Interim Report - REPORT_NO334, June 2004

1. 468. The Committee last examined this complaint at its June 2003 meeting and on that occasion it submitted an interim report [see 331st Report, paras. 377-395, approved by the Governing Body at its 287th Session (June 2003)]. The Trade Union of Workers of the Salvadoran Social Security Institute (STISSS) sent new allegations in a communication dated 25 November 2003. The Government sent its observations in communications dated 8 and 12 January and 15 March 2004.
2. 469. 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. 470. In its previous examination of the case at its June 2003 meeting, the Committee made the following recommendations [see 331st Report, para. 395]:
   • - 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.
   • - The Committee requests the Government to send information without delay on the alleged transfer or prevention from applying for a job that affected Dr. Teresa de Jesús Sosa and Dr. Darío 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.
   • - With regard to the allegations relating 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.
   • - 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.

B. The complainant’s new allegations

1. 471. In its communication of 25 November 2003, the Trade Union of Workers of the Salvadoran Social Security Institute (STISSS) alleges that the strike that was declared jointly with the Union of Doctors and Workers of the Salvadoran Social Security Institute (SIMETRISSS) on 18 September 2002 and extended to 13 June 2003, and carried out to oppose the privatization process of the health and support services, led to many reprisals on the part of the authorities of the Institute. Specifically, the STISSS alleges that dialogue was closed down, 257 workers (among them trade union members, representatives and officials) were dismissed, labour centres were militarized and consequently access was prohibited to trade union representatives and some trade union members; the wages, bonus payments, holidays and other benefits were selectively and in a discriminatory manner withheld from more than 200 workers who supported the strike outside working hours and from the current executive committee, and the arrest of workers belonging to trade unions; trade union representatives guaranteed not to be removed from their posts according to clauses 4 and 37 of the current arbitration award were dismissed; the Institute administration coerced workers to withdraw their membership from the trade union; trade union representatives and officials were prevented from carrying out their duties; the Ministry of Labour deliberately delayed the revision process of the collective agreement and arbitrarily refused to recognize the coalition of the complainant organization and SIMETRISSS to negotiate the revision of the collective agreement; the Institute authorities ordered the eviction of the trade union premises, even before the strike, violently and arbitrarily. With regard to the eviction, the complainant organization states that it has lodged a complaint with the Attorney-General’s Office of the Republic, which has, at the time of sending this complaint, not yet handed down a decision in this respect.
2. 472. In particular, the complainant organization alleges the dismissal of trade union representatives and an official of the acting General Board of Directors by the Institute authorities from 1 September 2003, i.e. two months and a half after the end of the strike, added to the 19 dismissals that took place during the strike.

