Allegations: The complainant organizations allege acts of anti-union
discrimination by the municipal administration of Santa Ana: non-compliance with the
arbitration ruling of 2014 (ruling which has the status of a collective labour agreement;
threats against union members, suspensions and dismissals (including ten members of the
managerial committee), and the closure of union premises
- 392. The complaint is included in a joint communication from the Union of
Municipal Workers of Santa Ana (SITRAMSA) and the National Confederation of Salvadoran
Workers (CNTS) of 10 September 2018.
- 393. The Government sent its observations in a communication dated 9
February 2021.
- 394. 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 complainant’s allegations
A. The complainant’s allegations- 395. In its communication dated 10 September 2018, the complainant
organizations allege that in October 2016 the administration of the ARENA political
party, to which the mayor of the municipality of Santa Ana, Mr Moreira Cruz, belonged
and its plural municipal council (comprising councillors from his party and other
parties, apart from the Farabundo Martí National Liberation Front (FMLN) and the Grand
Alliance for National Unity (GANA) political parties), requested SITRAMSA to support
them. Since the trade union did not accede to this request, this led to a discrimination
campaign against SITRAMSA, threats of dismissals of its members, and non-compliance with
the arbitration ruling. The complainant organizations indicate that the arbitration
ruling, issued on 27 May 2014 by the Court of Arbitration during the direct
reconciliation proceedings, has the status of a collective labour agreement, was
registered with the Ministry of Labour and Social Welfare and entered into force on 1
January 2015. The complainant organizations allege that the municipal administration
failed to comply with several of the 88 clauses of the arbitration ruling, despite the
fact that compliance with all of them was compulsory for both parties.
- 396. The complainant organizations allege that, at the beginning of 2017,
the municipal administration began to delay the payment of instalments for loans that
members had with financial institutions, banks and cooperatives, even though those
instalments had been deducted from the salaries of workers, who had fallen into arrears
and were exposed to the payment of additional interest, and threats of seizure. The
complainant organizations allege that the funds had been used by the administration to
cover the municipality’s debts, thereby infringing paragraph 77 of the arbitration
ruling relating to the retention of union dues, payment of external funds held in
custody and workers’ contributions.
- 397. They also allege that between January and February 2017, the workers
who were members of SITRAMSA, Mr Cuellar, Mr Leiva and Mr Mejía, were subject to
discrimination as they were trade union members and as the result of personal
circumstances, following which they were dismissed. They allege also that 97 employees
were suspended and their salaries reduced without justification, in specific violation
of paragraphs 17, 35 and 88 of the arbitration ruling, relating to employment stability,
and non-discrimination and special rights for trade union members.
- 398. The complainant organizations state that, in February 2017, in the
face of constant violations of freedom of association and the arbitration ruling, and
since the authorities and the mayor did not respond, trade union activities were
conducted to request observance of employment rights and compliance with the arbitration
ruling. Similarly, on 22 February 2017 SITRAMSA lodged a relevant complaint with the
Office of the Prosecutor for the Defence of Human Rights, and requested this Office to
mediate between the parties. The Mayor’s Office of the Municipality of Santa Ana did
not, however, wish to engage in dialogue, as a result of which the Office of the
Prosecutor issued a ruling on 12 June 2017, recording the fact that the municipal
administration had abused its authority.
- 399. The complainant organizations state that on 15 February 2018 the
management council of SITRAMISA (ten members) was notified of its indefinite suspension
with dismissal proceedings. It was also informed that similar proceedings would be
instituted against the 40 employees of the trade union committees in the following days,
in addition to 37 trade union members, together with a reduction in the salaries of more
than 380 workers who had participated in the trade union activities. The council members
were also informed that the premises assigned to the trade union was being used by the
municipal administration and that henceforth they would be denied entry to the premises.
All the officials were forbidden to enter the municipal mayor’s offices, an example of
trade union persecution. The complainant organizations state that on 16 February 2018
the municipal authorities arbitrarily closed and seized the trade union premises. The
union members were escorted by the police out of the municipal mayor’s offices. The
complainants attached a copy of a letter, dated 8 May 2018, which was sent by SITRAMISA
to the then lady mayor of Santa Ana. It requested that the trade union officials be
reinstated and indicated that the officials were the subject of a court ruling ordering
their reinstatement. In the letter, the trade union also requested that the 97 workers
who had been suspended and were trade union members be reinstated.
