Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 386, Juin 2018

Cas no 3256 (El Salvador) - Date de la plainte: 28-NOV. -16 - Clos

Allegations: The complainant organization alleges the refusal to grant union leave and accreditation to its officers; dismissals of members of its executive committee; and anti-union threats and failure by the authorities to take action against such threats

1. 271. The complaint is contained in a communication from the Trade Union for the Defence of Workers of the Social Security Institute of El Salvador (SIDETISSS) dated 28 November 2016.
2. 272. The Government sent its observations in a communication dated 22 February 2018.
3. 273. 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. 274. In its communication of 28 November 2016, the complainant organization reports: (i) dismissals of members of its executive committee; (ii) the refusal by the Social Security Institute of El Salvador (ISSS) (the employer) to grant trade union leave to the union’s officers and also the refusal by the Ministry of Labour and Social Security (Ministry of Labour) to grant trade union accreditation to three members of the union’s executive committee; and (iii) anti-union threats and failure by the authorities to take action against such threats.
2. 275. As regards the anti-union dismissals of members of the executive committee of the complainant organization, namely Ms Elsa del Socorro Carranza de Murcia, Mr David Ernesto López Urquilla, Mr Francisco Eduardo Cotto Murcia, Mr Rafael Ernesto Martínez Arévalo, Mr José Luis Santos Orellana and Mr Modesto Díaz Jovel, the complainant indicates that the employer took legal action to have their dismissals authorized and their employment relationship terminated. It also indicates that, as at 28 November 2016, four of these six dismissals had been authorized by the courts and the other two were still pending.
3. 276. As regards the employer’s refusal to grant union leave to the union’s officers, the complainant organization indicates that it requested such leave – whether partial or permanent – on three occasions (24 May 2013, 8 August 2013 and 12 July 2016), that the employer rejected these three requests, and that it did not provide any opportunity to negotiate a timetable or reduce working hours so that the executive committee could carry out its union activities. Moreover, the complainant refers to a letter from the employer dated 24 May 2016, indicating that “it is inappropriate to grant union leave with wages and benefits … since there is no way for these to be permanent or ongoing, considering the essential service provided by the institution for which we all work”.
4. 277. As regards the refusal by the Ministry of Labour to grant trade union accreditation to three members of the executive committee, namely Ms Elsa del Socorro Carranza de Murcia, Mr David Ernesto López Urquilla and Mr Francisco Eduardo Cotto Murcia, the complainant organization indicates that the Ministry decided to reject its requests because no payslips or wage certificates had been submitted proving that the three individuals were employed by the ISSS. It also objects to the fact that other trade union officers at autonomous institutions having the same status as its three executive committee members, such as officers of the Union of Judiciary Workers (SITTOJ) and the Union of Food Processing Industry Workers (SITIPA), had been granted union accreditation.
5. 278. Lastly, as regards the anti-union threats on the part of the authorities, the complainant organization denounces the statement made by the Minister of Health that, in the wake of the work stoppage and marches by health sector workers in October 2016, the authorities were going to make deductions from wages, dismiss workers and even dissolve trade unions. The complainant also denounces the silence on the part of the Ministry of Labour and the central Government in response to the various complaints made against anti-union acts committed by the employer, particularly those dated 8 August 2013, 19 November 2014, 13 January 2015, 7 July 2015, 18 September 2015 and 23 September 2015.

