Report in which the committee requests to be kept informed of development - REPORT_NO330, March 2003

1. 587. The complaint is contained in a communication from the Company Union of Lido, S.A. (SELSA) dated 3 June 2002. SELSA sent additional information in a communication dated 1 July 2002. The International Confederation of Free Trade Unions (ICFTU) supported the complaint in a communication dated 1 July 2002. The Government sent its observations in communications dated 23 July and 26 September 2002.
2. 588. El Salvador has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), or the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant’s allegations

1. 589. In its communication dated 3 June 2002, the Company Union of Lido, S.A. states that in February 2002 it asked the company to revise the section of the collective agreement dealing with salaries (according to the complainant, clause 43 of the collective agreement requires the company to revise its salary table in the first fortnight of January each year in order for the increase to take effect in February of the same year), at this phase of direct negotiation requesting an increase of US$60 for each worker. The complainant adds that, following the phase of direct negotiation, a phase of conciliation began, but that it was impossible to come to an agreement due to the unyielding position of the company, which proposed a 5 per cent decrease in workers’ salaries.
2. 590. The complainant states that, in this context, the workers held an eight-hour work stoppage on 6 May 2002, and that an inspection by the Ministry of Labour confirmed that the workers were at their workplaces but not working, by way of protest. The complainant adds that the company asked the Second Labour Court to classify the strike (as legal or illegal) but, after the inspection carried out at the workplace on 15 May 2002, the judicial authority confirmed that the workers had not held a strike and that production activities were being carried out normally.
3. 591. The complainant alleges that, in reprisal, the company prevented 41 workers from entering the workplace on 7 and 9 May 2002. Of these, 11 were union officers, who to date have still been kept away from the company. The complainant states that, on 8 May 2002, it requested the Ministry of Labour to continue the conciliation process, but that at the conciliation hearing called on 3 May 2002 by the Labour Inspectorate, the representative of the company declared that, if the workers involved considered that their rights had been violated in any way, they could pursue the matter through whatever avenue they considered appropriate. The complainant reports that the dismissed workers have brought individual actions before the judicial authority for constructive dismissal, demanding payment of outstanding salaries owing to the actions of the employer, in accordance with section 29 of the Labour Code, and that the members of the union’s general executive board who had been dismissed have also brought an action before the judicial authority demanding payment of outstanding salaries, as laid down in section 464 of the Code.
4. 592. In its communication dated 1 July 2002, the complainant alleges that:
   • (i) the company has withheld union dues, which constitutes misappropriation, and reports that, in respect of this, an action has been lodged with the Office of the Attorney-General of the Republic;
   • (ii) the company has denied the union’s executive board access to the company’s buildings and has used coercion to pressure workers into resigning from the union, which has lead to the resignation of 25 workers (the complainant reports that a complaint was submitted to the Ministry of Labour in this respect on 14 June 2002);
   • (iii) the Ministry of Labour has refused to notify the company of the strike agreement adopted at a workers’ meeting held on 1 June 2002 and communicated to the Ministry of Labour on 7 June 2002. The Directorate General of Labour argues that the strike had no legal basis and, according to the complainant, the Ministry of Labour is taking over functions that belong to labour judges. The complainant alleges that there is a legislative ambiguity, since section 528 of the Labour Code lays down that strikes will be recognized providing they have any of the following aims: “(1) the drawing up or revision of a collective labour contract; (2) the drawing up or revision of a collective labour agreement; and (3) the defence of workers’ common professional interests”; section 530 of the Labour Code lays down that strikes will not be recognised if their objective is the revision of an existing collective agreement where the term of duration thereof has not yet expired.

