Interim Report - REPORT_NO268, November 1989

1. 277. The Committee has already examined this case on five occasions (see 236th, 243rd, 251st, 256th and 259th Reports approved by the Governing Body, respectively, in November 1984, February 1986, May 1987, and May and November 1988) when it reached interim conclusions. This case was also among the ten cases presented against the Government of El Salvador and examined jointly by the direct contacts mission which visited the country in January 1986.
2. 278. Since the last examination of the case, the Association of Salvadorian Telecommunications Workers (ASTTEL) supplied new information in a communication dated 28 November 1988. The Government sent information in a communication dated 19 June 1989.
3. 279. 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. Previous examination of the case

1. 280. Following the latest examination of Case No. 1273 (see 259th Report, paras. 307 to 330), the following questions remained pending before the Committee:
   • (a) The Committee once again expressed its regret that the Government had not sent all the information requested on the pending allegations and requested its comments on: (i) the threats against two female members of the Coffee Union (SICAFE) in April 1988; (ii) progress in the trial concerning the murder of José Arístides Mendez which commenced in July 1986; (iii) the disappearance of Mr. Alberto Luis Alfaro on 17 March 1988 and the death of Mr. de Jesus Rodas Barahona on 13 April 1988; (iv) the brief arrests of ASTTEL members, Messrs. L.W. Barrios, Misael Flores and José Mazariego in March and April 1988.
   • (b) As regards the various measures of anti-union harassment aimed at the Association of Salvadorian Telecommunications Workers, the Committee noted with concern the poor industrial relations climate reigning in the telecommunications company (ANTEL) and recalled that a genuinely free and independent trade union movement can only develop in a climate free of violence and uncertainty.
   • (c) As regards the legislative aspect of the case, the Committee requested the Government to adopt legislative provisions ensuring that the workers of the telecommunications company (ANTEL) have the right to associate in unions and to carry out activities, such as collective bargaining, to promote and defend their interests and that they are protected against acts of anti-union discrimination in employment.

