Informe provisional - Informe núm. 291, Noviembre 1993

Caso núm. 1693 (El Salvador) - Fecha de presentación de la queja:: 19-ENE-93 - Cerrado

1. 505. The complaint in this case is contained in a communication from the International Federation of Building and Wood Workers (IFBWW), dated 19 January 1993. The International Confederation of Free Trade Unions (ICFTU) endorsed the complaint in a communication dated 1 February 1993. The Government sent its observations in a communication dated 24 May 1993.
2. 506. El Salvador has not ratified the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87), or the Right to Organize and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant's allegations

1. 507. The International Federation of Building and Wood Workers (IFBWW) states in its communication dated 19 January 1993 that in July 1992 the Trade Union of Building Labourers and Similar Workers of El Salvador (SOICSES) launched a strike at the Mercado Tinety building site of the ARCO Engineering SA de CV enterprise, to press for the reinstatement of 50 workers dismissed because of their trade union membership, and presented a number of claims concerning the poor treatment being given to workers, the failure to implement wage agreements and the infringement of different provisions of the Labour Code. It points out that after conciliation meetings organized by the Ministry of Labour, several of these claims were met, although the dismissed workers were not reinstated. In July 1992, following an appeal filed in the courts by the ARCO enterprise, the strike was declared illegal on the ground that the project in question ought to have been defined as a public service and therefore subject to the provisions of section 553 of the Labour Code, which states that strikes are illegal in the public services and in essential services.
2. 508. The complainant points out that only a small group of workers returned to work after the judicial notice, and that during the following days there was an increase in the number of armed police assigned to protect the workers, which was seen as a direct intimidation against the strikers. An agreement was reached on 15 August 1992 whereby the enterprise accepted the gradual reinstatement of the dismissed workers, although it did not fulfil the agreement and on 17 August began to recruit new workers. The complainant states that the striking workers ended their strike and decided to return to work but that, on 19 August, the enterprise refused to grant them access, and following the organization of a peaceful march towards the offices of the enterprise, which was violently intercepted by the national police, eight workers were arrested.

B. The Government's reply

1. 509. In its communication of 24 May 1993, the Government states that following a collective labour dispute between the Trade Union of Building Labourers and Similar Workers of El Salvador (SOICSES) and the ARCO Engineering SA de CV enterprise (the workers in the enterprise had gone on strike in support of different claims, such as the reinstatement of dismissed workers; the payment of a period of increased pay; the mistreatment of workers in the enterprise; the granting of social benefits; the full payment of wages during the period of the dispute), the Directorate-General of Labour convened the parties to a conciliation hearing in July 1992. As a result of this meeting, some of the workers' claims were met, and following a second meeting both parties agreed to set up a joint committee to work out an agreement on the dispute. When no agreement was reached, the Directorate-General of Labour convened the parties to a further hearing and proposed a settlement of which both parties rejected. The Secretariat of State points out that efforts have and are still being made to normalize relations between the workers and the employer.
2. 510. Finally, the Government states that the courts declared the strike illegal and the strikers were notified that they must return to their workplaces. On 19 August the workers held a march towards the offices of the enterprise, which resulted in acts of public disorder and the arrest of eight workers on charges of assaulting the police. The matter was placed before the courts and the preliminary inquiries are now under way. The accused have been released pending their trial.

C. The Committee's conclusions

1. 511. The Committee notes that this case refers to disputes between the Trade Union of Building Labourers and Similar Workers of El Salvador (SOICSES) and the ARCO Engineering SA de CV enterprise. Specifically, the complainants allege the dismissal of 50 workers because of their trade union membership, and that as a result of these dismissals the workers of the enterprise launched a strike which led to the dismissal of a large number of the striking workers. In the same way, a march by striking workers allegedly resulted in violent intervention and the arrest of eight workers by the police.
2. 512. The Committee regrets that the Government has not replied to the allegation concerning the dismissal of 50 workers because of their trade union membership, and requests it to do so before its next meeting. The Committee also regrets that the Government has not referred specifically to the dismissal of other workers as a result of a strike at one of the worksites of the ARCO Engineering SA de CV enterprise, and has simply stated that the Directorate-General of Labour attempted, in different meetings and conciliation hearings, to establish agreement between the parties; although the enterprise accepted some of the workers' claims, the strike was declared illegal by the judicial authorities.
3. 513. The Committee notes in this respect that the Government did not deny the complainant's allegation that the declaration of the illegality of the strike at the Mercado Tinety building site was based on section 553 of the Labour Code, which states that strikes in the public or essential services are illegal. On this subject, the Committee draws the Government's attention to the fact that in accordance with its constant principles, strikes should not be prohibited in the building industry, since prohibitions or major restrictions should be allowed only in essential services in the strict sense of the term (that is, those services whose interruption would endanger the life, personal safety or health of the whole or part of the population). Therefore, the Committee urges the Government to take the necessary measures so that the workers who were dismissed as a result of the strike are reinstated in their jobs and to amend the Labour Code to ensure full respect of the above-mentioned principle.
4. 514. Finally, as regards the workers arrested on 19 August 1992, following a march organized by the striking workers, the Committee notes that the Government states that this march resulted in acts of public disorder which led to the arrest of eight workers on charges of assaulting the police; the respective proceedings are under way and these workers have now been released pending their trial. In the circumstances, the Committee requests the Government to keep it informed of the outcome of the judicial proceedings against these workers.

The Committee's recommendations

1. 515. In the light of the foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee regrets that the Government has not replied to the allegation concerning the dismissal of 50 workers from the ARCO Engineering SA de CV enterprise, and asks it to do so before its next meeting.
   • (b) The Committee urges the Government to take the necessary measures so that the workers dismissed after a strike in the above-mentioned enterprise are reinstated in their jobs, and to amend section 553 of the Labour Code so that strikes may be prohibited only in essential services in the strict sense of the term.
   • (c) The Committee asks the Government to keep it informed of the outcome of the judicial proceedings against the workers - who have now been released - who were arrested on 19 August 1992 as a result of a march of striking workers in the ARCO enterprise.