Report in which the committee requests to be kept informed of development - Report No 356, March 2010

Case No 2557 (El Salvador) - Complaint date: 29-MAR-07 - Closed

Allegations: Fraudulent dissolution of a trade union involving financial offers from the employer and dismissal of a large number of union members

1. 686. The Committee last examined this case at its March 2009 meeting [see 353rd Report, approved by the Governing Body at its 304th Session, paras 829–841].
2. 687. The Government sent new observations in communications dated 11 March, 28 May, 15 July and 13 October 2009.
3. 688. 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. Previous examination of the case

1. 689. In its previous examination of the case, the Committee made the following recommendations [see 353rd Report, para. 841]:
   • (a) The Committee emphasizes the seriousness of the allegations in this case, concerning the dissolution of a trade union and anti-union dismissals, and regrets the Government’s failure to cooperate with the procedure by not sending the information requested, despite the urgent appeal sent in November 2008; the Committee expects that the Government will be more cooperative in future.
   • (b) The Committee regrets that, even though the present case contains serious allegations of anti-union dismissals of a large number of trade union members (16), as well as allegations of acts of interference in union affairs by the employer in the form of financial offers, the Government has not undertaken an in-depth investigation of these matters. The Committee urges the Government to carry out an investigation without delay, to keep it informed in this regard and – if the allegations are proven – to take the necessary measures to reinstate without delay the trade union members in their posts with back pay, as well as to take the measures and impose the sanctions provided for in law so as to remedy such acts.
   • (c) In close connection with the dissolution of the SIDPA trade union, the Committee urges the Government to send the report of the Human Rights Ombudsperson on the present case as soon as the Ombudsperson reaches a decision, and also to send any decisions taken as a result of the criminal complaint filed at the Attorney-General’s Office by a union member for alleged falsification of documents and facts by the former General Secretary who instigated the allegedly fraudulent dissolution of the union.
   • (d) The Committee recalls in general that no one should be dismissed or be subjected to anti-union discrimination because of trade union membership or activities, and the authorities must ensure that adequate protection is provided against acts of interference by employers in trade union affairs. The Committee requests the Government to ensure that these principles are respected.
   • (e) The Committee requests the Government to send the information requested, and expects that it will do so without delay, and that it will obtain information from the enterprise concerned by the questions under examination through the national employers’ organization.

B. The Government’s reply

1. 690. In its communications of 11 March, 28 May, 15 July and 13 October 2009, the Government sends the following observations.
2. 691. As regards the application to dissolve the Sweets and Pastries Industrial Trade Union (SIDPA), the Government states that on 21 December 2006 Mr Daniel Morales Rivera, First Secretary for Disputes of SIDPA, applied to the National Department for Social Organizations of the General Labour Directorate to register a change to the union’s executive board owing to alleged action to remove from office and expel the following members of the executive board: the General Secretary, the culture and education secretary and the records and agreements secretary. The application was rejected in a decision by the National Department for Social Organizations on 12 January 2007 (owing to failure to comply with due procedure as established under article 51(2) of the Rules of the professional association concerning sanctions of suspension, removal from office and/or expulsion of members). In the light of this, the members of the executive board remained in their posts and were authorized to seek from the Ministry the documentation they considered necessary.
3. 692. The Government supplies a copy of the report of the Human Rights Ombudsman of 27 August 2007 calling for: (a) a report from the Director-General for Labour of the Ministry of Labour and Social Protection on the measures adopted in response to the allegations made and any other information it might wish to bring to the attention of the Attorney-General’s Office for the purposes of any investigation; (b) a report from the Second Labour Judge of San Salvador on action taken to verify the claimant’s legal status in order to ensure the legitimacy of the proceedings to dissolve the SIDPA, and any other information it may wish to bring to the attention of the institution; and (c) to seek a report from the headquarters of the Unit for Offences in connection with the Administration of Justice of the Attorney-General’s Office, regarding the investigations carried out in connection with the complaint made in the case in question and the current status thereof.
4. 693. The Government reports that the Attorney-General’s Office is in the process of submitting preliminary evidence to the courts concerning alleged falsification of documents and facts used as a basis for the judicial dissolution of SIDPA. On 9 September 2009, the Subdirector responsible for the Defence of the Interests of Society of the AttorneyGeneral’s Office petitioned the Third Justice of the Peace of San Salvador to open a formal investigation with interim detention, a decision adopted by the Court which called a preliminary hearing for the 15 December 2009. The Government states that it will report on the outcome as soon as it is informed.

