Report in which the committee requests to be kept informed of development - Report No 371, March 2014

Case No 2908 (El Salvador) - Complaint date: 15-AUG-11 - Closed

Allegations: The complainant organizations allege the sudden closure of a company in the maquila sector to prevent a collective agreement from being signed and the circulation of a “black list” making it impossible for other enterprises in the maquila sector to hire the workers

1. 270. The complaint is contained in a communication dated 15 August 2011 from the Union of Workers of the Garments Company Gama (STECG) and supported by the Federation of Unions of Workers in El Salvador (FESTES) in a communication of 30 September 2011.
2. 271. The Government sent its observations in communications dated 21 August 2012 and 20 September 2013.
3. 272. El Salvador has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and the Workers’ Representatives Convention, 1971 (No. 135).

A. The complainants’ allegations

1. 273. The complainants allege that the attempt by STECG to negotiate an initial collective agreement with the Garments Company Gama, SA of CV (hereinafter Gama) gave rise to the sudden closure of the textile company and the subsequent dismissal of its 270 workers.
2. 274. Established on 31 October 2009, STECG presented a list of demands on 5 April 2011 to the Director-General of Labour of the Ministry of Labour and Social Welfare to begin negotiating an initial collective company agreement governing employer–employee labour relations. On 26 April, Gama made clear to the Ministry of Labour its refusal to enter into negotiations with STECG, claiming that the trade union did not have the number of members required by the Labour Code for collective bargaining. The Ministry of Labour then requested STECG to submit its list of members’ names, which was submitted to the company by the Ministry without consultation.
3. 275. Once STECG’s overall responsibility for negotiating a collective agreement was confirmed, the Ministry, setting aside the direct treatment phase which, according to national legislation, should constitute the first phase of collective bargaining, and summoned the parties directly for the following stage of conciliation of the collective dispute. From 6 to 17 June 2011, four conciliation meetings were held in which STECG and the enterprise managed to approve 17 clauses of the collective agreement being prepared.
4. 276. On 18 June 2011, the company’s workers noted that the company was beginning to withdraw from the factory part of the machinery and also raw materials. On 20 June, the company informed the Ministry of Labour that it had taken the decision to close its operations owing to lack of profitability and that it had available funds to pay only 70 per cent of what the workers were owed. The organizations state that these declarations contrast with the information available in the Commercial Register of El Salvador, where on 23 February 2010 the company’s accountant had presented documents providing evidence of significant growth in the company’s profits for 2008. That same day, while the representatives of STECG and the company continued negotiating the draft collective agreement, the Director-General of Labour and the Director-General of Inspection of the Ministry of Labour appeared in order to state that there was no longer any point in negotiating that agreement in view of the company’s closure.
5. 277. On 18 July 2011, faced with the company’s threats not to pay what all the workers were owed, STECG necessarily made a submission in which it renounced the process of negotiating the collective agreement if said payments were made.
6. 278. The complainant organizations allege that since that time Gama employees continue to be unable to find new jobs, since the other companies in the sector are making it perfectly clear to them that their previous employment makes it impossible to hire them. They consider that the handing over of the list of STECG members’ names to the enterprise is related to this situation.
7. 279. The complainant organizations consider that the sudden and unjustified closure of the company in the midst of the negotiation of what would have been the first collective agreement in the maquila sector in El Salvador is a direct violation of Articles 1 and 4 of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), since the company’s 270 workers were dismissed for having exercised their right to collective bargaining, which they are still denied.
8. 280. They also claim that the practice of the Ministry of Labour, based on Salvadorian legislation, of requesting the personal information of each of the company’s union members and providing said information to the company to endeavour to meet the legal requirements as regards overall responsibility for collective bargaining constitutes interference by the public authorities, which contravenes Article 3(2) of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). That practice discourages the exercise of freedom of association and makes it possible for black lists to be circulated, which would explain why it is impossible for Gama workers to be hired by other companies.
9. 281. On the basis of the above allegations, the complainants request the reinstatement of all the workers from the company Gama, which would continue operating, compensation for the damage suffered and relaunching of the collective bargaining process.

