Rapport intérimaire - Rapport No. 331, Juin 2003

Cas no 2214 (El Salvador) - Date de la plainte: 09-JUIL.-02 - Clos

Allegations: The complainant organization alleges that the permanent contracts of members of SIMETRISSS were changed to temporary contracts of three months’ duration, private armed guards were hired to discourage any protest attempts at the Salvadoran Social Security Institute (ISSS), illegal wage deductions were made for 11 people (some of them trade union members), 18 people were dismissed, two trade union members were transferred or prevented from applying for a job in violation of the arbitration award in force, and people and vehicles belonging to trade union members were searched at the Medical Surgical Hospital and the Specialized Treatment Hospital, including two trade union officials who are under surveillance and who have been deprived of freedom of movement. The complainant organization also refers to the privatization process and its labour-related consequences and to the alleged lack of collective bargaining.

1. 377. The complaint is presented in a communication dated 9 July 2002 from the World Confederation of Labour (WCL). This organization sent further information in a communication dated 20 August 2002. The Government submitted its reply in a communication dated 3 March 2003.
2. 378. El Salvador has ratified neither the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), nor the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant’s allegations

1. 379. In its communication of 9 July 2002, the World Confederation of Labour (WCL) alleges that the negotiations undertaken between May 1998 and November 1999 by the Government of El Salvador with the International Monetary Fund (IMF) and the World Bank, which included privatization of public health services, have, as a consequence, led to an increase in the repression of and discrimination against members of the Union of Doctors and Workers of the Salvadoran Social Security Institute (SIMETRISSS). The doctors have seen their permanent work contracts changed to short-term contracts (three months), and renewal of these depends entirely on the good will of the employers.
2. 380. The WCL states that in a document entitled “Proposed comprehensive health reform”, submitted to the President of the Republic of El Salvador, SIMETRISSS has proposed alternative policies in order definitively to resolve the problems of the health sector in this country but the Government has made no reply.
3. 381. The WCL indicates that instead of implementing a policy of negotiation with the staff, the Salvadoran Social Security Institute (ISSS) hired heavily armed private guards with the aim of, among other things, discouraging any attempt to protest against the policies implemented by the management. And, faced with the numerous attacks on members of SIMETRESSS (arbitrary wage deductions, the institution of searches of staff and vehicles of trade union members by private armed employees contracted by the general management of ISSS), SIMETRESSS has submitted to the labour inspectorate requests for inspections to confirm the facts in the various establishments involved. Unfortunately, the results of these inspections are biased and do not bear any relation to the reality faced by workers.
4. 382. The WCL concludes by indicating that the facts in this complaint show the consequences of the policies recommended by the international financial institutions for the privatization of the public health services.
5. 383. In its communication of 20 August 2002, the WCL lists 11 people (some of them trade union members) who had deductions made in their wages arbitrarily and illegally even when the presence of these workers in the ISSS was registered for the month in which the deductions were made. The WCL refers to the dismissal of 18 people, also listed (Juan Bautista Caballero, Beatriz Córdova de Caballero, Aníbal Avelar, Jaime Francisco Murillo, Ricardo Marvin Rodríguez, Elvia Elizabeth Antonio Beltrán, Richard Edgardo Castro, Angel Gabriel Aguilar, Silvia Canales de Alfaro, Camila Baquerano, José Alberto Elías Torres, Bernardo Gómez Escobar, Rigoberto Guillén, Santos Carlos Vásquez, Nelson Rafael Olivo Méndez, Walter Cecilio Serrano Monge, Nora Edith Martínez de Colocho and Juan Francisco Figueroa). Doctor Darío Sánchez (a member of the trade union) was transferred to a new workplace in violation of the criteria in clause 23 of the arbitration award and Doctor Teresa de Jesús Sosa (a member of the trade union) was prevented from applying for the job of clinic director in the clinic in which she worked in violation of the provisions of clause 33 of the arbitration award. The trade union representative Noila Aminta Menjíbar and the education secretary of the trade union, Carlos Avilés, were deprived of freedom of movement by private surveillance and were subjected to searches without official authorization from the competent authority. Searches of people and vehicles took place in centres such as the Medical Surgical Hospital and the Specialized Treatment Hospital, both in El Salvador.

