Interim Report - Report No 367, March 2013

Case No 2896 (El Salvador) - Complaint date: 29-JUL-11 - Follow-up

Allegations: Numerous acts of anti-union discrimination in the telecommunications sector, including manoeuvres to have an industry trade union dissolved, anti-union dismissals and the establishment of a company union controlled by the employer; the complainants also claim that several legislative provisions need to be amended

1. 651. The complaint was presented in a joint communication dated 29 July 2011 from the Telecommunications Workers’ Union (SITCOM) and the Workers’ Trade Union Confederation of El Salvador (CSTS). SITCOM sent additional information in communications dated 21 September, 11 and 29 October 2011, and 23 February 2012.
2. 652. The Government sent partial observations on 22 October 2012.
3. 653. El Salvador has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and the Workers’ Representatives Convention, 1971 (No. 135).

A. The complainants’ allegations

1. 654. SITCOM and CSTS allege that CTE S.A. de C.V. (AMERICA MOVIL S.A.B. de C.V. México) and Atento El Salvador S.A. de C.V. (TELEFONICA S.A. España) engage systematically in anti-union activities and that the Government is unable to prevent them from doing so. The anti-union activities include manoeuvring to have SITCOM dissolved, anti-union dismissals and the establishment of a company union controlled by the employer. The complainants also claim that several provisions of El Salvador’s legislation on freedom of association need to be amended.
2. 655. The complainants recall that the principles of freedom of association have apparently already been violated in the past in El Salvador’s telecommunications sector and that in 1998 a complaint on the subject was presented to the Committee (Case No. 1987). They note that the Committee’s recommendations in that case, notably that the legislation be amended to remove the excessive formalities that apply to the establishment of trade union organizations and that trade union leaders Luis Wilfredo Berrios and Gloria Mercedes González be reinstated in their posts, have still not been complied with.
3. 656. The complainants allege that ever since SITCOM was set up, the CTE has constantly been attacking it in the courts in a bid to get rid of it. After six-and-a-half years of legal battles and a number of Supreme Court rulings in its favour, SITCOM’s legal personality was eventually recognized in September 2009, when the new Minister of Labour overturned earlier decisions of the Ministry of Labour not to comply with the rulings of the Supreme Court.
4. 657. In spite of that, the CTE lodged an official request on 28 April 2010 to have SITCOM dissolved. The request was denied by a labour court of first instance. The company appealed against the decision to the First Labour Chamber of San Salvador, which on 29 March 2011 ordered that SITCOM’s registration be revoked. SITCOM thereupon lodged an appeal with the Supreme Court that was declared irreceivable on the grounds that section 622 of the Labour Code did not provide for any possibility of appeal against the revocation of a trade union’s registration by a court of second instance. On 29 April 2011 SITCOM submitted a request for court protection to the Constitutional Chamber of the Supreme Court on the grounds that its constitutional rights to due process, to justice and to freedom of association were being infringed. In addition, having learnt that the son of the Constitutional Chamber’s presiding magistrate who had ordered the union’s dissolution was one of the legal representatives of the company that had requested its dissolution, SITCOM applied to the Supreme Court’s judicial investigation section to request that he be investigated for influence peddling.
5. 658. On 14 September 2011 the Ministry of Labour revoked SITCOM’s registration, based on the decision of the First Labour Chamber. On 16 December 2011 the Constitutional Court of the Supreme Court declared SITCOM’s request for court protection to be receivable and ordered as a preliminary measure that the revocation of its registration as a trade union be suspended. In pursuance of the preliminary measure, the Ministry of Labour registered SITCOM provisionally and conditionally again in February 2012.
6. 659. The complainants add that, instead of waiting for the judicial procedure to be resolved, the company proceeded illegally to suspend the deduction of union dues for SITCOM in June 2011. SITCOM then applied to the Special Gender and Labour Discrimination Unit of the Ministry of Labour to request a special inspection of the company for placing obstacles in the way of freedom of association.
7. 660. The complainants allege that the CTE’s anti-union policy also takes the form of anti-union discrimination against SITCOM officials by both the company and its subcontracting companies. By way of example, they cite the indirect dismissal by SERVILAB in December 2009 of the union’s Deputy Secretary-General, Tania Gadalmez, and the unlawful dismissal by one of the subcontractors, Construcciones y Servicios Integrales de Telecomunicaciones S.A. de C.V., on 19 March 2011 of the members of the executive board of SITCOM’s enterprise union (Oscar Armando Sánchez Cortez, Carlos Alberto Olivas, José Mauricio Melgar Quiñonez, Roberto Carlos Rojas and Guillermo Ernesto Meléndez Miranda) and the CTE’s dismissal on 25 May 2011 of two other SITCOM officials (José Rigoberto García Orellana and César Leonel Flores).
8. 661. Because of acts of anti-union discrimination, SITCOM on several occasions requested the Ministry of Labour’s Special Gender and Labour Discrimination Unit to conduct special inspections and, on one occasion, denounced the CTE’s director of human resources for circulating among all its subcontractors a blacklist of union officials who had been dismissed.
9. 662. The complainants also allege a number of other acts of anti-union discrimination in another telecommunications company, Atento El Salvador S.A. de C.V., following the creation of the executive board of a SITCOM enterprise union on 12 September 2010. They state that on 22 November, 21 company employees were dismissed for supposedly working to rule, including the executive board’s Secretary-General, Emilio Hernández Galdámez, and the five other union officials (José Gabriel García Méndez, Saúl Armando Navarro García, Francisco Javier Gómez García, Yolanda Carolina López Durán and Zoraida Ivette Flores Rivas).
10. 663. The complainants state that on 25 November 2010 Saúl Armando Navarro García, Francisco Javier Gómez García and Zoraida Ivette Flores Rivas requested the Ministry of Labour to order a special inspection of the CTE for infringement of freedom of association. The inspection, which took place on 1 December 2010, established that the dismissal of the three union officials was null and void as it violated the provisions of the Labour Code prohibiting the dismissal of trade union officials, but the company refused to reinstate them. On 10 December 2010 all six union officials applied to the Labour Court to request the cancellation of their dismissal and their reinstatement. The complainants add that the dismissals and the company’s refusal to reinstate the union officials were not only an infringement of the law but also went against official commitment to freedom of association in the code of practice of the TELEFONICA group, to which the Atento company belongs.
11. 664. The complainants further allege that the Atento El Salvador Trade Union (SINTRABATES), which was established on 18 November 2010, four days before SITCOM’s union officials were dismissed, and was registered by the Ministry of Labour on 21 January 2011, is controlled by Atento. They add that several of SINTRABATES’s founder members, presented as telephone operators, are in fact trusted company employees and that the union’s Vice-President, Gloria Elizabeth Trinidad de Bove, holds a senior position in the company. SITCOM asked the Ministry of Labour to order a special inspection to investigate SINTRABATES’s links with the employer and its fraudulent establishment. In the absence of any reply from the Ministry of Labour, SITCOM presented a request through the administrative dispute channels in April 2011 to have SINTRABATES’s legal personality revoked.
12. 665. Finally, the complainants allege that the following amendments need to be made to El Salvador’s legislation on freedom of association: repeal of section 622 of the Labour Code establishing that rulings by a court of second instance on the dissolution of trade unions are not open to any form of appeal, and reform of the Labour Code to make the reinstatement of union officials compulsory if they have been dismissed legally.
13. 666. In the light of their allegations, the complainants request that the Committee:
    • – emphasize the need for the Government of El Salvador to comply with the recommendations the Committee formulated in Case No. 1987;
    • – recommend that the Government ensure that the employer’s attempts to have SITCOM dissolved do not succeed and take all appropriate measures so that workers in the telecommunications sector are able to enjoy their right to freedom of association effectively, whether or not they are members of SITCOM;
    • – recommend that the Government ensure the reinstatement of all SITCOM’s officials whose dismissal is cited in the allegations;
    • – recommend that the Government introduce the amendments to the Labour Code indicated by the complainants.

