Definitive Report - Report No 365, November 2012

Case No 2879 (El Salvador) - Complaint date: 01-JUN-11 - Closed

Allegations: Anti-union dismissals at the Digapan SA de CV company and impossibility for the dismissed workers to obtain the compensation and benefits to which they are entitled because of their inability to prove to the judicial authority that the company’s legal representative is its titular representative

1. 635. The complaint is contained in a joint communication from the Union of Workers of the Digapan SA Company (SITREDAPSA) and the Workers’ Trade Union Confederation of El Salvador (CSTC) dated 1 June 2011.
2. 636. The Government sent its observations in a communication dated 22 October 2012.
3. 637. 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. 638. In their communications dated 1 June and 27 July 2011, SITREDAPSA and the CSTC state that SITREDAPSA was established on 8 January 2011 when it was found that the company had financial problems with other companies, that the workers’ social security benefits were not being paid, that wages were declining and that in some cases they were not even being paid. During the period in question the company’s Chairman of the Board and legal representative died. The complainants state that, on 15 February 2011, the Ministry of Labour and Social Welfare granted SITREDAPSA juridical personality but that on 16 February the union’s founder members and the members of its executive board were dismissed, along with all the other workers (over 500).
2. 639. According to the complainants, the company’s representatives refused to allow the labour inspectors onto the premises and failed to appear at a conciliation hearing convened by the General Labour Directorate of the Ministry of Labour. The company was accordingly fined by the labour inspectorate.
3. 640. The complainants state that they have initiated judicial proceedings through the labour courts to obtain payment of the compensation and unpaid wages to which they are legally entitled, but they have been caught up in proceedings that have lasted up to 18 months and then been declared null and void or shelved because of the impossibility for the workers to prove the official status of the company’s legal representative (owner/Chairman of the Board or sole owner/administrator). The complainants have, however, established the company’s legal existence. They state that they have brought the matter to the attention of the Public Prosecutor responsible for criminal offences, the Ombudsman for Human Rights and the Legislative Assembly.

B. The Government’s reply

1. 641. In its communication dated 7 October 2012, the Government declares that, after the enterprise failed to appear at the conciliation hearing, the Minister of Labour fined it, on 3 June 2011, the amount of US$1,142.85. The Ministry therefore used all the measures that it had in order to find a solution. The proceedings brought by certain workers of the enterprise are pending. The Committee will be informed of the decisions.

C. The Committee’s conclusions

1. 642. The Committee observes that the present case refers to the dismissal in February 2011 of all the employees of Digapan SA (over 500), including the founder members of the union and the members of its executive board. The Committee also observes that, according to the allegations, the dismissals occurred after the Chairman of the Board and legal representative of the company had died and at a time when it was in financial difficulties. The Committee observes that, according to the allegations and despite the fact that the union had appealed to various authorities, including the judicial authorities, in particular criminal, they had not managed to obtain payment of the workers’ unpaid wages or of the compensation and benefits to which they were legally entitled. According to the allegations, after proceedings some of which lasted up to 18 months, the labour courts had shelved the entire complaint lodged by the company’s workforce since, although the dismissals proved that the company existed, they did not prove the official status of the legal representative.
2. 643. The Committee takes note of the difficult situation in which all the dismissed workers, including the founders of the union and the members of its executive board, find themselves. The Committee wishes to point out, however, that, given that the entire company workforce had been dismissed (whether union members or not), in the circumstances as described the case is not strictly speaking an issue of anti-union discrimination, that the dismissals are therefore outside the Committee’s specific mandate, which is confined to violations of trade union rights, and that the Committee can only examine allegations regarding dismissals when they entail anti-union discrimination.
3. 644. The Committee takes note of the Government’s declaration that it has fined the enterprise the amount of US$1,142.85 for failure to appear at the conciliation hearing and that it will inform the Committee of the decisions in the proceedings brought by certain workers.
4. 645. That said, the Committee observes that the documents sent by the complainants suggest that the founder members and officials of the union are entitled to special protection from dismissal by the existing legislation, including special forms of compensation. Therefore, considering that the founder members and officials of the union have not been able to prove the official status of the company’s legal representatives before the labour courts and have not been able to obtain payment of the compensation and benefits to which they are legally entitled, the Committee, while waiting for the decisions mentioned by the Government, expects the labour court to ensure that they receive their unpaid wages and other legal compensation and benefits, taking into account the legal provisions on the priority afforded to workers’ rights.

The Committee’s recommendation

1. 646. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
   • The Committee, while waiting for the decisions mentioned by the Government, expects the labour court to ensure that the founder members and officials of the union receive their unpaid wages and other legal compensation and benefits, taking into account the legal provisions on the priority afforded to workers’ rights.