Report in which the committee requests to be kept informed of development - REPORT_NO340, March 2006

CASE_NUMBER 2368 (El Salvador) - COMPLAINT_DATE: 22-JUN-04 - Closed

Allegations: The complainant organization alleges anti-union practices against two of its branches: at the Río Lempa Hydroelectricity Board (CEL) and the El Salvador Electricity Transmission Company (ETESAL). These practices comprise the following: dismissal of a large number of trade union officials and members; threats of dismissal against members 3who refuse to resign from the union; and violation of the collective agreement and support from the employer for a parallel union to the detriment of the abovementioned branches at CEL and ETESAL. The complainant organization adds that as a result of these anti-union practices its CEL branch no longer exists. It also claims that the Ministry of Labour maintained a complicit silence towards the complaints made on the situation at both enterprises

782. The Committee last examined this case at its meeting in June 2005 and presented an interim report to the Governing Body [see the 337th Report, paras. 873-893, approved by the Governing Body at its 293rd Session (November 2005)]. The Government subsequently sent new observations in a communication dated 26 August 2005.

1. 783. El Salvador has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), or the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the case

1. 784. At its meeting in June 2005, the Committee made the following recommendations [see 337th Report, para. 893]:
2. (a) With regard to the alleged dismissal of union leaders and members at the Río Lempa Hydroelectricity Board (CEL), the Committee requests the Government to send a copy of the ruling concerning the dismissal of union official Mr. Germán Granados Figueroa and of any ruling issued in relation to the dismissal of Mr. Roberto Efraín Acosta, and to provide information on the situation of the other two dismissed officials who allegedly did not accept the statutory severance pay (Mr. René Torres Aguirre and Roger Bill Aguilar), indicating whether they have taken legal action.
3. (b) The Committee asks the Government to examine the issue of reinstatement of the dismissed trade unionists who did not accept severance pay, and to ensure that in future the dismissal of union leaders can only occur in accordance with the procedure laid down in article 47 of the Constitution.
4. (c) With regard to the alleged anti-union dismissals of trade unionists at the El Salvador Electricity Transmission Company (ETESAL) (nine union officials – including seven having trade union immunity – and seven members), the Committee requests the Government to send the text of the ruling which declared the strike at ETESAL illegal so that it can examine these allegations in full knowledge of the facts.
5. (d) As regards the allegation concerning the promotion of parallel unions at CEL and ETESAL with intent to dissolve or damage the branches of the complainant organization at both institutions, the Committee requests the Government to send the text of the ruling of 21 December 2004 issued by the Administrative Disputes Chamber of the Supreme Court of Justice concerning the appeal lodged by the general secretary of the complainant organization in relation to the new union established at ETESAL, as well as its observations on the alleged actions of the enterprise concerning the creation of a parallel union at CEL.
6. (e) With regard to the alleged campaign to intimidate workers into resigning from the branches of the complainant union at CEL and ETESAL, the Committee notes that the Government declares that the allegation concerning ETESAL could not be proven and that the enterprise states that it had no knowledge of the resignations from the union until the workers presented copies of their respective resignation letters to stop the check-off of their union dues. The Committee also observes that the Government has not sent observations on the allegations concerning the campaign of intimidation to make workers resign from the CEL branch or on the allegations concerning violation of the collective agreement. The Committee requests the Government to carry out an in-depth investigation into the abovementioned matters and keep it informed in this respect.
