Report in which the committee requests to be kept informed of development - Report No 375, June 2015

Case No 2896 (El Salvador) - Complaint date: 29-JUL-11 - Follow-up

Allegations: The complainant organizations allege numerous acts of anti-union discrimination by companies in the telecommunications sector, including manoeuvres to have a branch trade union dissolved, anti-union dismissals and the establishment of a company union controlled by the employer. The complainants also claim that several provisions of El Salvador’s legislation on freedom of association need to be amended

1. 235. The Committee examined this case at its March 2013 and June 2014 meetings. At the last of these, it presented an interim report [see 372nd Report, paras 174 to 183, approved by the Governing Body at its 321st Session (June 2014)].
2. 236. Subsequently, the Government sent its observations in a communication dated 12 November 2014.
3. 237. 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. Previous examination of the case

1. 238. In its previous examination of the case in June 2014, the Committee made the following recommendations on the matters still pending [see 372nd Report, para. 183]:
   • …
   • (b) The Committee again requests the Government to keep it informed of the implementation of the Committee’s recommendations with regard to Case No. 1987, notably that the legislation be amended to remove the excessive formalities that apply to the establishment of trade union organizations and that trade union leaders, Luis Wilfredo Berrios and Gloria Mercedes González, be reinstated in their posts.
   • (c) The Committee once again requests the Government to take the necessary steps to ensure that SITCOM’s continued existence is not jeopardized for motives that run counter to the principles of freedom of association and to bring the principles concerning dual trade union membership to the attention of the Constitutional Chamber of the Supreme Court. The Committee expects that those principles will be taken into account by the Court and requests the Government to keep it informed of the corresponding ruling handed down. The Committee moreover urges the Government to take the necessary steps to amend section 204 of the Labour Code prohibiting dual union membership.
   • (d) Regarding the suspension by the CTE of the deduction of union dues for workers affiliated to SITCOM, the Committee once again requests the Government to keep it informed of the outcome of the sanctions procedure that has been initiated and expects the sanctions imposed to be sufficiently dissuasive so that there is no recurrence of this kind of anti-union action in future in the company concerned.
   • (e) Regarding the dismissal of trade union officials, Tania Gadalmez and César Leonel Flores, the Committee once again requests the Government to keep it informed of developments in the sanctions procedure that has been initiated and expects the sanctions imposed to be sufficiently dissuasive so that there is no recurrence of this kind of anti-union action in future in the company concerned.
   • (f) The Committee once again requests the Government to send it information without delay on the alleged discriminatory dismissal of five trade union officials at Construcciones y Servicios Integrales de Telecomunicaciones SA de CV, a subcontractor, and on the alleged anti-union dismissals at the Atento company.
   • (g) The Committee again requests the Government to send it detailed information without delay on the request for a special inspection into the alleged domination of SINTRABATES by the employer, on the outcome of the corresponding court action brought by SITCOM and on the measures taken to amend the legislation as it relates to acts of interference to the detriment of trade unions.
   • (h) The Committee once again requests the Government to provide it with information on the measures taken, including legislative measures, to provide union officials with effective protection in the event of anti-union discrimination.
   • (i) The Committee once again invites the Government to consider, in consultation with the social partners, the review of section 622 of the Labour Code which provides that no appeal may be lodged against decisions handed down by a court of second instance.

B. The Government’s reply

1. 239. In its communication dated 12 November 2014, the Government indicates that, in relation to recommendation (b) in the previous examination of the case (the need to remove from legislation the excessive formalities for the establishment of trade union organizations), from 2009 to 2014 the number of registered trade unions has increased significantly from 243 active trade unions in the private sector in 2009, to 365 in September of the current year; in 2009 there were ten trade unions active in the public sector, compared to 90 in September 2014. Consequently, the Government considers that the legislation in force has not hampered the registration process.
