Definitive Report - Report No 291, November 1993

Case No 1659 (El Salvador) - Complaint date: 21-JUL-92 - Closed

1. 120. The Port Workers' Union of El Salvador (SIPES) lodged a complaint against the Government of El Salvador in a communication dated 21 July 1992. The Government sent its observations in a communication dated 24 May 1993.
2. 121. El Salvador has not ratified the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87) or the Right to Organize and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant's allegations

1. 122. In its communication of 21 July 1992, the Port Workers' Union of El Salvador (SIPES) alleges that on 22 February 1992 it set up a departmental section for the workers in the International Airport of El Salvador and that its registration was refused by a resolution issued by the Minister of Labour and Social Welfare on 29 May 1992.
2. 123. The complainant organization considers that this ministerial resolution infringes the exercise of freedom of association and states that the trade union's request was turned down on the following grounds:
   • -workers employed in the airport may not be considered as port workers;
   • -most of the members of the section are workers employed by the Independent Port Executive Board (CEPA), a decentralized state body in charge of administering Acajutla harbour, the International Airport of El Salvador and the railways; furthermore, they are bound to the State because of their appointment to posts regulated by the Wages Act, which excludes them from the scope of the Labour Code;
   • -as the association is an industrial union, it may only create a section in a department of the Republic which includes workers from a number of enterprises, and not just one; and
   • -an industrial union cannot exist within a state enterprise.

B. The Government's reply

1. 124. In its communication of 24 May 1993, the Government gives the grounds put forward by the Ministry of Labour and Social Welfare in its resolution of 29 May 1992, for refusing the registration of the departmental section of the complainant organization in the International Airport of El Salvador; the Government states specifically that:
   • The Secretary-General of the Port Workers' Union of El Salvador (SIPES) submitted to the State Secretariat of Labour documents concerning the departmental section of La Paz, made up exclusively of workers from the International Airport of El Salvador, so that it might examine them with a view to registering this section. Many members of SIPES work for the Independent Port Executive Board (CEPA), an independent public body which employs staff at the airport under the Wages Act, and is administered and regulated by special legislation; the branch of CEPA in question, does not carry out activities related to ports but operations specific to an airport.
2. 125. The Government points out that under the special Act concerning the establishment, administration and running of the International Airport of El Salvador, the CEPA has been made responsible for planning, administering and implementing the project for the building of a new international airport, and that once the airport has been built, it will be entrusted with the management, administration, maintenance and extension of all the airport installations. Section 209(3) of the Labour Code defines an industrial union as one made up of employers or workers from enterprises in the same industrial, commercial or service activities or similar areas. Section 215 of the Labour Code establishes that the provisions of the previous paragraph apply to those wishing to establish a trade union, but that the payrolls must also indicate the economic activity carried out by the enterprise in which the workers are employed. These provisions also apply to the establishment of a section or subsection of this type of trade union; if an industrial union operates within an enterprise, a section or a subsection may not be established since this would mean the existence of several executive bodies of a trade union within the same enterprise. Article 2 of the SIPES internal rules stipulates that only workers in enterprises engaged in the same industrial, commercial or service activities specific to port duties may join the Port Workers' Union of El Salvador, which is in line with the provisions of section 209(3) of the Labour Code; the trade union may not, therefore, have members or establish a section in a body dependent upon CEPA, which carries out activities specific to an airport which are different from those carried out in a port. Section 218 of the Labour Code establishes that industrial and craft unions may be organized into sections and subsections and that the sections cover administrative departments of the Republic and the subsections cover enterprises or establishments in which the trade union has members. Section 209(3) of the Labour Code stipulates that sections be made up of workers belonging to a trade union in different enterprises in a department of the Republic, either in the same or a different town, so that a section may not consist of workers from only one enterprise, if there is a general executive board. On the basis of section 215(2) of the Labour Code, CEPA was requested to provide the payroll of the International Airport of El Salvador, which showed that of the 15 members of the trade union section, two of them worked under an individual employment contract and the remainder were appointed under the Wages Act. This was carried out for the purposes indicated in section 2(2) of the Labour Code, which stipulates that "The employment relationships concluded by the State, the local authorities and independent or semi-independent public institutions under public law, established under administrative Act, shall not be governed by the Code. This also applies to the appointment of a post classified under the Wages Act and financed by the general fund and special funds of these institutions or municipal budgets; and to a contract issued for the provision of professional or technical services. The Government points out that, in the light of the above-mentioned legal provisions, the Secretariat of Labour and Social Welfare decided to refuse the registration of the La Paz departmental section of the Port Workers' Union of El Salvador. The Government emphatically rejects the complainant's accusations and points out that the present administration is striving to ensure the overall well-being of the population and thus must comply with the legal system in force.

C. The Committee's conclusions

1. 126. The Committee notes that in this case the complainant alleged the refusal of the Ministry of Labour and Social Welfare to register a departmental trade union section of the Port Workers' Union of El Salvador, made up of workers from the International Airport of El Salvador. The Committee notes that the Ministry of Labour justified the refusal of the registration of this section on the following grounds:
   • -the majority of workers in the section are not regulated by the Labour Code but by a special law, since their employment relationship is of a public nature and they do not carry out harbour activities but those specific to an airport (building, maintenance, administration, etc.). Section 209 of the Labour Code defines an industrial union as one made up of employers or workers from enterprises carrying out the same activity; it also applies to trade union sections;
   • -section 209 of the Labour Code also requires that any section of a trade union in a department of the Republic should be made up of workers from more than one enterprise.
2. 127. In this respect, the Committee would like to recall the principle that workers, without distinction whatsoever, should have the right to establish organizations of their own choosing without previous authorization. Consequently, a trade union of port workers should not be prevented from setting up a trade union section in an airport if they so wish. This principle of workers' free choice of the type and structure of their trade union organization also implies that the fact that they are governed by the Labour Code or a special Act regulating labour relations in the public sector should not mean that they are unable to establish a trade union section containing both categories of workers. Finally, requiring industrial trade unions at national level to include workers from more than one enterprise in sections they establish in new departments of the Republic, places an unjustified restriction on their activities - especially in view of the fact that, depending upon the department in question, there may be only one airport.
3. 128. In these circumstances, the Committee considers that the Port Workers' Union of El Salvador should be able to set up a section for workers from the International Airport of El Salvador. It requests the Government to register legally the section set up on 22 February 1992 as well as to take steps to have the legislation amended so that the registration of a trade union or a section thereof does not depend on the Government and so as to guarantee fully the right of workers freely to establish and join organizations of their own choosing.

The Committee's recommendations

1. 129. In light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a)The Committee considers that the Port Workers' Union of El Salvador should be able to set up a section for workers from the International Airport of El Salvador and requests the Government to register legally the section set up on 22 February 1992.
   • (b)The Committee also requests the Government to take the necessary steps to have the legislation amended so that the registration of a trade union or a section of a trade union does not depend on the Government and so as to guarantee fully the right of workers freely to establish and join organizations of their own choosing.