Allegations: acts of harassment and interference against ANEP and its leaders by high-ranking government representatives, in particular through the non-recognition of its new president
- 258. The complaint is contained in a communication from the National Association of Private Enterprise (ANEP) dated 4 June 2020.
- 259. The Government sent its observations in a communication dated 22 June 2020.
- 260. El Salvador has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).
A. The complainant’s allegations
A. The complainant’s allegations- 261. The complainant denounces acts of harassment and interference against ANEP and its leaders, in particular its president, by high-ranking representatives of the Government of El Salvador, including the President of the Republic. The complainant notes that ANEP is the most representative employers’ organization in El Salvador, comprising 49 entities in more than 50 subsectors of the economy and more than 15,000 enterprises, representing 82 per cent of the gross domestic product.
- 262. In particular, ANEP indicates that: (i) on 29 April 2020, at its general assembly, its member organizations unanimously elected Mr Javier Ernesto Simán Dada as president along with its new board of directors for a two-year period; (ii) on 12 May, the President of the Republic posted on the Twitter social network that “It is evident that the new leadership of ANEP El Salvador is only seeking to sabotage the work of the Government. Worse still, in the middle of a pandemic. … From now on, the Government does not recognize Javier Simán as the representative of private enterprise”; (iii) on his Facebook page, the President of the Republic wrote that “It is clear that ANEP is free to elect and have as members whoever it wants … But what is the point of having someone lead an organization if he is no longer of any use? In any case, the vast majority of business owners in our country want to move forward and do not feel represented by ANEP. The majority of employers’ associations (many of which are never taken into consideration) want to work for El Salvador and do not place their political interests before the well-being of everyone. We will be working hand in hand with those associations. Gone are the days in our Government when ANEP told the President of the Republic what to do”; (iv) on the same day, the Presidential Commissioner of Operations and Cabinet, Ms Carolina Recinos, publicly reaffirmed the President’s decision not to recognize Mr Simán Dada as president of ANEP and representative of the private sector, stating that “In difficult circumstances, personalities and agendas are identified. We cannot use the crisis of the pandemic as a platform to attack”; (v) messages were sent via various government officials and/or representatives of the governing party harassing Mr Simán Dada or saying that they did not recognize him, and higher orders were given to arbitrarily close one of the enterprises of the business group to which Mr Simán Dada belongs, which had permits from the Ministry of Health and the Ministry of Labour to produce face masks and medical gowns, both for export and for the Government of El Salvador; and (vi) on 21 May 2020, the Minister of Labour and Social Welfare made statements on Salvadorean television channels 2, 4 and 6 indicating that a few days before, representatives of associations came to see him at the Ministry of Labour and he received them because at no point did they say that they were representing ANEP; he also indicated in the same interview that the doors of the Ministry of Labour were immediately completely closed to Mr Simán Dada, saying that the position of the Government and the Ministry of Labour is to work and meet with all sectors except ANEP.
B. The Government’s reply
B. The Government’s reply- 263. In a communication dated 22 June 2020, the Government indicates that it is respectful of social dialogue and of the legitimacy that characterizes the representation of both workers and employers. The Government states that at no point was there any interference on its part in the electoral process and activity of the board of directors or president of ANEP because the Government (at the time of its communication in response to the complaint) was not aware of whether there had been an election for the board of directors. The Government affirms that it is therefore unaware of whether Mr Javier Ernesto Simán Dada was elected president of the Association at its general assembly as stated in the complaint.
- 264. To confirm the above, the Government indicates that it requested the Registry of Non-Profit Associations and Foundations of the Ministry of the Interior (which is responsible for maintaining the registries and documentation related to associations and foundations, as well as information on their legal representatives) to provide details on the last appointment or election of ANEP’s legal administration entered in the registry. The Director General of the Registry of Non-Profit Associations and Foundations replied on 25 May 2020 stating that the latest certification on record for ANEP concerned the board of directors that was elected in April 2018 for a two-year term and that “no official application to register a new board of directors appears to have been submitted by the National Association of Private Enterprise”. The registry was consulted again on 19 June 2020, and the Government was informed again by a memo of 22 June that no request to register a new board of directors or to restructure the board had been submitted thus far. The Government provides a copy of these communications.
- 265. Concerning the alleged closure of enterprises of the business group linked to Mr Simán Dada, the Government indicates that no isolated action was taken against him or the business group to which he belongs. It states that the action was part of general measures taken in relation to the lockdown and mandatory quarantine that was decreed by law to contain the pandemic, as the priority of the Government in combating the virus was the life and health of all persons.
