Committee observes that the versions presented by the complainant and by the Government differ as to the peaceful and legal nature of the strike called by the union (which the Government refutes). The Committee observes that the Government has not responded to the allegation that the Mayor’s Office infringed the terms of an agreement entered into with the trade union in the presence of the Ombudsman for Human Rights on 1 April 2011, in which it undertook not to take reprisals (the complainant sent the Committee a copy of the Ombudsman’s ruling). The Committee requests the Government to send its observations on the subject, as well as on the injuries sustained by three union leaders and two other trade unionists, with an indication of whether the union has initiated legal proceedings in that connection.
4. 601. Given the contradiction between the allegations and the Government’s reply regarding the peaceful and legitimate nature of the strike and observing that the temporary arrests of the 19 trade unionists has ended (although they have been charged), the Committee requests the Government to send it a copy of any sentence that may be handed down in connection with the plea of habeas corpus presented by the union and on the sentences concerning the criminal charges brought by the Mayor of Ilopango against 19 trade unionists for the commission of crimes against public assets, public disorder and other crimes. Taking into account the situation as a whole and the Mayor’s promise (according to the allegations) not to take reprisals, the Committee suggests that the Government take steps to promote a negotiated solution to the dispute.

The Committee’s recommendations

1. 602. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) Observing that the Government has not responded to the allegation that the Mayor’s Office has infringed an agreement entered into with the trade union in the presence of the Ombudsman for Human Rights on 1 April 2011 in which it undertook not to take reprisals (the complainant has sent the Committee a copy of the Ombudsman’s ruling), the Committee requests the Government to send its observations on the matter, as well as on the injuries allegedly sustained by three union leaders and two other trade unionists, with an indication of whether the union has taken legal action in that connection.
   • (b) Given the contradiction between the allegations and the Government’s reply regarding the peaceful and legitimate nature of the strike and observing that the temporary arrest of the 19 trade unionists has ended (although they have been charged), the Committee requests the Government to send a copy of any sentence that may be handed down in connection with the plea of habeas corpus presented by the union and on the sentences concerning the criminal charges brought by the Mayor of Ilopango against 19 trade unionists for the commission of crimes against public assets, public disorder and other crimes.
   • (c) Taking into account the situation as a whole and the Mayor’s promise (according to the allegations) not to take reprisals, the Committee suggests that the Government take steps to promote a negotiated solution to the dispute.