B. The Government’s reply

1. 279. In its communication of 22 February 2018, the Government indicates, with regard to the dismissals of Ms Elsa del Socorro Carranza de Murcia, Mr David Ernesto López Urquilla, Mr Francisco Eduardo Cotto Murcia, Mr Rafael Ernesto Martínez Arévalo and Mr Modesto Díaz Jovel, that all committed misconduct regarded as grounds for dismissal under the law and that their dismissals were authorized by the competent authorities. It also indicates that to date no legal actions have been admitted and no protective measure of reinstatement has been issued.
2. 280. The Government indicates that in the case of Ms Elsa del Socorro Carranza de Murcia, civil proceedings for the authorization of dismissal were brought in the Second Civil and Commercial Court (Judge No. 2) and on 21 July 2015 the dismissal for unjustified absence from work was authorized. It adds that this decision was upheld on 9 September 2015 by a decision issued by the Civil Chamber (First Division, Central Region) in San Salvador.
3. 281. The Government indicates that, in the case of Mr David Ernesto López Urquilla, on 19 May 2016 the First Civil and Commercial Court authorized his dismissal for unjustified absence from work. It also indicates that, in the case of Mr Francisco Eduardo Cotto Murcia, on 11 February 2014 the Civil Court of Mejicanos authorized his dismissal for unjustified absence from work. It adds that this decision was upheld on 13 March 2014 by a definitive judgment issued by the Third Civil Chamber (First Division, Central Region) in San Salvador.
4. 282. The Government also indicates that, in the case of Mr Rafael Ernesto Martínez Arévalo, on 30 June 2016 the Fifth Civil and Commercial Court authorized his dismissal for unjustified absence from work. It adds that this decision was upheld on 31 August 2016 by a definitive judgment issued by the Third Civil Chamber (First Division, Central Region) in San Salvador. It further indicates that, in the case of Mr Modesto Díaz Jovel, on 26 January 2017 the Fourth Civil and Commercial Court authorized his dismissal for unjustified absence from work for over 60 days and that this decision was upheld on 28 March 2017 by a judgment issued by the Second Civil Chamber (First Division, Central Region).
5. 283. Lastly, the Government indicates that, in the case of Mr José Luis Santos Orellana, civil proceedings for the authorization of dismissal were brought in the Fourth Civil and Commercial Court for unjustified absence from work, and that this court decided to allow the application of 9 June 2017. The authorization of dismissal is currently being processed.
6. 284. As regards the employer’s refusal to grant trade union leave, whether partial or permanent, to officers of the complainant organization, the Government indicates that one of the obligations for employers established by section 29 of the Labour Code is to grant leave to workers so that “for the time required, they can perform their essential duties as officers of occupational organizations, provided that this is requested by the organization concerned. The employer will not be obliged to grant any benefits in this respect”. The Government also indicates that the Constitutional Chamber of the Supreme Court of Justice, in ruling No. 746-2011 of 26 June 2015, states in paragraph IV(c) that “trade union leave is thus the instrument whereby the employer authorizes union leaders to be absent from the workplace during working hours in order to accomplish specific activities essential to the proper functioning and development of the labour organization, provided that such leave is reasonable, proportionate and necessary” and states in paragraph V(c)(a) that “the status of trade union officer shall not prevail over that of public servant”. The Government also points out that the aforementioned ruling states that it is inappropriate to grant permanent leave to union officers.
7. 285. Furthermore, the Government indicates that a request was made to review the refusal to grant trade union leave to Mr Rafael Ernesto Martínez Arévalo, third disputes secretary of the executive committee of the complainant organization, and that as a result of the relevant investigation the labour inspector was unable to confirm the alleged refusal of union leave, since the leave claimed by the worker had not been requested for union activities. However, it adds that the employer was recommended to comply with the terms of Article 2 of Convention No. 135.
8. 286. As regards the refusal by the Ministry of Labour to grant trade union accreditation to three members of the executive committee of the complainant organization, namely Ms Elsa del Socorro Carranza de Murcia, Mr David Ernesto López Urquilla and Mr Francisco Eduardo Cotto Murcia, the Government indicates that it should be made clear that one of the requirements to be checked before granting accreditation is set out in section 225(5) of the Labour Code, which excludes employees occupying positions of trust and employer representatives. The Government indicates that, at the time of checking the documentation required under the aforementioned section to register the executive committee of the complainant organization, no payslips or certificates from the human resources department had been attached showing the employment relationship and the duties performed for the employer, which is necessary in relation to the exclusion established in section 225(5) of the Labour Code. However, the Government indicates that on 12 December 2016 the complainant presented a new request for accreditation for Ms Elsa del Socorro Carranza de Murcia, Mr David Ernesto López Urquilla and Mr Francisco Eduardo Cotto Murcia. It also indicates that, because of the unavailability of payslips or certificates from the human resources department demonstrating the employment relationship between the three workers and the employer, the complainant attached to its request copies of the amparo appeals filed with the Constitutional Chamber to have the termination of their employment relationship declared null and void, thereby replacing the documentation normally required by section 225(5) of the Labour Code. The Government indicates that the accreditation requested for the three executive committee members was granted through a decision issued on 14 December 2016, with validity from 10 December 2016 to 11 June 2017.
