Interim Report - Report No 337, June 2005

Case No 2368 (El Salvador) - Complaint date: 22-JUN-04 - Closed

Allegations: The complainant organization alleges anti-union practices against its two 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 who refused to resign from the union, 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

873. The complaint is contained in a communication dated 22 June 2004 from the Trade Union of Electricity Workers (STSEL). The Government sent its observations by a communication dated 28 February 2005.

1. 874. 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. The complainant’s allegations

1. 875. In its communication of 22 June 2004, the Trade Union of Electricity Workers (STSEL) explains that it was set up in a number of electricity generating companies in El Salvador and alleges that its union branches at the Río Lempa Hydroelectricity Board (CEL) and the El Salvador Electricity Transmission Company (ETESAL) have been the subject of actions aimed at dissolving or damaging them, with the Ministry of Labour maintaining a complicit silence with regard to the complaints made.
2. 876. The complainant organization states that since September 2001 the Río Lempa Hydroelectricity Board (CEL) has made subtle threats against union members aimed at making them resign from the union if they wish to keep their jobs. According to the complainant, some 33 workers of the union branch were dismissed, 28 of whom (including minutes secretary Mr. Ercilio Rubio Alberto and 11 union leaders or shop stewards who enjoyed trade union immunity) were obliged to accept severance pay; for example, at the time of the dismissals of Mr. Alirio Salvador Romero Ayala, general secretary of the union, and Ms. Isabel Quintanilla, general secretary of the union branch executive committee at CEL, both ended up accepting severance pay after they were informed of their dismissals by phone in October 2002 and were denied access to the CEL offices for a long period. All this occurred notwithstanding the fact that article 47 of the Constitution of the Republic states that trade union officials cannot be dismissed without good grounds previously established by the competent authority. The five dismissed workers who did not accept severance pay are the union leaders Mario Ernesto Martell Rivas, René Torres Aguirre, Germán Granados Figueroa, Roger Bill Aguilar and Roberto Efraín Acosta. The complainant organization emphasizes that, in addition to the dismissal of general executive committee and branch executive committee members and shop stewards, the orchestrated campaign to dissolve its CEL branch includes threats of dismissal against members who were unwilling to resign from the union and offers of better wages and higher-ranking jobs to workers who resigned; violation of the collective agreement; and CEL support for a parallel union with the aim of breaking up the complainant union. On account of the above, the CEL branch of the complainant union no longer exists.
3. 877. The complainant organization also alleges that its branch at the El Salvador Electricity Transmission Company (ETESAL) has been the victim of the same anti-union actions as those committed at CEL: a campaign since 3 September 2003 using threats of dismissal to encourage resignations from the union; dismissal of union officials and members who resisted those measures (according to the complainant, nine union leaders – seven of them having union immunity – and seven members were dismissed); violation of the collective agreement; and backing from the employer for the creation of a parallel union supportive of the management. The complainant organization concludes by stating that the ETESAL branch has been decimated and that the few members of the branch executive committee who have not been dismissed are being subjected to intimidation.
4. B. The Government’s reply
5. 878. In its communication of 28 February 2005, the Government refers to the Río Lempa Hydroelectricity Board (CEL) and to a number of trade union officials and shop stewards whose contracts were deemed to be terminated (Alirio Salvador Romero Ayala, Santos Alirio Pacas Molina and Mario Ernesto Martell Rivas). On the basis of information received from CEL, despite the fact that they resigned, the workers were paid not only a length of service grant but also the full wages corresponding to their trade union immunity, all of them having communicated their resignations to CEL in due legal form, declaring the enterprise to be free of any liability that might arise from the employment relationship to which they had been bound. A copy of the relevant documents is attached.
6. 879. Regarding the list of workers allegedly dismissed by CEL, it is important to mention that after Germán Granados Figueroa took CEL to the Constitutional Chamber of the Supreme Court of Justice, that Chamber dismissed the case against the CEL president, in a ruling issued on 23 February 2004, stating that the defendant authorities were not responsible for the act appealed against by the plaintiff. In addition, Roberto Efraín Acosta also opened amparo proceedings [concerning protection of constitutional rights] in the Constitutional Chamber of the Supreme Court of Justice against the CEL president, and the outcome of these proceedings is pending. The Government adds that the appeal lodged by Alirio Salvador Romero Ayala, general secretary of the Trade Union of Electricity Workers (STSEL), against the Ministry of Labour decision of 7 January 2002 granting legal personality to the Trade Union of Hydroelectricity Board Workers (STECEL), was declared inadmissible by the Administrative Disputes Chamber of the Supreme Court of Justice in a decision issued on 21 December 2004.
7. 880. With regard to the El Salvador Electricity Transmission Company (ETESAL), the complainant claims that there was a campaign of intimidation to make workers leave the union but this has not been proven since, in principle, resignation from a union is a voluntary act, in line with the legislation in force, and the employer is not involved. Indeed, in the cases involving resignation from the union (a matter which is unconnected with the actual work being done), the enterprise points out that it had no knowledge thereof until the workers presented the copies of their letters of resignation from the union to stop the check-off of their union dues.
8. 881. As regards the employees compensated by ETESAL, it should be noted that in December 2002, when the XIXth Central American and Caribbean Games were being held in El Salvador, some workers at the enterprise chose to withhold their services in order to carry out a smear campaign, which led to other, more expensive means of electricity generation being used to prevent the service to the public being interrupted. ETESAL requested the competent labour tribunals to designate the situation officially as a strike, the strike was declared illegal and a 24-hour deadline was set for returning to work. When this deadline passed, 18 workers refused to provide their services as required, which meant in law that individual work contracts could be terminated without compensation. Nevertheless, an agreement was reached with the workers to pay them the appropriate employment benefits.
9. 882. In the particular case of the union leaders, the latter refused to enter the enterprise since that date and their claims have been of a purely pecuniary nature. On 4 January 2005, union leaders Misael Alfredo López and Felipe René Hernández Araujo (STSEL national and international relations secretary and women’s affairs secretary, respectively) appeared at the offices of the Labour Department at the Ministry of Labour requesting the department to take conciliatory action with the aim of resolving the said labour dispute, the request having been admitted on the basis of section 24 of the Act on the structure and functions of the labour and social welfare sector.
10. 883. On 5 January 2005, a hearing was held in which the enterprise offered the following payments as a conciliatory settlement to the following workers: Misael Alfredo López – US$28,243.10; Enrique Montano Hidalgo – US$2,381.62; José Roberto Flores Sánchez – US$33,897.97; and Felipe René Hernández Araujo – US$33,897.97 – despite the fact that he failed to attend. All these amounts constituted severance pay and other employment benefits. The settlements were accepted by the workers who attended. On 12 January, the abovementioned settlements were paid to the first three workers referred to above, and on 15 February Felipe René Hernández Araujo received his payment. All the workers concerned signed their respective contract termination forms issued by the Labour Inspectorate (attached by the Government) thereby closing the case.