7. (f) Finally, the Committee requests the Government to send its observations on the allegation that the Ministry of Labour maintained a complicit silence with regard to the complaints submitted by the complainant union in relation to the matters raised in the present case.
8. B. The Government’s reply
9. 785. In its communication of 26 August 2005, the Government sends the following information on the recommendations made by the Committee in its 337th Report:
10. – recommendation (a): a photocopy of the ruling of 23 February 2004 is provided; by this ruling, the Constitutional Chamber of the Supreme Court of Justice suspended the claim made against the President of the CEL by Mr. Germán Granados Figueroa. According to the ruling, it is not possible to attribute the dismissal of Mr. Germán Granados Figueroa to the defendants (the President of the Río Lempa Hydroelectricity Board and Vice-President of the Río Lempa Hydroelectric Station (CEL)) because the dismissal was carried out by Mr. José Oscar Medina, Executive Director of the CEL, at the request of the CEL Administration and Human Resources Manager, as the documents of the Constitutional Chamber of the Supreme Court of Justice show; the Chamber accordingly refused to grant the protection (amparo) requested. As regards the application made by Mr. Roberto Efraín Acosta, a definitive ruling has not yet been handed down, but once it has been, it will be passed on to the Committee without delay. As regards Mr. René Torres Aguirre and Mr. Roger Bill Aguilar (who had not accepted statutory severance pay), they are no longer with the company and it is not known whether they have initiated any legal proceedings;
11. – recommendation (b): the Government takes note of the request to examine the issue of the reinstatement of the other dismissed trade unionists (28 in total); however, it should be noted that these workers have not asked the General Directorate of the Labour Inspectorate to carry out an investigation with a view to their reinstatement;
12. – recommendation (c): attached to the Government’s report is a copy of the ruling in which, on the basis of national law, the Third Labour Court of San Salvador, in accordance with sections 369, 546 and 553(c) of the Labour Code, declared the strike at ETESAL to be illegal (the ruling cites as a reason the fact that no procedures for resolving an economic dispute or conflict of interests had been initiated by the workers concerned (failure to implement the conciliation procedure));
13. – recommendation (d): the Government attaches a copy of the ruling of 21 December 2004 by the Administrative Disputes Chamber of the Supreme Court of Justice with regard to the administrative dispute action initiated by the complainant union STESEL in October 2002 against the decision of the Ministry of Labour and Social Security to grant legal personality to the Trade Union of Workers of the Hydroelectricity Board (STECEL) on 7 January 2002. According to the ruling in question, the complainant union STESEL allowed the period of 60 days, stipulated in section 11 of the Act concerning administrative disputes jurisdiction for challenging a definitive court ruling, to lapse, so that the ruling became fixed and not subject to change administratively or jurisdictionally at the date the request was made (22 October 2002); the application was accordingly ruled inadmissible as having been made outside the statute of limitations. As regards the constitution of the union in question, the Government stated that according to article 47 of the Constitution of the Republic, private employees and employers and those employed by autonomous official institutions are entitled to associate freely for the purpose of defending their respective interests. The Labour Code does not restrict the number of unions that may operate at a given enterprise;
14. – recommendation (e): the Government has not sent observations regarding the campaign to induce workers to leave the CEL branch, alleged by the complainant, as the workers have not thus far asked the General Directorate of the Labour Inspectorate to investigate the alleged campaign and the violation of the collective labour agreement; and
15. – recommendation (f): the General Directorate of the Labour Inspectorate has not received, since the beginning of 2004 until the present, any requests for labour inspections for the purpose of investigating complaints by the complainant, in the light of which the complainant party’s attitude seems strange and disturbing and indicative of a lack of responsibility and seriousness.