B. The Government’s reply

1. 667. In its reply of 22 October 2012 the Government states that the Supreme Court is conducting a reform of the procedural provisions of the Labour Code and that it will keep the Committee informed of developments. The Government also refers to the existence of a public service bill and points out that the increase in the number of occupational organizations registering with the Ministry of Labour and Social Welfare attests to its commitment to freedom of association and collective bargaining.
2. 668. Regarding the procedure for dissolving, deregistering and winding up SITCOM, the Government states that the Ministry of Labour simply implemented the decisions of the judiciary when, following the ruling by the First Labour Chamber of San Salvador, it ordered the union’s deregistration on September 2011 and when, in the light of the provisional order issued by the Constitutional Chamber of the Supreme Court, it adopted a resolution on 11 November 2011 revoking its earlier decision. The Government confirms that following this latest decision SITCOM is now active.
3. 669. Referring to the CTE’s alleged use of blacklists, the Government states that, due to an error in the work centre of the request submitted by the worker, the file was archived.
4. 670. Regarding the CTE’s suspension of the deduction of union dues for workers affiliated to SITCOM, the Government states that an inspection was carried out that established that the employer had infringed section 252 of the Labour Code by ceasing to deduct the union dues of 84 members of SITCOM. Since no action was taken by the company to correct the situation, the procedure has moved on to the sanction stage.
5. 671. Regarding the alleged discriminatory dismissal of trade union officials at the CTE and its subcontractors, the Government states that:
   • – in respect of the dismissal of trade union official Tania Verónica Galdámez, the labour inspectorate established that section 248 of the Labour Code on trade union immunity was infringed by her de facto dismissal, and that proceedings have now moved on to the sanctions stage;
   • – in respect of the dismissal of José Rigoberto García Orellana, the labour inspectorate established the infringement of section 248 of the Labour Code; and
   • – in respect of the dismissal of César Leonel Flores Aguilar, the labour inspectorate was unable to establish the existence of any infraction as the worker concerned had signed a document accepting full compensation for his dismissal.
6. 672. Regarding the granting of legal personality to the company union known as SINTRABATES, the Government states that, with its 35 founding members, the union was registered under the procedure laid down in the Labour Code after a number of errors of form in its by-laws had been rectified.