B. The Government’s reply

1. 282. In its response of 21 August 2012, the Government of El Salvador indicates that the Ministry of Labour received a list of demands from STECG on 4 April 2011, which was forwarded to the company Gama. On 26 April, the company expressed in writing its refusal to undertake negotiations with STECG, since it considered that the majority of workers were not members of the union in question, one of the three present in the company, contrary to the requirements of article 271 of the Labour Code. The following day, the company made a new submission in writing in which it requested that the list of workers who were members of STECG be collated with the company’s current name. Having noted that STECG actually satisfied the legal requirements for negotiation, the company showed complete willingness to undertake negotiations on a collective labour agreement.
2. 283. As regards the interruption of the collective bargaining process, the Government states that the process was initially suspended owing to the fact that the employers had alleged that the company had been closed and that the process was finally shelved as a result of STECG’s withdrawal, submitted in writing on 18 July 2011, as a result of the agreement reached with the company, through which the trade union agreed to give up the negotiating process under way, in exchange for the workers being paid everything they were owed. On 13 September 2011, STECG lodged an appeal for review of the decision to shelve the collective bargaining process. That appeal was declared non-receivable by the Ministry of Labour.
3. 284. The Government states also that when the company closed down in the middle of the negotiations on the collective agreement, the Ministry of Labour informed the trade union of the possibility of requesting its participation as a conciliator or also bringing legal action, and that, at the negotiating table set up to try to achieve a solution to the conflict that had arisen as a result of the company’s closure, the Ministry reminded the employers of their legal obligation to pay to all workers everything owed to them.
4. 285. As regards the alleged anti-union practices and the reinstatement of the Gama workers, the Government states that STECG requested, in a submission of 13 February 2012, verification of the dismissal of the union officials. In a visit that took place on 14 February, the labour inspectorate noted that the company’s textile maquila unit was not operating, while unbleached fabric manufacturing activity was ongoing, employing 22 people. The inspectors also noted that the STECG union officials had signed their contract termination form and received payment of what was owed to them, for which reason they concluded that no infringement had taken place.
5. 286. In its communication of 20 September 2013, the Government confirms that the visit by the labour inspectorate which took place on 14 February 2012 consisted in noting the cessation of the textile maquila activity and the maintenance of reduced unbleached fabric activity with different machinery. The Government indicates that the dismissal of all the workers following the closure, irrespective of whether they were members of a trade union, was something which made the inspector’s work more difficult at the time of reporting as to whether anti-union discrimination had occurred.