B. Additional information communicated by ASTTEL

1. 281. In its communication of 28 November 1988, ASTTEL states that it groups together 81 per cent of the some 6,000 workers employed in the ANTEL telecommunications company, that it is affiliated at the national level to various trade union federations and confederations, and has applied for affiliation to the Postal, Telegraph and Telephone International (PTTI). ASTTEL, which was officially founded on 27 October 1984 at a general assembly attended by 800 delegates, has legal status and its by-laws were published in the Official Gazette on 23 April 1985.
2. 282. On 27 and 30 September 1985, ASTTEL signed agreements with the ANTEL management, which has so far refused to honour them. ANTEL is now headed by Colonel Mauricio Daniel Vides Casanova (brother of the current Defence Minister) and Lieutenant-Colonel Noé Orlando González, President and Director-General, respectively, of the company, which has been under direct military control since it was set up. It is well known in El Salvador that ANTEL acts as an intelligence service for the benefit of the Salvadorian armed forces. The ANTEL management is violently opposed to the trade union movement and, backed by the Government, the armed forces and the security forces, carries out brutal and systematic repression against ASTTEL with the aim of destroying it and creating a climate of terror and intimidation impeding its normal development.
3. 283. The complainant alleges that the Salvadorian authorities commit serious, systematic and repeated infringements of ASTTEL's trade union rights and that the situation deterioriated considerably in 1989; it mentions several new facts.
4. 284. A member of ASTTEL, Julio Cesar Ingles Chinchilla, was murdered on 24 May 1988. He had been kidnapped by soldiers of the San Nicolas district, Apastepeque, in the department of San Vicente; his body, which was subsequently found, showed signs of torture.
5. 285. On 5 September 1988, national police officers arrested ASTTEL executive council members Natividad de Jesus Pinchinte, Juan Francisco Garcia Catalan and Jose Tamas Mazariego as they were holding a trade union meeting with employees of the public works branch of ANTEL. Moreover, on the orders of the company's President, the freedom of movement of the 14 members of the ASTTEL's executive council has been restricted; policemen and members of the national guard posted at the entrance to the workplace and provided with lists of the names of the members of the executive council have prevented them from going to work since 9 July 1987. ASTTEL lodged an appeal with the constitutional court to have this measure lifted, but it was dismissed.
6. 286. Members of the security forces and Salvadorian army troops have continually occupied the ANTEL premises since 17 June 1987 in order to create a climate of terror and intimidation among the workers. The military were ordered to confiscate all ASTTEL publications and impose a five-day suspension on any worker found in possession of such publications. The police search workers' clothing and other belongings when the latter go to work.
7. 287. On 30 April 1988, the Salvadorian army dynamited the premises used by ASTTEL, the Unidad de los Trabajadores Salvadoreños (UNTS) and other trade union organisations in order to terrorise the workers and deter them from taking part in the May Day parade. Office equipment was damaged in the attack.
8. 288. The Government and ANTEL management are waging a constant smear campaign against ASTTEL in the press, and on radio and television, accusing it of being a "subversive and terrorist" organisation, for the sole purpose of providing justification in advance for any repressive measures subsequently taken. The management defames the executive council of ASTTEL in posters and communiqués compulsorily distributed to the workers and seeks to deter the latter from supporting this organisation, which seriously impedes its normal development. In addition, legal proceedings were brought against the executive council of ASTTEL on 25 March 1988 for having denounced poor working conditions, low wages and corruption within ANTEL, as well as the country's political, social and economic situation in general.
9. 289. The Government and ANTEL management support the Salvadorian Association of Workers in ANTEL (ASTA), an organisation which is not at all representative as it groups together less than 0.35 per cent of the workers, allow it to carry out trade union activities in the enterprise and bring various means of pressure to bear in favour of it, such as deduction of trade union contributions at source, coercion by means of circulars and dismissal for failure to support ASTA.
10. 290. Since 1986, the management has systematically dismissed ASTTEL leaders and activists, including the following:
    • - on 10 January 1986, Rafael Sanchez, then Secretary-General of the organisation;
11. - 20 trade union leaders and activists were dismissed for taking part in a strike which lasted from 14 April to 5 June 1986;
    • - on 31 July 1987, Luis Alvarenga, the Association's minutes secretary was dismissed, ostensibly for failing to come to work; in fact, police officers of the National Guard prevented him from doing so. In addition, he was forced to sign his resignation under heavy pressure from the management;
    • - on 17 March 1988, Gilberto Mayen Alas, secretary of the executive council of ASTTEL, was dismissed on the basis of false accusations.
12. 291. In addition, from 28 September to 30 October 1988, the ASTTEL executive council received eight death threats for having denounced these repressive measures both nationally and internationally. Lastly, Mario Wilfredo Valiente, elected on 15 October 1988 to ASTTEL's new executive council, has been denied access to his place of work at the San Miguelito telephone exchange since 24 October.
13. 292. ASTTEL states that all these actions constitute a grave and systematic infringement of its trade union rights and requests the Committee to intervene with the Government to put a stop to this wave of murders, disappearances, arrests and ill treatment of its leaders and members.
14. 293. In addition, on 17 August 1989, ASTTEL requested the ILO to intervene with the Government on behalf of the organisation's secretary, Ricardo Lazo Quevedo. At 4 a.m. that day, a detachment of members of the National Guard, the rural police and the national police had broken down the door of his home and taken Mr. Quevedo and his wife to the National Guard headquarters, leaving their three sons alone. Mr. and Mrs. Quevedo were released on 19 August following intervention by the ILO.

C. The Government's reply

1. 294. In its communication dated 19 June 1989, the Government sent information on the pending allegations. This information is contained in two communications of the National Administration of Telecommunications (ANTEL), dated 13 June and 7 October 1988.
2. 295. In its communications, the Government repeats that ASTTEL is a special interest association governed by the Civil Code, and not a trade union. It adds that ASTTEL leaders repeatedly petitioned the courts for legal protection, but that until now no definitive judgement has ever been handed down pronouncing ANTEL guilty of infringing the law. Of course, ANTEL will comply with any decision or judgement handed down by the courts, whatever their contents. It is therefore paradoxical that an international organisation such as the World Federation of Trade Unions should claim to exercise, on behalf of ASTTEL, a legal guardianship which would somehow be above Salvadorian law and judgements handed down by Salvadorian courts.
3. 296. The Government also points out that ANTEL management has not signed a collective agreement with ASTTEL; the documents signed were a set of proposals to negotiate certain economic and social measures with the Government. Negotiations were and are being carried out by ANTEL; however, their implementation does not depend exclusively on ANTEL management but rather on the government authorities, and these benefits are part of a general government policy.
4. 297. The Government states that the accusations of repression and violation of human rights made by ASTTEL against the ANTEL management are vague, irresponsible and not supported by evidence; thus, they constitute a new propaganda attempt as part of a disinformation policy concerning the real situation in El Salvador.
5. 298. The Government reiterates that ASTTEL is not a trade union, the latter being governed by the Labour Code, and that it assumes rights to which it has no claim. Its officers do not have the status of trade union leaders and therefore cannot claim the right to immunity. Moreover, the Government states that ANTEL management has always recognised the right of leaders of workers' associations to mobilise themselves, to promote the affiliation of new members and to disseminate information on their activities. ASTTEL has always enjoyed complete freedom in this respect in the past, but, in view of the need to put an end to the anarchy, permanent unrest and violations of the law which had come to characterise this association, it was necessary, within the limits of the law, to curb this freedom somewhat.
6. 299. The Government concludes by pointing out that, in addition to ASTTEL, another similar association exists within the National Administration of Telecommunications - the Salvadorian Association of Workers in ANTEL (ASTA) - which, contrary to ASTTEL's allegations, enjoys wide support in its activities. The difference in attitude between ASTTEL and ASTA lies in the fact that the latter does not mainly pursue political objectives, a conclusion which one cannot help reaching in the case of ASTTEL if one examines the history of this association.