9. 287. The Government indicates that, on 26 May 2017, the complainant organization elected a new executive committee due to hold office from 12 June 2017 to 11 June 2018 and that full accreditation was granted on 28 August 2017 to Mr Oscar Ernesto Murcia Carranza, general secretary of the complainant organization. As regards the accreditation granted to other trade union officers who were allegedly in the same situation as the officers of the complainant organization (such as the officers of SITTOJ and SITIPA), the Government emphasizes that the same criterion was applied to these unions and that they attached the required documentation in due time.
10. 288. Lastly, as regards the anti-union threats by the authorities and the silence on the part of the Ministry of Labour and the central Government with respect to the various complaints concerning alleged anti-union acts committed by the employer, the Government indicates that no discriminatory, anti-union policy exists or has ever existed with respect to the complainant organization and that various labour inspections have been carried out by the Labour Inspection Department, as described below:
    • (a) A request was made to investigate allegations of obstruction of freedom of association and anti-union discrimination against Mr Rafael Ernesto Martínez Arévalo, third disputes secretary of the executive committee of the complainant organization, and further to the interviews held with representatives of the employers and colleagues of the worker, the alleged discrimination was not proven.
    • (b) Mr Francisco Eduardo Cotto Murcia and Mr José Luis Santos Orellana requested an investigation into allegations of discrimination with regard to their status as union officers and, further to the corresponding investigation at the workplace liable to inspection, the labour inspector noted in a report dated 8 April 2014 that since this involved a collective dispute of a legal nature, he had no competence in the matter, and consequently the file was closed.
    • (c) Mr Carlos Armando Sánchez requested an investigation into allegations of illegal deductions and discriminatory acts and an infringement of section 30(5) of the Labour Code was established, which forbids employers to discriminate, directly or indirectly, against workers on account of their trade union membership. The Government indicates that the inspector recorded in a re-inspection document that this infringement had been rectified and consequently the file was closed.
    • (d) Mr Modesto Díaz Jovel requested an investigation into his employment situation, alleging fraud with respect to recruitment since the employer had modified his form of contract, which he saw as being intended to undermine the trade union movement and union freedoms. The Government indicates that after completing the corresponding inspection procedures the labour inspector recorded in a report dated 27 January 2014 that the change in the form of contract was in line with clause 14 of the collective agreement, whereby workers having over 20 years’ service are no longer covered by the recruitment regime and Mr Modesto Díaz Jovel had 22 years’ service to date; hence no infringement of the labour regulations was established, and consequently the file was closed.
    • (e) Ms Elsa del Socorro Carranza requested an investigation into her employment situation and, further to the relevant investigation by the labour inspector assigned to the case, the report dated 11 March 2015 concluded that since this involved a labour dispute in which the recruitment regime, under section 2 of the Labour Code, does not come within the competence of the Ministry of Labour, it was necessary to return the file for closure.
    • (f) Mr David Ernesto López Urquilla requested an investigation into discriminatory acts committed by representatives of the employer, including abuse of power, gender violence and harassment at work, and also with respect to the right to a hearing and defence and the adversarial principle established in clause 18 of the collective agreement. The Government indicates that the labour inspector concluded with regard to this last point that the Labour Inspection Department does not have competence for a collective dispute of a legal nature deriving from the application or interpretation of legal standards but the inspection report established an infringement of section 79(3) of the Occupational Risk Prevention Act, which penalizes non-fulfilment of the obligation to formulate and implement the enterprise’s occupational risk management and prevention programme, an infringement which was shown to have been rectified in the re-inspection report, and consequently the file was closed.
    • (g) Ms Mirna Elizabeth Mejía requested an investigation into her transfer as a union representative, noting that the assigned inspector established that there had been a violation of the collective agreement.
11. 289. The Government also highlights the use of dialogue round tables as a means of settling disputes, through the Labour Department and the Labour Minister’s advisory team, and the publication by the Ministry of Labour of a recommendation to the employer in October 2016 to consider the reinstatement of the dismissed union officers.
12. 290. Lastly, the Government indicates that as regards the notes dated 13 January 2015, 7 July 2015 and 23 September 2015, no record was found at the Labour Inspection Department of any files drawn up or procedures conducted on those dates, according to internal databases.