C. The Government’s reply to the previous recommendations

1. 473. The Government makes the following reply with regard to the specific facts motivating the alleged dismissal of 18 people mentioned by name in the allegations in its communications of 8 and 12 January 2004:
   • (a) Dr. Juan Bautista Caballero: the due internal institutional process with the right to a hearing attended by the defendant having run its course, it was decided that the conduct of the doctor fell into the category laid down in articles 31(3) and 50(12) of the Labour Code, for having changed the timing of his annual vacation without authorization, from 3-23 September 2001 to 6-27 August 2001, and also for failing to come to work with no explanation on 31 July, 1 and 2 August 2001, it was finally established that he failed to come to work with no explanation for the period from 31 July to 22 August 2001.
   • (b) Dr. Lilia Beatriz Córdova de Caballero: the due internal institutional process with the right to a hearing attended by the defendant having run its course, it was decided that the conduct of the doctor fell into the category laid down in articles 31(3) and 50(12) of the Labour Code, for having changed the timing of her annual vacation without authorization, from 3-23 September 2001 to 6-27 August 2001, and also for failing to come to work with no explanation on 1 and 2 August 2001, it was finally established that she failed to come to work with no explanation for the period from 1 to 22 August 2001.
   • (c) Dr. Aníbal Avelar Medrano: the due internal institutional process with the right to a hearing attended by the defendant having run its course, it was decided that the conduct of the doctor fell into the category laid down in article 50(8) and (20) of the Labour Code, relating to article 31(5) and (13) of the Labour Code and clause 11(a) and (b) of the arbitration award signed between the Institute and the STISSS, for having committed serious errors at the labour centre, consisting of verbally attacking the patient José Orlando Rivera Saavedra in the parking area of the Zacamil Medical Unit.
   • (d) Bernardo Escobar Gómez: the due internal institutional process with the right to a hearing attended by the defendant having run its course, it was decided that he had committed the error of pushing private security agent René Renderos Caballero who, as a result, broke the glass in a door without sustaining any physical injury, thereby not complying in his behaviour with the obligations laid down in clause 11(a) and (b) of the arbitration award signed between the Institute and the STISSS and article 31(5) of the Labour Code, his behaviour falling into the category laid down in article 50(8), (10) and (20) of the Labour Code.
   • (e) José Alberto Elías Torres and Camila Leticia Vaquerano: the due internal institutional process with the right to a hearing attended by the defendants having run its course, it was established that the actions of these two people in the workplace were in violation of the obligations laid down in clauses 5, 6, 7 and 11(a) and (c) of the arbitration award signed between the Institute and the STISSS and article 31(2), (3), (5), (8) and (20) of the Labour Code, and falling into the category laid down in article 50(5), (6), (8), (10), (16) and (20) of the Labour Code for having acted aggressively and in an intimidating manner and for verbally attacking the medical director of the Maternity and Child Hospital on 1 May. The person listed second above entered the office of the hospital management without authorization and revised documentation belonging to the authorities.
   • (f) Nelson Rafael Olivo Méndez: the due internal institutional process with the right to a hearing attended by the defendant having run its course, and with sufficient evidentiary elements presented establishing that this person infringed clauses 7 and 11 of the arbitration award signed between the Institute and the STISSS relating to the "execution of work" and the "general obligations and prohibitions" and that he did not comply with the provisions of articles 31(3) and 32(1) of the Labour Code in abandoning his post without justification on 20 April 2002, the error of which could not be cancelled when he used his constitutional right of defence, which for his case is specified in article 50(20) of the Labour Code.
   • (g) Santos Carlos Vásquez: the due internal institutional process with the right to a hearing attended by the defendant having run its course, there was sufficient merit to decide that his behaviour violated the provisions of clause 7(1) and (11) of the arbitration award signed between the Institute and the STISSS and article 31(2) of the Labour Code, for allowing a person not associated with the Institute to drive vehicle No. 386 belonging to the Institute, omitting to tell his immediate superiors of such an irregularity.