- 400. The complainant organizations allege that as of 23 February 2018 the
members of SITRAMSA were the subject of discrimination as a result of their trade union
membership (868 members); similarly, trade unions attached to the municipal government
and with a smaller number of members (SITRAMUSA, 68 members, and SEMSA, 49 members)
forced the workers to give up their membership of SITRAMSA and the same municipal
government conducted anti-union activities by taking photographs of any worker who
supported the union. The complainant organizations also report that there were
55 suspensions with dismissal proceedings and 25 dismissals owing to the expiry of
contracts, thereby constituting unfair dismissals in different areas. Further, there is
a persistent threat that more workers will be dismissed when their employment contracts
expire, affecting all the above-mentioned union members.
- 401. Finally, the complainants allege that in 2017 and 2018 there were
delays in the delivery of the basic basket of goods, and the supermarket vouchers,
awarded in the arbitration ruling, were not given. Similarly, benefits such as home help
in the case of death of family members and life insurance were infringed and abolished,
as was paid vacation for administrative employees. The complainant organizations allege
that the above measures are designed to undermine the claims that were successful in the
arbitration ruling. They also allege that, as of 1 May 2018, the new lady mayor. Ms
Calderón de Escalón, adopted the same policy of deleting clauses from the SITRAMSA
arbitration ruling. The mayor had stated in newspaper stories that the collective
agreement had already expired and, for that reason, the benefits resulting from the
agreement were not granted.
B. The Government’s reply
B. The Government’s reply- 402. In its communication of 9 February 2021, the Government submits its
observations, together with those of the Mayor’s Office of the Municipality of Santa
Ana. As regards the alleged non-compliance with the arbitration ruling, the Mayor’s
Office indicates that the ruling was issued on 27 May 2014, and was in force for three
years, from 1 January 2015 to 31 December 2017. The Mayor’s Office indicates that,
although the ruling could be extended automatically, provided that none of the parties
requested it to be revised, in this case, both parties (the municipality of Santa Ana
and SITRAMSA) did request the arbitration ruling to be revised before the Public Service
Tribunal. Therefore, since such a revision was requested, the ruling was not extended
for one more year and remained in force until 31 December 2017. The Mayor’s Office also
states that to date no other valid collective labour agreement exists, that has been
concluded by the municipality of Santa Ana and SITRAMSA. The municipal Mayor’s Office
emphasizes that when the Mayor took power, in May 2018, the ruling in question was no
longer valid and that, in any case, she was not aware which benefits from the ruling
were not complied with.
- 403. In relation to the alleged threats of dismissal of trade union
members and the alleged prohibition on entry to the municipal mayor’s offices, those
offices indicate that since the current administration came to powers, i.e. on 1 May
2018, it has always observed and guaranteed the social and individual rights of any
person who is a trade union member. The mayor’s offices state that it was the municipal
authorities which were in power from 1 May 2015 to 30 April 2018, that put forward
requests for authorization of dismissal of various municipal employees to the judge of
the Santa Ana Labour Court. These employees include the SITRAMSA officials, who were
deemed to have undertaken actions that were construed as reasons for dismissal under the
Municipal Administrative Career Act, as they had endangered the health of the population
of Santa Ana, unlawfully obstructed the collection of solid waste by the municipality,
and used violent means to close municipal facilities and obstructed lorries collecting
solid waste from leaving. In view of the above, the Municipal Council of Santa Ana
requested authorization for dismissal of the union officials from the judge of the Santa
Ana Labour Court, prior to taking the decision to dismiss them. Since the municipal
employees involved, including the union officials, were made aware of the requests that
had been filed against them, they abandoned their posts in February 2017 and did not
report for work.
- 404. The Government indicates that it requested information on this case
from the judge of the Santa Ana Labour Court and that the judge had responded that his
records contained the details of two cases which were already finalized and had been
filed: (i) as regards Ms Cuellar, a final ruling was issued on 4 April 2018 declaring
that the request to nullify the dismissal was not receivable, as confirmed by the
Chamber of Second Instance; and (ii) as for Ms Leiva, on 27 February 2018, a final
ruling was issued declaring the dismissal to be null and void, as confirmed by the
respective Chamber of Second Instance. The case was currently with the First Labour
Chamber, since an appeal had been lodged against an initial ruling made on 20 July 2020.
