Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 367, Mars 2013

Cas no 2909 (El Salvador) - Date de la plainte: 07-OCT. -11 - Clos

Allegations: The complainant alleges that representatives of the enterprise requested the dissolution of the trade union before the judicial authority, arguing that, among other things, the trade union did not possess the minimum number of members required in order for it to exist and function

1. 686. The complaint is contained in a communication from the Union of Workers of the enterprise AVX INDUSTRIES (SITRAVX) dated 7 October 2011. The Workers’ Trade Union Confederation of El Salvador (CSTS) supported the complaint.
2. 687. The Government sent its observation by communication dated 28 February 2013.
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. The complainant’s allegations

1. 689. In its communication dated 7 October 2011, SITRAVX states that the enterprise is part of the corporation known as AVX/KYOCERA, which produces capacitors (electrical storage devices), and that the factory has been operational since 1978 in San Bartolo, located in the municipality of Ilopango, 12 kilometres to the east of the capital San Salvador. The complainant indicates that the trade union was established in 2007 with 36 workers and that, despite the fact that the enterprise impugned six founders of the trade union for being employees in positions of trust, the authorities of the Ministry of Labour and Social Security, in accordance with ILO resolutions and Conventions Nos 87 and 98, granted legal personality to the trade union in August 2009.
2. 690. The complainant alleges that, in September 2009, representatives of the enterprise AVX INDUSTRIES PTE LTD submitted a request to the judicial authority for SITRAVX to be dissolved (among other things, the enterprise argued that a number of workers who were members of the trade union held positions of trust and that others had resigned from the enterprise and that, therefore, the trade union did not possess the minimum number of members necessary, namely 35, in order for it to exist and function). The complainant also states that the First Labour Court of San Salvador denied the request for dissolution, but that the First Chamber for labour matters of the city of San Salvador overturned the ruling and declared the trade union dissolved for its perceived failure to comply with the provisions of section 211 of the Labour Act regarding the minimum number of members required to establish a workers’ union. In June and July 2011, it initiated amparo proceedings against the ruling and to suspend the administrative decision before the Supreme Court of Justice on the grounds that the decision to dissolve the trade union on the initiative and at the request of the enterprise was a violation of constitutional rights.

B. The Government’s reply

1. 691. In its response of 28 February 2013, the Government indicates that, on 25 July 2012, SITRAVX submitted to the Ministry of Labour and Social Welfare a copy of its application for amparo (constitutional protection) filed with the Constitutional Chamber of the Supreme Court of Justice, by which the union requests that the ruling of the First Chamber for labour matters to dissolve SITRAVX be rescinded. The Government indicates that, pending the judgment of the Supreme Court, and in order to avoid any irreversible damages that the liquidation of the union could give rise to, the Ministry of Labour and Social Welfare decided, pursuant to article 37 of the Constitution of the Republic and Article 11 of ILO Convention No. 87, to revoke ex officio the decision of the National Department of Social Organizations of the Ministry to cancel the registration of SITRAVX. Furthermore, on 8 October 2012, the said Department registered the names of the members of the executive committee of SITRAVX for the period 22 September 2012–26 August 2013. Thus, the relevant union is currently active and valid.
2. 692. Additionally, the Government indicates that, in its view, the national labour legislation suffers from a huge deficit, given that the decisions issued in the second instance relating to the dissolution of a union are not challengeable, which creates a situation that violates the right to access to effective legal protection and to the constitutional rights of defence and hearing.

C. The Committee’s conclusions

1. 693. The Committee takes note of the complainant’s allegations that, in September 2009, representatives of the enterprise AVX INDUSTRIES PTE LTD submitted a request to the judicial authority for SITRAVX to be dissolved (among other things, the enterprise argued that a number of workers who were members of the trade union held positions of trust and that others had resigned from the enterprise and that, therefore, the trade union did not possess the minimum number of members necessary, namely 35, in order for it to exist and function). The Committee also takes note of the complainant’s statement to the effect that: (1) the First Labour Court of San Salvador denied the request for dissolution; (2) the First Chamber for labour matters of the city of San Salvador overturned the ruling and declared the trade union dissolved for its perceived failure to comply with the provisions of section 211 of the Labour Code regarding the minimum number of members required to establish a workers’ union; and (3) in June and July 2011, it initiated amparo proceedings against the ruling and to suspend the administrative decision before the Supreme Court of Justice on the grounds that the decision to dissolve the trade union on the initiative and at the request of the enterprise was a violation of constitutional rights.
2. 694. The Committee notes the Government’s observations, in which it indicates that, pending the judgment of the Supreme Court and in order to avoid any irreversible damages that the dissolution of the union could give rise to, the Ministry of Labour and Social Welfare decided to revoke ex officio the decision of the National Department of Social Organizations of the Ministry to cancel the registration of SITRAVX and that, on 8 October 2012, the Department registered the names of the executive committee of SITRAVX for the period 22 September 2012–26 August 2013; thus the union is currently active and valid.
3. 695. The Committee firstly regrets the length of time that has elapsed (more than three years) since the application for the dissolution of SITRAVX, during which time the judicial authority has still not issued a final ruling on the substance of the case. As regards the minimum number of members required (35) in order for a trade union to be established and to function set out in section 211 of the Labour Code, the Committee recalls that, on numerous occasions, it highlighted that “while a minimum membership requirement is not in itself incompatible with Convention No. 87, the number should be fixed in a reasonable manner so that the establishment of organizations is not hindered” and that “the legal requirement laid down for a minimum of 30 workers to establish a trade union should be reduced in order not to hinder the establishment of trade unions at enterprises” [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, paras 286–287]. Furthermore, the Committee notes that the Government, in its report on the implementation of Convention No. 87 in 2011, stated that “a draft decree to amend section 211 of the Labour Code has been prepared and submitted for debate by the Higher Labour Council (CST)”.
4. 696. Under these circumstances, while it recalls that, as regards the dissolution of workers’ and employers’ organizations “judges should be able to deal with the substance of a case to enable them to decide whether or not the provisions pursuant to which the administrative measures in question were taken constitute a violation of the rights accorded to occupational organizations by Convention No. 87” [see Digest, op. cit., para. 705], and while taking due note of the revocation ex officio by the Ministry of Labour and Social Welfare of the decision to cancel the registration of SITRAVX, the Committee expresses the firm hope that the Supreme Court of Justice will swiftly rule on the dissolution of SITRAVX and that it will take into account the principles mentioned in the conclusions, as well as the draft decree to amend section 211 of the Labour Act. The Committee requests the Government to keep it informed in this respect.

The Committee’s recommendation

1. 697. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
   • The Committee expresses the firm hope that the Supreme Court of Justice will swiftly rule on the dissolution of SITRAVX and that it will take into account the principles mentioned in the conclusions, as well as the draft decree to amend section 211 of the Labour Act (regarding the minimum number of members required in order for a trade union to be established). The Committee requests the Government to keep it informed in this respect.