Effect given to the recommendations of the committee and the Governing Body - Report No 367, March 2013

Case No 2764 (El Salvador) - Complaint date: 20-FEB-10 - Closed

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

1. 48. The Committee last examined this case, concerning the refusal to register the executive committee of the Union of Construction Workers (SUTC), at its June 2011 meeting. The Committee took note of the following information provided by both the complainants and the Government: in a ruling handed down on 14 December 2010, the Administrative Proceedings Chamber of the Supreme Court of Justice of El Salvador declared the decision of the Ministry of Labour and Social Security to refuse to register the executive committee of the SUTC for the period 2010–11 to be unlawful; in accordance with this ruling, the Ministry of Labour and Social Security registered the executive committee of the SUTC and issued the appropriate credentials for its members; negotiations for a new collective contract resumed and are now at the direct contact stage.
2. 49. The Committee also noted that, in a communication dated 28 April 2011, the National Confederation of Salvadoran Workers (CNTS) had provided additional information on the case. The Committee subsequently requested the Government to send its reply thereto without delay, which was received in a communication dated 21 October 2011.
3. 50. In its communication of 28 April 2011, the CNTS alleges that the Ministry of Labour and Social Security again violated the principles of freedom of association by refusing, for the second time, to register the executive committee of the SUTC, this time for the period 2011–12. The CNTS states that, in accordance with the statutes of the trade union, the serving executive committee published, on 23 December 2010, the announcement for the ordinary general assembly of the SUTC, where the executive committee of the trade union would be elected for the period 26 January 2011 to 25 January 2012. On 18 January 2011, a member of the executive committee serving until 25 January, in possession of the documents required by the relevant labour legislation, went to the Ministry of Labour and Social Security to request the registration of the new executive committee, which had just been elected by the general assembly. On 26 January, the Ministry of Labour and Social Security declared the request to register the new executive committee inadmissible on the grounds that the executive committee of the SUTC had already been registered on 17 January 2011. The Ministry of Labour and Social Security indicated that, in accordance with the ruling handed down by the Supreme Court of Justice on 14 December 2010 regarding the registration of the previous executive committee of the SUTC, it had to limit itself to verifying the requirements for the registration of executive committees expressly set out in the Labour Act, and that the documents submitted on 17 January indeed met those requirements.
4. 51. The complainant alleges that the documentation submitted to the Ministry of Labour and Social Security on 17 January is fraudulent, particularly since it was submitted by persons who were not members of the executive committee at that time. In addition to failing to meet all the requirements set out in the Labour Act, the request for registration also violated the requirements set out in the statutes of the SUTC, which were not taken into consideration by the Ministry of Labour and Social Security. Furthermore, two members of the phony executive committee were no longer part of the trade union following their expulsion from the organization during the real general assembly organized by the legitimate executive committee of the SUTC.
5. 52. The complainant considers itself to be the victim of a systematic attack of a political nature that enjoys institutional support. The complainant states that two members of the legitimate executive committee elected were expelled from the trade union by the phony executive committee.
6. 53. In its communication of 21 October 2011, the Government indicates that, on 17 January 2011, the Ministry of Labour and Social Security received the first request for registration of the executive committee of the SUTC from Mr Víctor Manuel Ramírez, the general secretary elect. The documentation attached to this request contained the announcement for the ordinary general assembly, which was held on 15 January 2011 and attended by 420 members. An up-to-date list of the members of the trade union was also provided on that occasion. When processing the registration of the executive committee, the Ministry of Labour and Social Security strictly adhered to the guidelines set by the Administrative Proceedings Chamber of the Supreme Court of Justice in its ruling of 14 December 2010. In its ruling, the Supreme Court of Justice indicates that the registration of the executive committee of each trade union is a declaratory act, that the public authorities should abstain from intervening in any way that could curtail the rights and guarantees that the Constitution and law confer upon trade unions, and that, therefore, the administration should limit its activities to verifying the requirements set out in the Labour Act regarding the registration of executive committees, as well as those listed by the Supreme Court of Justice in its ruling.
7. 54. On observing that the documentation submitted met the relevant requirements, the Ministry of Labour and Social Security proceeded to register the executive committee of the SUTC on 17 January. On 18 January, the Ministry of Labour and Social Security received a second request to register the executive committee of the same trade union from Mr Mario Letona Hernández, accompanied by documentation accrediting an ordinary general assembly held on 15 January, which was attended by 352 members. The second request was declared inadmissible given that an executive committee had already been registered. The Government states that a judicial remedy was lodged with the Supreme Court of Justice against the decision of the Ministry of Labour and Social Security.
8. 55. The Committee observes that, after the Ministry of Labour and Social Security had registered the executive committee of the SUTC for the period 2010–11 in accordance with the ruling of the Supreme Court of Justice, it again refused to register the executive committee of the SUTC, this time for the period 2011–12, because another executive committee had already been registered. The Committee notes the complainant’s allegation that this was a fraudulent registration that violated the provisions of the Labour Act and the trade union’s statutes, while the Government states that the Ministry of Labour and Social Security, strictly adhering to the guidelines set in the ruling of the Supreme Court of Justice, verified that the request for registration indeed met all the relevant legal requirements.
9. 56. The Committee also notes that the new allegations point to the existence of an internal dispute within the SUTC, characterized by the fact that two general assemblies were organized in parallel and by the existence of two elected executive committees. The Committee recalls that it is not competent to make recommendations on internal dissentions within a trade union organization, so long as the Government does not intervene in a manner which might affect the exercise of trade union rights and the normal functioning of an organization [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 1114]. In the case of internal dissention within one and the same trade union federation, by virtue of Article 3 of Convention No. 87, the only obligation of the Government is to refrain from any interference which would restrict the right of the workers’ and employers’ organizations to draw up their constitutions and rules, to elect their representatives in full freedom, to organize their administration and activities and to formulate their programmes, and to refrain from any interference which would impede the lawful exercise of that right. In cases of internal dissentions within a trade union organization, the Committee has pointed out that judicial intervention would permit a clarification of the situation from the legal point of view for the purpose of settling the question of the leadership and representation of the organization concerned [see Digest, op. cit., para. 1116].
10. 57. In the light of the principles mentioned above, the Committee hopes that the Government will soon be able to inform it of the ruling handed down by the Supreme Court of Justice on the judicial remedy lodged against the decision of the Ministry of Labour and Social Security of 17 January 2012 to register the executive committee of the SUTC for the period 2011–12.