Interim Report - Report No 372, June 2014

Case No 3007 (El Salvador) - Complaint date: 15-JAN-13 - Closed

Allegations: Obstacles to trade union activities, refusal of facilities for union representatives and obstacles to engagement by SIMETRISSS in collective bargaining

1. 208. The complaints are contained in a communication from the Trade Union of Workers of the Salvadorian Social Security Institute (STISSS), dated 15 January 2013, and in a communication of the Union of Doctors of the Salvadorian Social Security Institute (SIMETRISSS), dated 14 June 2013.
2. 209. In view of the lack of response from the Government, at its March 2014 meeting [see 371st Report, para. 6] the Committee made an urgent appeal to the Government and drew its attention to the fact that, in accordance with the procedural rules set out in paragraph 17 of its 127th Report, approved by the Governing Body at its 184th Session, it would present a report on the substance of the case at its next meeting, even if it had not received the information or observations from the Government in due time. To date, it has not received any information from the Government.
3. 210. 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), the Workers’ Representatives Convention, 1971 (No. 135), and the Labour Relations (Public Service) Convention, 1978 (No. 151).

A. The complainants’ allegations

Allegations presented by STISSS

1. 211. In its communication of 15 January 2013, the STISSS alleges serious acts of interference in trade union affairs by the Director-General of the Salvadorian Social Security Institute (ISSS) in 2012 and repeated public statements in the media to discredit the STISSS and its national executive board, accusing a group within the executive board of bankrupting the trade union with a deficit of more than US$100,000. According to the allegations, the Director-General acknowledged a minority group within the executive board; declared that the proposed nominations of union representatives did not comply with its statutes; suspended bilateral meetings claiming internal divisions and lack of leadership; did not recognize trade union leave; provided financial backing for five union officials with whom the ISSS Director-General continued to meet “and reach agreements”; and, although the extraordinary general assembly of 17 November–15 December 2012 elected the executive board, which was re-elected on 16 December at the ordinary general assembly, he illegally withheld the union dues (which had still not been received at the date of the complaint).
2. 212. The STISSS, moreover, reports that a series of criminal or labour proceedings to impose penalties were filed against various union officials, allegedly violating due process. In the end, the courts ruled in favour of the officials, except in the case of Ms Andrea Concepción Bonilla de Alarcón, whose dismissal by the ISSS was authorized by the judicial authority, even though the proceedings had twice been declared null and void.

Allegations presented by SIMETRISSS

1. 213. In its communication dated 14 June 2013, SIMETRISSS indicates that its members include 1,000 doctors of the ISSS, which employs 14,000 workers distributed across 82 workplaces, including a total of 2,300 doctors. The holder of the rights to the collective agreement – which applies to all workers – is not SIMETRISSS (which is the only trade union for doctors) but another trade union (STISSS). In this regard, the legislation states that only a trade union representing 51 per cent of the workers of the company or public institution is authorized to negotiate a collective agreement, which will thereafter apply to all the workers of that institution.
2. 214. SIMETRISSS indicates that it is not seeking to enter into a collective agreement with the ISSS, but that it wishes to reach an economic agreement to adjust the medical staff’s wages, which have been frozen for the last 12 years. The ISSS administration refuses to do this on the grounds that it can only bargain with the trade union holding the bargaining rights. In this regard, the complainant indicates that, in 1998, as a result of a strike held by the trade union, an agreement was signed amending the wage scale in force in the ISSS, increasing doctors’ wages through the payment of three instalments, but that the successive ISSS administrations have, unfortunately, failed to comply with the agreement, refusing to enter into negotiations on the subject, especially when, in 2012, the complainant requested the launch of collective bargaining. As a result, the purchasing power of doctors’ wages has fallen by 50 per cent.
3. 215. Furthermore, the complainant reports the systematic and unjustified refusal of the facilities to carry out its trade union duties. In particular, the complainant refers to the following obstacles to its trade union activities:
   • – refusal of paid trade union leave to enable its representatives to carry out trade union activities, despite having requested leave on various occasions, providing assurances that the leave will not impinge upon the quality of health services and, to that end, proposing that the administration only grant leave to five members of the executive board, at specific times in their working day. The employer (ISSS) argues, however, that the Labour Code only provides for paid union leave in respect of the bargaining rights holder;
   • – the members of the executive board are prevented from accessing the institution’s different workplaces, thereby violating their right to represent the members of the trade union (under the institutional regulations, workers can only enter the establishments in which they work);
   • – obstacles to posting trade union announcements in workplaces, thereby interfering with the announcement of assemblies and other meetings organized by the union;
   • – undue delays in communications with the ISSS administration, and the institutional representatives with decision-making powers, with a view to resolving collective disputes affecting the interests of doctors; this has occurred on a number of occasions leading to the suspension of meetings of the high-level round table set up with the ISSS to address socio-economic grievances, and to resolve labour disputes;
   • – refusal to give union officials the information they need to carry out their duties, such as job descriptions, financial statements, institutional agreements, etc.;
   • – the ISSS illegally withholds the union dues of members of the complainant union.
4. 216. Lastly, the complainant alleges restrictions to trade union activities through anti-union instructions that the ISSS Deputy Director for Health circulated among the directors and the management of the local medical centres, in a memorandum dated 11 April 2013 entitled “administrative instructions”, containing a series of mandatory instructions aiming to prevent trade union activities. The contents of those instructions have the following effects:
   • – they do not allow time for the trade unions to present situations or problems related to trade union activities in the administrative meetings held in the medical centres and attended by the doctors working in those centres;
   • – they require the directors and management to report cases of dereliction of duty by staff under their authority, thereby seeking to prevent both the members of the executive board and the local trade union representatives from meeting workers to give them information on trade union objectives and provide the respective guidance on the trade union’s operations, which does not, of course, prejudice the effective operation of health services given the brevity of those meetings. Furthermore, they require the Head of the Security Department to be informed of incidents affecting the proper operation of the workplace, thereby seeking to suppress the defence of just and legitimate grievances by the trade union through peaceful means of pressure not affecting patients;
   • – they prevent contact between union representatives and the media by designating the communications officer as the only person authorized to deal with consultations and requests for interviews from the press. This restricts the freedom of expression and, worse still, violates citizens’ right to receive accurate information regarding the situation of the ISSS health services.
5. 217. The complainant indicates that, in line with this approach, the ISSS management has sought to threaten the medical staff with disciplinary sanctions for supporting public complaints and means of pressure of the trade union, as was the case on 11 April 2013, when the director of the specialized treatment hospital circulated instructions to the management of that centre to threaten doctors participating in activities organized by the trade union with sanctions.
6. 218. SIMETRISSS requests that Conventions Nos 87, 98 and 135 and Recommendation No. 143 be respected.

