Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 383, Octubre 2017

Caso núm. 3167 (El Salvador) - Fecha de presentación de la queja:: 03-AGO-15 - En seguimiento

Allegations: The complainant alleges harassment and interference, establishment of a parallel union, loss of ownership of a collective agreement, refusal of leave and dismissal of a trade union activist

1. 302. The complaint is contained in a communication of 3 August 2015 from the Union of Electrical Sector Workers (STSEL).
2. 303. The Government sent its observations in a communication dated 1 November 2016.
3. 304. 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. 305. In its communication of 3 August 2015, the complainant alleges that STSEL was the victim of acts of interference by the President of the Río Lempa Hydroelectric Executive Commission (“the Commission”), a public group acting in that sector and covering various firms. The complainant explains that the official in question took up his post in June 2013 and that STSEL openly expressed its opposition to his appointment. The complainant states that the said person had tried to be elected as Secretary-General of STSEL, but that he had been refused the position, as he did not fulfil the legal requirements and acted as an employer’s representative and trusted employee in one of the Commission’s firms (La Geo, “firm A”), as project coordinator. According to the complainant, the fact that he did not manage to obtain the union position, as a result of the majority of members rejecting him at a general assembly, led to him making threats towards the union and guaranteeing that he would not rest until the organization was destroyed.
2. 306. The complainant alleges that the President of the Commission sponsored a group of STSEL members and all the members of an STSEL section governing board to join forces with him in attacking the union. It states that STSEL reacted to this attack by expelling the members that had joined forces with the President and that, faced with their expulsion, they obtained further support from the President of the Commission, to the effect that he used them to establish a parallel union based in firm A, known as the Union of Electrical Industry and Related Activities Workers of El Salvador (STESEC). The complainant states that membership of STESEC was obtained by coercing the STSEL members to withdraw from that union and become members of the new union, by offering the managers wage increases, if they joined up, as well as jobs for the children of those who became members. According to the complainant, the President of the Commission made a personal appeal for all middle and high-ranking members, and managers of firm A and of the Commission, to join the STESEC, a step which those staff members actually took. Referring to membership of the union, the President of the Commission stated publicly that “members were either with him or against him”; for that reason, the employees and managers became members of STESEC out of fear. As regards the above, the complainant indicates that it filed an application for protection with the Constitutional Chamber of the Supreme Court of Justice, dated 21 October 2014, but that ten months after the application was filed nothing had been forthcoming. The complainant also informs that on 14 November 2014, it submitted a request to the Second San Salvador Labour Court, for STESEC to be legally dissolved owing to the acts of coercion against the STSEL members in firm A, committed together with the managers, although no final decision had as yet been taken on the application. It indicates that it has filed a further application with the Fourth Labour Court, owing to acts of coercion committed in the Commission by STESEC, although that judicial authority has not yet taken a final decision either.
3. 307. Furthermore, the complainant states that while firm A of the Commission refuses to grant union leave to union leaders of various branches of STSEL to perform their union duties, it grants unrestricted leave to STESEC union leaders to carry out their activities, and provides them with appropriate food and transport. The complainant indicates that such conduct is also carried out by Commission officials who favour STESEC’s union activities and restrict union leave for STSEL.
4. 308. The complainant also states that on 15 May 2015, firm A dismissed Mr Julio Cesar Avilés Oliva, Secretary-General of STSEL’s branch in firm A, for taking union leave, despite the fact that the Director-General of Labour of the Ministry of Labour had issued a ruling of 31 October 2014 to the effect that STSEL union leaders could benefit from union leave on the basis of the collective labour agreement. In addition, STSEL considers that, in accordance with the labour laws, a union leader cannot be dismissed or be subject to disciplinary sanctions without the competent authority having previously proved that a specific reason exists; in the case of Mr Avilés, that prior requirement had not been satisfied but he had been dismissed arbitrarily by the employer.
5. 309. The complainant also denounces the fact that the President of the Commission authorized lawyers from its legal body to provide advice on the disputed ownership of the collective agreements concluded by STSEL with various Commission bodies, to the effect that the Head of the National Department of Social Organizations informed STSEL that it had transferred ownership, to STESEC, of the collective labour agreement with firm A (by a decision of 6 October 2014), and of the collective agreement with another firm (firm B) and with the Commission itself (in both cases by a decision of 4 May 2015). The complainant informs that it was not guaranteed the right to a hearing and due process, and that although it had informed the head of department in question that STESEC had gained union members from the said firms with the sponsorship of the President of the Commission, and that it had also taken legal action in that regard, the case was decided in favour of the employers’ union, STESEC.
6. 310. The complainant states that it reported these facts to the Minister of Labour and that, despite the Minister holding one meeting with the President of the Commission, the President continued with the attacks mentioned, to the extent that STSEL was deprived of the collective labour agreements of which it was the owner. The complainant states that the Minister also failed to intervene with the Head of the National Department of Social Organizations for the purposes of carrying out an investigation of how STESEC gained the largest number of members. According to the complainant, the Minister’s failure to act led to further attacks against STSEL’s right to freedom of association.
7. 311. Finally, the complainant alleges that it requested the Labour Inspectorate-General to conduct inspections in relation to the abovementioned anti-union practices and that the inspectorate noted the instances of coercion reported.

