Interim Report - REPORT_NO351, November 2008

1. 799. The complaint is contained in a communication dated 12 June 2007, presented by the Trade Union Confederation of El Salvador Workers (CSTS), the Trade Union Federation of Food, Beverage, Hotel, Restaurant and Agro-Industry Workers of El Salvador (FESTSSABHRA), and the General Trade Union of Workers in the Fishing and Allied Industries (SGTIPAC). FESTSSABHRA and SGTIPAC presented new allegations in communications dated 18 July 2007 and 26 March 2008. The Government sent its observations in communications dated 20 and 29 August 2008.
2. 800. 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 complainants’ allegations

1. 801. In their communication dated 12 June 2007, the CSTS, the FESTSSABHRA (the El Salvador affiliate of the International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers’ Associations (IUF)) and the SGTIPAC made an official complaint against the Government of El Salvador on account of the violation of the freedom of association of the workers of the company Calvoconservas El Salvador SA de CV, a member of the consortium known as “Grupo CALVO El Salvador”, consisting in the dismissal of trade union officials and trade unionists and in general, the implementation of a campaign of anti-union intimidation against workers that has included the use of armed vigilantes, the National Civil Police and proposals to the workers in favour of the establishment of an employer-controlled trade union by the company’s managers.
2. 802. The complainant organizations explain that, on Sunday, 4 February 2007, the “Calvoconservas El Salvador SA de CV branch” of the SGTIPAC was formed in the port city of La Unión, El Salvador. The said union is an industry union, entitling it, under El Salvador’s legislation, to set up branches in “companies concerned with the same industrial, commercial, services, social or other comparable activities”. The said union branch was officially recognized by the Ministry of Labour and Social Security on 1 March 2007.
3. 803. The complainant organizations allege that Ms Berta Aurelia Menjivar, partner of Mariano Alexander Guerrero, Secretary-General of the Calvoconservas El Salvador SA de CV branch (both founders of the said union branch), was summoned on 9 February 2007 by the head of human resources, who informed her that she was being dismissed on account of having had three letters of warning. The worker in question stated that that could not be possible since she had not been informed of those warnings and had received only one such letter. That being the case, she refused all attempts by the head of human resources to get her to sign any document.
4. 804. In response to a request to that effect, the Ministry of Labour conducted a special inspection on 24 February 2007, in the course of which it was established that Ms Berta Aurelia Menjivar “was one of the best workers in the packaging area”, according to her own supervisor, who added that “at no time has there been any report or request to the effect that Ms Berta Aurelia Menjivar be dismissed”. These statements, which were placed on record, contradict the company’s arguments to the effect that the worker in question was justifiably dismissed. Later on in the same record, it is established that Calvoconservas, “by dismissing the worker Ms Berta Aurelia Menjivar, a founder member of the Calvoconservas SA de CV branch” of SGTIPAC, infringed the provisions of article 47 of the Constitution of the Republic, section 248 of the Labour Code, which protects the founder members of trade unions against dismissal for a period of up to 60 days. Further to the said inspection, the company was ordered to pay the worker her unpaid wages, including those she had failed to receive on account of her dismissal, and it was recommended that she be reinstated in her post. On 1 March, the Ministry of Labour ascertained, in the course of a follow-up inspection, that the company had failed to remedy any of the aforementioned infringements. The worker subsequently brought her case before the courts, where it is currently at the submission of evidence stage.
5. 805. The complainants further allege that, on 9 September 2003, Mr Joaquín Reyes joined the company Luis Calvo Sanz El Salvador SA de CV as a stevedore. As from October 2006, he also held the post of relations secretary in the SGTIPAC, within the general (national) executive committee of that industrial union.
6. 806. He worked in these conditions for Luis Calvo Sanz SA de CV until he was transferred to Calvo Consignataria Centroamericana SA de CV, where he worked continuously and without interruption until 15 March 2007, when he was verbally dismissed by his supervisor, who said that he had problems with him on account of his trade union affiliation, that he could no longer enter the workplace, and that that order had come from the chief supervisor in the unloading area of Calvo Consignataria Centroamericana SA de CV.
7. 807. In addition, the complainant organizations state that Mr Roberto Carlos Hernández, having taken up employment with Calvoconservas El Salvador SA de CV, was subsequently, on 25 March 2007, elected to the post of relations and welfare secretary in the Calvoconservas El Salvador SA de CV branch of SGTIPAC.
