Informe definitivo - Informe núm. 411, Junio 2025

Caso núm. 3349 (El Salvador) - Fecha de presentación de la queja:: 31-JUL-18 - Cerrado

Allegations: The complainant organizations allege acts of anti-union discrimination, including transfers, and excessive restrictions on the granting of trade union leave by a public institution for the promotion of gender equality

1. 252. The complaint is contained in three communications dated 31 July and 13 September of 2018 and 7 February 2020 from the Trade Union of Workers of the Salvadoran Institute for Women’s Development (USTTISDEMU) and the National Union for the Defence of the Working Class (UNT).
2. 253. The Government of El Salvador sent its observations on the allegations in a communication dated 23 September 2019.
3. 254. 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), the Labour Relations (Public Service) Convention, 1978 (No. 151), and the Collective Bargaining Convention, 1981 (No. 154).

A. The complainants’ allegations

1. 255. In their communications of 31 July and 13 September 2018, the complainants assert that two leaders of the USTTISDEMU, which was established in November 2013 and acquired legal personality on 22 January 2014, were subjected to acts of anti-union discrimination, including transfers, by the Salvadoran Institute for Women’s Development (ISDEMU). They further allege that the ISDEMU imposed excessive restrictions on the granting of trade union leave to USTTISDEMU representatives.
2. 256. According to the complainants, on 23 May 2015, Mr José Leopoldo de la O. Montoya, Finance Secretary of the USTTISDEMU, was relieved of his duties as institutional accountant, a post that he had occupied since 1996, and assigned to an archive technician post, despite the fact that he enjoyed trade union immunity. The complainants further maintain that the ISDEMU initiated proceedings for the removal from office of Mr de la O. Montoya before the First Civil and Commercial Court and that a judicial appeal was filed in this regard.
3. 257. In addition, the complainants affirm that Ms Edith Santos Hernández, elected International and National Relations Secretary of the USTTISDEMU in November 2017, was transferred from a social worker post to serve in an administrative role in December 2017. They indicate that complaints were lodged with the Office of the Attorney General of the Republic and the Civil Service Tribunal in relation to this decision.
4. 258. With regard to the granting of union leave, the complainants maintain that the executive board of the ISDEMU uses the Instructions on the granting of leave for the activities of employees’ unions of the Salvadoran Institute for Women’s Development (hereinafter, “the Instructions”), which it adopted without consulting the USTTISDEMU, to deny requests made by the latter and to restrict the defence of the rights and interests of its members.
5. 259. The complainants allege, in particular, that deductions and threats of deductions from the wages of USTTISDEMU representatives were made on grounds of unjustified absences from work, despite the fact that the representatives concerned had documented the reasons for those absences through the institutional leave form. They further assert that the ISDEMU refused to allow the USTTISDEMU to organize a trade union training for its members on working days with pay, urging it instead to ask its members to request compensatory leave or leave without pay, thereby affecting the level of participation in the training.
6. 260. In their communication of 7 February 2020, the complainants indicate that, following the filing of an appeal with the Ombudsman for Human Rights (PDDH), the latter issued a decision of 14 May 2018 in which it recommended that the ISDEMU amend the Instructions through negotiation with the USTTISDEMU. However, they state that, to date, the ISDEMU has not revised the Instructions nor have negotiations been held in this regard. Furthermore, the complainants maintain that the excessive restrictions on the granting of union leave continued, as the ISDEMU refused to grant members of the USTTISDEMU leave to receive training on the Civil Service Act.
7. 261. The complainants further assert that the ISDEMU systematically opposed certain of their requests, and that repeated attempts by USTTISDEMU representatives to engage in dialogue were ignored by the ISDEMU, which also decided unilaterally to suspend its Labour Relations Commission, the sole interlocutor of the USTTISDEMU in the Institute. They maintain that the USTTISDEMU sent various notes to the ISDEMU to request a meeting on this issue, but that their demands were ignored.
8. 262. The complainants indicate that, on 1 October 2018, the USTTISDEMU initiated action in the form of a peaceful protest in response to the absence of dialogue and the suspension of the aforementioned Commission. They state that, after the Fourth Labour Court of San Salvador classed the action as an illegal strike and ordered the participants to return to work on 5 October 2018, a meeting of the Labour Relations Commission was held on 8 October 2018 and an agreement was reached whereby deductions from participants’ wages for the days on which the action took place would not be applied until the ISDEMU and the leadership of the USTTISDEMU had jointly reviewed the matter. However, according to the complainants, the ISDEMU failed to comply with the agreement and unilaterally made deductions from the pay of the 31 members of the USTTISDEMU who participated in the strike, despite the fact that they had requested trade union leave using the institutional form.