B. The Government’s response

1. 312. In its communication of 1 November 2016, the Government provides a response to the allegations made by the complainant, partly based on the information received from firm A (attached to the response). As regards the allegation of interference by the President of the Commission and his role in creating a parallel union (STESEC), the Government indicates that the President was appointed to his position in June 2014, for a four-year period. Referring to the registers held by the Ministry of Labour and Social Welfare, the Government indicates that only two unions are in operation in the Commission, i.e. STSEL and STESEC. The first was established on 24 August 1996 and the second on 1 May 2012, i.e. sufficiently in advance of the President’s appointment. At the same time, it states that STSEL was already unhappy with the appointment of the official in question.
2. 313. The Government states that the Commission is an official state autonomous public service institution, and that firm A is a public firm which belongs to the Commission, and that, in accordance with the individual labour agreement of the Secretary-General, it may be noted that she is an employee of firm A. From the above, the Government states that the facts alleged in the complaint by STSEL took place in firm A, whose legal representative, from 13 June 2014 to date, was not the President of the Commission but another person. In other words, the majority of the facts alleged by STSEL occurred in firm A, although the Commission managed the relevant information so as to examine in depth the facts relating to the representative.
3. 314. As regards the procedure for changing ownership of the collective labour agreement concluded between STSEL and the Commission in favour of STESEC, the Government indicates that, pursuant to article 270 of the Labour Code, when comparing the updated payroll of STESEC members with the list of payments presented by the Commission, the National Department of Social Organizations of the Ministry of Labour and Social Welfare determined that STESEC had exceeded the required minimum percentage set by article 270 of the Labour Code. As regards firm A, the Government states that on 6 October 2014, the National Department of Social Organizations declared that STESEC was the owner of the collective labour agreement.
4. 315. The Government further presents statistics concerning membership of the two sectoral unions (STSEL and STESEC), by means of which it provides proof of and justification for STSEL’s loss of union ownership, owing to its smaller number of members, and highlights the obligation of the employer, firm A, to conclude the collective agreement with the union that represents the majority of workers. Based on the above, on 1 November 2015, that firm and STESEC finalized a new collective labour agreement which repealed the previous agreement, thereby demonstrating, according to the Government, a willingness to engage in dialogue by both parties in the conclusion of the new collective agreement.
5. 316. With respect to the allegations that union leave was refused for trade union leaders of various branches of STSEL, the Government states that paragraph 24 of the new collective agreement recognizes the right of the union for its leaders to have union leave, but such leave is partial and not permanent:
   • One member of the Section Governing Board for firm [A] of the Union and one member of the General Governing Board shall have ten (10) days of leave each per calendar month with full pay for the period during which he/she performs the duties for which he/she was elected, in order to carry out those necessary and essential duties in the exercise of his/her functions, with no obligation other than to report on a daily basis to the firm’s premises, so as to provide assistance and verify that the work is carried out in an efficient and smooth manner, ensuring respect and consideration between coordinators and subordinates. The remaining members of the Section Governing Board for firm [A] and General Governing Board shall have six (6) days’ leave per calendar month with full pay; they shall report to their place of work in the same manner; and time shall not be accumulated in subsequent months.
6. 317. The Government further considers that the minority union also has the right to union leave, but on a partial basis and not full time. For the Government, the fact that the STSEL Secretary-General considers that she has the right to 100 per cent working time as a right granted by trade union freedoms is solely the result of a personal decision to grant herself the exclusive privilege not to work, contrary to the provisions of the new collective agreement in force. In that regard, it provides a list of 30 notes sent by the firm’s human resources administrative authority, in which it requests STSEL’s Secretary-General to report for work, something she has not as yet done.
7. 318. As to the dismissal of Mr Julio César Avilés Oliva, Secretary-General of the STSEL’s branch in firm A, for allegedly taking union leave, the Government states that the corresponding court proceedings have been temporarily suspended.
8. 319. Concerning the filing of the application with the Second Labour Court of San Salvador, on 14 November 2014, requesting that STESEC be dissolved for alleged acts of coercion against STSEL members in firm A committed together with the managers, the Government indicates that the application for dissolution was declared “non-admissible” by the court, on 22 July 2015 (proceedings No. NUE 11755-14-LBJC-2LB1-(3), as administered by the Second Labour Court; the decision is attached to the Government’s response). Pointing out that the proceedings in question contain 23 sworn witness statements, the Government states that the claims made in the complaint are therefore refuted and that it is clearly established that the President of the Commission did not, at any time, commit any acts of coercion against any worker or union activist.
9. 320. As regards the application filed with the Fourth Labour Court for alleged acts of coercion committed by STESEC, the Government indicates that the Court, in a decision issued on 17 July 2017, upheld the lis pendens exception alleged by the defendant.
10. 321. With respect to the hearing, mentioned by the complainant, with the Minister and the President of the Commission, the Government reports that a hearing was arranged on 13 April 2016 to launch a dialogue between the two parties involved, but that the hearing ended without a settlement being reached owing to the inflexible position of the Secretary General of STSEL, who refused to report to her place of work.
11. 322. In relation to the allegation concerning the request for inspections to be made by the Labour Inspectorate-General, the Government states that an inspection was requested by STSEL for the purposes of verifying whether anti-union discrimination existed in firm A; in those proceedings a breach of section 30(5) of the Labour Code was highlighted, that breach was not remedied and the case was transferred to the appropriate sanctions procedure. The Government indicates that the proceedings are with the Appeals Section of the Labour Inspectorate-General, owing to the fact that a fine of US$342.84 was imposed, for a breach of section 248 of the Labour Code, as it pertains to article 30(5) of the same Code.
12. 323. Finally, in relation to STSEL’s Secretary-General, the Government states that, as indicated in the document of 31 May 2016, firm A requested that a special or unplanned inspection be conducted so as to establish the union leader’s obligation to perform the work agreed in the individual employment contract.