C. The Committee’s conclusions

1. 291. The Committee observes that in the present case the complainant organization reports: (i) dismissals of members of its executive committee; (ii) the refusal by the employer to grant union leave to its officers and also the refusal by the Ministry of Labour and Social Welfare (Ministry of Labour) to grant union accreditation to three members of its executive committee; and (iii) anti-union threats and failure of the authorities to take action against them.
2. 292. As regards the dismissals of members of the executive committee of the complainant organization, namely Ms Elsa del Socorro Carranza de Murcia, Mr David Ernesto López Urquilla, Mr Francisco Eduardo Cotto Murcia, Mr Rafael Ernesto Martínez Arévalo and Mr Modesto Díaz Jovel, the Committee notes the judicial decisions authorizing their dismissals for unauthorized absence from work. It notes that the competent courts concluded, in the light of the evidence presented by the parties, that it had not been proven that the absences were for participating in activities required by their status as trade union officers. The Committee also observes that in the case of Mr José Luis Santos Orellana, the Fourth Civil and Commercial Court decided to allow the application for dismissal on 9 June 2017, and the authorization of dismissal is currently being processed. The Committee also observes that the Ministry of Labour issued a recommendation to the employer in October 2016 to consider the reinstatement of the dismissed union officers. The Committee requests the Government to keep it informed of developments, particularly to provide further details regarding the recommendation to reinstate the dismissed trade union officers and its implementation.
3. 293. As regards the refusal by the employer to grant trade union leave to officers of the complainant organization, the Committee notes the information provided by the Government concerning the relevant legislation and the ruling of the Constitutional Chamber of the Supreme Court of Justice dated 26 June 2015. It also notes the complainant’s statement that it requested the aforementioned union leave on three occasions and that the employer rejected these three requests and was unwilling to negotiate a timetable or a reduction in working hours so that the executive committee could carry out its union activities. The Committee recalls in this respect that Article 6(1) of Convention No. 151 provides that “such facilities shall be afforded to the representatives of recognised public employees’ organisations as may be appropriate in order to enable them to carry out their functions promptly and efficiently, both during and outside their hours of work”. Article 6(2) provides that “the granting of such facilities shall not impair the efficient operation of the administration or service concerned”. The Committee recalled that, while account should be taken of the characteristics of the industrial relations system of the country, and while the granting of such facilities should not impair the efficient operation of the undertaking concerned, Paragraph 10(1) of Recommendation No. 143 provides that workers’ representatives in the undertaking should be afforded the necessary time off from work, without loss of pay or social and fringe benefits, for carrying out their representation functions. Paragraph 10(2) also specifies that, while workers’ representatives may be required to obtain permission from the management before taking time off, such permission should not be unreasonably withheld. The Committee also recalls that Paragraph 10(3) of Recommendation No. 143 indicates that reasonable limits may be set on the amount of time off which is granted to workers’ representatives [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, paragraphs 1603 and 1604]. The Committee requests the Government to ensure that the members of the executive committee of the complainant organization are able to take trade union leave, in accordance with the above, and invites the Government, with a view to determining arrangements for such leave, to promote dialogue and collective bargaining between the parties concerned. The Committee requests the Government to keep it informed in this respect.
4. 294. As regards the refusal by the Ministry of Labour to grant trade union accreditation to three members of the executive committee of the complainant organization, namely Ms Elsa del Socorro Carranza de Murcia, Mr David Ernesto López Urquilla and Mr Francisco Eduardo Cotto Murcia, the Committee observes that the complainant and the Government indicate that the employer rejected the three requests because no payslips or wage certificates had been submitted proving that they were ordinary workers and not representatives of the employer or persons occupying positions of trust. In this respect, the Committee notes that the Government highlights the fact that the same criterion was applied to all trade unions and the same documentation was requested from them. Furthermore, it notes the Government’s statement that once the complainant submitted copies of the amparo appeals lodged with the Constitutional Chamber to provide the documentation that had been originally requested (payslips or certificates from the human resources department), the requested accreditation was granted. The Committee notes the Government’s indication that on 26 May 2017 the complainant elected a new executive committee and that full accreditation was issued on 28 August 2017 to Mr Oscar Ernesto Murcia Carranza, the general secretary of the complainant organization. Under these circumstances, the Committee will not pursue its examination of this allegation.
5. 295. As regards the allegations of anti-union threats by the authorities and of silence on the part of the Ministry of Labour and the central Government in relation to various complaints of alleged anti-union acts committed by the employer, the Committee notes that the Government provides detailed information on the various inspections carried out by the Labour Inspection Department. It also notes the Government’s indication that it made use of dialogue round tables to address the disputes that had arisen. The Committee encourages the Government to continue promoting social dialogue between the parties to address any pending issues and invites the complainant organization to forward any additional information that it may have on this matter. It also requests the Government to keep it informed of developments.

The Committee’s recommendations

1. 296. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) As regards the dismissals of members of the executive committee of the complainant organization, the Committee requests the Government to keep it informed of further developments, particularly to provide further details regarding its recommendation to reinstate the dismissed trade union officials and its implementation.
   • (b) The Committee requests the Government to ensure that the members of the executive committee of the complainant organization are able to take trade union leave, in accordance with the decisions applying the principles of freedom of association mentioned in its conclusions, and invites the Government, with a view to determining arrangements for such leave, to promote dialogue and collective bargaining between the parties concerned. The Committee requests the Government to keep it informed in this respect.
   • (c) The Committee encourages the Government to continue promoting social dialogue between the parties to address any pending issues and invites the complainant organization to supply any additional information that it may have on this matter. It also requests the Government to keep it informed of developments.