2. 240. Within its area of competence, the Ministry of Labour and Social Security is promoting a policy of dialogue and outreach with all employers’ and workers’ organizations to enable all professional associations to present their concerns regarding the way in which the Ministry of Labour and Social Security processes their requests, specifically through meetings with various trade union organizations and accountability procedures. The Ministry has carried out various administrative changes in the National Department of Social Organizations with a view to expediting proceedings and claims filed by trade union organizations, addressing them in accordance with legislation.
3. 241. The Government indicates that the establishment of a minimum number of members for the creation of a trade union (currently 35) seeks to avoid the existence of a large number of organizations within the same company or institution and that it does not consider this measure to violate freedom of association and the right to organize.
4. 242. As regards the six-month delay before being able to present a new application for trade union registration, the Government indicates that the legislation is not restrictive. Internal administrative mechanisms have been established, including spaces for bilateral exchange with the founding members of the prospective trade union to provide them with guidance on meeting all the legal requirements. Among the public information circulated, this body indicates that if an application by a workers’ organization is rejected following its failure to meet a requirement, it can present the relevant documentation on the following day under a new application for trade union registration.
5. 243. Regarding the reinstatement in their posts of the trade union officials Mr Luis Wilfredo Berrios and Ms Gloria Mercedes González, the Government reports that the Ministry of Labour and Social Security is unable to carry out the relevant transactions because the institution ceased to exist when the National Telecommunications Authority (ANTEL), where the aforementioned union officials worked, was privatized under legislative decree No. 53 of 24 July 1997. However, investigations were carried out in the archives of the General Directorate for Labour Inspection of the Ministry of Labour and Social Security which did not find any communication from the parties concerned to the labour inspection authority of San Salvador regarding these union officials. As a result, it was not possible to verify their reinstatement due to alleged unfair dismissal.
6. 244. As regards Committee recommendation (c) (measures to ensure that the Telecommunications Workers’ Union’s (SITCOM) existence is not jeopardized), the Government reports that general measures have been and will continue to be taken to ensure a guarantee of and compliance with trade union rights. The measures that are implemented include regular inspections to verify compliance with trade union rights and their effective protection, and to maintain the register of union members to guarantee its legal existence. Furthermore, note is taken of the request by the Committee and it will be informed in good time of any progress made or action taken with regard to the subject of dual trade union membership, which is before the Constitutional Chamber of the Supreme Court of Justice, and of any ruling issued in that regard.
7. 245. As regards Committee recommendation (d) (the suspension of the deduction and the transfer of union dues), the Government indicates that, on 1 July 2011, a worker requested an inspection when the employer stopped applying the deduction of union dues for workers; the inspectorate determined that the employer had violated section 252 of the Labour Code by failing to apply the deduction of the corresponding union dues in respect of 84 workers who are members of the aforementioned trade union; this was followed by another inspection which found that the reported violations had not been remedied, whereby the case entered the corresponding procedure for the imposition of sanctions.
8. 246. As regards Committee recommendation (e), the Government indicates that in the case of the dismissal of Ms Tania Verónica Gadalmez, the assistant general secretary of the SITCOM executive committee, on 4 January 2010, said union official indicated that she had been dismissed de facto (without the application of due process), and therefore unfairly, for carrying out her duties as the general secretary of the aforementioned trade union; in this regard a special inspection was carried out at the request of Ms Tania Gadalmez, in which the employer was notified that it should immediately reinstate the aforementioned worker and union official. However, the employer representatives indicated that they could not provide an answer until they had consulted their superiors. The inquiries also found that the wages accrued and unpaid over the period from 1 to 23 December 2009 had been settled with the official. Sanctions proceedings were initiated against the employer, which received a fine for the violation of section 29.2, for the other unpaid wages accrued for causes attributable to the employer, and section 248 of the Labour Code, for the de facto dismissal of the aforementioned union official.
9. 247. As regards Mr César Leonel Flores Aguilar, who is also a SITCOM union official, the employer paid him compensation and the worker signed the corresponding settlement, bringing an end to the employment relationship. It was therefore not possible to establish that there had been any kind of violation.
