Report in which the committee requests to be kept informed of development - Report No 346, June 2007

Case No 2487 (El Salvador) - Complaint date: 17-MAY-06 - Closed

Allegations: The National Trade Union Federation of Salvadorian Workers (FENASTRAS) alleges that the company Servicios San José SA de CV carried out an anti-union campaign against the Servicios San José SA de CV Workers’ Trade Union (SETRASSAJO), which included transferring the executive committee to work next to the refuse area, dismissing the trade union executive committee and 11 other members on 14 February 2006, attacks on and violence towards the dismissed workers during a peaceful demonstration in front of the company premises, frequent changes in the company’s name to prevent trade unions from forming, and putting pressure on workers to resign from their union, including making death threats

914. This complaint is contained in a communication dated 17 May 2006 presented by the National Trade Union Federation of Salvadorian Workers (FENASTRAS).

1. 915. The Government sent its observations in a communication dated 16 November 2006.
2. 916. 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

1. 917. In its communication dated 17 May 2006, the FENASTRAS alleges that, after the Servicios San José SA de CV Workers’ Trade Union (SETRASSAJO) acquired legal personality and its executive committee was registered in December 2005 and January 2006, the company Servicios San José SA de CV initiated an anti-union campaign against the 35 workers in the trade union. In fact, first it moved all the trade union leaders next to the refuse area and on 14 February 2006 it dismissed the trade union’s executive committee and 11 members without any justification.
2. 918. The SETRASSAJO organization initiated administrative proceedings with the General Labour Directorate of the Ministry of Labour and Social Welfare; however, despite the many conciliation hearings held, no agreement was reached.
3. 919. The complainant organization adds that on 21 February the dismissed workers held a demonstration in front of the company premises, demanding their reinstatement and payment of their wages. On that occasion, some female workers were beaten up by the company’s private security services.
4. 920. The SETRASSAJO alleges, moreover, that the company is seeking to change its registered name in order to invalidate the legality of the company trade union before the authorities have completed their investigation. According to the complainant, the company has taken action to change its registered name on several occasions in order to prevent company trade unions from functioning. For example, the company was called “Confecciones San José SA de CV” until 2002. In that year, it changed to “Servicios San José SA de CV” and in 2005 it became “Recursos San José SA de CV”. Each time it dismissed the workers and made them sign contracts with the new company.
5. 921. According to the allegations, despite the fact that the company has paid the dismissed officials’ wages for the first two weeks of February 2006, it will not allow them to enter the company premises and has not resolved the complaints filed against it at the Ministry of Labour and Social Welfare.
6. 922. The SETRASSAJO also alleges that the company is putting pressure on workers to resign from their trade union by making death threats. Finally, with the aim of destroying the trade union, the company reported the union to the Attorney General’s Office, accusing it of falsifying documents when the trade union was formed.
7. B. The Government’s reply
8. 923. In its communication dated 16 November 2006, with regard to the alleged reprisals against the executive committee members of the SETRASSAJO, the Government states that these actions were not duly reported to the labour inspectorate so that the necessary investigations could be carried out to determine whether trade union rights had been violated.
9. 924. The Government states that the SETRASSAJO used only the conciliation mechanism and requested the labour directorate to summon the employer’s representatives in order to come to a mutual conciliation settlement. The Government states that, in this case, the authorities’ function is restricted to promoting a conciliation agreement between the parties. On 22 February 2006, the SETRASSAJO applied to the General Labour Directorate to promote a conciliation settlement regarding the dismissal of the members of the union executive committee and 11 members on 14 February 2006. The company justified the dismissals, stating that the workers had disrupted the normal functioning of the company on several occasions by preventing workers from entering to do their jobs by threatening to lock them in. According to the Government, the conciliation hearings have not been fruitful since the dismissed workers have not been reinstated, although their wages are being paid.
10. 925. The Government adds that the SETRASSAJO asked the special unit on gender and the prevention of discrimination in respect of employment to conduct an inspection to promote the reinstatement of the trade union officials but the company has refused to comply. The relevant sanctioning process has begun, imposing a fine for the infringement of article 248 of the Labour Code.

C. The Committee’s conclusions

1. 926. The Committee observes that this case relates to the allegations presented by the FENASTRAS which state that the company Servicios San José SA de CV carried out an anti-union campaign against the company union, SETRASSAJO, which included moving the executive committee to work next to the refuse area, dismissing the entire trade union executive committee and 11 other members on 14 February 2006, attacks on and violence towards the dismissed workers during a peaceful demonstration in front of the company premises, frequent changes in the company’s registered name to prevent the formation of trade unions, and putting pressure on workers to resign from their union, including making death threats. The Committee notes that, despite the steps taken by the SETRASSAJO and the conciliation hearings held in the presence of officials from the Ministry of Labour, the dismissed workers have not been reinstated and anti-union acts appear not to have ceased.
2. 927. The Committee further notes the Government’s statement that the SETRASSAJO did not report the alleged persecution to the labour inspectorate and that the administrative authority’s actions were therefore restricted to conciliation with respect to the dismissal of the trade union officials and the 11 members, namely, endeavouring to get them reinstated. The Committee also notes that the Government adds that the SETRASSAJO finally reported the events to the special unit on gender and the prevention of discrimination in respect of employment and that, as the company is refusing to reinstate the dismissed officials and members, the sanctioning process has begun to impose a fine on the company.
3. 928. The Committee observes that these are serious allegations of anti-union acts committed against a trade union executive committee and 11 of its members for legitimately exercising their trade union activities; the acts include dismissals, threats, pressure and the alleged continual changing of the company’s name to prevent the formation of trade unions. The Committee recalls, first, that, under Article 2 of Convention No. 87, recently ratified by El Salvador, workers, without distinction, shall have the right to establish or join trade union organizations of their own choosing, and that no person should be dismissed or prejudiced in employment by reason of trade union membership or legitimate trade union activities, and it is important to forbid and penalize in practice all acts of anti-union discrimination in respect of employment [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 771]. Taking into account the Government’s statement that it has started the sanctioning process against the company, with the intention of imposing a fine on it because of its refusal to reinstate the dismissed workers, the Committee requests the Government to take the necessary measures so that the sanctions imposed in this process are sufficiently dissuasive to ensure that the company allows its workers to freely exercise their trade union rights by putting an end immediately to all anti-union acts against the officials and members of the SETRASSAJO and by reinstating them without delay, and paying the wages they are owed and appropriate compensation. The Committee requests the Government to keep it informed on this matter.
4. 929. The Committee urges the Government to ensure that an independent investigation is carried out without delay into the allegations of assaults on SETRASSAJO workers by the company’s private security services and into the alleged death threats used to urge workers to resign from their trade union. The Committee requests the Government to take measures to punish those guilty of the assaults and to provide protection to the threatened workers.

The Committee's recommendations

1. 930. In the light its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government, in the framework of the sanctioning process initiated against the Servicios San José SA de CV enterprise, to ensure that the sanctions imposed are sufficiently dissuasive to ensure that the company allows its workers to freely exercise their trade union rights, by putting an end immediately to all anti-union acts against the officials and members of the SETRASSAJO, and by reinstating them without delay and paying the wages they are owed and appropriate compensation. The Committee requests the Government to keep it informed on this matter.
   • (b) The Committee urges the Government to ensure that an independent investigation is carried out without delay into the allegations of assaults on the SETRASSAJO workers by the company’s private security services and into the alleged death threats used to urge workers to resign from their trade union. The Committee requests the Government to take measures to punish those guilty of the assaults and to provide protection to the threatened workers.