B. The Government’s reply

1. 384. In its communication of 3 March 2003, the Government states that after a detailed investigation it declared that no illegal deductions were made to any of the members affiliated to the Union of Doctors and Workers of the Salvadoran Social Security Institute (SIMETRISSS) who did not work on 11 September 2001 and that, on the contrary, these deductions were made legally and in accordance with article 171, paragraph 2, of the Labour Code, which states that “any worker who does not complete the working week, and has no justifiable grounds for this, will not be entitled to the wage established in the previous paragraph”. It stated that these people did not provide the work for which they had been contracted and had no justifiable grounds and, therefore, they did not complete their labour week, for which reason they did not have the right to the aforementioned payment.
2. 385. With regard to the searches of people currently taking place at the facilities of the Salvadoran Social Security Institute (ISSS), the Government states that these searches were instituted for all staff of the Institute, including the rightful owners and visitors and arose as a result of the constant outbursts of members of this trade union that had destroyed goods and assets belonging to the ISSS, giving rise to an atmosphere of obvious insecurity. To establish these searches was not only a right of the public administration, but also an obligation based on the technical standards of internal control of the Comptroller of the Republic and in articles 54, 57, 61, 99 No. 1 and 102 of the Law of the Comptroller of the Republic. These provisions indicate that an important obligation of the authorities of the ISSS is to ensure that within its facilities the integrity and property of the rightful owners and staff are protected. The furnishings and equipment of the ISSS must also be safeguarded to prevent them from being stolen or destroyed. Therefore, such searches are justified and entirely legal in accordance with the above. The administration is directly responsible for fulfilling its legal obligations.
3. 386. The Government states that it is not true that the implementation of these searches infringes in any way the Constitution of the Republic, as in the current situation it is not investigating any type of crime or offence but that the measure of implementing searches is aimed at safeguarding the facilities of the ISSS and protecting the personal integrity and property of the rightful owners and staff.
4. 387. With regard to the so-called privatization of medical and hospital services, including those provided by the ISSS, the Government categorically states that it upholds its constitutional undertaking to provide health services to all those living in the Republic as, in accordance with article 65 of the Constitution of El Salvador, the health of the inhabitants of the country is a public asset and, consequently, the State and the people are obliged to ensure that this is maintained. From the previously mentioned information it can be assumed that the ISSS is upholding its legal undertaking to provide social security services to all its rightful owners, based on article 59 of the Constitution which states that social security is an obligatory public service. The law shall regulate its extent, reach and form. This service shall be provided by one or several institutions, which shall ensure amongst themselves the appropriate consideration to ensure a good social protection policy, in specialized form and with the best use of resources. Employers, workers and the State shall contribute to paying social security in the form and amount determined by law. The State and employers shall be excluded from the obligations imposed by law in favour of workers, in so far as these are covered by social security.
5. 388. With regard to the supposed dismissals of ISSS workers, the Government states that the decision to end working relations, without liability on the part of the Institute, was entirely justified by the various labour offences that were committed and duly documented in each one of the respective files, having complied with the due process accorded and laid down by the Labour Code. In all cases, proceedings were carried out in accordance with article 50 of the Labour Code, which contains the grounds for terminating a labour contract without liability on the part of the employer.
6. 389. Finally, with regard to the complaint lodged by the Secretary-General of the Executive Committee of SIMETRISSS relating to the fact that requests for inspections were submitted to confirm the supposed illegal processes that members of the trade union had been subjected to and that, according to them, the results of the inspections had been biased, the Government states that all requests lodged were treated with due promptness and speed, having determined legally that none of the violations alleged existed, as has been previously stated.