C. The Committee’s conclusions

1. 287. The Committee notes that this case refers on the one hand to allegations relating to the sudden closure of a company in the maquila sector in the midst of collective bargaining in order to prevent a collective Convention being signed, leading to the anti-union dismissal of 270 workers and, on the other hand, to allegations concerning the circulation of a black list that would make it impossible for other companies in the sector to hire workers from the company concerned.
2. 288. The Committee notes the observations by the Government, in which it states that: in order to ensure that the STECG union had overall responsibility for collective bargaining, the Gama company requested that the list of STECG members be collated with the names of its active workers; the sudden closure of the company occurred in the middle of the collective agreement bargaining process and the trade union finally withdrew from the negotiating process, in exchange for the company paying everything owed to the workers; the labour inspectorate noted the maintenance of reduced activity in the workplace but did not note the anti-union dismissal of the union officials, since those officials had signed their contract termination forms and received payment of what was owed to them; the STECG lodged an appeal for review of the decision taken by the Directorate General of Labour to shelve the collective bargaining process, but the appeal was declared irreceivable by the Ministry of Labour.
3. 289. As to the allegations that the list of STECG members’ names was passed on to the company by the Ministry of Labour, the Committee notes that the Government states that the company requested the list of STECG members to be collated with the names of its active workers. In this regard, the Committee wishes to recall that the protection of data regarding union membership is a fundamental aspect of human rights and, in particular, the right to privacy [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, para. 350] and that the determination to ascertain or verify the representative character of trade unions can best be ensured when strong guarantees of secrecy and impartiality are offered [see Digest, op. cit., para. 351]. In this connection, with a view to avoiding possible acts of anti-union discrimination, the Committee requests the Government to take the necessary measures, including introducing legislation, to ensure that the lists of union members’ names are not communicated to the employer and that it be kept informed in this regard.
4. 290. The Committee notes that the Government has not sent its observations regarding the allegations that, owing to the list of union members’ names being passed on, the companies’ employees appear to be the victims of anti-union discrimination by the other companies in the maquila sector, thereby making it impossible to hire those workers anywhere else. The Committee notes that these allegations are made in a context in which the union of the company in question was, it would appear, negotiating a collective agreement with the enterprise. Recalling that workers in export processing zones, like other workers, without distinction whatsoever, should enjoy the trade union rights provided for by the freedom of association Conventions [see Digest, op. cit., para. 264], that the practice involving the blacklisting of trade union officials or members constitutes a serious threat to the free exercise of trade union rights and, in general, that governments should take stringent measures to combat such practices [see Digest, op. cit., para. 803], the Committee requests the Government to investigate without delay the allegations referred to and to keep it informed of the outcome of the investigation.
5. 291. The Committee notes that both the allegations by the complainant and the Government observations coincide in that the company was closed down suddenly on 18 June 2011 in the midst of the meetings to negotiate the collective agreement, held from 6 to 20 June 2011. In the light of the records of the four collective agreement bargaining meetings produced by the Ministry of Labour, the Committee notes that the meetings held on 6, 10, 13 and 17 June gave rise to substantive negotiations on the content of a collective labour agreement, and the approval of 17 clauses designed to govern labour relations and conditions within the company. It notes also that those negotiations do not mention the forthcoming closure of the company or its possible economic difficulties. Finally, based on the information provided by the Government, the Committee notes that the inspection visit following the dismissal of the company’s 270 workers simply noted the cessation of the textile maquila activity in the workplace and its replacement with reduced unbleached fabric production activity but that, by contrast, no thorough investigation had taken place to determine the possible anti-union motives of the cessation of activities.
6. 292. In the light of the above information, the Committee recalls the importance which it attaches to the obligation to negotiate in good faith for the maintenance of the harmonious development of labour relations [see Digest, op. cit. para. 934] and that although the genuine closure of companies is not contrary to the principle that both employers and trade unions should negotiate in good faith, and make efforts to reach an agreement, the closure and lay-off of employees specifically in response to the exercise of trade union rights is tantamount to the denial of such rights [see Case No. 2745, Report No. 360, June 2011, para. 1056].
7. 293. The Committee urges the Government to carry out without delay an investigation into the possible anti-union nature of the cessation of activities and to keep it informed of the outcome of the investigation. Should the alleged anti-union nature of the cessation be proved, and in noting that the company maintained reduced activity, the Committee requests the Government to seek, in proportion with the current scope of activity of the enterprise, the reinstatement of individual workers dismissed, and to ensure that the workers who cannot be reinstated be paid suitable compensation, which would represent a sufficiently dissuasive sanction, taking into account any indemnities already received in the framework of the agreement between the trade union and the enterprise in July 2011.

The Committee’s recommendations

1. 294. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government to take the necessary measures, including introducing legislation, to ensure that the lists of union members’ names are not communicated to the employer and that it be kept informed in this regard.
   • (b) The Committee requests the Government to investigate without delay the allegations of anti-union discrimination that appear to prevent the hiring of Gama workers in the maquila sector and to keep it informed of the outcome of the investigation.
   • (c) The Committee urges the Government to carry out without delay a thorough investigation into the possible anti-union nature of the cessation of activities within the company in question and to keep it informed of the outcome of the investigation. Should the alleged anti-union nature of the cessation be proved, and in noting that the company maintained reduced activity, the Committee requests the Government to seek, in proportion with the current scope of activity of the enterprise, the reinstatement of individual workers dismissed and to ensure that the workers who cannot be reinstated be paid suitable compensation, which would represent a sufficiently dissuasive sanction, taking into account any indemnities already received in the framework of the agreement concluded between the trade union and the enterprise in July 2011.