B. The Government’s reply

1. 263. In its communication of 23 September 2019, the Government submits the observations of the ISDEMU in respect of the allegations. Regarding the alleged anti-union transfer and action for the removal from office of Mr de la O. Montoya, the ISDEMU confirms that the aforementioned transfer took effect from 23 March 2015, and maintains that Mr de la O. Montoya moved from the Institutional Finance Unit to the Institutional Archive Unit as part of a rotation process the objective of which was to strengthen the latter unit and allow Mr de la O. Montoya to acquire new work experience. It further indicates that he retained his position, salary and appointment scheme.
2. 264. The ISDEMU states, however, that Mr de la O. Montoya did not report for duty between 23 March and 2 November 2015, without justification, which constitutes a dereliction of duty in accordance with section 54(g) of the Civil Service Act. The ISDEMU indicates that it therefore petitioned the First Civil and Commercial Court of San Salvador for his removal from office, which the Court authorized in a ruling dated 24 September 2018. It also reports that Mr de la O. Montoya filed an appeal for review with the Civil Chamber of the First Division of the Central Region, which was rejected on 5 February 2019, and a cassation appeal with the Civil Division of the Supreme Court of Justice, which is currently pending.
3. 265. With regard to the alleged anti-union transfer of Ms Edith Santos Hernández, the ISDEMU states that the transfer was not made on the basis of her trade union status. It explains that the Comprehensive Programme for a Life Free from Violence underwent restructuring that involved a change of leadership and a technical readjustment of the post occupied by Ms Santos Hernández, who moved from a victim support role to an administrative role. The ISDEMU indicates that this decision did not involve any change of workplace, salary, position or appointment scheme.
4. 266. In this regard, the ISDEMU further reports that Ms Santos Hernández filed an application for reinstatement in her former post with the Specialized Court of First Instance for a Life Free from Violence and Discrimination for Women, which rejected her appeal in a decision of 27 September 2018, determining that the reassignment of her functions was based on objective grounds related to the proper performance of the activities of the ISDEMU. It indicates that Ms Santos Hernández filed an appeal with the Specialized Chamber for a Life Free from Violence and Discrimination for Women, which upheld the decision issued at first instance in a decision of 4 January 2019.
5. 267. With regard to the alleged excessive restrictions on the granting of trade union leave, the ISDEMU claims that since there were no legislative provisions governing the facilities that should be afforded to trade union representatives, it adopted the Instructions on 12 May 2017 in order to allow the leaders of the two trade union organizations within the Institute, including the USTTISDEMU, to manage their administration and fulfil their role of defending the interests of their members within their working hours. It indicates that the Instructions provide, in particular, for the granting of trade union leave with pay for up to 32 working hours per month for the leaders of each of these organizations.
6. 268. The ISDEMU reports that representatives of the complainant organizations filed an amparo appeal against the ISDEMU in connection with the issuance of the Instructions, and that the Constitutional Chamber of the Supreme Court of Justice, in a decision of 9 April 2018, decided to declare the appeal inadmissible, determining that there were no limitations on the right to freedom of association in relation to the above-mentioned issuance. However, the ISDEMU reports that it entrusted its Labour Relations Commission with the revision of the Instructions through a joint consultation and validation process with the two trade union organizations within it, and that a draft amendment to the Instructions was under review by these organizations since 23 January 2019.
7. 269. Moreover, the ISDEMU indicates that it has always provided spaces in response to requests from the USTTISDEMU for trade union training and capacity-building for its members, and that the general secretary of the USTTISDEMU was granted leave with pay to participate in various training processes within the country and abroad, and to carry out activities on its premises.