C. The Committee’s conclusions

1. 673. The Committee recalls that the case under examination refers to allegations of numerous acts of anti-union discrimination by companies in the telecommunications sector, including manoeuvres to bring about the dissolution of a branch union, anti-union dismissals and the establishment of a company union controlled by the employer and that, in addition, the complainants claim that several provisions of El Salvador’s legislation need to be amended to guarantee more effective protection of freedom of association.
2. 674. The Committee takes note of the partial observations sent by the Government describing the measures and decisions taken by the labour inspectorate in the light of allegations of acts of anti-union discrimination in the telecommunications sector, and informing it that amendments to the legislation are currently being considered.
3. 675. The Committee recalls that, in its examination of Case No. 1987, it has twice already had occasion to examine allegations of acts of anti-union discrimination in El Salvador’s telecommunications sector and that it issued a number of recommendations on the subject [see 313th Report, March 1999, and 330th Report, March 2003]. It takes note of the complainants’ allegations that most of its recommendations – notably that the legislation be amended to remove the excessive formalities that apply to the establishment of trade union organizations and that trade union leaders Luis Wilfredo Berrios and Gloria Mercedes González be reinstated in their posts – have still not been complied with. The Committee requests the Government to keep it informed of the implementation of the Committee’s recommendations with respect to Case No. 1987.
4. 676. Regarding the situation of SITCOM, the Committee notes with concern that, ten years after the union was established and despite its substantial number of members as reflected in the Government’s observations (which refer to the illegal suspension of the union dues of at least 84 members of SITCOM by a company in the telecommunications sector), the union’s legal personality has still not been firmly recognized.
5. 677. Moreover, judging from the decision of the Constitutional Chamber of the Supreme Court on 16 December 2011 declaring the receivability of the appeal lodged by SITCOM for court protection against the judicial ruling that its registration be cancelled, the Committee understands that the grounds for the ruling that cancelled its registration was apparently the dual union membership of several of its members, which remains prohibited by section 204 of the Labour Code. The Committee recalls that it has on several occasions pointed out that workers should be able, if they so wish, to join trade unions at the branch level as well as the enterprise level at the same time [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 360]. It notes further that the Committee of Experts on the Application of Conventions and Recommendations (CEACR), in its direct request of 2012 regarding the application of Convention No. 87 by El Salvador, made the following statement: “Workers who are engaged, whether in the public or private sector, in different activities in more than one job should be able to join the corresponding unions and [should, in any case,] be able, if they so wish, to join unions at the branch and enterprise levels at the same time. The Committee expresses the strong hope that the Government will take the necessary steps without delay to have section 204 of the Labour Code amended as indicated.”
6. 678. In the light of the foregoing considerations, the Committee requests the Government to take the necessary steps to ensure that SITCOM’s continued existence is not jeopardized for motives that run counter to the principles of freedom of association and to bring the principles concerning dual trade union membership to the attention of the Constitutional Chamber of the Supreme Court. The Committee expects that those principles will be taken into account by the Supreme Court and requests the Government to keep it informed of the ruling handed down. The Committee moreover urges the Government to take the necessary steps to amend section 204 of the Labour Code.
7. 679. Regarding the suspension by the CTE of its deduction of union dues for workers affiliated to SITCOM, the Committee takes note that the labour inspectorate has established that this constituted an infringement of the Labour Code and that, in the absence of corrective measures by the employer, the matter has moved on to the sanction procedure. The Committee requests the Government to keep it informed of the outcome of the sanctions procedure that has been initiated and expects the sanctions imposed to be sufficiently dissuasive so that there is no recurrence of this kind of anti-union action in future by the company concerned.
8. 680. Regarding the alleged anti-union dismissals at the CTE and its subcontractors, the Committee takes note of the action taken by the labour inspectorate concerning the dismissal of trade union officials Tania Gadalmez, José Rigoberto García Orellana and César Leonel Flores, that it has established that Tania Gadalmez’ and César Leonel Flores’ trade union rights were infringed and that a sanctions procedure has accordingly been initiated. The Committee recalls that it has on numerous occasions requested the Government to take the necessary measures to enable trade union leaders and members who have been dismissed because of their legitimate trade union activities to secure their reinstatement and to ensure the application of the corresponding legal sanctions against the enterprises concerned [Digest, op. cit., para. 839]. The Committee requests the Government to keep it informed of developments in the sanctions procedure and expects the sanctions imposed to be sufficiently dissuasive so that there is no recurrence of this kind of anti-union action in future in the company concerned.