The Government attached a note from the Santa Ana Labour Court in which the labour judge
states that he could not provide the Government with information on the dismissal
authorization proceedings concerning the SITRAMSA officials, because their names or case
numbers had not been communicated.
- 405. Finally, the Government indicates that it will continue to follow up
on this case and provide information on any progress made.
C. The Committee’s conclusions
C. The Committee’s conclusions- 406. The Committee observes that in this case, the complainant organizations allege that, at the beginning of 2017 and after not supporting the party to which he belonged, the then mayor of Santa Ana and the municipal council of the mayor’s office (excluding the FMLN and GANA political parties) undertook a campaign of discrimination against SITRAMSA, threatening its officials with dismissal and failing to comply with various clauses of the arbitration ruling issued in 2014 (a ruling which has the status of a collective labour agreement). They also allege that suspensions and dismissals of trade union members (including the ten members of the management council) took place and that the union premises were closed. The Committee notes that, according to the complainant organizations, on 22 February 2017 SITRAMSA reported these matters to the Office of the Prosecutor for the Defence of Human Rights.
- 407. As regards the alleged failure to comply with the arbitration ruling (clauses relating to employment stability; non-discrimination: retention of trade-union dues and payment of external custodial funds; economic assistance, etc.), the Committee notes that the mayor’s office of the municipality of Santa Ana indicates that: (i) both the municipality of Santa Ana and SITRAMSA made a request to the Public Service Tribunal for the ruling to be revised, for which reason it was not automatically extended and was in force until 31 December 2017, (ii) it was unaware which benefits from the ruling were not complied with and, in any case, when it took power in May 2018, the ruling was no longer valid, and (iii) no valid collective agreement with SITRAMSA currently exists.
- 408. The Committee observes that the complainant organizations attached to their complaint a copy of the arbitration ruling and that, according to the provisions of paragraph 83, the ruling was valid for three years as of 1 January 2015, after which date it would be automatically extended for one-year periods, provided that no party requested it to be revised. The Committee notes that although it is not clear from the complaint that any of the parties requested the ruling to be revised, the municipal mayor’s office indicates that both parties appear to have requested such a revision and that the ruling seemingly ceased to be valid at the end of 2017. The Committee notes, in any case, that the complainant organizations allege that the failure to comply with the ruling appears to have begun at the start of 2017, and regrets to observe that, in its response, the municipal mayor’s office simply indicates that it was unaware which benefits from the ruling were not complied with. In any case, the current administration took up office in May 2018, when the ruling was no longer in force. Recalling that agreements should be binding on the parties and that mutual respect for the commitment undertaken in collective agreements is an important element of the right to bargain collectively and should be upheld in order to establish labour relations on stable and firm ground [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, paras 1334 and 1336], the Committee requests the Government and the complainant organizations to provide information and specific documentation relating to the revision of the arbitration ruling. Similarly, it requests the Government, if the ruling is valid, to take all necessary measures to ensure full compliance therewith.
- 409. As regards the alleged suspensions and dismissals of union members (including the ten members of the SITRAMSA management council), the Committee notes that the municipal mayor’s office indicates that: (i) since it came to power on 1 May 2018, it has always observed and guaranteed the rights of trade union members, (ii) the previous municipal administration had made requests for authorization of dismissal of various municipal employees, including the SITRAMSA officials, for having endangered the health of the population of Santa Ana, unlawfully obstructing the collection of solid waste by the municipality, using violent means to close municipal facilities, and obstructing lorries collecting solid waste from leaving, and (iii) in February 2017, the municipal employees, including the union officials, were made aware of the requests that had been made against them, abandoned their posts and did not report for work. The Committee also notes that the Government has attached a note from the judge of the Santa Ana labour court, which states that: (i) Ms Cuellar, a member of SITRAMSA, is the subject of a final ruling declaring that the request to nullify the dismissal is not receivable, and (ii) Ms Leiva, a member of SITRAMSA, is the subject of a final ruling declaring her dismissal to be null and void, as confirmed by the chamber of second instance, and which is currently with the first labour chamber as the result of an appeal lodged against an initial ruling made on 20 July 2020 (copies of the rulings are not attached).