10. 248. As regards Committee recommendation (f), in particular with regard to the allegations of the discriminatory dismissal of five trade union officials working for the subcontractor Construcciones y Servicios Integrales de Telecomunicaciones SA de CV and at the company Atento El Salvador, the Government reports that the records kept for such cases by the General Directorate for Labour Inspection of the Ministry of Labour and Social Security, and specifically by the Special Unit for the Prevention of Discriminatory Labour Practices, contained administrative proceedings under reference No. 658-UD-11-12-E-SS, setting out the details relating to the unfair dismissal of David Alberto Martínez and José Guillermo Rodríguez, on the grounds of their membership of the SITCOM sectoral executive committee for the company Atento El Salvador, SA de CV. The allegations established that on 22 October 2012, the plant supervisor dismissed them unfairly, given their status as union officials and the absence of any procedure prior to their dismissal, violating section 47 of the Constitution, sections 248 and 226, paragraph 2 of the Labour Code, article 2 of ILO Convention No. 87 and article 1 of ILO Convention No. 98. The case is currently the subject of an appeal.
11. 249. The Government also requests the Committee to indicate the names of the three other union officials who were allegedly dismissed, given that only two of the five aforementioned union officials have been found in the records.
12. 250. As regards Committee recommendation (g) (alleged control of the Union of Workers of Atento El Salvador (SINTRABATES) by the employer), the Government reports that a special inspection was carried out as a result of the complaint submitted to the Special Unit for the Prevention of Discriminatory Labour Practices of the General Directorate for Labour Inspection of the Ministry of Labour and Social Security, on 28 March 2011. Among other things, this points to the promotion of an employer-controlled trade union with the acronym SINTRABATES; furthermore, administrative proceedings were filed under reference No. 77-UD-03-11-P-SS in view of the request submitted to the aforementioned Directorate on 9 March 2011 by SITCOM. The labour inspection report, dated 27 April 2011, found violations to section 30, prohibition 5 of the Labour Code, through discriminatory acts against workers on the grounds of their trade union membership where workers were asked to indicate, on the job application forms used by the company, whether they were members of a union; section 29 obligation 5, through the mistreatment of workers by submitting them to polygraph tests; section 24 of the Act on Equal Opportunities for People with Disabilities, by not hiring persons with disabilities when the company was required to hire 35 persons with disabilities. The proceedings entered the procedure for the imposition of sanctions owing to the failure to remedy this last violation. The Government also reports that, having reviewed its compliance with the legal requirements and the procedure established by the Labour Code, the administrative authority recognized the legal personality of SINTRABATES in a ruling of 21 January 2011.
13. 251. As regards Committee recommendation (h), the Government reports that the measures taken to provide union officials with effective protection in the event of anti-union discrimination are established in legislation, specifically under section 248 of the Labour Code which establishes the immunity to which all union officials are entitled in so far as they may not be dismissed, transferred or subject to a deterioration in their conditions of work. Accordingly, in cases in which the General Directorate for Labour Inspection of the Ministry of Labour and Social Security is notified of the dismissal of one of the members of the executive board of a professional association, it shall carry out an inspection in order to attempt to reinstate the person(s) dismissed. The Government indicates, however, that the following illegal practices have been identified to date and the Ministry of Labour and Social Security is examining ways to redress these:
    • – In cases where workers have been dismissed and the Ministry of Labour and Social Security intervenes to ensure their reinstatement, the workers are subsequently persuaded not to go to work and encouraged to draw their fortnightly or monthly wages on pay day, after which the employer alleges that the workers have abandoned their duties; they use evidence of their absences as grounds to file the corresponding legal proceedings for dismissal, without receiving settlement of the wages and other benefits to which they are entitled by law. These actions are being taken at a time of high demand for employment in which workers are being misled as a result of their need to hold on to their jobs;
    • – According to the same scenario, where the employer accepts the reinstatement of workers, on the following day it prevents them from returning to their functions at their place of work, and alleges before the courts that they abandoned their duties, or using any other bogus reasons to dismiss them, without paying them the wages and other benefits to which they are entitled by law. The Ministry therefore urges workers affected by this practice to present the corresponding complaint, and it warns both employers and workers to abstain from practices that undermine labour rights.
