Interim Report - Report No 365, November 2012

Case No 2871 (El Salvador) - Complaint date: 13-JUN-11 - Follow-up

Allegations: A strike at the LIDO SA de CV company declared to be illegal, arrest of the union’s leader and dismissal of the workers’ representatives.

1. 603. The complaint is contained in a communication from the Trade Union Confederation of El Salvador Workers (CSTS), the Trade Union Federation of Food, Beverage, Hotel, Restaurant and Agro-Industry Workers of El Salvador (FESTSSABHRA), and the LIDO SA de CV Company Trade Union (SELSA) dated 13 June 2011. The trade unions sent additional information in communications dated 11 July and 3 October 2011.
2. 604. The Government sent its observations in a communication dated 20 August 2012.
3. 605. 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. 606. In communications dated 13 June, 11 July and 3 October 2011, the CSTS, the FESTSSABHRA, (the El Salvador affiliate of the International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers’ Association (IUF)) and the LIDO SA de CV Company Trade Union (SELSA) state that the LIDO SA de CV company has, for 67 years, been manufacturing several varieties of white bread, muffins (pan dulce), confectionery and cakes. For almost 40 years there has also been a collective labour agreement which is revised in its entirety every three years (latest revision in 2007) and whose clause on wages is reviewed every year.
2. 607. In December 2008, the union asked for the wage scale to enter into effect in February 2009, as laid down in clause 43 of the collective agreement. Because of the world economic crisis, however, it was agreed on this occasion that the wage increase would become effective in December 2009 and there would be no annual review in February 2010. In a show of flexibility, SELSA accepted this arrangement; in December 2010, therefore, it again requested that the clause on wages be reviewed and that the new scale enter into effect in February 2011. At that point the company, arguing that there was an economic crisis and that sales were down, refused outright to agree to a wage increase. After complying with all the requisite legal stages and requirements, the union came out on strike, at which point the assistant production manager, José Heriberto Pacas, lodged false criminal charges that led to the arrest of trade union leader Guadalupe Atilio Jaimes Pérez and his imprisonment for four days.
3. 608. In chronological order, the events were as follows:
   • – On 20 December 2010, SELSA requested the Ministry of Labour to initiate the direct procedure for revising the clause on wages and duly submitted the requisite documents to support its request.
   • – On 26 January 2011, negotiations convened by the Ministry of Labour began under the direct procedure. At this stage, no agreement was reached because the company would not offer any wage increase.
   • – On 7 March 2011, the conciliation procedure began under the good offices of the Ministry of Labour.
   • – On 8 April, the Ministry notified the parties that the conciliation phase had come to an end and that the company had not offered any wage increase.
   • – On 11 April, the union requested that the procedure enter the arbitration phase.
   • – On 14 April, the company rejected the request for arbitration and, on 15 April, the Ministry of Labour informed SELSA accordingly.
   • – On 28 April, SELSA informed the Ministry of Labour of the workers’ decision to call a strike.
   • – On 11 May, SELSA informed the Ministry of Labour of the strike agreement.
   • – On 13 May, the Ministry of Labour informed of the company of the strike, following which the workers were, accordingly, at liberty to go on strike 30 days later.
   • – On 16 May, the company ordered 17 workers to take annual leave in a clear violation of the right to strike. The same day the union called for an inspection by the Ministry of Labour.
   • – On 6 July, the company ordered another 15 workers to take leave in a further infringement of the right to strike.
   • – The Ministry of Labour conducted its inquiry into the incident on 16 May.
   • – On 8 July, when the strike began, the civilian police proceeded to detain trade union leader Guadalupe Atilio Jaimes Pérez (General Secretary), following a complaint by the assistant production manager that he had received death threats, and incarcerated him along with common prisoners at the police delegation of San Bartolo-llopango.
   • – During the night of 8 July, the company’s lawyer, Sergio Méndez, implied that the company might withdraw its charges against the union leader if the workers called off the strike.
   • – The union leader was released in the afternoon of 12 July.
   • – At a hearing on 13 July, held by the First Magistrates’ Court of Ilopango, alternative measures were decreed in place of the union leader’s arrest and formal proceedings began.
   • – On 17 July, the Fifth Labour Court of San Salvador notified the striking workers, through the Magistrates’ Court of Soyapango, that the strike had been declared illegal and must be called off on 20 July.
   • – In the afternoon of 18 July, the workers called an end to the strike without having obtained any wage increase.
4. 609. The complainants emphasize that the workers complied with each and every principle governing the right to strike: (1) the requirement to give advance notice; (2) the requirement that they resort to the voluntary conciliation, mediation and arbitration procedures for collective disputes before calling a strike; (3) the requirement that a quorum be present and that the strike be decided upon by majority agreement and secret ballot; (4) the adoption of appropriate measures to guarantee safety and prevent accidents and the maintenance of a minimum service in specific cases; and (5) the guarantee that those not on strike were free to work.
5. 610. The complainants state that proceedings have begun with the labour authorities to have the union’s representatives at LIDO SA de CV and of FAMOLCAS SA de CV (a subcontractor of LIDO SA) dismissed (Ana María Barrios Jiménez, María Isabel Oporto Jacinta and Oscar Armando Pineda).