C. The Committee’s conclusions

1. 324. The Committee notes that in this case the complainant (STSEL) claims that: (i) acts of interference have been committed by the President of the Hydroelectric Executive Commission (the Commission), in particular its role in creating a parallel union (STESEC); (ii) the complainant’s ownership of the collective agreement has been transferred to that parallel union; (iii) union leave has been refused by firm A of the Commission for trade union leaders of various branches of STSEL; and (iv) Mr Julio Cesar Avilés Oliva, Secretary-General of STSEL’s branch in firm A, has been dismissed, allegedly for taking union leave.
2. 325. As to the allegations of interference by the President of the Commission and his role in setting up a parallel union (STESEC), the Committee notes the rivalries, mentioned by the complainant and the Government, between the STSEL management and the President. According to the STSEL representative, these rivalries are alleged to date back to the period during which the current President had tried to be elected as STSEL Secretary-General, and his candidacy had been rejected by the majority of members since he was acting as the employer’s representative and a trusted employee in one of the Commission’s firms (firm A). The Committee notes that, according to the complainant, this had given rise to some personal resentment on the part of the President towards the complainant and the willingness to create a parallel union (STESEC). The Committee also notes the information provided by the Government, according to which STESEC had been established long before the President’s appointment (two years) and the STSEL union was unhappy with the appointment of the official in question as President of the Commission.
3. 326. In relation to the application filed with the Second Labour Court of San Salvador, dated 14 November 2014, in which the complainant requested STESEC to be dissolved, for alleged acts of coercion against the STSEL members in firm A, committed together with the managers, the Committee notes the information provided by the Government, according to which, in a ruling issued on 22 July 2015, the application for dissolution was declared “non admissible” (court proceedings No. NUE 11755-14-LBJC-2LB1-(3)). The Committee notes that the decision highlights the imprecise nature of the causal factors of the proof provided. In particular, the decision reads: “no evidence has been provided of the persons who have been coerced, nor has evidence been forthcoming as to who from the union that is the subject of the application has allegedly been the cause of such circumstances, nor of the means as to how the alleged coercion has been verified; by contrast, documents have been filed showing that members have moved from one union to another, without there being any violence, force or coercion in this regard … and, moreover, in the case brought, as a legal person the union has not infringed any provision of the law or of its constitution, while actions are attributed to its members as natural persons and individuals; it can therefore be inferred that cancelling the registration of a trade union or dissolving it for alleged illegal activities of some of its members, would result in broad and serious consequences for the representation of the interests of hundreds of workers”. Considering that at the time the complaint was submitted, the complainant had no knowledge of the decision, the Committee requests it to indicate whether it lodged an appeal against the decision of the Second Labour Court dated 22 July 2015.
4. 327. As regards the relinquishing of ownership of the collective agreement to STESEC, the Committee notes the procedure reported by the Government, in relation to the work of the National Department of Social Organizations of the Ministry of Labour, as well as the statistics relating to the members of the two trade unions concerned, through which evidence is provided of STSEL’s loss of union ownership, owing to its smaller number of members in both the Commission and in firm A. It also notes that on 1 November 2015 a new collective agreement was subsequently formalized between firm A and the new majority union, STESEC.
5. 328. As regards the issue of union leave, the Committee notes that the new conditions applicable are the result of the new collective agreement mentioned and that they restrict the leave granted, although such leave is given to both unions, according to the information provided by the Government. The Committee notes that for the Government such conditions are the logical consequence of the collective agreement, as it has been negotiated by the new majority union, STESEC, while the STSEL representative appears to apply the old system which was more favourable to STSEL.