C. The Committee’s conclusions

1. 694. The Committee recalls that according to its previous examination of the case, the allegations in the present complaint refer to: (1) the fact that three trade union officials of SIDPA, having accepted a financial offer from the president of the company Productos Alimenticios Diana SA de CV, instigated a fraudulent process of “voluntary” dissolution of the union unbeknown to the other officials and members of the union, ostensibly following a general meeting on 13 January 2007 (with 28 signatures on one document, ten of which were forged), without adhering to the established deadlines; (2) on 15 February 2007, the Second Labour Judge approved the dissolution (although labour proceedings normally take months or years); and (3) between 12 March and 7 May 2007, the company dismissed 16 trade unionists.
2. 695. The Committee recalls that in its previous examination of the case, it noted the Government’s statements to the effect that: (1) the judiciary requested the Ministry of Labour and Social Security to revoke the registration of the SIDPA trade union, and on 2 March 2007 this request was granted by the Ministry, which declared the union dissolved, revoked the registration of the union and its executive committee and, in accordance with the law, appointed the Liquidation Board, whose proceedings were completed on 25 July 2007 and approved by the Ministry of Labour; (2) the workers concerned did not initiate administrative or judicial proceedings against the decision concerning the dissolution of the union and the dismissals; (3) a union member filed a criminal complaint against one of the instigators of the dissolution of the union and the dismissals (its general secretary at the time) for alleged falsification of documents and facts; and (4) the General Secretary of Productos Alimenticios Diana SA de CV branch of SIDPA filed a complaint with the Human Rights Ombudsman on account of the dissolution of the union and the dismissals.
3. 696. In this respect, the Committee notes that in its most recent observations the Government indicates that: (1) on 21 December 2006, the first secretary for disputes of SIDPA requested that a modification in the union’s general executive board be registered, following the alleged removal from office and expulsion of the General Secretary, the culture and education secretary and the records and agreements secretary; the request was rejected by the National Department for Social Organizations on 12 January 2007 for non-compliance with the procedure established for such sanctions, which meant that the executive board members in question continued in their union posts and were thus able to seek from the Ministry any documentation they deemed necessary; (2) on 27 August 2007, the Human Rights Ombudsman issued a report which called for: (a) a report from the Director-General for Labour of the Ministry of Labour and Social Security on action taken in response to the allegations; (b) a report from the Second Labour Judge of San Salvador concerning the action taken to verify the legal status of the claimant as part of the procedure to verify the legitimacy of the procedure to dissolve the SIDPA; and (c) a report from the headquarters of the Unit for Offences relating to the Administration of Justice of the Attorney-General’s Office regarding the investigations carried out in relation to the complaint in this case, and its current status; and (3) on 9 September 2009, the Attorney-General’s Office requested the Third Magistrate’s Court of San Salvador to open a formal investigation with interim detention for the offence of falsifying documents and facts used to justify the judicial dissolution of SIDPA, a decision adopted by the Court which called a preliminary hearing for 15 December 2009.
4. 697. In this regard, noting that legal proceedings have been initiated before the Third Magistrate’s Court of San Salvador for falsifying documents and facts used to justify the judicial dissolution of the union, the Committee expects that these proceedings will be concluded without delay, with a view to determining responsibilities and punishing those responsible. The Committee requests the Government to keep it informed in this regard and of any further decision or action taken by the Human Rights Ombudsman.
5. 698. As regards the allegations of interference by the employer in the union’s affairs by offering economic incentives, and the anti-union dismissals between 12 March and 7 May 2007 of 16 trade unionists following the dissolution of the trade union, the Committee regrets that the Government has not sent its observations in that regard. The Committee recalls that no one should be subjected to prejudicial measures because of legitimate trade union membership or activities. The Committee urges the Government to carry out an in-depth investigation of these matters without delay and, if the allegations are proven, to take the necessary measures to reinstate without delay the trade union members in their posts with back pay, as well as to take the measures and impose the sanctions provided for in law so as to remedy such acts. The Committee urgently requests the Government to keep it informed of developments in this regard.

The Committee's recommendations

• C. The Committee’s recommendations
  699. 699 In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations.
       • (a) As regards the dissolution of the SIDPA, the Committee, noting that a criminal complaint has been lodged with the Third Magistrate’s Court of San Salvador for falsification of documents and facts used to justify judicial dissolution of the union, expects that the court proceedings will be concluded without delay and will make it possible to identify and punish those responsible. The Committee request the Government to keep it informed in this regard and of any decision or action taken by the Human Rights Ombudsman.
       • (b) As regards the allegations concerning acts of interference by the employer in a trade union’s affairs by means of economic incentives and the anti-union dismissals, between 12 March and 7 May 2007, of 16 trade unionists following the dissolution of the trade union, the Committee regrets that the Government has not sent its observations in that regard. The Committee recalls that no one should be subjected to prejudicial measures because of his or her legitimate trade union membership or activity. The Committee urges the Government to carry out an in-depth investigation of these matters without delay and, if the allegations are proven, to take the necessary measures to reinstate without delay the trade union members in their posts with back pay, as well as to take the measures and impose the sanctions provided for in law so as to remedy such acts. The Committee urgently requests the Government to keep it informed of developments in this regard.