B. The Government’s reply

1. 611. In its communication dated 20 August 2012, the Government states that, according to proceeding No. 35/2010 of the General Labour Directorate of the Ministry of Labour and Social Welfare regarding the complaint brought by SELSA against LIDO SA de CV over the clause on wages in the collective labour agreement, pursuant to article 538 of the Labour Code, the parties concerned were invited by a special inspection unit representing the Ministry to join them in monitoring the peaceful conduct of the strike and that during the inspection a forum for dialogue was set up with representatives of both the employer and the trade union. During the discussion the union’s representatives stated that they had requested a special inspection because the representatives of LIDO SA de CV had violated their right to strike by placing 15 people on annual leave, including union leaders and other members. The purpose of the company’s representatives had been to undermine the strike.
2. 612. The Government adds that during the discussions the union’s representatives presented the following demands: (1) establishment of a dialogue committee with representatives from LIDO SA de CV with decision-making power; (2) a wage increase for all workers at LIDO SA de CV and FAMOLCAS SA de CV; (3) an agreement not to take reprisals against workers taking part in the strike; (4) the dismissal of the plant manager, Geovanny Sanchéz, and assistant production manager, Heriberto Pacas; and (5) payment of wages deducted from trade union leaders during the period concerned.
3. 613. LIDO SA de CV denied the trade union’s accusation that it was undermining the strike by placing workers on early annual leave and stated that it had done so at the request of a union leader. Regarding an increase in wages, it maintained its position that it was unable to meet such a demand and suggested an alternative, i.e. that the company acquire products for the basic food basket at wholesale prices.
4. 614. During the inspection, the representatives of the Ministry of Labour and Social Welfare were informed of a dispute between Guadalupe Atilio Jaimes Pérez and Heriberto Pacas, allegedly involving punching and fighting. Three members of the civilian police were brought in who proceeded to arrest Mr Jaimes, since Mr Pacas claimed to be the injured party. The Ministry of Labour and Social Welfare was not informed of the outcome of the incident.
5. 615. Subsequently, on 2 September 2011, SELSA’s General Secretary, Guadalupe Atilio Jaimes Pérez, went to the Ministry of Labour and Social Welfare with a document stating that, since the legal procedures for collective disputes had been exhausted without any agreement and since the collective labour agreement was due to expire, it had been agreed to leave the dispute aside in order to proceed with the collective agreement’s revision. The General Labour Directorate of the Ministry of Labour and Social Welfare accordingly decided to shelve the case.
6. 616. Moreover, civilian police file No. PNC/DG/núm. 131-0356-12 reveals that, on 8 June 2011, José Heriberto Pacas went to the investigations department of the police delegation of Soyapango to lodge a complaint against Guadalupe Atilio Jaimes Pérez who, he claimed, had, at around 2 p.m. that very day, threatened him and physically aggressed him inside the LIDO SA de CV plant located at 5th km of Boulevard del Ejército Nacional, where they both worked. At 2.30 p.m. on 9 June 2011, Mr Pacas, who declared himself to be the injured party, brought penal charges against Guadalupe Atilio Jaimes Pérez for threatening him.
7. 617. On 8 June 2011, the duty officer of the Prosecutor’s Office of Soyapango issued resolution No. 1298-UDV-SOY-2011 calling for appropriate steps to be taken against Guadalupe Atilio Jaimes Pérez for having proffered threats against José Heriberto Pacas. At 5 p.m. on 9 June 2011, police officers from the investigations department of the police delegation of Soyapango arrested Guadalupe Atilio Jaimes Pérez and charge him with threatening José Heriberto Pacas. Finally, in ruling No. 1949-3-11, the First Magistrates’ Court of Soyapango ordered the release of Guadalupe Atilio Jaimes Pérez.

