Definitive Report - Report No 381, March 2017

1. 399. The Committee last examined this case at its June 2014 meeting, when it presented an interim report to the Governing Body [see 372nd Report, paras 208–230, approved by the Governing Body at its 321st Session (June 2014)].
2. 400. The Government sent its observations in communications dated 6 November 2014, 28 October 2015 and 31 October 2016.
3. 401. 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), the Workers’ Representatives Convention, 1971 (No. 135), and the Labour Relations (Public Service) Convention, 1978 (No. 151).

A. Previous examination of the case

1. 402. In its previous examination of the case in June 2014, the Committee made the following recommendations [see 372nd Report, para. 230]:
   • (a) The Committee regrets the lack of response from the Government, even though it made an urgent appeal at its March 2014 meeting, and requests the Government to be more cooperative in the future, responding to all the pending issues in this case and including information from the ISSS.

   Allegations concerning the SIMETRISSS

   • (b) The Committee stresses the importance for the authorities, together with the complainant union, to address the issues and problems raised in the complaint and, in this regard, requests the Government to take measures to promote dialogue between the ISSS and the complainant in order to find shared solutions to the doctors’ wage problems and to the problems related to trade union facilities, taking into account the principles and considerations outlined above and the principles of Convention No. 135 (which El Salvador has ratified) and Recommendation No. 143 concerning workers’ representatives. The Committee requests the Government to keep it informed in this regard.
   • (c) While it takes note of the allegations presented by the complainant union regarding: (1) the instructions that the ISSS Deputy Director for Health circulated among the directors and managers of local medical centres, in a memorandum in 2013, which, according to the allegations, seriously restricts trade union rights (preventing contact between the trade union representatives and the media; not allowing time in administrative meetings for the trade union representatives to present problems related to trade union activities; and creating the obligation to inform superiors of meetings between trade union officials and members, and of trade union activities); and (2) the instructions given by a hospital director, on 11 April 2013, to threaten doctors participating in activities organized by the trade union with sanctions. The Committee urges the Government to send its observations on these allegations without delay.

   Allegations concerning the STISSS

   • (d) While it observes that the complaint presented by the STISSS concerns allegations of acts of favouritism by the ISSS authorities in the context of a dispute between factions within the executive board, the Committee urges the Government to send its observations on these allegations without delay, so as to enable it to examine the complaint in full knowledge of the facts.

B. The Government’s reply

1. 403. In its communications dated 6 November 2014, 28 October 2015 and 31 October 2016, the Government responds to the complainant organizations’ allegations.

Allegations concerning the STISSS

1. 404. As to the alleged interference in the form of favouritism by the authorities in the context of a dispute between factions within the executive board, the Government reports that in late 2011, an internal dispute arose in the STISSS, which divided the executive committee into factions following the election of its members on 16 December 2011 (two groups emerged, with six officers, including the general secretary, who signed the complaint, on one side, and five officers on the other). The division become more apparent when, in late February, the group led by the general secretary stopped inviting the other group to board meetings and began taking decisions by majority vote. As the dispute escalated, the members of each group resorted to using violence and the national civil police were forced to intervene. Finally, on 27 March 2012, the board members from the minority faction were unable to enter the trade union premises, as members of the other group took steps to prevent them from exercising the trade union duties for which they had been elected.
2. 405. The Government adds that, as a result of the dispute, each group organized and held its own general assembly in an attempt to resolve the situation by disqualifying and expelling the opposing officers. As a result, each group submitted to the Ministry of Labour and Social Welfare its own request to establish a new executive board. Faced with the submission of differing requests, on 12 July 2012, the National Department of Labour Organizations: (i) decided that the submitted requests were receivable and considered the decisions of each group in relation to the dismissal proceedings to be accepted (so that both groups were mutually excluded from the executive board); (ii) unable to register more than one new executive board, established that the STISSS had no official leadership and therefore suggested that a single executive board be elected at a general assembly; (iii) reiterated that the labour rights established in the collective agreement were retained and stated that all union members should continue to pay union dues, which would be transferred to the union in due course through a holding account overseen by the Ministry of Finance; and (iv) maintained the right of the parties to contest legally the validity of the respective general assemblies.
3. 406. The Government reports that when the General Labour Inspectorate investigated the alleged violations of union officers’ trade union rights in the form of denied trade union leave, it was unable to verify the alleged discrimination due to the circumstances within the union: given the absence of an executive board, it could not be said that the union officers had been denied leave. The Government nevertheless indicates that while the STISSS might have lacked an executive committee, the rights established in the collective agreement were protected, and it was decided that the local trade union representatives should still be granted trade union leave so that they could address the various individual labour disputes that might arise in each centre.
4. 407. Moreover, with regard to the alleged withholding of union dues, the Government indicates that, owing to the absence of an executive board, in accordance with the aforementioned decision of 12 July 2012, union dues continued to be collected, but were deposited in a special holding account overseen by the Ministry of Finance, since a new executive board had not taken office.
5. 408. The Government reports that the lack of official leadership came to an end when a new executive board was elected at a general assembly held on 16 December 2012. The Government specifies that the elected general secretary and treasurer received from the Salvadorian Social Security Institute (ISSS) a sum of money corresponding to the collected union dues (for the months of July through to December 2012). In her certificate of acceptance, the general secretary of the STISSS stated that she had duly received a cheque for the appropriate sum, declaring the ISSS free of all liability, and therefore agreed to order the withdrawal of the complaint against the Director-General of the ISSS for alleged misappropriation.
6. 409. With regard to the allegations of disciplinary proceedings, the Government points out that trade union immunity, which is enshrined in the country’s Constitution, must not be confused with so-called trade union impunity. The Government indicates that the disciplinary proceedings are merely the result of inappropriate actions taken by the persons in question. In particular, the procedure referred to by the STISSS concerning Ms Bonilla de Alarcón was the result of inappropriate actions taken by her, which, following due process, led to the issuance of a judgment by the Fourth Civil and Commercial Court of San Salvador on 14 January 2013, whereby the judge established beyond a reasonable doubt the worker’s misconduct and granted the ISSS authorization to dismiss her. The Government nevertheless indicates that, although the ISSS duly obtained judicial authorization for her dismissal, the administration, as a gesture of openness and goodwill, decided not to implement the judgment and, at the time of writing of the Government’s last reply, the worker remained in her post under the same conditions as when she was hired.