C. The Committee’s conclusions
C. The Committee’s conclusions- 266. The Committee notes that the complaint denounces acts of interference and harassment against ANEP and its leaders by high-ranking government representatives, in particular through the non-recognition of its new president, Mr Simán Dada, who was elected by the complainant’s general assembly on 29 April 2020. The Committee observes that the Government argues that it could not have interfered in the electoral process as it was not aware of it taking place. The Government indicates that it has no knowledge as to whether elections have been held for the board of directors and presidency of ANEP and that there is no record of the election of a new board of directors and president in the relevant registry. In this regard, and noting that there is no question as to the conduct of the electoral process, the Committee invites the complainant organization, if it has not already done so, to complete the formalities to register its new board of directors.
- 267. The Committee observes, however, that the Government does not question the authenticity of the public statements denounced in the complaint, which were made at the highest level of State. Not only do those statements imply an expression of knowledge of the ANEP elections, but they also state clearly and unequivocally that the authorities do not recognize the election result and, in particular, the new president of ANEP. Nor does the Government question the statements made by other public authorities, in particular the Minister of Labour, in which they explicitly do not recognize the president of ANEP, and consequently reject ANEP as a social partner.
- 268. In this regard, and while it recognizes that the registration of new boards of directors of employers’ and workers’ organizations is a formality that national legislation may establish to make public and give full effect to the results of elections of those organizations, the Committee considers that the actions denounced in the complaint of non-recognition of the president and board of directors of ANEP and the rejection by the highest public authorities of the representative organization of employers after its April 2020 elections constitute a serious violation of freedom of association in general and, in particular, of the autonomy of employers’ and workers’ organizations and their right to freely elect their representatives. The Committee considers that, in view of the well-known fact of the election of the president of the most representative employers' organization in the country, which was widely publicized in the media, the requirement of a procedural formality in order to be recognized and to be able to act as a legitimate spokesperson before the authorities is an act that is not compatible with the principle of freedom of association.
- 269. The Committee recalls in this regard that when the authorities intervene during the election proceedings of workers’ or employers’ organizations, expressing their opinion of the candidates and the consequences of the election, this seriously challenges the principle that those organizations have the right to elect their representatives in full freedom, and that it is for such organizations to appoint their own representatives on consultative bodies.
- 270. Furthermore, the Committee notes the June 2021 discussion before the Committee on the Application of Standards of the International Labour Conference on the application in El Salvador of the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144), and the fact that the Committee urged the Government to refrain from interfering in the establishment and activities of independent organizations of workers and employers, in particular ANEP.
- 271. In the light of the foregoing, and deploring the situation denounced, the Committee requests the Government to immediately take the necessary measures to ensure full respect of ANEP’s autonomy, recognize the results of its April 2020 elections, in particular of its president, Mr Simán Dada, and recognize the employers’ organization as a social partner so as to enable ANEP to participate fully in social dialogue through the representatives of its choice.
- 272. As to the alleged incidents of harassment against the business group of the president of ANEP, the Committee observes significant discrepancies between the claims contained in the complaint – stating that the Government arbitrarily ordered the closure of an enterprise of that business group – and the Government’s reply – stating that the action was a general measure taken as part of the lockdown and mandatory quarantine decreed by law to contain the pandemic. In view of these discrepancies, the Committee invites the complainant organization to provide further details on the alleged harassment of the business group of the president of ANEP or of any other company affiliated to this organization that is the target of hostile actions, so that the matter can be examined with all relevant elements, and requests the Government to provide further information in support of its assertion that the action challenged in the complaint was a general measure.
- The Committee’s recommendations
- 273. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
- (a) The Committee requests the Government to immediately take the necessary measures to ensure full respect for the autonomy of the National Association of Private Enterprise (ANEP), recognize the results of its April 2020 elections, in particular of its president, Mr Javier Ernesto Simán Dada, and recognize the employers’ organization as a social partner, so as to enable ANEP to participate fully in social dialogue through the representatives of its choice.
- (b) The Committee invites the complainant organization to provide further details on the alleged harassment of the business group of the president of ANEP or of any other company affiliated to this organization that is the target of hostile actions, and requests the Government to provide further information in support of its assertion that the action challenged in the complaint was a general measure.