B. The Government’s reply

1. 593. In its communication dated 26 July 2002, the Government states that the conflict at Lido, S.A. arose as a result of a request from the union to revise salaries under the collective agreement in force, as laid down in clause 43. However, having moved through the stages of being an economic dispute and an interest dispute, during which the employer declared it was not economically able to increase salaries in line with the union’s request, the union (in order to put pressure on the company to negotiate) and workers held an eight-hour work stoppage on 6 May 2002. An inspection by the Ministry of Labour confirmed that 330 workers were at their workplaces but not working, by way of protest. On 7 and 8 May 2002, 41 workers stated that the company Lido, S.A. prevented them from carrying out their duties. Among them were officers from the union’s general executive board. Exercising their democratic rights, they claimed judicial protection in the offices of the Directorate General of Labour, which summoned the employer to a conciliation hearing. This was held on 3 July 2002, after the parties had agreed to the settlement of salaries owed to the officers for the period 7 May to 27 June 2002 (the remaining claims would be settled individually). The Government adds that, following the conciliation hearing called on 3 July 2002 by the Directorate General of Labour, on 5 July 2002 11 of the dismissed union officers received from the company the following amounts in outstanding salaries due to the actions of the employer: Roberto Antonio Escobar Ramos: $181.76; Daniel Ernesto Ayala Gutiérrez: $204.69; Marta Arely Majano Gómez: $206.85; Daniel Ernesto Hernández Castillo: $243.51; Guadalupe Atilio Jaimes Pérez: $268.55; Julio César García Bonilla: $314.67; Jorge Alberto Maroquín Muñoz: $314.43; María Elena del Rosario Pacas Torres: $335.07; José Alfredo Osorio Morataya: $217.22; Rosa Lila Umaña de Ríos: $348.37; and Brigido Antonio Hurtado Gómez: $382.08.
2. 594. The Government adds that it has safeguarded the right to collective bargaining and that, in this case, the parties had exhausted the administrative avenues for the stages of collective economic disputes and interest disputes raised by the Company Union of Lido, S.A., i.e. the stages of direct negotiation and conciliation, the objective of which was the revision of clause 43 (Salaries) of the collective labour agreement, signed by both parties in mutual respect of the commitments undertaken in the related collective agreement. Furthermore, the Government states that, with regard to the legality or otherwise of the dismissals of the 30 workers who were not union officers, the Labour Tribunal would be the appropriate authority to resolve the matter. Lastly, the Government states that the collective economic labour dispute or collective labour interest dispute in question originated in the revision of the collective labour agreement, signed by both parties and currently in force, with the workers alleging a change in the company’s economic conditions; these grounds do not give the workers the right to strike as described in section 530(ii) of the Labour Code which states literally: “Neither will [a strike] be recognised if its objective is the revision of an existing collective contract where the term of duration thereof has not yet expired.” The collective labour contract in force between the parties expires on 18 June 2004.
3. 595. In its communication of 10 September 2002, the Government states that at the conciliation hearing held on 3 July 2002, the following results were obtained: (a) with regard to the union dues withheld, the parties reached an agreement; (b) with regard to alleged coercion by the company of union members with the aim of influencing their decision on union membership, the company refuted the assertion and the union, for its part, insisted that such measures had taken place without describing what the measures were; (c) with regard to penalization in the application of section 251 of the Labour Code to the dismissals of 41 union members, including 11 union officers, the delegate of the Directorate General of Labour informed them that the judicial authorities would determine the legality of the dismissals.
4. 596. With regard to the complainant’s allegations that the Department of Labour and Social Security, through the Directorate General of Labour, refused to notify the company Lido, S.A. of the strike agreement adopted since it had no legal basis, the Government states the following concerning the position that served as a basis for refusing to notify the company: (a) section 530(ii) of the Labour Code lays down that neither will a strike be recognized if its objective is the revision of an existing collective agreement where the term of duration thereof has not yet expired; and (b) to understand this provision it must be borne in mind that the collective labour agreement drawn up between Lido, S.A. and the Company Union of Lido, S.A. entered into force on 19 June 2001 and will expire on 18 June 2004, and that, as appears in file No. 19/01 sent to the Directorate General of Labour of the Department of Labour and Social Security, the union requested in writing on 20 November 2001 that direct negotiations begin in the collective economic dispute or interest dispute for the revision of the section of the collective labour agreement dealing with salaries, which, as has been shown, had not yet expired; on the basis of the above, it was resolved to declare the union’s request groundless since it contravened section 530. According to the Government, there is no ambiguity between the provisions of sections 528 and 530 of the Labour Code.
5. 597. Lastly, the Government states that, with regard to the actions brought by the complainant before the Office of the Attorney-General of the Republic and the labour courts, it is of the view that two basic principles form part of the right to judicial security: the principle of legality and the principle of exact compliance with law, and both have given rise to the so-called state of law, in which all judicial power, all authorities and all individual actions must have a foundation precisely in law, confirming that the principal characteristic of the state of law is that the law is above all the governors and the governed, and that therefore it is the responsibility of the aforementioned authorities to settle the conflicts raised by the union.

