Definitive Report - Report No 389, June 2019

Case No 3284 (El Salvador) - Complaint date: 03-MAY-17 - Closed

Allegations: The complainant organizations allege the anti-union nature of the transfer of four union officials from a municipal trade union, as well as the dismissal of 18 workers

1. 347. The complaint is contained in a communication dated 3 May 2017 from the Union of Municipal Workers of Nueva Concepción (SITMUNC), supported by the Trade Union Federation of Municipal Workers of El Salvador (FESISTRAM).
2. 348. The Government sent its observations in a communication dated 1 June 2018.
3. 349. 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 Labour Relations (Public Service) Convention, 1978 (No. 151).

A. The complainants’ allegations

1. 350. In its communication dated 3 May 2017, the complainants allege that, despite the agreements concluded between the SITMUNC and the municipal authority of Nueva Concepción following the end of a strike movement, the union and its members were subjected to anti union acts by the municipal council, and refer in particular to the transfer of four union officials.
2. 351. The complainants state that, on 4 April 2016, against the backdrop of a strike, representatives of the municipal authority and SITMUNC took part in a mediation session chaired by members of the clergy of the church of the Immaculate Conception of Mary with a view to ending the labour dispute dividing the above-mentioned parties and to lifting the strike. According to the complainants, during the session it was agreed that the municipal authority’s work would resume, in exchange for the establishment of ongoing round-table talks, and that this round table would include representatives of the workers and the mayor’s office. During the mediation session, SITMUNC also proposed the inclusion of certain items on the agenda, including the reinstatement of unfairly dismissed workers, the functioning of the committee overseeing the law on public employment, and guarantees that the striking workers would not face retaliatory financial penalties or other reprimands by the employer.
3. 352. The complainants allege that, despite the above-mentioned agreement, the mayor and his municipal council systematically harassed and intimidated the members of the union’s executive committee and allege in that regard that: (i) on 28 April 2016, the members of the municipal council and municipal authority agreed on the transfer of Ms Celita Armida Rodríguez Hércules, secretary-general of the executive committee, Ms Katya Lissette Tejada, deputy disputes secretary, Ms Rosa Elena Tobar de González, social security and welfare secretary, and Mr Jesús Alberto González García, press and public relations secretary; (ii) on 8 August 2016, the union filed applications for amparo (protection of constitutional rights) against the decisions to transfer the union officials; (iii) on 8 September 2016, the municipal council voted in favour of levying a sanction of 15 days without pay against the union officials targeted by the transfer measures; (iv) on 9 January 2017, the suspension was approved by the committee overseeing the law on public employment; and (v) the union officials were suspended from 6 to 20 February 2017. In the complainants’ view, both the transfers and the sanction of 15 days without pay imposed on the four union officials are incompatible with section 47(6) of the Constitution of El Salvador relating to trade union immunity, which provides that members of union executive committees cannot be dismissed, suspended for disciplinary reasons, transferred or given less favourable employment conditions other than for a just cause as previously determined by the competent authority.
4. 353. Lastly, the complainants refer to the unfair dismissal of 18 town hall workers, against which applications for amparo were filed with the constitutional chamber of the Supreme Court. A final decision on these proceedings is still pending.

B. The Government’s reply

1. 354. In its communication dated 1 June 2017, the Government indicates that, as municipal workers are excluded from the Labour Code, the regulation that applies to this category of workers is the law on public employment. Under section 21(3) of this law the municipal commissions have the power to deal with complaints from municipal officials and employees concerning violations of their rights by their hierarchical superiors. With regard to national jurisprudence, the Government indicates that there is a ruling (administrative proceedings case No. 110-2013) establishing that the Ministry of Labour should refrain from carrying out inspections into violations of labour rights in the municipal authorities as they do not have the competence in this regard. However, the Government indicates that the Ministry of Labour and Social Welfare’s General Directorate of Labour Inspection does have the power to carry out occupational safety and health inspections. Therefore, at the request of the complainant union, on 13 December 2016 the inspectorate carried out an assessment of psychosocial risks relating to the alleged harassment to which the members were subjected by their employer. The Government indicates that, after the inspection, which included workplace visits and interviews with both the employer and the workers, which reported “the existence of a tense atmosphere between management and union members”, the local authority was sanctioned for non-compliance with the obligation to develop and implement an occupational risk prevention management programme as required under section 79(3) of the general law on the prevention of workplace risks. The Government emphasizes that, as part of this investigation, eight recommendations were made on addressing and preventing psychosocial risks in the workplace. It further notes that, in order to minimize the negative effects of work and put adequate measures in place to ensure that labour relations are beneficial and respectful, initiatives were proposed to establish round-table talks and provide facilities to enable worker representatives to carry out their duties. The Government indicates that, according to the reinspection report, the employer subsequently complied with the obligation to develop and implement the respective occupational risk prevention management programme.
2. 355. Lastly, concerning the amparo proceedings mentioned by the complainants, the Government indicates that: (i) regarding the application for amparo filed for the unfair dismissal of the 18 municipal workers, the constitutional chamber of the Supreme Court ordered the case to be dismissed on the grounds that the applicant withdrew the appeal; and (ii) regarding the applications for amparo filed by the union officials against the transfer decisions, the Supreme Court declared them inadmissible.