8. 808. However, on turning up for work as usual on 29 March 2007, he found himself confronted with a list of individuals who had been dismissed and who no longer had the right to enter the workplace but were instructed merely to make their way to the office of human resources. Having done so, he was informed by the resources manager that his dismissal was in response to a supervisor’s report to the effect that he was a rebel, in reply to which he argued that his personal file contained no warning letters and that the real reason for the report was that he had recently been elected to serve as a union official. On 10 April 2007, the trade unionist in question submitted a request for a special inspection to the Ministry of Labour and, subsequently, on 4 May 2007, submitted a request concerning the same case to the labour courts of San Salvador. The case is currently before San Salvador’s labour court No. 4. By way of an aggravating factor in this case, on 28 May 2007, i.e. two months after the illegal dismissal of this union official, the lawyer working for Calvoconservas El Salvador presented the civil court of La Unión with a request for an individual labour judgement against the official Mr Roberto Carlos Hernández, asking the judge to authorize the latter’s dismissal without employer’s liability.
9. 809. The complainants also allege that the lawyer for Calvoconservas El Salvador presented the civil court of La Unión, on 28 May 2007, with a request for an individual labour judgement in order to terminate the contract, without employer’s liability, of union official Mr José Antonio Valladares Torres, organizational and statistical secretary of the Calvoconservas El Salvador SA de CV branch of SGTIPAC, on the alleged grounds that he was absent from his work on four days during the month of November 2006, one day in December 2006, one day in February 2007, one day in March 2007 and two non-consecutive days in April 2007. Despite the fact that the union official has documentation which proves a failure to apply the procedures of section 50 of the Labour Code, governing causes for dismissal without managerial responsibility, it is clear that the intention is to decapitate the executive committee of SGTIPAC in Calvoconservas El Salvador by a variety of means. It is worth noting that the lawyer for Calvoconservas El Salvador attempted to lodge the request for initiation of the said legal proceedings with a retroactive date of 16 April 2007, but that the court declared his request admissible on the date of its submission, namely 28 May 2007.
10. 810. The complainant organizations state that on 2 May 2007, during the course of a visit to El Salvador by IUF’s Latin American Regional Office, the IUF representative, Mr Carlos Amorín, accompanied by Mr Alfredo Osorio (the then Secretary-General of the FESTSSABHRA), Mr Atilio Jaimes (the then disputes secretary of the CSTS) and with the same post in FESTSSABHRA), Mr Alexander Reyes (secretary-general of the executive committee of SGTIPAC) and Mr Gilberto García (member of the Centre for Labour Studies and Support (CEAL)), presented himself at the Calvoconservas plant, located in the coastal city of La Unión, with the intention of holding talks with representatives of that transnational, as had previously been announced.
11. 811. Indeed, on 19 April 2007, the union officials Mr Osorio and Mr Jaimes had informed the legal representative of the Calvo Group, Mr Miguel Angel Peñalva, of the forthcoming visit to El Salvador, including La Unión, by IUF’s Latin American Regional Office and had requested that a meeting be held between 29 April and 3 May for the purpose of discussing the recent dismissals of union officials at the Calvoconservas plant. Mr Peñalva had replied that although it would not be possible for him to be there for the visit since he would be travelling, the management maintained an open-door policy and was always ready to meet with the union. Having been thus assured, the said delegation arrived at the gates of the plant on the morning of 2 May, from where they telephoned to request a meeting with the plant’s director, Mr Antonio Huezo, who was not present on the company’s premises. Mr Alfredo Osorio, who was handling arrangements, then made contact with Mr Raúl Parada, the manager of Calvo Consignataria, who asked for a few minutes to consult with Mr Peñalva, who, supposedly, was out of the country.
12. 812. Shortly thereafter, Mr Osorio received a call from Mr Parada informing him that he had been unable to find Mr Peñalva and would therefore not receive the delegation. While this telephone conversation was taking place, a van belonging to the local police force arrived and parked beside the trade unionists. The police officers requested Mr Alexander Reyes – whom they knew since he also lived in La Unión – to approach the vehicle. All the members of the delegation then entered into a discussion with the officers, who said that they had been called by the Calvo company and informed that “a demonstration was taking place at the entrance to the plant”.