C. The Committee’s conclusions

1. 270. The Committee observes that, in this case, the complainants allege that the Salvadoran Institute for Women’s Development (ISDEMU) committed acts of anti-union discrimination against two USTTISDEMU leaders, Mr José Leopoldo de la O. Montoya and Ms Edith Santos Hernández; systematically denied several attempts at dialogue from the USTTISDEMU, and excessively restricted the granting of trade union leave through the unilateral adoption and subsequent application of instructions in this regard. The Committee also notes that the Government provides the observations of the ISDEMU, which denies taking the alleged measures for anti-union reasons, reports on the outcomes of certain judicial proceedings in connection with the aforementioned trade union leaders and Instructions and states its willingness to collaborate with the trade union organizations within it to amend the Instructions.
2. 271. As regards the alleged acts of anti-union discrimination against Mr de la O. Montoya, Finance Secretary of the USTTISDEMU, the Committee notes that, according to the complainants, the ISDEMU: (i) transferred him from the post of institutional accountant, which he had held since 1996, to an archive technician post on 23 May 2015, despite the fact that he enjoyed trade union immunity; and (ii) filed a petition for his dismissal with the First Civil and Commercial Court. The Committee notes the ISDEMU, for its part, indicates that: (i) Mr de la O. Montoya was transferred as part of the rotation process to allow him to acquire new experience and to strengthen its Institutional Archive Unit; (ii) although the transfer had no impact on his salary, position and appointment scheme, Mr de la O. Montoya did not report for duty between 23 March and 2 November 2015, without justification, which, in legal terms, constituted a dereliction of duty, for which reason it petitioned for his dismissal, which was authorized on 24 September 2018; and (iii) Mr de la O. Montoya filed an appeal for review with the Civil Chamber of the First Division of the Central Region, which was dismissed on 5 February 2019, and a cassation appeal with the Civil Division of the Supreme Court of Justice, which is currently pending.
3. 272. The Committee notes the conflicting views of the complainants and the ISDEMU as to the reason for the measures taken in relation to Mr de la O. Montoya. The Committee observes, on the basis of publicly available information, that Mr de la O. Montoya contested the aforementioned transfer before the Administrative Disputes Chamber of the Supreme Court of Justice, which rejected the appeal in a decision dated 3 December 2021, determining that the aforementioned transfer did not imply a deterioration to his working conditions or constitute an obstacle to his trade union activities, and was based on the need to provide better service to ISDEMU users. The Committee further notes the decisions of the courts of first and second instance authorizing the dismissal of Mr de la O. Montoya and the corresponding cassation appeal, which is currently pending.
4. 273. With regard to the alleged anti-union transfer of Ms Santos Hernández, International and National Relations Secretary of the USTTISDEMU, the Committee notes the complainants’ indication that: (i) following her election as a trade union leader in November 2017, the ISDEMU transferred her from a social worker post to an administrative role in December 2017; and (ii) this decision was contested before the Office of the Attorney General of the Republic and the Civil Service Tribunal. The Committee notes that according to the material provided by the Government, the ISDEMU states that: (i) the transfer took place as a result of a restructuring of its Comprehensive Programme for a Life Free from Violence, which entailed a technical readjustment of the position occupied by Ms Santos Hernández; (ii) the aforementioned transfer did not entail any change to her workplace, salary, position or appointment scheme; (iii) an application for reinstatement in her former post filed by Ms Santos Hernández was rejected on 27 September 2018 by the Specialized Court of First Instance for a Life Free from Violence and Discrimination for Women, which found that the reassignment of her functions was based on objective grounds; and (iv) an appeal filed with the Specialized Chamber for a Life Free from Violence and Discrimination for Women was dismissed in a decision of 4 January 2019.
5. 274. The Committee notes the opposing viewpoints of the complainants and the ISDEMU as to the grounds for the transfer of Ms Santos Hernández. It also notes the decisions handed down at first and second instance in this regard by the aforementioned specialized courts, while observing that it has not received information on the outcomes of the appeals which, according to the complainants, were filed with the Office of the Attorney General of the Republic and the Civil Service Tribunal.
6. 275. The Committee recalls, on the one hand, that protection against acts of anti-union discrimination should cover not only hiring and dismissal, but also any discriminatory measures during employment, in particular transfers, downgrading and other acts that are prejudicial to the worker [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 1087] and, on the other hand, that transfers of employees for reasons unconnected with their trade union affiliation or activities are not covered by Article 1 of Convention No. 98 [see Compilation, para. 1103]. The Committee emphasizes that judicial procedures related to union matters must be carried out without undue delays to ensure the effective protection of freedom of association. The Committee trusts that the matters still pending resolution in relation to the dismissal of Mr de la O. Montoya following the non-acceptance of his transfer and to the transfer of Ms Santos Hernández will be resolved as soon as possible.