9. 681. The Committee notes that the Government has not sent its observations on the alleged discriminatory dismissal of five trade union officials at Construcciones y Servicios Integrales de Telecomunicaciones S.A. de C.V., a subcontractor, or on the alleged anti union dismissals at the Atento company. The Committee requests the Government to send it detailed information on the subject without delay.
10. 682. Regarding the establishment of SINTRABATES, the Committee notes that the Government’s observations do not mention the SITCOM officials’ request that the labour inspectorate conduct a special investigation of alleged domination of SINTRABATES by the employer or why there was no response to their request. It recalls moreover that, in the CEACR’s 2012 observation on the application of Convention No. 98 by El Salvador, that Committee requested the Government to take the necessary measures to provide explicitly in the legislation for the prohibition of all actions which are designed to promote the establishment of workers’ organizations under the domination of employers. The Committee therefore requests the Government to send detailed information without delay on the request for a special inspection into the alleged domination of SINTRABATES by the employer, on the outcome of the court action brought by SITCOM and on the measures taken to amend the legislation as it relates to acts of anti-union interference.
11. 683. Regarding the request that the Labour Code be amended to ensure that trade union officials be reinstated in the event of their unlawful dismissal, the Committee recalls that, in the case of a country in which there was no legislation providing for the reinstatement of workers who had been dismissed without justification, it requested the Government to take measures to amend the legislation so that workers dismissed for the exercise of their trade union rights could be reinstated in their posts [Digest, op. cit., para. 838]. The Committee also recalls that such protection is particularly desirable in the case of trade union officials because, in order to be able to perform their trade union duties in full independence, they should have a guarantee that they will not be prejudiced on account of the mandate which they hold from their trade unions [Digest, op. cit., para. 799]. Furthermore, the Committee takes note of the information that the Government provided in 2006 in relation to the application of Convention No. 135, concerning its efforts to ensure that union officials were effectively reinstated in the event of anti-union dismissal. Recalling the principles cited above, the Committee requests the Government to provide it with information of the measures taken, including legislative measures, to provide union officials with effective protection in the event of anti-union discrimination.
12. 684. Regarding the request that the Labour Code be amended so that rulings handed down by courts of second instance in the course of trade union dissolution proceedings are open to appeal, the Committee recalls that it has on several occasions pointed out that the suspension of the legal personality of trade union organizations imposes a serious restriction on trade union rights and that in matters of this nature the rights of defence can only be fully guaranteed through due process of law [Digest, op. cit., para. 700]. In this regard, the Committee considers that, given the fundamental nature of freedom of association, proceedings leading to the suspension or cancellation of the legal personality of an occupational organization, whether of employers or of workers, should offer the maximum legal guarantees. In the specific case at hand, the Committee notes that section 622 of the Labour Code dealing with rulings on infringements by trade unions reads as follows: “An appeal may be lodged with the relevant labour court against the ruling within three working days following its notification. The appeal shall be dealt with in the manner laid down in this Code and there shall be no further appeal whatsoever against the decision handed down”. The Committee therefore observes from this provision that an appeal against a court’s rulings on infringements by trade unions is possible, but that no further appeals may be lodged against a decision handed down by a court of second instance. Furthermore, the Committee understands from the complainants’ allegations that decisions by a court of second instance pronouncing the dissolution of a trade union can give rise to an appeal to the Constitutional Chamber of the Supreme Court for the protection of the court. In addition, the Committee observes that, in its communication relating to Case No. 2909, the Government indicates that the impossibility to challenge decisions issued in the second instance concerning the dissolution of a union creates a situation that violates the right to access to effective judicial protection and to the constitutional rights of defence and to be heard. Bearing in mind that, according to the Government, a procedural labour bill is currently being examined, the Committee invites the Government to consider, in consultation with the social partners, the review of the aforementioned provision of section 622 of the Labour Code.