B. The Committee’s conclusions

1. 219. The Committee regrets that, despite the time that has elapsed since the presentation of the complaints, the Government has not sent the requested information, even though the Committee requested it to do so through an urgent appeal at its March 2014 meeting. The Committee urges the Government to be more cooperative in the future.
2. 220. Hence, in accordance with the applicable procedural rules [see 127th Report, para. 17, approved by the Governing Body], the Committee is obliged to present a report on the substance of the case without being able to take account of the information which it had hoped to receive from the Government.
3. 221. The Committee recalls that the purpose of the whole procedure established by the International Labour Organization for the examination of the allegations of violations of freedom of association is to ensure respect for trade union rights in law and in practice. The Committee is confident that, while this procedure protects governments against unreasonable accusations, they must recognize the importance of formulating, for objective examination, detailed replies concerning allegations brought against them.

Allegations concerning SIMETRISSS

1. 222. The Committee notes that in the present case the complainant alleges that: (1) the ISSS administration refuses to bargain with the complainant union on an agreement to adjust doctors’ wages, which have been frozen for over 12 years, on the grounds that, in accordance with the Labour Code, it can only bargain with the trade union holding the bargaining rights within the ISSS, and it persists in ignoring an agreement that it signed in 1998 with the complainant union, which would increase doctors’ wages through the payment of three instalments; and (2) it refuses to provide trade union facilities and, in particular, to provide the union officials with the information that they need to carry out their duties, to provide paid union leave for the members of the executive board of the complainant union, as well as preventing union announcements from being posted in workplaces; the ISSS illegally withholds the union dues of the members of the complainant union and prevents communication with trade union representatives, suspending on a number of occasions the meetings of the high-level round table to address labour grievances and resolve disputes.
2. 223. The Committee observes that part of the problems raised in this case concern the refusal of the right to bargain collectively and trade union facilities for a minority trade union of doctors, while the ISSS majority trade union has signed a collective agreement which applies to everyone given that the trade union represents at least 51 per cent of the workers.
3. 224. In this regard, the Committee wishes to highlight the following principles [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, paras 346 and 359]:
   • – The Committee has pointed out on several occasions, and particularly during discussion on the draft of the Right to Organize and Collective Bargaining Convention, that the International Labour Conference referred to the question of the representative character of trade unions, and, to a certain extent, it agreed to the distinction that is sometimes made between the various unions concerned according to how representative they are. Article 3, paragraph 5, of the Constitution of the ILO includes the concept of “most representative” organizations. Accordingly, the Committee felt that the mere fact that the law of a country draws a distinction between the most representative trade union organizations and other trade union organizations is not in itself a matter for criticism. Such a distinction, however, should not result in the most representative organizations being granted privileges extending beyond that of priority in representation, on the ground of their having the largest membership, for such purposes as collective bargaining or consultation by governments, or for the purpose of nominating delegates to international bodies. In other words, this distinction should not have the effect of depriving trade union organizations that are not recognized as being among the most representative of the essential means for defending the occupational interests of their members, for organizing their administration and activities and formulating their programmes, as provided for in Convention No. 87.
   • – Minority trade unions that have been denied the right to negotiate collectively should be permitted to perform their activities and at least to speak on behalf of their members and represent them in the case of an individual claim.
4. 225. The Committee notes that the allegations in this case indicate that the complainant doctors’ union does not consider itself sufficiently represented, at least in terms of wages, by the majority trade union and that it reports that wages have been frozen for over 12 years, that the purchasing power of doctors’ wages has fallen by 50 per cent since 1998 and that, under an agreement signed in 1998 (which, according to the allegations, the ISSS refuses to honour), the wage scale for doctors should have been adjusted at that time.