C. The Committee’s conclusions

1. 390. The Committee notes that the complainant organization alleges in this complaint that permanent contracts of members of the Union of Doctors and Workers of the Salvadoran Social Security Institute (SIMETRISSS) were changed to temporary contracts of three months, private armed guards were hired to discourage any protest attempt at the Salvadoran Social Security Institute (ISSS), illegal wage deductions were made for 11 people (some of them trade union members), 18 people were dismissed, two trade union members were transferred or prevented from applying for a job in violation of the arbitration award in force, and people and vehicles belonging to trade union members were searched at the Medical Surgical Hospital and the Specialized Treatment Hospital, including two trade union officials who are under surveillance and who have been deprived of freedom of movement. The complainant organization also refers to the privatization process and its labour-related consequences, and to the alleged lack of collective bargaining, but these matters have already been examined in the framework of Case No. 2077 [see 324th Report, paras. 537?553, examined by the Committee in March 2001].
2. 391. In reply to the alleged dismissal of 18 people, listed by name, the Committee notes the Government’s statement that these dismissals were justified by the various labour offences duly documented that are listed among the reasons for termination of a labour contract without liability on the part of the employer. The Committee, although noting that the complainant organization has not indicated whether those dismissed were members of the trade union SIMETRISSS or not, requests the Government and the complainant to provide concrete details as to the reasons for the dismissal of these persons and to indicate the extent to which these dismissals were related to the exercise of trade union rights and whether those dismissed were trade union members.
3. 392. With regard to the alleged transfer or prevention from applying for a job affecting Doctor Teresa de Jesús Sosa and Doctor Dario Sánchez (members of SIMETRISSS), in violation of the arbitration award in force and the alleged modification of permanent contracts to short-term contracts to the detriment of trade union members, the Committee regrets that the Government has made no reply in this respect and requests it to do so without delay.
4. 393. With regard to the alleged illegal deductions from wages affecting 11 people (some of them trade union members) even when, according to the complainant organization, the presence of these workers was registered with the ISSS during the period in question, the Committee notes that the Government states that: (1) the deductions were legally carried out for workers who did not work on 11 September 2001; and (2) these people had not carried out the work for which they had been contracted. The Committee requests the Government and the complainant to indicate the name of the workers who were not present at the workplace on 11 September 2001 as well as the legislation to which the Government refers.
5. 394. With regard to the alleged illegal search of people and vehicles belonging to trade union members at the Medical Surgical Hospital and the Specialized Treatment Hospital (including trade union officials Zoila Aminta Menjíbar and Carlos Avilés) and the alleged hiring of private armed guards to discourage any protest attempt, the Committee notes the Government’s statement according to which: (1) the searches were implemented for all staff of the ISSS and visitors; (2) these searches were justified by the destruction of goods and assets belonging to the Institute which had given rise to an atmosphere of obvious insecurity (these activities the Government attributes to members of SIMETRISSS); (3) the administration is legally obliged to ensure the safety of assets and is directly responsible for fulfilling these obligations; and (4) the labour inspectorate concluded that there had been no illegal action taken. The Committee requests the Govenment and the complainant to provide further information on these allegations.

The Committee's recommendations

1. 395. In the light of its foregoing interim conclusions, the Committee requests the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government and the complainant to provide concrete details regarding the reasons for the dismissal of the 18 people listed by name in the allegations, and to indicate the extent to which these dismissals were related to the exercise of trade union rights and whether those dismissed were trade union members.
   • (b) The Committee requests the Government to send information without delay on the alleged transfer or prevention from applying for a job that affected Doctor Teresa de Jesús Sosa and Doctor Dario Sánchez, both members of the Union of Doctors and Workers of the Salvadoran Social Security Institute (SIMETRISSS), and regarding the alleged modification of permanent contracts to short-term contracts affecting members of the trade union.
   • (c) With regard to the allegations relative to illegal deductions from wages affecting 11 persons (some of them trade union members), the Committee requests the Government and the complainant to indicate the name of the workers who were not present at the workplace (ISSS) on 11 September 2001, as well as the legislation to which the Government refers.
   • (d) With regard to the alleged search of people and vehicles belonging to trade union members of SIMETRISSS and the hiring of private armed guards, the Committee requests the Government and the complainant to provide further information on these allegations.