13. 813. Subsequently, on 10 May 2007, fresh approaches were made to get the company to receive the secretary-general of Comisiones Obreras de Euskadi (Basque Workers’ Commissions), Mr Josu Onaindi, who is also a member of the national executive of the Spanish confederation. An attempt was made to secure an interview with Mr Miguel Angel Peñalva, the person in charge of the Calvo Group in El Salvador. Despite the fact that, following a written request and several telephone conversations with his assistant at the main headquarters of the Calvo Group in San Salvador, an assurance had been given to the branch that a member of Comisiones Obreras could be received on 10 May 2007 at the plant, or even that Mr Peñalva could receive the said member on 18 May at the company’s headquarters in the capital, neither of those options materialized when the time came, and it was stated that Mr Peñalva was travelling outside the country and had left no one in charge of receiving the delegation from Comisiones Obreras. According to his assistant, Mr Peñalva left the curious message that he would be discussing the matter of the dismissals relating to the Calvoconservas branch of SGTIPAC with the Spanish trade unions.
14. 814. The complainants refer, moreover, to acts of anti-union intimidation within the Calvoconservas El Salvador plant as from the time at which the SGTIPAC branch was established therein. In the first instance, armed guards were stationed inside the plant with the aim of intimidating the workers in their very place of work. SGTIPAC has spoken out against this practice since, in addition to being intimidating, it is clearly a risky business to locate an armed individual within a working environment. Things have even reached the point at which the armed guards travel in the staff transfer buses, calling on workers not to join the union. All the managers of the abovementioned company use words such as “terrorists”, “troublemakers” and “rebels” to refer to the SGTIPAC leaders. At the same time, they have been urging workers to establish a trade union that does not make problems for the company, in what amounts to a clear violation of freedom of association inasmuch as workers are being called upon to join an employer-controlled union.
15. 815. In its communication of 18 July 2007, FESTSSABHRA reports the establishment, in that same month, of the Union of Workers of the Company Calvoconservas El Salvador, abbreviated STECCESSACV. The following employer’s representatives took part in the setting up of that union: Mr Fernando Torres (chief of unloading), Ms Dora Lilian Escobar Cruz (chief of processes), Ms Cristela Vides (chief of processes), Mr Henry Aguilera (chief of packaging processes), Ms Rocío Escobar (chief of human resources payments). Other managerial staff also took part, such as the chief of the maintenance store and chief of canning. The aforementioned chiefs have used their hierarchical position within the company to compel workers, especially on the day shift, to sign documents attesting to their willingness to support or join the said union, when in reality those signatures were obtained under coercion. The fact is that the workers who signed the abovementioned documents did so without being allowed to have access to the entire content thereof or to have a copy. Most of them state, moreover, that they did so out of a fear of reprisals on the part of their supervisors in the event of their refusal. In the present case, the trusted employees and employer’s representatives are the promoters and indeed officials of the STECCESSACV union, in violation of section 225 of the Labour Code. It is obvious that the said actions are aimed at establishing an employer-controlled union organization and that its promoters, sheltering behind the hierarchy principle, are coercing the workers to join it, with the latter facing a fair risk of reprisals from their own supervisors should they fail to do so. For these reasons, the Labour Inspectorate has been requested to conduct a special inspection. Nevertheless, the Ministry of Labour has recognized the said union as a legal entity.
16. 816. The complainant organizations add that the company is engaging in intimidation against unionized workers through a company that has been contracted to subject them to polygraph tests in connection with the alleged sabotage of a fork-lift truck and conveyor belt, during which they are asked questions about their union membership and about their opinions with regard to trade unionists and their activities. The complainants point out that the alleged sabotage occurred in areas that are different to those in which the members in question are employed. For all these reasons, the union has requested the Ministry of Labour to conduct a special inspection.
17. 817. In its communication of 26 March 2008, SGTIPAC alleges that the aforementioned company-controlled union has negotiated the collective agreement, which was registered with the Ministry of Labour on 31 January 2008. SGTIPAC has requested the Ministry to cancel the registration.

B. The Government’s reply

1. 818. In its communication of 20 August 2007, the Government states that, as can be seen from the inspection record, the Secretariat of Labour and Social Insurance, through the General Labour Inspection Directorate, carried out the ordinary procedure for an unplanned inspection, to the effect that whenever the Conservas Calvo SA de CV workers have sought legal help, the Labour Inspectorate, through its Special Unit on Gender and the Prevention of Discrimination in Respect of Employment, has always responded to their requests in an efficient manner.