C. The Committee’s conclusions

1. 618. The Committee observes that, in the present case, the complainants allege: (1) that the company placed 17 workers, and later another 15 workers, on compulsory annual leave, in clear violation of the right to strike; (2) that between 8 and 12 July 2011, Guadalupe Atilio Jaimes Pérez, General Secretary of SELSA, was arrested and that criminal charges were brought against him following a false accusation by the assistant production manager of LIDO SA de CV alleging that he had been threatened; (3) that, on 17 July 2011, the strike was declared illegal by the judicial authority which ordered that it be called off despite the fact that the purpose of the strike was to seek a wage increase; and (4) that the company began dismissing the union’s representatives at LIDO SA de CV and at FAMOLCAS SA de CV, a subcontractor (Ana María Barrios Jiménez, María Isabel Oporto Jacinta and Oscar Armando Pineda). The Committee observes that, according to the Government, the Ministry of Labour accompanied the opposing parties in discussions during the strike.
2. 619. The Committee takes note of the Government’s statement that the judicial authority ordered the release of Guadalupe Atilio Jaimes Pérez, who had been accused by the assistant production manager of having threatened him on the LIDO SA de CV premises and that he had remained under arrest from 9 to 12 July 2011. The Committee requests the Government to clarify whether this union leader is still facing criminal charges and, if so, to inform it of the sentence handed down.
3. 620. The Committee take notes that, according to the Government, the SELSA union member formally notified the Minister of Labour and Social Welfare that the collective dispute had been dropped, that the case had been shelved and that SELSA had reached this decision in order to focus on revising the collective agreement that was due to expire. The Committee requests the Government to keep it informed of developments in this regard.
4. 621. Regarding the allegation that the company placed workers on compulsory annual leave during the strike, the Committee notes the Government’s indication that, according to the company, the workers’ annual leave had been advanced at the request of a trade union leader. The Committee requests the complainants to reply to this assertion. With respect to the allegation relating to the declaration of the strike as illegal, the Committee observes that the objective of the strike was a wage increase and that the declaration of the illegality of the strike on this basis does not appear to be justified. The Committee expresses its concern and requests the Government to inform it of the judicial ruling declaring the workers’ strike at LIDO SA de CV to be illegal.
5. 622. Finally, the Committee observes that the Government has not responded to the allegation regarding the dismissal of trade unionists Ana María Barrios Jiménez, María Isabel Oporto Jacinta and Oscar Armando Pineda and requests it to send its observations without delay.

The Committee’s recommendations

1. 623. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government to keep it informed of the revision requested by the trade union of the collective agreement at LIDO SA de CV, which is due to expire.
   • (b) The Committee requests the Government to clarify whether union leader Guadalupe Atilio Jaimes Pérez (whose release was ordered by the judicial authority) is still facing charges and, if so, to inform it of the sentence that was handed down.
   • (c) The Committee requests the complainants to reply to the assertion that the workers’ annual leave had been advanced at the request of a trade union leader.
   • (d) The Committee requests the Government to send it the court ruling which, according to the allegations, declared the strike at the company to be illegal.
   • (e) Finally, the Committee observes that the Government has not responded to the allegation regarding the dismissal of trade unionists Ana María Barrios Jiménez, María Isabel Oporto Jacinta and Oscar Armando Pineda and requests it to send its observations on the matter without delay.