C. The Committee’s conclusions

1. 356. The Committee observes that this case relates to allegations of harassment and anti-union acts against SITMUNC members, in particular the transfer and suspension of four union officials and the dismissal of 18 municipal workers.
2. 357. The Committee notes the allegations of the complainants claiming that: (i) against the backdrop of a strike within the municipal authority of Nueva Concepción, a mediation session took place on 4 April 2016 between the municipal authority and the complainant union with a view to ending the labour dispute between the parties and lifting the strike; (ii) during the mediation session it was agreed that work would resume, in exchange for the establishment of ongoing round-table talks that would include representatives of the employer, workers and alternate members; (iii) the mayor’s office and the municipal council continued to harass members of the complainant union’s executive committee, and the complainants referred in particular to the municipal authority’s decision to transfer four union officials (Ms Celita Armida Rodríguez Hércules, secretary-general of the executive committee, Ms Katya Lissette Tejada, deputy disputes secretary, Ms Rosa Elena Tobar de González, social security and welfare secretary, and Mr Jesús Alberto González García, press and public relations secretary), and the union officials in question filed applications for amparo against this decision; (iv) on 9 January 2017, the committee overseeing the law on public employment approved a sanction of 15 days without pay against the four union officials, who were suspended from 6 to 20 February 2017; and (v) 18 municipal workers were unfairly dismissed and, in response, applications for amparo were filed with the constitutional chamber of the Supreme Court.
3. 358. The Committee notes that, for its part, the Government states that: (i) municipal workers are governed by the law on public employment and that under section 21(3) of this law the municipal commissions, and not the labour inspectorate, have the power to deal with complaints from municipal officials and employees concerning violations of their rights by their hierarchical superiors; (ii) however, the Ministry of Labour and Social Welfare’s General Directorate of Labour Inspection does have the power to rule on occupational safety and health issues; (iii) following the request of the complainant union for an assessment of psychosocial risks relating to the alleged harassment against union members to be conducted, the aforementioned body carried out an inspection; and (iv) as a result of the inspection, in addition to the issuance of an infraction report, recommendations were made on addressing and preventing psychosocial risks in the workplace and, with a view to fostering beneficial and respectful labour relations, initiatives were proposed to establish round-table talks with the union and provide facilities to enable worker representatives to carry out their duties.
4. 359. The Committee further notes the information provided by the Government on the status of the legal proceedings initiated relating to the facts alleged in this case, according to which: (i) on 12 May 2017, the constitutional chamber of the Supreme Court declared inadmissible the applications for amparo filed by the union officials concerning their respective transfers, finding that the applicants had not proven the existence of a constitutional violation against them; and (ii) regarding the unfair dismissal of 18 municipal workers, on 16 August 2017, the constitutional chamber of the Supreme Court ordered the case to be dismissed on the grounds that the applicant had withdrawn the appeal.
5. 360. Concerning the transfer of the four SITMUNC union officials, the Committee observes that the information and documents provided by the complainants and the Government indicate that: (i) twenty-four days after the end of the strike movement within the municipal authority, Mr Jesús Alberto Gonzáles García was transferred from the mayor’s office to the warehouse, Ms Celita Armida from the mayor’s office to the municipal treasury, Ms Katya Lissette Tejada to elsewhere within the town hall and Ms Rosa Elena Tobar de González from the mayor’s office to the facilities of the house attached to the town hall; (ii) the labour inspectorate, given that it does not have the competence to examine compliance with legislation on trade unions in the public administration in general and in the municipal authorities in particular, did not examine the alleged anti-union nature of the transfers; and (iii) the constitutional chamber of the Supreme Court considered itself unable to verify the constitutionality of the transfers and declared inadmissible the applications for amparo filed by the union officials affected. The Committee observes in this regard that, in its ruling, the Court found that the applicants had not been subject to a violation of their constitutional rights, given that the transfers had not affected their hierarchical status, that their salaries had remained unchanged and that they had not been able to prove how the transfers had affected their ability to carry out their union activities. On those grounds, the Court decided not to examine the merits of the appeals.
6. 361. The Committee observes that it is clear from the foregoing that the grounds for the municipal authority’s decision to transfer the four union officials, and the alleged anti-union nature of the reprisal, were not examined by either the labour inspectorate or as part of the aforementioned applications for amparo. The Committee also notes that they were the subject of an administrative sanction. The Committee recalls that, in a previous case involving El Salvador [see 362nd Report, November 2011, Case No. 2836, para. 695], after noting that the Ministry of Labour and Social Welfare does not have the competence to deal with the claims of anti-union acts that are the subject of the complaint as they relate to situations that occurred in the public sector, it had considered that an independent authority should be in a position to investigate the allegations of anti-union discrimination in order to gather sufficient evidence to support the case when it is brought before the jurisdictional authorities.
7. 362. In the light of the above and recalling that basic regulations that exist in the national legislation prohibiting acts of anti-union discrimination are inadequate when they are not accompanied by procedures to ensure that effective protection against such acts is guaranteed [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 1140], the Committee requests the Government, in consultation with the social partners from the sector, to take the necessary steps, including legislative measures if necessary, to ensure that the workers in the municipal authorities have access to adequate protection mechanisms against acts of anti-union discrimination. The Committee refers the legislative aspects of this case to the Committee of Experts on the Application of Conventions and Recommendations.
8. 363. With regard to the allegations of the unfair dismissal of 18 local authority workers, the Committee notes that the Government indicates that the constitutional chamber of the Supreme Court decided to dismiss the case on the grounds that the applicant withdrew the appeal. In the light of the foregoing and noting furthermore that the complainants merely indicated that the dismissals in question were unfair, without specifying whether the workers concerned were union members or providing any other details regarding the circumstances of the breaches of contract, the Committee will not pursue its examination of this allegation.

The Committee’s recommendations

1. 364. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
   • The Committee requests the Government, in consultation with the social partners from the sector, to take the necessary steps, including legislative measures if necessary, to ensure that the workers in the municipal authorities have access to adequate protection mechanisms against acts of anti-union discrimination. The Committee refers the legislative aspects of this case to the Committee of Experts on the Application of Conventions and Recommendations.