2. 819. In exercising their functions, the inspectors from the said unit have had no more in the way of powers or constraints than those laid down in the International Labour Organization’s Labour Inspection Convention, 1947 (No. 81), or those contained in the Act on the Structure and Functions of the Labour and Social Welfare Sector.
3. 820. It is important to keep the foregoing very much in mind when analysing this case, since despite the fact that Calvoconservas SA de CV has justified the dismissals of the union officials Ms Berta Aurelia Menjivar, Mr Joaquín Reyes and Mr Roberto Carlos Hernández on the grounds of disobedience vis-à-vis the orders of their supervisors and of being bad workers, the labour inspectors have described those dismissals as infringements of the labour legislation in force, under the terms of article 47 of the Constitution of the Republic and section 248 of the Labour Code.
4. 821. The Government adds that in the course of conducting the inspections, interviews were held with workers from the plant and workmates of those dismissed, all of whom denied the existence within the company of acts of harassment or individual pressure on the part of the employer’s representatives, or of any intimidating or anti-union comments that could be considered discriminatory.
5. 822. When the respective follow-up inspections were carried out, it was noted that the infringements that the company had been found to have committed in regard to the unlawful dismissal of the union officials, as well as the arrears of unpaid salaries for reasons attributable to the employer, had not been remedied, at which point the inspection measures gave way to the procedure for imposition of the corresponding fine.
6. 823. In its communication of 29 August 2007, the Government refers to the allegations relating to a new trade union within the company.
7. 824. With regard to the recognition of the Union of Workers of the Variable Capital Company Calvoconservas El Salvador (STECCESSACV) as a legal entity, the Government states that no procedure has been violated since the Secretariat of Labour and Social Insurance, through the Department of Social Organizations, has done nothing other than follow the procedure laid down in the Labour Code, no formal flaws or infringements of the laws having been observed therein or in the information submitted.
8. 825. With respect to the application of the polygraph test to Calvoconservas SA de CV workers, the Government indicates that on 18 July 2007 a labour inspection was carried out during the course of which it was indeed noted that a group of 18 workers had been given the said test. The employer’s representatives stated that in June 2007 cases of sabotage within the company had been reported, consisting in damage to a fork-lift truck through the pouring of salt into its petrol tank and in the placing of metal parts on a conveyor belt leading to the mill. It was these acts of sabotage which made it necessary for the management to perform the polygraph test on those workers engaged in the packaging and maintenance departments and responsible for shelving, water purification and fish supplies.
9. 826. The Government adds that the workers interviewed (18) stated that the polygraph test had not been obligatory but, on the contrary, voluntary, and that they were unaware of acts of intimidation or discrimination for belonging to a trade union organization.
10. 827. Despite the workers having stated that they voluntarily undertook the polygraph test, the Labour Inspectorate noted in the record of the inspection in question that it warned the company against performing polygraph tests on its workers in the future and urged the company to enter into an open dialogue with the workers’ representatives in the interests of settling any disagreement and creating a harmonious labour environment.

C. The Committee’s conclusions

1. 828. The Committee notes that in this case the complainant organizations have presented the following allegations: (1) the anti-union dismissal of Ms Berta Aurelia Menjivar (founder member of the union branch — within Calvoconservas El Salvador SA de CV – of the SGTIPAC, Mr Joaquín Reyes (member of SGTIPAC and former official thereof), Mr Roberto Carlos Hernández (official of the SGTIPAC branch) and Mr  José Antonio Valladares Torres (official of the SGTIPAC branch); (2) the refusal by the company’s management to receive officials from IUF and other organizations (2 and 10 May 2007); (3) the intimidation of members and workers by armed guards within the company and by the company’s management (including the carrying out, through another company, of polygraph tests on workers in relation to a reported sabotage and with questions in regard to the union membership of workers and their opinion concerning the activities of the union officials); (4) the establishment within the company of a trade union with the participation of trusted staff and various company heads, with coercion of the workers to get them to join or support the said union, as well as the granting by the Ministry of Labour of the status of legal entity to the union and registration of the collective agreement between it and the company.