14. 252. The Government indicates that it should recognize before the Committee that the judicial authorities are highly vulnerable to the interests of employers and that, while their legal appeals are subject to a certain level of scrutiny by the Ministry of Labour, it is not aware of the majority of the legal proceedings that are then filed by employers.
15. 253. As regards Committee recommendation (i) (consultation with the social partners regarding the review of section 622 of the Labour Code which provides that no appeal may be lodged against decisions handed down by a court of second instance in relation to violations by trade unions), the Government reports that, for the time being, this matter has not been considered in the meetings of the Higher Labour Council. However, the Committee’s request is noted for discussion at future meetings of the Council and the Committee will be kept informed of any progress made on that front.

C. The Committee’s conclusions

1. 254. The Committee recalls that the allegations in this case refer to numerous acts of anti-union discrimination by companies in the telecommunications sector in 2011 and 2012, including manoeuvres to bring about the dissolution of a branch trade union, anti-union dismissals and the establishment of a company union controlled by the employer, and that the complainants also claim that several provisions of El Salvador’s legislation need to be amended to guarantee more effective protection of freedom of association.
2. 255. The Committee firstly wishes to indicate that it appreciates the positive and constructive attitude shown in the Government’s reply concerning the recommendations made by the Committee, including those relating to certain legal provisions, and the administrative measures and mechanisms adopted to achieve better functioning of the National Department of Social Organizations to expedite administrative proceedings and establish a policy of dialogue and outreach towards workers’ and employers’ organizations. The Committee takes note of the statistics concerning the growth in the number of trade union organizations.
3. 256. As regards recommendations (b) and (c) in the previous examination of the case, the Committee recalls that an appeal by the complainant union (SITCOM) was pending before the Constitutional Chamber of the Supreme Court of Justice against a court decision (at the request of the company Compañia de Telecomunicaciones de El Salvador, SA de CV (CTE)), ordering the cancellation of SITCOM’s registration on the basis of the dual membership of some of the members of this trade union, which is prohibited under section 204 of the Labour Code. The Committee notes that the Government indicates that it has taken measures to guarantee the legal existence of the complainant union (SITCOM) and that regular inspections are carried out to verify the company’s compliance with union rights and their effective protection.
4. 257. The Committee notes that the Government indicates that it will report on the ruling handed down by the Constitutional Chamber of the Supreme Court of Justice and on its decision regarding the prohibition of dual union membership (to which the Committee had made objections in its previous examinations of the case). The Committee regrets the delay in the administration of justice and awaits the sentence and the information in question, while expressing the firm hope that the judicial authority will take its conclusions into consideration, highlighting the principle that workers should be able, if they so wish, to join trade unions at the branch level as well as the enterprise level at the same time [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 360; 367th Report, Case No. 2896 (El Salvador), para. 677].
5. 258. The Committee takes note of the Government’s declarations regarding the minimum number of workers required in order to establish a trade union (35 according to legislation) and the requirement of a six-month delay before a new application for the award of legal personality to a trade union when a previous application has been rejected. The Committee notes that, according to the Government, the new practice adopted by the Ministry of Labour and Social Security consists in providing better guidance for the founding members of prospective trade unions and – where the application is rejected due to failure to meet the legal requirements – allowing trade unions to submit the necessary documentation for a new application to constitute a union on the following day. The Committee appreciates this new approach but invites the Government to submit this matter to the Higher Labour Council (a tripartite body), along with the important matter of reducing the minimum number of workers required to form a trade union, so that when the Labour Code is amended it is in line with the Ministry’s practice.