5. 226. In the absence of a reply from the Government, the Committee stresses the importance for the authorities, together with the complainant union, to address the issues and problems raised in the complaint and, in this regard, requests the Government to take measures to promote dialogue between the ISSS and the complainant in order to find shared solutions to the doctors’ wage problems and to the problems related to trade union facilities, taking into account the principles and considerations outlined above and the principles of Convention No. 135 (which El Salvador has ratified) and Recommendation No. 143 concerning workers’ representatives. The Committee requests the Government to keep it informed in this regard.
6. 227. The Committee takes note of the allegations of the complainant union regarding: (1) the instructions that the ISSS Deputy Director for Health circulated among the directors and the management of the local medical centres, in a memorandum in 2013, which, according to the allegations, seriously restricts trade union rights (according to the allegations, they aim to prevent contact between the trade union representatives and the media; do not allow time in administrative meetings for the trade union representatives to present problems related to trade union activities; and create the obligation to inform superiors of meetings between trade union officials and members, and of industrial action by the union); and (2) the instructions given by a hospital director, on 11 April 2013, to threaten doctors participating in activities organized by the trade union with sanctions. The Committee urges the Government to send its observations on these allegations without delay.

Allegations concerning the STISSS

1. 228. The Committee takes note of the allegations presented by the STISSS concerning acts of favouritism by the authorities in the context of a dispute between factions within the executive board. The Committee underlines that respect for the principles of freedom of association requires that the public authorities exercise great restraint in relation to intervention in the internal affairs of trade unions. It is even more important that employers exercise restraint in this regard. They should not, for example, do anything which might seem to favour one group within a union at the expense of another [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 859]. The Committee urges the Government to send its observations on these allegations, without delay, to provide it with sufficient information for the complaint to be examined.
2. 229. The Committee expects that the Government will respond to all the pending issues, submitting also information from the ISSS.

The Committee’s recommendations

1. 230. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee regrets the lack of response from the Government, even though it made an urgent appeal at its March 2014 meeting, and requests the Government to be more cooperative in the future, responding to all the pending issues in this case and including information from the ISSS.

   Allegations concerning SIMETRISSS

   • (b) The Committee stresses the importance for the authorities, together with the complainant union, to address the issues and problems raised in the complaint and, in this regard, requests the Government to take measures to promote dialogue between the ISSS and the complainant in order to find shared solutions to the doctors’ wage problems and to the problems related to trade union facilities, taking into account the principles and considerations outlined above and the principles of Convention No. 135 (which El Salvador has ratified) and Recommendation No. 143 concerning workers’ representatives. The Committee requests the Government to keep it informed in this regard.
   • (c) While it takes note of the allegations presented by the complainant union regarding: (1) the instructions that the ISSS Deputy Director for Health circulated among the directors and managers of local medical centres, in a memorandum in 2013, which, according to the allegations, seriously restricts trade union rights (preventing contact between the trade union representatives and the media; not allowing time in administrative meetings for the trade union representatives to present problems related to trade union activities; and creating the obligation to inform superiors of meetings between trade union officials and members, and of trade union activities); and (2) the instructions given by a hospital director, on 11 April 2013, to threaten doctors participating in activities organized by the trade union with sanctions. The Committee urges the Government to send its observations on these allegations without delay.

   Allegations concerning STISSS

   • (d) While it observes that the complaint presented by STISSS concerns allegations of acts of favouritism by the ISSS authorities in the context of a dispute between factions within the executive board, the Committee urges the Government to send its observations on these allegations without delay, so as to enable it to examine the complaint in full knowledge of the facts.