6. 329. In more general terms, despite the allegations of interference and coercion of the firm in promoting a parallel union in order to damage the complainant not having been proved, and despite the consequences resulting from the loss of ownership of a collective agreement, the Committee cannot fail to note that the decision in question of the Second Labour Court, of 22 July 2015, recognizes that the members of the union which is the subject of the application (STESEC), including in its executive board, consist of persons who are managers and who, as a result, are trusted employees and represent the employers of firm A: “since there is no proof to deny that the workers in question with the relevant positions acted or act as union leaders on the general executive board and the section of the union subject to the application, it is established that as they are in fact employers’ representatives and form part of the management of the relevant union, the provisions of article 225(5) of the Labour Code have been breached … and thus the work-related interests of the other workers are affected, irrespective of whether they are members of the relevant union, in so far as those employees are part of the management of that trade union and, at the same time, have been employers’ representatives; this constitutes interference by the employers in the union’s activities and infringes the rights of a workers’ group …”. In those circumstances and in the light of the information available to it, the Committee cannot exclude the possibility that the employer has grounds to isolate STSEL and promote another union (STESEC) presumably more closely suited to its interests, even to the extent of giving it ownership of the collective agreement. In this regard, the Committee considers that the fact that managers of the firm are also members of the union and of its governing board is clear evidence of unfair practice, giving rise to acts of interference in violation of Convention No. 98, Article 2, and of national legislation, with possible repercussions for collective bargaining. In this respect, the Committee reiterates that, recalling the importance of the independence of the parties in collective bargaining, negotiations should not be conducted on behalf of employees or their organizations by bargaining representatives appointed by or under the domination of employers or their organizations [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 868].
7. 330. The Committee also notes that investigations have been conducted by the Labour Inspectorate-General at the request of STSEL. In this regard, the Committee notes that, according to the complainant, the inspectorate noted the instances of coercion reported – although the organization did not provide further details – and that the Government indicates that the inspectorate highlighted a breach of article 30(5) of the Labour Code in firm A (referring to anti-union practices, and direct or indirect discrimination), which was not remedied, and the case was transferred to the appropriate sanctions procedure. The Committee further notes that the case is currently with the Appeals Section of the Labour Inspectorate-General, owing to the fact that a fine of US$342.84 was imposed for a breach of article 248 of the Labour Code, relating to the protection of trade union immunity, as it pertains to article 30(5) of the same Code.
8. 331. The Committee requests the Government to provide detailed information on the anti-union practices observed by the Labour Inspectorate-General in firm A. The Committee requests the Government to keep it informed of the outcome of the corresponding sanctions procedure, so as to ensure that the sanctions applied are sufficiently dissuasive as to guarantee the freedom of association of all workers in the firm.
9. 332. As to the dismissal of Mr Julio César Avilés Oliva, Secretary-General of STSEL’s branch in firm A, the Committee notes that, according to the complainant, firm A dismissed Mr Avilés Oliva on 15 May 2015 for taking union leave, despite the fact that the Director-General of Labour of the Ministry of Labour had issued a ruling, dated 31 October 2014, that STSEL union leaders could take union leave as per the collective labour agreement. The Committee also notes that the Government indicates that the corresponding court proceedings have been temporarily suspended. Drawing attention to the Workers’ Representatives Convention, No. 135 and Recommendation No. 143 (1971), in which it is expressly established that workers’ representatives in the undertaking shall enjoy effective protection against any act prejudicial to them, including dismissal, based on their status or activities as workers’ representatives or on union membership, or participation in union activities, in so far as they act in conformity with existing laws or collective agreements or other jointly agreed arrangements [see Digest, op. cit., para. 800], the Committee urges the Government to inform it of the outcome of the court case in progress.

The Committee’s recommendations

1. 333. In light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee invites the complainant to indicate whether it lodged an appeal against the decision of the Second Labour Court, dated 22 July 2015.
   • (b) The Committee requests the Government to provide detailed information on the anti-union practices observed by the Labour Inspectorate-General in firm A and to keep it informed of the outcome of the corresponding sanctions procedure, so as to ensure that the sanctions applied are sufficiently dissuasive as to guarantee the freedom of association of all the workers in the firm in question.
   • (c) As to the dismissal of Mr Julio César Avilés Oliva, Secretary-General of STSEL’s branch in firm A, the Committee urges the Government to inform it of the outcome of the court case in progress.