C. The Committee’s conclusions

1. 884. The Committee observes that in the present case the Trade Union of Electricity Workers (STSEL) alleges anti-union practices against two of its branches, namely at the Río Lempa Hydroelectricity Board (CEL) and at the El Salvador Electricity Transmission Company (ETESAL). These practices have consisted of: the dismissal of a large number of union leaders and members; threats of dismissal against members who refuse to resign from the union; violation of the collective agreement; and support from the employer for a parallel union to the detriment of the abovementioned branches, with all of the above occurring at both CEL and ETESAL. The STSEL adds that as a result of these practices its CEL branch no longer exists, while the ETESAL branch has been decimated, with the few members of the branch executive committee who have not been dismissed being subjected to intimidation. The complainant organization also alleges that the Ministry of Labour maintained a complicit silence with regard to the complaints made on the situation at both enterprises.
2. 885. With regard to the alleged dismissal of 33 trade unionists at CEL, the Committee observes that the complainant organization indicates that 28 of them were obliged to accept severance pay, 11 of them enjoyed trade union immunity (under article 47 of the Constitution of the Republic, they could not be dismissed without good grounds previously established by the competent authority) and another five leaders (Mario Ernesto Martel Rivas, Germán Granados Figueroa, Roberto Efraín Acosta, René Torres Aguirre and Roger Bill Aguilar) did not accept the severance pay offered by the enterprise. The Committee notes that the Government refers to five of the 33 trade unionists dismissed and points out in this respect that: (1) three trade union leaders and shop stewards (Mario Ernesto Martel Rivas, Alirio Salvador Romero Ayala and Santos Alirio Pacas Molina) resigned from their jobs but CEL paid them not only a length of service grant but also the full wages corresponding to their trade union immunity and the workers concerned declared the enterprise at which they had been employed free of all liability; (2) the Supreme Court considered that the CEL authorities were not responsible for dismissing Germán Granados Figueroa; and (3) the outcome of the judicial proceedings relating to Roberto Efraín Acosta is pending.
3. 886. The Committee requests the Government to send a copy of the ruling concerning the dismissal of union official Germán Granados Figueroa and of any ruling issued in relation to the dismissal of 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 (René Torres Aguirre and Roger Bill Aguilar), indicating whether they have taken legal action.
4. 887. In more general terms, the Committee observes that the Government only refers to five of the 33 dismissed trade unionists, it does not indicate whether good grounds for the dismissal of the 11 union officials who enjoyed trade union immunity were previously established by the competent authority, as stipulated by article 47 of the Constitution of the Republic, and it does not indicate the reason for the dismissals. The Committee also observes that the Government does not deny the complainant organization’s allegation that the dismissals at CEL formed part of a campaign to break up the branch of the union and that consequently the branch ceased to exist. Moreover, in view of the fact that the dismissals date from 2001 and 2002 and that the vast majority of the dismissed workers accepted the statutory severance pay, it does not appear feasible to reinstate that majority. Under these circumstances, the Committee deplores the fact that, as a result of numerous dismissals of officials and members, the CEL branch of the complainant union has ceased to exist and 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.
5. 888. With regard to the alleged anti-union dismissals of trade unionists at ETESAL (nine union officials – including seven having trade union immunity – and seven members) who had accepted severance pay, with the exception, according to the complainant, of union leaders José Roberto Flores, Felipe René Hernández Araujo and Misael Alfredo López and union member Enrique Montano, the Committee notes that the Government attaches documents which show that these four workers requested conciliatory action on the part of the Labour Department and also finally accepted severance pay. As regards the reasons for all the dismissals, the Committee notes the Government’s statement that the judicial authority declared the strike of a group of workers in December 2002 illegal and gave the strikers 24 hours to return to work; when 18 workers refused to do so, the enterprise was entitled to terminate their contracts without compensation; however, the enterprise reached an agreement with the workers to pay them the appropriate employment benefits.
6. 889. Although it is aware that the electricity transmission service provided by ETESAL could be considered an essential service, the Committee requests the Government to send the text of the ruling which declared the strike at ETESAL illegal so that it can examine the allegations of dismissals at ETESAL in full knowledge of the facts.
7. 890. 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 notes the Government’s observations which refer to ETESAL but not to CEL. 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 granting of legal personality to a new enterprise union at ETESAL, as well as its observations on the alleged actions of the enterprise concerning the creation of a parallel union at CEL.
8. 891. 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.
9. 892. 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.

The Committee's recommendations

1. 893. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (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.
   • (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.
   • (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.
   • (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.
   • (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.
   • (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.