7. 276. As regards the alleged excessive restrictions on the granting of trade union leave, the Committee notes that the complainants: (i) allege that the ISDEMU denied various types of request from the USTTISDEMU, based on the Instructions on the granting of leave for the activities of employees’ unions of the Salvadoran Institute for Women’s Development which it adopted without consulting the USTTISDEMU, thereby reducing its capacity to protect its members’ interests; (ii) refer in particular to two cases in which the ISDEMU allegedly refused to grant union leave to enable members of the USTTISDEMU to attend trainings with pay, and to a further case in which the ISDEMU allegedly made deductions from the wages of 31 members of the USTTISDEMU for days on which they participated in a strike, thereby disregarding their requests for union leave; and (iii) indicate that, following the filing of an appeal against the aforementioned Instructions, the PDDH issued a decision dated 14 May 2018 in which it recommended that the ISDEMU amend the Instructions by means of negotiation with the USTTISDEMU, although to date no revision has been carried out nor any negotiation conducted in this regard.
8. 277. The Committee notes that the ISDEMU, for its part, states that: (i) the Instructions, which provide for the granting of paid union leave of up to 32 working hours per month to the leaders of each of the two trade union organizations within the ISDEMU, were adopted on 12 May 2017 in order to enable the leaders of those organizations to manage their administration and perform their duties during working hours; (ii) it has always provided the spaces requested for the provision of trade union training to members of the USTTISDEMU, as well as the paid leave requested for its general secretary to participate in various trainings; (iii) on 9 April 2018, the Constitutional Chamber of the Supreme Court of Justice rejected an amparo appeal filed against the ISDEMU, determining that there were no limitations on the right to freedom of association in relation to the issuance of the Instructions; and (iv) despite this decision, the ISDEMU entrusted its Labour Relations Commission with the revision of the Instructions through a consultation and validation process with the aforementioned trade union organizations, and a draft amendment is under review by those organizations since 23 January 2019.
9. 278. The Committee notes the parties’ divergent expectations as to the circumstances under which trade union leave should be granted. It observes that, whereas the complainants refer to three specific cases (two trainings and one strike) in which requests for trade union leave were denied to a large number of USTTISDEMU members for the same period, the ISDEMU does not deny that those requests were rejected and indicates that the Instructions allow the leaders of the USTTISDEMU to receive a maximum of 32 hours of trade union leave per month. In this regard, the Committee recalls that paragraph 10(3) of the Workers’ Representatives Recommendation, 1971 (No. 143), states that: “Reasonable limits may be set on the amount of time off which is granted to workers’ representatives” [see Compilation, para. 1604]. It also recalls that the affording of facilities to representatives of public employees, including the granting of time off, has as its corollary ensuring the “efficient operation of the administration or service concerned”, and that this corollary means that there can be checks on requests for time off for absences during hours of work by the competent authorities solely responsible for the “efficient operation” of their services [see Compilation, para. 1605]. Noting also the decisions issued by the Supreme Court of Justice and the PDDH in relation to the Instructions, and the revision process initiated by the ISDEMU, the Committee invites the Government to encourage dialogue between the parties on this matter, with a view to finding a negotiated solution to this dispute.
10. 279. With regard to the alleged refusal of the ISDEMU to engage in dialogue with the USTTISDEMU, the Committee notes that, according to the complainants, the ISDEMU: (i) repeatedly opposed the discussion of a series of demands made by the USTTISDEMU, before suspending its Labour Relations Commission, the USTTISDEMU’s sole interlocutor within the Institute; (ii) refused to discuss this decision with the USTTISDEMU, leading it to organize a work stoppage from 1 to 5 October 2018 in protest; and (iii) unilaterally made deductions from the wages of the 31 USTTISDEMU members for the days on which they participated in the strike, without respecting the agreement reached that deductions would not be made without having first reviewed the matter with the leadership of the trade union. The Committee notes that the Government has not responded to these allegations. While it recalls that wage deductions for days of strike give rise to no objection from the point of view of freedom of association principles [see Compilation, para. 942], the Committee, in the light of the various elements of the case, invites the Government to foster dialogue between the ISDEMU and the USTTISDEMU, with a view to achieving a harmonious climate for industrial relations between the parties in the future.

The Committee’s recommendations

1. 280. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee trusts that the appeals that remain pending in relation to the dismissal of Mr de la O. Montoya following the non-acceptance of his transfer and in relation to the transfer of Ms Santos Hernández will be resolved as soon as possible.
   • (b) The Committee invites the Government to foster dialogue between the Salvadoran Institute for Women’s Development (ISDEMU) and the Trade Union of Workers of the Salvadoran Institute for Women’s Development (USTTISDEMU) with a view to finding a negotiated solution to their dispute concerning the Instructions on the granting of trade union leave and the Labour Relations Commission, and achieving a harmonious climate for industrial relations in the future.
   • (c) The Committee considers that this case does not call for further examination and is closed.