6. 259. As regards the request for the reinstatement in their posts of union officials Mr Luis Wilfredo Berrios and Ms Gloria Mercedes González, the Committee notes that the Government indicates that it has found no communications from these persons in its records and that, as a result, the labour inspectorate was not able to verify their reinstatement following their alleged unfair dismissal. The Government also indicates that it does not have the authority to bring about reinstatements since the National Telecommunications Administration, where they worked, ceased to exist when it was privatized. The Committee requests the complainants to inform it of whether the officials Mr Luis Wilfredo Berrios and Ms Gloria Mercedes González filed an appeal against their dismissals and, if this is the case, to keep it informed of the outcome.
7. 260. As regards recommendation (d) in relation to the suspension of the deduction of the union dues of the workers who are members of SITCOM, the Committee takes note of the Government’s statements that the labour inspectorate conducted an inspection of the company when it failed to carry out the deduction of the union dues of 84 union members, and that it found that the violation had not been remedied, whereby the case was subject to sanctions proceedings. The Committee requests the Government to ensure the company’s compliance with the legal provision concerning the deduction of union dues (section 252 of the Labour Code) and to inform it of the outcome of the proceedings for the imposition of sanctions against the company and, as it indicated in its previous examination of the case, it firmly expects the sanctions imposed to be sufficiently dissuasive so that there is no recurrence of this kind of anti-union action in future.
8. 261. As regards recommendation (e), the Committee observes that the Government declares that, in relation to the dismissal of union official Mr César Leonel Flores Aguilar, the official received compensation from the company and that he signed the corresponding settlement with it, bringing an end to the employment relationship. As regards the sanctions proceedings in relation to the dismissal of union official Ms Tania Gadalmez, the Committee notes that the Government reports that the case has been transferred to the sanctions stage. Considering that this union official was dismissed in January 2010, the Committee regrets the excessive delay in the administrative procedure for the imposition of sanctions, firmly expects that it will be concluded without delay, and requests the Government to keep it informed of the outcome. Furthermore, it reiterates the recommendation it made in its previous examination of the case that the sanctions imposed should be sufficiently dissuasive so that there is no recurrence of this kind of anti-union action in future.
9. 262. As regards recommendation (f), the Committee recalls that it requested the Government to send information without delay regarding the alleged discriminatory dismissals of five trade union officials by the subcontractor Construcciones y Servicios Integrales de Telecomunicaciones SA de CV, and the alleged anti-union dismissals by the company Atento El Salvador. The Committee notes that the Government’s statements point to the illegal nature of the dismissal in October 2012 of the union officials David Alberto Martínez and José Guillermo Rodríguez and that the action for violation brought by the Labour Inspectorate was appealed by the company Atento El Salvador. The Committee also regrets the excessive delay in proceedings and requests the Government to communicate the outcome of the administrative appeal filed by the company.
10. 263. As regards recommendations (g), (h) and (i) (the allegation that the union SINTRABATES was set up by the employer), the Committee notes that, according to the Government’s reply, the Ministry of Labour and Social Security granted SINTRABATES legal personality on 21 January 2011, having verified its compliance with the legal requirements, and that following the complaint filed by SITCOM, the Labour Inspectorate identified a series of anti-union practices – most of which are included in the Government’s reply – which were remedied; accordingly, the company was only sanctioned for a matter which is unrelated to the exercise of union rights (the failure to hire persons with disabilities). The Committee wishes to recall that it had noted the proceedings filed by SITCOM concerning the alleged control that the employer exerts over the organization SINTRABATES. The Committee requests the Government to communicate the outcome of these proceedings.