- 410. The Committee observes that the complainant organizations attached to their complaint a copy of the ruling handed down by the Office of the Prosecutor for the Defence of Human Rights on 12 June 2017, noting that the ruling confirms the violation of labour rights, trade union freedoms, and those deriving from the right of association, owing to unlawful acts or those infringing the employment stability of union officials and trade union persecution. The Office of the Prosecutor indicated that the municipal mayor bears responsibility for these violations and recommended to that authority that the necessary administrative proceedings be undertaken to reinstate the union officials, and also other workers, immediately. It also indicated that it would inform the Minister of Labour and Social Welfare of the ruling so that the Minister exercised appropriate supervision.
- 411. The Committee also notes that the complainant organizations attached a copy of a letter which SITRAMSA sent on 8 May 2018 to the then lady mayor of Santa Ana. The Committee observes that in the letter the trade union requests that the SITRAMSA officials be reinstated and indicates that the officials were the subject of a judicial ruling ordering that they be reinstated. In the letter, the union also requested that the 97 suspended workers who were members of the trade union be reinstated. The Committee notes that although the information provided by the complainant organizations would appear to show that the union officials were the subject of a ruling ordering their reinstatement and that those officials had seemingly not been reinstated, at least as of the date of submission of the complaint, according to the municipal mayor’s office the union officials had abandoned their posts in February 2017, when they were made aware of the requests for dismissal that had been made against them. Furthermore, the Committee points out that in a note attached by the Government and signed by the judge of the Santa Ana Labour Court, the judge indicated that he could not provide information relating to the dismissal authorization proceedings concerning the SITRAMSA officials, because their names or case numbers had not been communicated.
- 412. Recalling in general that no person should be dismissed or prejudiced in employment by reason of trade union membership or legitimate trade union activities, and that it is important to forbid or penalize in practice all acts of anti-union discrimination in respect of employment [see Compilation, para. 1075], the Committee requests the Government and the complainant organizations to supply a copy of any court ruling issued in relation to the dismissals of the union members and officials. The Committee urges the Government to take all the necessary initiatives, including by means of dialogue with SITRAMSA, to ensure that the union officials are immediately reinstated, provided that these officials are the subject of relevant court orders, and also that workers for whom the anti-union nature of their suspensions or dismissals has been confirmed are reinstated.
- 413. As regards the allegation that the discrimination campaign against SITRAMSA and its members appears to have originated because the trade union had not allegedly supported the political party to which the then municipal mayor of Santa Ana belonged, the Committee reaffirms the principle expressed by the International Labour Conference in the resolution concerning the independence of the trade union movement that governments should not attempt to transform the trade union movement into an instrument for the pursuance of political aims, nor should they attempt to interfere with the normal functions of a trade union movement because of its freely established relationship with a political party [see Compilation, para. 724].
- 414. As regards the allegation that the municipal authorities arbitrarily closed and seized the trade union’s premises, thereby denying access to those premises for officials and members, who were escorted by the police out of the municipal mayor’s offices, while regretting that the Government has not submitted any detailed observations in this regard, the Committee recalls that the access of trade union members to their union premises should not be restricted by the state authorities [see Compilation, para. 290] and urges the Government to guarantee strict observance of such access.
The Committee’s recommendations
The Committee’s recommendations- 415. In the light of the foregoing interim conclusions, the Committee
invites the Governing Body to approve the following recommendations:
- (a) The Committee requests the Government and the complainant organizations to
provide information and specific documentation relating to the revision of the
arbitration ruling. It also requests the Government, provided that the ruling is in
force, to take the necessary measures to ensure that the ruling is applied in
full.
- (b) The Committee requests the Government and the complainant organizations to
provide a copy of any court ruling issued in relation to the dismissals of the union
members and officials. The Committee urges the Government to take all the necessary
initiatives, including by means of dialogue with SITRAMSA, to ensure that the union
officials are immediately reinstated, provided that these officials are the subject
of relevant court orders, and also that workers for whom the anti-union nature of
their suspensions or dismissals has been confirmed are reinstated,
- (c) The Committee urges the Government to guarantee access for SITRAMSA members to
their union premises.