C. The Committee’s conclusions

1. 786. The Committee recalls that in the present case, the Trade Union of Electricity Workers (STESEL) had alleged anti-union practices at two of its branches: the Río Lempa Hydroelectricity Board (CEL) and the El Salvador Electricity Transmission Company (ETESAL). These practices comprise the following: dismissal of a large number of trade union officials and members, threats of dismissal against members who refuse to resign from the union, and violation of the collective agreement by the employer and support from the employer for a parallel union to the detriment of the branches at CEL and ETESAL. The STESEL adds that, as a result of these anti-union practices, its CEL branch no longer exists, the ETESAL branch has been much reduced, and the few members of the branch executive board who have not been dismissed are subjected to intimidation. It also claims that the Ministry of Labour maintained a complicit silence towards the complaints made on the situation at both enterprises.
2. 787. The Committee notes the Government’s statements according to which: (1) the Constitutional Chamber of the Supreme Court of Justice did not grant the protection (amparo) that had been sought by the union official Mr. Germán Granados Figueroa following his dismissal because the request was not addressed against the person actually responsible for the dismissal (the Executive Director of the CEL, at the request of the administration and human resources management), but against the President of the Río Lempa Hydroelectricity Board and Vice-President of the Río Lempa Hydroelectric Station; (2) the legal action by the complainant union against the administrative decision to grant legal personality to the other union (STECEL) was declared inadmissible because of the statute of limitations the 60-day period allowed by law for the purpose of challenging administrative decisions before the courts had elapsed. The Committee notes that, according to the ruling of the judicial authority, the strike was declared illegal because the conciliation procedure had not been followed.
3. 788. The Committee notes that according to the Government, the judicial authority has still not handed down an administrative ruling on the dismissal of the union official Mr. Efraín Acosta, and requests the Government to inform it of the ruling as soon as it is handed down.
4. 789. The Committee notes that according to the Government, there is no knowledge of any legal action by the union officials Messrs. René Torres Aguirre and Roger Bill Aguilar (who according to the complainant had not accepted the statutory severance pay offered by the employer), or of any application from the other dismissed workers (28, according to the complainant organization) for an investigation by the General Directorate of the Labour Inspectorate; according to the Government, the complainant organization has not requested any action by the General Directorate with a view to investigating the alleged campaign by the employer to induce workers who were members of the complainant union to resign from the union, or the alleged violation of the collective labour agreement.
5. 790. The Committee considers that in view of: the time that has elapsed since the alleged events (which according to the complainant union occurred in 2001 and 2002 [see 337th Report, para. 876]); the fact that some of the dismissed workers or supposed victims of threats of dismissal have not asked the Ministry of Labour to take any action; the fact that certain legal actions initiated by the complainant organization or its members have been unsuccessful for reasons of form (statute of limitations,, inadequate identification of the defendants) or are still pending; and in view of the concerns raised by the serious nature of the allegations during the period in question (including dismissals of union officials and members, threats of dismissal against workers who refuse to leave the union, promotion by the employer of a parallel union, and violation of the collective agreement), the Committee requests the Government to undertake mediation measures between the complainant trade union, on the one hand, and the Río Lempa Hydroelectricity Board (CEL) and El Salvador Electricity Transmission Company (ETESAL), on the other, with a view to resolving the problems that remain pending in a manner satisfactory to both parties, in the light of the ILO’s principles of freedom of association and collective bargaining. The Committee requests the Government to keep it informed in this respect.

The Committee's recommendations

1. 791. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee considers that, given the time that has elapsed since the alleged incidents (which according to the complainant union occurred in 2001 and 2002), the fact that some of the dismissed workers or persons claiming to have been threatened with dismissal have not asked the Ministry of Labour to take action, that some of the legal actions initiated by the complainant organization or its members have been unsuccessful for reasons of form (statute of limitations, inadequate identification of the defendants) or are pending, and in view of the concerns raised by the serious nature of the allegations during the period in question (including dismissals of union officials and members, threats of dismissal against workers who refuse to leave their union, promotion by the employer of a parallel union and violation of the collective agreement), the Committee requests the Government to undertake mediation measures between the complainant trade union, on the one hand, and the Río Lempa Hydroelectricity Board and El Salvador Electricity Transmission Company, on the other, with a view to resolving the problems that remain pending in a manner satisfactory to both parties, in the light of the ILO’s principles of freedom of association and collective bargaining.
   • (b) The Committee requests the Government to keep it informed in this respect.
   • (c) The Committee trusts that the Government will keep it informed of the ruling handed down concerning the dismissal of the trade union official Mr. Roberto Efraín Acosta as soon as it is handed down.