   • (h) Walter Cecilio Serrano and Rigoberto Guillén Cruz: the due internal institutional process with the right to a hearing attended by the defendants having run its course, they were charged with drunkenness at the workplace in the former General Hospital of the Institute, their behaviour falling into the category laid down in article 50(18) of the Labour Code.
   • (i) Nora Edith Martínez de Colocho: the due internal institutional process with the right to a hearing attended by the defendant having run its course, it was established that she took advantage of her employment at the Procurement and Contracting Unit of the Institute to provide confidential information on bidding to a number of bidders, which gave them an advantage over the remaining bidders and potential contractors; this act is expressly prohibited in article 155 of the Public Administration Procurement and Contracting Act (LACAP), for which reason, in accordance with the provisions of articles 156 and 157 of the abovementioned Act, it was established that Nora Edith Martínez de Colocho was guilty of the violation and her contract was terminated.
   • (j) Jaime Francisco Murillo Reyes: violation of clauses 6, 7 and 11 of the arbitration award in force, by prohibiting access to the Ilopango Medical Unit Pharmacy of the Institute and by illegally ordering the doors of this institution to be closed, refusing access to the Institute authorities, when the members of the STISSS carried out stop?work action in this health-care centre, which took place on 4-11 September 2001, his behaviour invoking, the application of article 50(8), (10) and (11) of the Labour Code.
   • (k) Ricardo Marvin Rodriguez Claros: violation of clauses 6, 7 and 11 of the arbitration award in force, by prohibiting access to the Ilopango Medical Unit Pharmacy of the Institute and by illegally ordering the doors of this institution to be closed, refusing access to the Institute authorities, when the members of the STISSS carried out stop?work action in this health-care centre, which took place on 4-11 September 2001, his behaviour invoking the application of article 50(8), (10) and (11) of the Labour Code.
   • (l) Delvia Elizabeth Antonio Beltrán: violation of clauses 6, 7 and 11 of the arbitration award in force, by prohibiting access to the Ilopango Medical Unit Pharmacy of the Institute and by illegally ordering the doors of this institution to be closed, refusing access to the Institute authorities, when the members of the STISSS carried out stop?work action in this health-care centre, which took place on 4-11 September 2001, her behaviour invoking the application of article 50(8), (10) and (11) of the Labour Code.
   • (m) Richard Edgardo Castro Escalante: violation of clauses 6, 7 and 11 of the arbitration award in force, by prohibiting access to the Ilopango Medical Unit Pharmacy of the Institute and by illegally ordering the doors of this institution to be closed, refusing access to the Institute authorities, when the members of the STISSS carried out stop?work action in this health-care centre, which took place on 4-11 September 2001, his behaviour invoking the application of article 50(8), (10) and (11) of the Labour Code.
   • (n) Angel Gabriel Aguilar Guerrero: violation of clauses 6, 7 and 11 of the arbitration award in force, by prohibiting access to the Ilopango Medical Unit Pharmacy of the Institute and by illegally ordering the doors of this institution to be closed, refusing access to the Institute authorities, when the members of the STISSS carried out stop?work action in this health-care centre, which occurred on 4-11 September 2001, his behaviour invoking the application of article 50(8), (10) and (11) of the Labour Code.
   • (o) Silvia Canales de Alfaro: violation of clauses 6, 7 and 11 of the arbitration award in force, by prohibiting access to the Ilopango Medical Unit Pharmacy of the Institute and by illegally ordering the doors to the institution to be closed, refusing access to the Institute authorities, when the members of the STISSS carried out stop?work action in the health-care centre, which occurred on 4-11 September 2001, her behaviour involving the application of article 50(8), (10) and (11) of the Labour Code.
   • (p) Juan Francisco Figueroa: non-compliance with clauses 6 and 11(c) of the arbitration award in force and article 31(2) of the Labour Code, for lack of respect for the head of the Transport Section of the Institute and for disobeying instructions relating to his duties, which occurred on 8 July 2002, his behaviour invoking the application of article 50(6), (16) and (20) of the Labour Code.
2. 474. In conclusion, the Government confirms that the termination of these individual employment contracts was the result of violations by these employees in fulfilling their duties in accordance with labour legislation, which gives the employer the right to terminate their employment contracts with no liability.