D. The Committee's conclusions

1. 300. The Committee deeply regrets the fact that the Government has not supplied all of the information requested.
2. 301. Before examining the new allegations put forward in this case, the Committee once again reminds the Government that it has still not supplied the information requested on:
   • (i) the serious threats against two female members of the Coffee Union;
   • (ii) progress in the trial concerning the murder of Mr. José Arístides Mendes which commenced in July 1986;
   • (iii) the disappearance of Mr. Alberto Luis Alfaro on 17 March 1988;
   • (iv) the death of Mr. Jesus Rodas Barahona on 13 April 1988;
   • (v) the arrests, in March and April 1988, of ASTTEL members, Messrs. L.W. Barrios, Misael Flores and José Mazariego;
   • (vi) legislative provisions which it has adopted or intends to adopt, with a view to ensuring that the workers of the ANTEL telecommunications company have the right to associate in unions and carry out activities, such as collective bargaining, to promote and defend their interests and that they are protected against acts of anti-union discrimination in employment.
3. 302. As regards the new allegations, the Committee observes with increasing concern that, in general terms, the poor labour relations climate is gaining hold in the ANTEL company. It is alleged that this deterioration is the result of a convergence of views, if not collusion, between the company management, the Government and its various military, police and security forces, and is manifested daily in various ways, of which the common denominator is anti-union harassment against ASTTEL, its leaders, its activists and its members. Examples of such harassment apparently include defamation in the press, radio and television; favouritism towards another organisation which is far less representative and less militant; a general climate of violence and intimidation (death threats, murders, dynamiting of the organisation's premises); arrests; restriction of freedom of movement of trade union leaders; blacklisting of trade unionists and denial of their access to work; abuse of judicial procedures; refusal to honour the agreements signed in September 1985; and interference in the organisation's normal activities.
4. 303. In its communication, the Government denies that ASTTEL is a trade union organisation and therefore rejects as groundless all of the allegations of anti-union harassment.
5. 304. The Committee reminds the Government that it has repeatedly decided that where public employees - especially in public enterprises and nationalised undertakings - are not involved directly in the administration of the State, the national legislation should allow them to bargain collectively (see, for example, 211th Report, Case No. 965 (Malaysia), para. 206). The Committee has indeed specifically pointed out in past cases that employees of the telecommunications services should enjoy this aspect of freedom of association (see 139th Report, Case No. 725 (Japan), para. 278).
6. 305. The Committee accordingly urges the Government to review the situation of ANTEL employees with a view to ensuring that their rights to associate in workers' organisations and to carry out activities, such as bargaining, to promote and defend their interests, are protected.
7. 306. In view of the particularly alarming situation in this case, the Committee once again emphasises that this review should include, in particular, coverage of the workers concerned by the appropriate legislation on protection against acts of anti-union discrimination in employment. This is so since the Committee has recalled on many occasions that one of the fundamental principles of the freedom of association is that workers should enjoy adequate protection against all acts of anti-union discrimination in respect of their employment, such as dismissal; in this respect, the Committee would stress that, besides preventive machinery to forestall anti-union dismissals (such as, for example, a request for the prior authorisation of the labour inspectorate before carrying out a dismissal), a further means of ensuring effective protection could be to make it compulsory for each employer to prove that his decision to dismiss a worker or to provide less favourable conditions for a worker's employment has no connection with the worker's union activities.
8. 307. The Committee recalls that this 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. The Committee considers that the guarantee of such protection in the case of trade union officials is also necessary in order to ensure that effect is given to the fundamental principle that workers' organisations should have the right to elect their representatives in full freedom. (See, for example, 236th Report, Case No. 1113 (India), para. 130; Case No. 1272 (Chile), para. 637.)
9. 308. In addition to these general considerations, the Committee can only express its extremely serious concern at the fate of another member of ASTTEL, Julio Cesar Ingles Chinchilla, alleged to have been tortured before being murdered. The Committee would recall that a genuinely free trade union movement can develop, and trade union rights be exercised, only in a climate free of violence, coercion or threats of any kind against trade unionists, and that it is for governments to ensure that this principle is respected. It urges the Government to supply information regarding the death in suspicious circumstances of Julio Chinchilla following his arrest by military forces.