11. 264. The Committee had requested the Government to send information regarding the measures taken to review legislation on anti-union discrimination against union officials and observes that it indicates that the legislation in general protects union officials from dismissal (union immunity) and that the administrative authority carries out labour inspections in the event of dismissal to “attempt” to reinstate officials dismissed; the Government adds that it has identified illegal practices among employers which it describes in its reply and which it is trying to redress. The Committee highlights the seriousness of the practices described by the Government in its reply and of the fact that the Government recognizes also that the judicial authorities are highly vulnerable to the interests of employers. The Committee requests the Government to submit these matters to tripartite dialogue with the most representative organizations of workers and employers, including with regard to measures leading to amendments to legislation.
12. 265. The Committee notes that in relation to recommendation (i), the Government indicates that: (1) it has taken note of the Committee’s request regarding the need to review section 622 of the Labour Code (which provides that no appeal may be lodged against decisions relating to violations by trade unions of labour legislation handed down by a court of second instance) so that it may be taken into account at the meetings of the Higher Labour Council (a tripartite body); and (2) that it will keep the Committee informed.
13. 266. Observing that this case contains important legislative aspects which raise problems of consistency with the principles of freedom of association set out in the Constitution and the applicable ILO Conventions, the Committee requests the Government to submit all the legislative issues related to this case to the most representative workers’ and employers’ organizations, including the problems which the Government indicates are encountered in practice (minimum number of 35 workers for the creation of a trade union, the six-month delay before being able to present a new application for legal personality in respect of a trade union when a previous application has been rejected, prohibition of dual union membership, greater protection against acts of anti-union discrimination and interference, procedural delays, and lack of recourse against decisions handed down by a court of second instance where unions have violated labour law). The Committee also refers the legislative aspects of this case in light of the ratification of Conventions Nos 87and 98 by El Salvador to the Committee of Experts on the Application of Conventions and Recommendations.

The Committee’s recommendations

1. 267. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee appreciates the constructive attitude shown in the Government’s reply and the measures taken to promote the exercise of union rights.
   • (b) The Committee awaits the ruling on the appeal presented before the Supreme Court of Justice by the complainant union, SITCOM, against the court decision ordering the cancellation of its registration as well as information from the Government regarding the legal prohibition of dual union membership which will be examined in that ruling, and invites the Supreme Court of Justice to take into consideration its conclusions regarding the legitimacy of dual union membership.
   • (c) The Committee requests the complainants to inform it of whether the union officials Mr Luis Wilfredo Berrios and Ms Gloria Mercedes González filed an appeal against their dismissal and, if this is the case, to keep it informed of the outcome.
   • (d) The Committee requests the Government to ensure the company’s compliance with the legal provision concerning the deduction of union dues (section 252 of the Labour Code) and to inform it of the outcome of the procedure for the imposition of sanctions against the company. As indicated in its previous examination of the case, the Committee firmly expects the sanctions imposed to be sufficiently dissuasive so that there is no recurrence of this kind of anti-union action in the future.
   • (e) The Committee regrets the excessive delay in the administrative procedure for the imposition of sanctions for the dismissal of union official Ms Tania Gadalmez, firmly expects that it will be concluded without delay and requests the Government to keep it informed of its outcome while it reiterates its recommendation in its previous examination of the case that the sanctions imposed should be sufficiently dissuasive so that there is no recurrence of this kind of anti-union action in the future.
   • (f) The Committee regrets the excessive delay in the proceedings relating to the sanctions against the company Atento El Salvador for the dismissal of the union officials David Alberto Martínez and José Guillermo Rodríguez and requests the Government to inform it of the outcome of the administrative appeal filed by the company against the sanctions.
   • (g) The Committee requests the Government to keep it informed of the legal proceedings filed by the complainant union (SITCOM) against the decision of the Ministry of Labour and Social Security to grant legal personality to the union SINTRABATES, which the complainant union claims is under the control of the employer.
   • (h) Observing that this case contains important legislative aspects which raise problems of consistency with the principles of freedom of association as set out in the ILO Constitution and applicable ILO Conventions, the Committee requests the Government to submit all the legislative problems mentioned in this case, including the problems which the Government indicates are encountered in practice, to tripartite dialogue with the most representative workers’ and employers’ organizations.