D. The Government’s reply to the new allegations

1. 475. In its communication of 15 March 2004, with regard to the alleged militarization of labour centres, the Government categorically denies that there has been any military intervention at the facilities of the Salvadoran Social Security Institute and indicates that the intervention of public security agents took place only as a result of the violent behaviour on the part of those on strike in order to provide protection to the health-care centres mentioned to protect the physical safety of the people and assets of the institutions. This took place because the workers on strike prevented employees and rightful owners of the various health-care centres of the Institute from having access and upset the ordering and provision of services, which, moreover, prompted the lodging of a series of complaints before the competent courts. The judges hearing the complaints handed down, in many cases, decisions condemning those workers who were the instigators, which, according to the Government, clearly refutes the complainant organization’s statements that all the decisions were favourable to them. The behaviour of the trade union members distorted the fundamental aim of the strike, which was the revision of the collective labour agreement, the current arbitration award in force.
2. 476. With regard to the alleged withholding of wages, bonus payments, holidays and other benefits laid down in the collective labour agreement, the arbitration award currently in force, selectively and in a discriminatory manner, the Government denies that any such situation has occurred. It confirms, on the other hand, that, owing to the declaration by the judicial authorities of the illegal nature of the strike promoted by the complainant organization, the workers should have been carrying out their duties. As they did not do so, the Institute was not obliged to pay wages and benefits as the workers had not fulfilled their labour obligations. The failure of the striking workers to provide services was noted through the dates obtained by internal control mechanisms, such as the reports of the biometric marking system and reports provided by the directors of the various health-care centres that were affected. The workers participating in the strike, however, lodged a total of 768 complaints against the Institute for the wages owing, holidays, bonus payments and certification for personal merit assessment; these claims have largely been dropped by the workers and other claims have been declared unfavourable to the interests of the workers participating in the strike.
3. 477. With regard to the alleged dismissal of trade union members by the Institute authorities from 1 September 2003, the Government states that on 13 June 2003 an "agreement for the resolution of the health conflict and the beginning of the comprehensive reform process" was signed between the trade union and the Institute; subsection IV of this agreement laid down provisions relating to the reinstatement of administrative workers and the establishment of the Special Tripartite Commission made up of the Institute, the complainant organization and conflict mediators. This Commission was to view the files of all the workers who were the subject of charges before the Attorney-General’s Office of the Republic, and at the end of these sessions, the Commission, in Minute 10, declared itself unable to issue an opinion on the cases of 33 workers as these were pending criminal charges, a situation that included the secretary of the STISSS, Ricardo Monge Meléndez. In accordance with the authority conferred by the agreement, the Institute proceeded in good faith to review the files of the 33 workers who had not been reinstated and decided to reinstate three of them in their posts; in the remaining cases the Institute authorities acted in accordance with the provisions laid down in the labour legislation in force, the arbitration award, and the agreement for the resolution of the health conflict and the beginning of the comprehensive reform process of the sector.
4. 478. With regard to the alleged deliberate delay by the Secretariat of Labour and Social Security in the revision of the collective labour agreement, the arbitration award, the Government emphasizes that at no time was there any delay and that the General Labour Directorate has carried out its work strictly within the law. With regard to this, the Government confirms that the request for revision was submitted jointly by the STISSS and the SIMETRISSS. The General Labour Directorate requested the general secretaries of both trade unions to prove their legal capacity to act for the institution that they were representing and that the SIMETRISSS prove its legal capacity to act with regard to the arbitration award. While the STISSS proved the legal capacity of the general secretary and its legal capacity to act with regard to the arbitration award, the SIMETRISSS did not prove its legal capacity to act with regard to the arbitration award. The General Labour Directorate, faced with this situation, on 8 April 2003, decided to allow the revision of the arbitration award to proceed, accepting only the STISSS as a partner as it had demonstrated that it had legal capacity to act in this regard, in accordance with the registers to such effect held by the National Department of Social Organizations.
5. 479. The Government indicates that, with regard to the legal reasons for refusing to accept the STISSS/SIMETRISSS coalition in the revision of the arbitration award: (a) the arbitration award announced in the collective conflict between the STISSS and the Institute shows that the institution with legal capacity to act with regard to this award, and, consequently, the only institution able to request revision of it is the STISSS; (b) legislation (article 271(2) of the Code) envisages the possibility of the trade union coalition only in those cases where a single trade union does not have the percentage necessary to sign a collective agreement but not in the case of revision; (c) article 512 of the Code provides that the arbitration award is valid for three years; however, as it has the nature of a collective labour agreement, the same rules that govern collective agreements are applied. In this regard, article 276 provides that the effects of a collective agreement that is being revised are extended for the duration of the negotiations. Given that the end of the validity period is not one of the reasons to end the collective labour agreement, in accordance with articles 283 and 284 of the Code, it is impossible that the agreement be ended owing to the end of the validity period, and, as a result, it cannot be considered that the claim made by the STISSS/SIMETRISSS coalition refers to a new agreement; (d) the resolution that was announced declaring that the trade union coalition was refused has been disputed by the SIMETRISSS in the Division of Administrative Law of the Supreme Court of Justice.
6. 480. With regard to the alleged eviction of the trade union from its headquarters by the Institute authorities, the Government quotes clause 64 of the arbitration award in force entitled "Premises for the trade union", in which it is laid down that during the period of validity of the agreement in force, the Institute undertakes to build or to provide ... premises for the trade union in which the latter may carry out its normal administrative activities ... in as far as it does not comply with the provisions of this clause, the Institute undertakes to supply the trade union with premises or facilities so that it may carry out its activities. If not, the Institute undertakes to pay a reasonable amount to rent premises appropriate for carrying out such activities. According to the Government, the Institute’s compliance with the previously quoted clause was confirmed by the relevant rental agreements in which the Institute rented a property to be used by the STISSS for carrying out its normal administrative activities. The Government confirms that it has been proven that the actions denounced as alleged violations of the right of association are without foundation, as the conduct of both the Institute and the Labour Secretariat have been in accordance with El Salvadoran Legislation.