Allegations concerning the SIMETRISSS

1. 410. As to the alleged refusal to bargain with the SIMETRISSS and the Committee’s recommendation that the authorities work with the union to address the issues raised (promoting dialogue between the ISSS and the SIMETRISSS in order to find shared solutions to the alleged problems concerning wages and trade union facilities), the Government reports that a high-level institutional commission has been established to meet with the union at a high-level round table in order to address and resolve issues placed on the agenda. The Government indicates that this round table has met on several occasions and has begun preparing agreements to safeguard the rights of ISSS workers, covering issues such as arbitrary movements of employees, workers’ benefits and the establishment of requirements before the executive board for the authorization of employee wage levels. The Government states that, while the SIMETRISSS has not been able to bargain together with the STISSS (the majority union), the workers’ rights are still protected, since collective bargaining – a process whereby the workers are properly represented – has been negotiated with the established union (the STISSS). As to the regulations that govern collective bargaining, the Government points out that the Labour Code permits unions to unite when engaging in collective bargaining, provided that the unions concerned have given their consent in their respective assemblies.
2. 411. Furthermore, the Government denies the SIMETRISSS’s allegation of non-observance of a 1998 wage agreement. The Government specifies that it implemented that agreement through Executive Board Agreement No. 98-05-0624 of 23 June 1998, which agreed to apply the wage scale agreed with the SIMETRISSS, as from 1 January 1998, with the wages agreed upon. Moreover, with regard to the discontent relating to wage issues expressed by the SIMETRISSS, which alleges that wages have been frozen for over 12 years, the Government indicates that the ISSS has been committed to dialogue and guaranteeing the rights of the SIMETRISSS’s members. The Government adds that over the past few years, the ISSS adjusted wages in two phases: the first wage adjustment occurred in January 2014 through the Executive Board Agreement that authorized the implementation of a wage scale for practising physicians, coordinators and chief physicians for a sum of US$4,543,094; while the second took place in February 2015, when the remaining wage adjustment for the practising physicians was approved for the amount of US$4,229,404.
3. 412. Moreover, the Government denies the allegation that the ISSS Deputy Director for Health circulated instructions among the directors and the management of the local medical centres to restrict trade union rights, in a memorandum in 2013. The Government specifies, first, that the memorandum was circulated by the then ISSS Deputy Director for Health, not the ISSS Deputy Director-General. As to its content, the Government states that: (i) the alleged instruction to prevent contact between the trade union representatives and the media does not appear in any part of the memorandum – the provision in question simply requests that “persons approached by the media refer any consultation or request for an interview to the communication department”; (ii) the allegation that trade unions are not allowed time in administrative meetings to raise their concerns is untrue: while point 1 of the memorandum establishes that “during administrative meetings held in the medical centres, time should not be allotted, at the request of the trade unions, for the discussion of situations relating to trade union activities”, the Government stresses that the memorandum for local administrative authorities respects freedom of association in so far as this provision is restricted to meetings where institutional management plan and coordinate working methods, where it would be inappropriate to discuss union-related matters; and (iii) the allegation that the memorandum creates the obligation to inform superiors of meetings between trade union officials and members, and of activities of an official nature, is also unfounded, as point 3 of the memorandum simply establishes that “every director must report to hospital and outpatient care management any cases of staff absence from work on employment-related or duly justified grounds, in accordance with regulations” (recalling that all workers, including trade union leaders, must comply with the regulations concerning the grounds for absence established in the collective agreement, the Government also reiterates that trade union immunity must not be confused with so-called trade union impunity, which would enable workers neither to attend to nor to perform the work for which they have been hired).
4. 413. As to the alleged instructions given by a hospital director, on 11 April 2013, supposedly to threaten doctors participating in activities organized by the trade union with sanctions, the Government clarifies that the then director of the specialized treatment hospital, upon receiving the memorandum on 11 April 2013, merely forwarded it to management and at no point did she hold a meeting in which she instructed management to sanction doctors participating in activities organized by the trade union.

