Definitive Report - Report No 376, October 2015

Case No 3099 (El Salvador) - Complaint date: 31-JUL-14 - Closed

Allegations: The complainant organization alleges that the posts of two trade union leaders in the public sector have been abolished

1. 436. The complaint is contained in a communication from the Salvadorian Social and Trade Union Front (FSS), dated 31 July 2014.
2. 437. The Government sent its observations in a communication dated 16 June and 20 October 2015.
3. 438. 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 complainant’s allegations

1. 439. In its communication dated 31 July 2014, the complainant organization alleges that the posts occupied at the Ministry of Finance by trade union leaders and members of the General Association of Employees of the Ministry of Finance (AGEMHA), Mr Marcos Obdulio Alas Alas (who held the position of technical officer at the Directorate of Customs Revenue) and Mr Miguel Ángel Alfaro Sánchez (who held the position of administrative assistant at the General-Directorate of the Treasury), were abolished under Legislative Decrees Nos 679 (Budget Act) and 680 (Wages Act) of the Legislative Assembly, of 19 December 2001, which retrenched thousands of workers in the public sector (Legislative Decree No. 680 retrenched 8,322 public sector employees, 3,977 contractual employees and 130 daily-hire employees). As a result of these measures, on 20 December 2001, both trade union leaders received a communication informing them that their posts had been abolished and that they would be compensated in accordance with the Civil Service Act. However, no valid reason for this action had been previously authorized by the competent authority. The complainant organization considers that its constitutional right to work, to job security and to a hearing was violated, and, in particular its right, as a body of trade union members, not to be dismissed without a valid reason previously authorized by the competent authority, as established in section 248 of the Labour Code.
2. 440. The complainant organization reports that a large number of employees from the state institutions concerned filed several complaints regarding the abolishment of their posts with the Office of the Ombudsman for Human Rights, which supported the dismissed workers, including the trade unionists. The complainant organization adds that a group of workers affected by the retrenchment initiated amparo (remedy for the protection of constitutional rights) proceedings, claiming that their right to job security and to a hearing had been violated. This appeal was rejected by the decision of the Supreme Court of Justice of 8 August 2002.

B. The Government’s reply

1. 441. In its communication of 16 June 2015, the Government states that the posts occupied by Mr Marcos Obdulio Alas Alas and Mr Miguel Ángel Alfaro Sánchez were abolished in accordance with the Budget Act, which was adopted through Legislative Decree No. 679, and that pursuant to the Civil Service Act, the two individuals received the appropriate compensation. The Government considers that, as the compensation was granted in 2002 and was accepted by both individuals, due process was observed.
2. 442. Accordingly, the Government believes that there was no violation of the constitutional rights protected by trade union status and that compliance had been demonstrated with the provisions of Conventions Nos 87, 98 and 135. The Government adds that, since 2012, two collective labour agreements have been concluded with the Union of Workers of the Ministry of Finance (SITRAMHA), which guarantee the right to job security, trade union immunity and other benefits for trade unions, their leaders and all employees.

C. The Committee’s conclusions

1. 443. The Committee takes note of the complainant’s allegations that the abolishment of the posts of two trade union leaders, which was part of the retrenchment of thousands of public sector workers, went against the principles of freedom of association, and that a valid reason with prior authorization by the competent authority, as required by law, was not provided. According to the allegations, the Office of the Ombudsman for Human Rights spoke out against this abolishment of posts but the Supreme Court of Justice issued a decision dismissing the claim.
2. 444. The Committee wishes to recall that: “The Committee can examine allegations concerning economic rationalization programmes and restructuring processes, whether or not they imply redundancies or the transfer of enterprises or services from the public to the private sector, only in so far as they might have given rise to acts of discrimination or interference against trade unions” [See Digest of decisions and principles of the Freedom of Association Committee, fifth (revise) edition, 2006, para. 1079].
3. 445. The Committee observes from the allegations that the dismissal of the two trade union leaders was part of a staff reduction process which affected thousands of civil servants, and that the complainant organization provides no evidence that the abolishment of the posts of the two trade union leaders was related to a collective dispute or the exercise of trade union rights and activities. The Committee also observes the Government’s denial that Conventions Nos 87, 98 and 135 were violated, and notes that the measure in question was established in the Budget Act for 2002, and that the two leaders accepted the corresponding statutory compensation.
4. 446. The Committee observes that the appeal before the Supreme Court of Justice referred to in the allegations, which was lodged by dismissed workers with a view to calling into question in general the abolishment of posts imposed by the Budget Act, and which alleged that the right “to work, to job security and to a hearing” had been violated, was rejected in 2002.
5. 447. Bearing in mind the different elements mentioned above and the lengthy period of time between the dismissals in 2001 and the submission of the complaint in 2014 and that the complainant did not provide sufficient information to support its claim that their dismissals were due to their trade union status or activities, the Committee will not pursue its examination of the case.

The Committee’s recommendation

1. 448. In the light of its foregoing conclusions, the Committee invites the Governing Body to decide that this case does not call for further examination.