E. The Committee’s conclusions

1. 481. The Committee recalls that in the present case the complainant organization had alleged 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. Moreover, the Committee notes that the new allegations presented by the Trade Union of Workers of the Salvadoran Social Security Institute (STISSS) refer to a number of reprisals because of a strike, including the closing down of dialogue, the dismissal of 257 workers (among them trade union members, representatives and officials), the militarization of labour centres and the prohibition of access to trade union representatives and some trade union members; the withholding of wages and other benefits from workers who supported the strike outside working hours, the arrest of trade union workers; the dismissal of trade union representatives who enjoy protection from being removed from their posts; coercion by the Institute administration of workers to withdraw their membership from the trade union; obstacles to trade union officials and representatives carrying out their duties; the deliberate delay by the Ministry of Labour in the revision process of the collective agreement and the arbitrary refusal to recognize the coalition of the STISSS and the SIMETRISSS to negotiate the revision of the collective agreement; eviction from the trade union premises by order of the Institute authorities violently and arbitrarily.
2. 482. With regard to the first recommendation made during the previous examination of the case relating to the provision of the concrete details regarding the reasons for the dismissal of the 18 people listed by name in the allegations, the Committee notes the Government’s information provided on 16 workers affected and that the dismissals were as a result of violations in carrying out their work that, in accordance with labour legislation, give the employer the right to terminate the employment contract without liability. The Committee requests the Government to indicate whether those workers have taken legal action and, if so, that it inform the Committee of the respective decisions and provide information on the dismissal of the two other workers. The Committee repeats its request to the complainant organization that it 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. 483. The Committee also notes that neither the complainant organization nor the Government has sent the information requested in its recommendations during the previous examination of the case and it therefore repeats these:
   • - The Committee requests the Government to send information without delay on the alleged transfer or prevention from applying for a job that affected Dr. Teresa de Jesús Sosa and Dr. Darío Sánchez, both members of the SIMETRISSS, and regarding the alleged modification of permanent contracts to short-term contracts affecting members of the trade union.
   • - With regard to the allegations relating to the illegal deduction 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.
   • - 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.
4. 484. With regard to the allegation relating to the militarization of labour centres, the Committee notes that the Government confirms that the intervention of public security agents was limited to the action necessary to protect the health-care centres in order to safeguard the physical integrity of people and institutional assets in the face of the violent behaviour of the workers on strike, who prevented employees and rightful owners from accessing the various health-care centres. The Committee also notes the Government’s statement that various events became the subject of judicial proceedings wherein, in many cases, the judicial authorities handed down decisions against the workers.
5. 485. With regard to the alleged withholding of wages, bonus payments, holidays and other benefits selectively and in a discriminatory manner, the Committee notes that the Government confirms that this took place in accordance with the law and because of the declaration by the judicial authorities that the strike was illegal. The Committee also notes the Government’s statement that the workers who went on strike lodged a total of 768 complaints against the Institute, most of which have been dropped by the workers and others which have gone against the workers.
6. 486. With regard to the alleged dismissal of trade union members and an official of the General Board of Directors by the Institute authorities as of 1 September 2003 (two-and-a-half months after the strike), added to the other 19 dismissals that took place during the strike, the Committee notes that the Government indicates that on 13 June 2003 an "agreement for the resolution of the health conflict and the beginning of the comprehensive reform process" was signed between the STISSS and the Institute. Subsection IV lays down the provisions for the reinstatement of administrative workers and the formation of the Special Tripartite Commission made up of the Institute, the STISSS and conflict mediators. The Commission’s proposal was to review the files of the workers who had been charged with criminal offences before the Attorney-General’s Office of the Republic. At the end of the relevant sessions, the Commission declared that it was not competent to issue an opinion on the cases of 33 workers as these had criminal cases pending. In accordance with the authority conferred by the agreement previously mentioned, the Institute proceeded in good faith to review the files of the 33 workers who had not been reinstated and decided to reinstate in their posts three of them; in the other 30 cases, the Institute authorities acted in accordance with legislation and the agreement for the resolution of the health conflict and the beginning of the comprehensive reform process of the sector. The Committee expects that, if the criminal charges laid against the 30 workers are rejected, the workers concerned will be reinstated in their posts without loss of wages.
7. 487. With regard to the alleged deliberate delay by the Secretariat for Labour and Social Security in the revision process of the collective labour agreement, the arbitration award, the Committee notes that the Government confirms that the request for revision was presented jointly by the STISSS and the SIMETRISSS, but that the latter was unable to prove that it had legal capacity to act under the arbitration award. In the light of such a situation, the General Labour Directorate decided to admit the revision of the arbitration award taking as party to this only the STISSS, as it had legal capacity to negotiate.
8. 488. In this respect, with regard to the legal reasons that led to the refusal to recognize the STISSS/SIMETRISSS coalition in the revision of the arbitration award, the Committee notes the Government’s statement that the legislation allows trade union coalition only for those cases where one trade union will not have the necessary percentage to sign a collective agreement and not for the case of revision. The Committee notes that the issue is currently before the Division of Administrative Law of the Supreme Court of Justice and requests the Government to send it a copy of the decision when this is handed down. However, the Committee points out that legislation should not prevent two trade unions from negotiating jointly if they so wish, including in cases of revision of a collective agreement when one of them is less representative.
9. 489. With regard to the allegation relating to the eviction of the trade union from its premises by the Institute authorities, the Committee notes that the complainant organization states that it has lodged a complaint with the Attorney-General’s Office of the Republic, which had, at the time of sending this complaint, not handed down its decision. The Committee requests the Government to take all possible steps to ensure that the decision is not delayed, and that it send the Committee a copy of all decisions taken in this respect.