C. The Committee’s conclusions

1. 414. The Committee recalls that this case concerns allegations of obstacles to trade union activities, refusal of facilities for union representatives and obstacles to engagement by the SIMETRISSS in collective bargaining; favouritism, failure to transfer union dues and refusal to grant trade union leave in the context of a STISSS internal dispute, and disciplinary proceedings against its leaders.

Allegations concerning the STISSS

1. 415. With regard to the allegations of favouritism, refusal to grant trade union leave and withholding of union dues in the context of a dispute between factions within the executive board, the Committee notes the information provided by the Government in relation to the situation of undefined leadership during which: (i) each group organized an assembly to expel the members of the opposing group and propose a new executive board; (ii) as a result of the conflicting requests of both groups, a new executive board could not be registered and therefore its members were not entitled to union leave – the local trade union representatives were nevertheless still granted leave and the collective agreement still enforced; and (iii) union dues continued to be collected, but were deposited in a special holding account that was set up for this purpose at the Ministry of Finance. The Committee further notes that, according to the Government: (i) the dispute was resolved in late 2012 when a new executive board was elected at a general assembly; and (ii) the union dues were subsequently transferred to the new board, whose members formally stated that they had been duly received and agreed to withdraw the complaint against the Director-General of the ISSS for the alleged misappropriation of these dues. Noting that, according to the Government, these issues have been resolved, and in the absence of conflicting information from the STISSS, the Committee will not pursue its examination of these allegations.
2. 416. Finally, as to the allegation of disciplinary proceedings against STISSS leaders (the trade union alleged that in all the hearings the courts ruled in favour of the officers, except in the case of Ms Bonilla de Alarcón, even though the proceedings had twice been declared null and void), the Committee notes the following information provided by the Government: (i) in a judgment of the Fourth Civil and Commercial Court of San Salvador, dated 14 January 2013, the judge established beyond a reasonable doubt the worker’s misconduct and granted the ISSS authorization to dismiss her; and (ii) the administration nevertheless, as a gesture of openness and goodwill, decided not to implement the judgment and, at the time of writing of the Government’s last reply, the worker remained in her post under the same conditions as when she was hired.

Allegations concerning the SIMETRISSS

1. 417. In relation to the Committee’s recommendation that the authorities, together with the union, address the issues raised (in particular, the doctors’ wage problems and the problems related to the trade union facilities) and promote dialogue between the ISSS and the SIMETRISSS in order to find common solutions, the Committee observes that, according to the Government: (i) a high-level round table including the trade union has been established, met on several occasions and begun preparing agreements to safeguard the rights of ISSS workers, covering issues such as arbitrary movements of employees, workers’ benefits and employee wage levels; (ii) the alleged non-observation of the 1998 wage agreement, mentioned by the SIMETRISSS in its complaint, is unfounded — the Government specifies that it implemented the agreement through Executive Board Agreement No. 98-05-0624 of 23 June 1998, whereby it agreed to apply the wage scale agreed with the SIMETRISSS as from 1 January 1998, with the wages agreed upon; and (iii) the ISSS adjusted wages in two phases in 2014 and 2015 (by a total amount of over US$8 million). As to the allegation of refusal of trade union facilities and obstacles to the posting of trade union announcements, the Committee notes with regret that the Government has not provided information on these matters. The Committee reiterates its previous recommendation in this regard and trusts that, as these issues have not been resolved, the authorities will ensure that they are addressed through the ongoing dialogue between the ISSS and the SIMETRISSS in order to find common solutions based on the principles of freedom of association referred to by the Committee in its previous examination of this case.
2. 418. With respect to the allegation that the ISSS Deputy Director for Health circulated instructions, in a 2013 memorandum, among the directors and the management of the local medical centres to restrict trade union rights, the Committee duly notes the Government’s explanations describing the content of the memorandum so as to demonstrate that it does not seek to restrict the exercise of freedom of association. The Committee observes the Government’s indication that the text of the memorandum: (i) does not seek to prevent contact between the trade union representatives and the media, but rather, simply establishes that persons approached by the media should refer any consultation or request for an interview to the communication department; (ii) restricts the discussion of union related matters only to meetings where institutional management plan and coordinate working methods; and (iii) does not create an obligation to inform superiors of meetings between trade union officials and members, or of activities of an official nature, and simply reminds directors that they must report any absences from work and the grounds for those absences, in compliance with the regulations on grounds for absence established in the collective agreement. Moreover, the Committee duly notes that the Government denies the allegation that a hospital director circulated instructions among management to penalize doctors participating in activities organized by the trade union – clarifying that this director simply sent the memorandum in question to management. In the light of the foregoing and in the absence of additional information from the complainant organization, the Committee will not pursue its examination of these allegations on the understanding that, when implementing the memorandum, the competent authorities will ensure full respect for the principles of freedom of association.