2. 829. As regards the allegation relating to the anti-union dismissal of Ms Berta Aurelia Menjivar (founder member of the union branch), Mr Joaquín Reyes and Mr Roberto Carlos Hernández (union officials) and the non-payment of the salaries to which they are entitled, the Committee notes that, according to the Government: (1) on the occasion of the visit of the Labour Inspectorate, the company cited disobedience vis-à-vis orders from the supervisors and that they were bad workers, but the Labour Inspectorate found that the company had infringed the labour legislation in regard to the protection of union founders and officials and by failing to pay salaries due following unlawful dismissal; (2) the company failed to remedy the infringements indicated by the Labour Inspectorate, at which point the latter’s inspection measures gave way to the procedure for imposition of the fine foreseen under the corresponding legislation. The Committee requests the Government to inform it of the outcome of the procedure for imposition of a fine initiated against the company, and to continue recommending to the company that it reinstate those dismissed (this recommendation stems from the Labour Inspectorate records transmitted by the complainant organizations).
3. 830. As regards the allegations of intimidation against trade unionists and acts of coercion (presence of armed guards within the plant; use by the company of words such as terrorist and troublemaker when referring to the union officials), the Committee takes note of the Government’s statements to the effect that, during the inspections conducted within the company by the Labour Inspectorate, the workers unanimously denied the existence of acts of harassment or individual pressure on the part of the employer’s representatives, or of any intimidating or anti-union comments. The Committee requests the Government to respond specifically to the allegation concerning the stationing within the plant of armed guards who call on the workers not to join SGTIPAC.
4. 831. As regards the allegation relating to the subjection of workers to polygraph tests in connection with alleged sabotage, with questions being put to the workers regarding their union membership and their opinion regarding the union officials and their activities, the Committee takes note of the Government’s statement that: (1) on 18 July 2007, a labour inspection was carried out in the course of which it was noted that a group of 18 workers had indeed undergone the aforementioned test. The employer’s representatives stated that in June 2007 cases of sabotage within the company had been reported, consisting in damage to a fork-lift truck through the pouring of salt into its petrol tank and the placing of metal parts on a conveyor belt leading to the mill; (2) it was these acts of sabotage which made it necessary for the management to perform the polygraph test on those workers engaged in the packaging and maintenance departments and responsible for shelving, water purification and fish supplies; (3) the (18) workers interviewed by the Labour Inspectorate stated that the polygraph test had not been obligatory but, on the contrary, voluntary, and that (as is indicated in the previous paragraph) they were unaware of acts of intimidation or discrimination for belonging to a trade union organization; (4) despite the workers having stated that they voluntarily undertook the polygraph test, the Labour Inspectorate noted in the record of the inspection in question that it warned the company against performing polygraph tests on its workers in the future and urged the company to enter into an open dialogue with the workers’ representatives in the interests of settling any disagreement and creating a harmonious labour environment. In view of these explanations, the Committee will not pursue its examination of the allegations relating to the polygraph tests.
5. 832. The Committee notes with regret, moreover, that the Government has not replied to the allegation relating to the refusal by the management to receive foreign union officials, particularly from IUF and Comisiones Obreras de España, despite having indicated or suggested that it would do so. The Committee requests the Government to ascertain the facts of the matter and, if it turns out that the company acted in the manner reported by the complainant organizations, that it inform the company that such an attitude does not lead to harmonious labour relations based on mutual respect and dialogue.
6. 833. With regard to the alleged recognition as a legal entity of a union (Union of Workers of Calvoconservas El Salvador SA de CV) within the company, comprising company heads and trusted individuals, as well as coercion and intimidation in an attempt to get workers to join it and the negotiation of a collective agreement between that union and the company, the Committee takes note of the Government’s statement that the granting by the Ministry of Labour of legal entity status was done in pursuance of the legal procedure laid down in the Labour Code, in the absence of any observed formal flaws or infringements of the relevant legislation. The Committee notes that the Labour Inspectorate, as the Government states, was informed by the workers that they were unaware of acts of intimidation on the part of the company.
7. 834. The Committee regrets that the Government has made no mention of the alleged presence of company heads and trusted staff in the establishment of the aforementioned union or of the negotiation by it of a collective agreement. The Committee requests the Government to carry out an investigation without delay and to keep it informed in that regard.