The Committee’s recommendations

1. 685. 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 keep it informed of the implementation of the Committee’s recommendations with regard to Case No. 1987, notably that the legislation be amended to remove the excessive formalities that apply to the establishment of trade union organizations and that trade union leaders Luis Wilfredo Berrios and Gloria Mercedes González be reinstated in their posts.
   • (b) The Committee requests the Government to take the necessary steps to ensure that SITCOM’s continued existence is not jeopardized for motives that run counter to the principles of freedom of association and to bring the principles concerning dual trade union membership to the attention of the Constitutional Chamber of the Supreme Court. The Committee expects that those principles will be taken into account by the Court and requests the Government to keep it informed of the corresponding ruling handed down. The Committee moreover urges the Government to take the necessary steps to amend section 204 of the Labour Code prohibiting dual union membership.
   • (c) Regarding the suspension by the CTE of the deduction of union dues for workers affiliated to SITCOM, the Committee requests the Government to keep it informed of the outcome of the sanctions procedure that has been initiated and expects the sanctions imposed to be sufficiently dissuasive so that there is no recurrence of this kind of anti-union action in future in the company concerned.
   • (d) Regarding the dismissal of trade union officials Tania Gadalmez and César Leonel Flores, the Committee requests the Government to keep it informed of developments in the sanctions procedure that has been initiated and expects the sanctions imposed to be sufficiently dissuasive so that there is no recurrence of this kind of anti-union action in future in the company concerned.
   • (e) The Committee requests the Government to send it information without delay on the alleged discriminatory dismissal of five trade union officials at Construcciones y Servicios Integrales de Telecomunicaciones S.A. de C.V., a subcontractor, and on the alleged anti-union dismissals at the Atento company.
   • (f) The Committee requests the Government to send it detailed information without delay on the request for a special inspection into the alleged domination of SINTRABATES by the employer, on the outcome of the corresponding court action brought by SITCOM and on the measures taken to amend the legislation as it relates to acts of interference to the detriment of trade unions.
   • (g) The Committee requests the Government to provide it with information on the measures taken, including legislative measures, to provide union officials with effective protection in the event of anti-union discrimination.
   • (h) The Committee invites the Government to consider, in consultation with the social partners, the review of section 622 of the Labour Code which provides that no appeal may be lodged against decisions handed down by a court of second instance.