C. The Committee’s conclusions

1. 598. The Committee observes that the complainant alleges that in reprisal for an eight-hour work stoppage, in protest of the company’s non-compliance with a clause of the collective labour agreement in force, which provides for the revision of the salary table and the payment of an annual salary increase, Lido, S.A. proceeded to dismiss, on 7 and 9 May 2002, 11 union officers and 30 union members. Furthermore, the Committee observes that the complainant alleges that the company: (i) illegally withheld union dues; (ii) denied the executive committee access to the company’s premises, and (iii) employed coercion to pressure union members into resigning from the union (according to the complainant, 25 workers have resigned in this context), and that the Ministry of Labour refused to notify the company of the strike agreement adopted by the union, arguing that the strike had no legal basis.
2. 599. The Committee wishes to point out in the first place that the declaration of the illegality of a strike should not be the responsibility of the Minister of Labour. The Committee underlines that responsibility for declaring a strike illegal should not lie with the Government, but with an independent body which has the confidence of the parties involved [see Digest of decisions and principles of the Freedom of Association Committee, 1996, 4th edition, para. 522].
3. 600. With regard to the dismissals of 11 union officers and 30 union members in reprisal for an eight-hour work stoppage in protest of non-compliance with the collective agreement, the Committee takes note of the Government’s statement that: (1) following the conciliation hearing requested by the complainant, which was held on 3 July 2002, the company paid the 11 union leaders the outstanding salaries due to the actions of the employer and(2) the question of the legality or otherwise of the dismissals will be resolved by the competent judicial authority. In this respect, the Committee observes that the complainant reports that the company requested classification of the strike from the judicial authority (section 547 of the Labour Code provides for this possibility) and that the said authority confirmed that there had been no strike and that production activities were being carried out normally. In this context, the Committee cannot rule out the possibility that the dismissals were carried out in reprisal for the protest measure undertaken by the workers, which would be a serious violation of freedom of association. In these circumstances, whilst it observes that all those dismissed have lodged judicial appeals in this respect, the Committee requests the Government to: (1) ask the judicial authority to give a ruling promptly so that, if measures need to be taken to correct the situation they can be genuinely effective; and (2) if the judicial authority considers that the dismissals were carried out for anti-union motives – specifically for participation in an eight-hour work stoppage – take urgent measures to reinstate the 41 workers dismissed, with the payment of salaries outstanding in cases where this has not already been done; or if reinstatement is not possible, adequate compensation should be guaranteed to those dismissed. The Committee requests the Government to keep it informed of developments in the situation with regard to both matters.
4. 601. Regarding the allegations of the Ministry of Labour’s refusal to notify the company of the strike agreement adopted by the union, arguing that the said strike had no legal basis, the Committee takes note of the Government’s statement that the collective labour agreement drawn up between the union and the company entered into force on 19 June 2001 and will expire on 18 June 2004 and that, bearing in mind the provisions of section 530 of the Labour Code (a strike will not be recognized if its objective is the revision of an existing collective agreement where the term of duration thereof has not yet expired), it was resolved to declare the union’s request groundless. In this respect, the Committee considers that, if strikes are prohibited whilst a collective agreement is in force, this restriction must be compensated for by the right to have recourse to impartial and rapid mechanisms, within which individual or collective complaints about the interpretation or application of collective agreements can be examined; this type of mechanism not only allows the inevitable difficulties which may occur regarding the interpretation or application of collective agreements to be resolved whilst the agreements are in force, but also has the advantage of preparing the ground for future rounds of negotiations, given that it allows problems which have arisen during the period of validity of the collective agreement in question to be identified. The Committee requests the Government to indicate whether such mechanisms exist in national legislation and to transmit a copy of the collective agreement in force at the company Lido, S.A.
5. 602. With regard to the allegation that the company illegally withheld union dues, the Committee observes that the Government reports that, during the conciliation hearing held on 3 July 2002, the parties reached an agreement. The Committee requests the Government to keep it informed about the fulfilment of the agreement in question.
6. 603. With regard to the allegation that the company used coercion to pressure union members into resigning from the union (according to the complainant, 25 workers have resigned in this context), the Government reports that, during the conciliation hearing held on 3 July 2002, the company refuted the assertion and the union insisted that such measures had taken place without describing what the measures were. In this respect, the Committee regrets that the Government has not begun an investigation into the accusation made by the union to the Ministry of Labour in June 2002. In this case, the Committee requests the Government to undertake an investigation and, should the allegations be substantiated, to take measures against those responsible for such actions so as to prevent them from reoccurring in the future.
7. 604. With regard to the alleged denial of access to the company’s premises of the union’s executive board, the Committee regrets that the Government has not sent its observations on the matter. In this respect, the Committee recalls that governments should guarantee access of trade union representatives to workplaces, with due respect for the rights of property and management [see Digest of decisions and principles of the Freedom of Association Committee, 1996, 4th edition, para. 954]. In this regard, the Committee requests the Government to take the necessary measures to guarantee to the members of the union’s executive board respect of this principle at Lido, S.A.
8. 605. The Committee requests the Government to ensure that the company Lido, S.A., is consulted through the national employers’ organizations in respect of the allegations made in this case.