Report in which the committee requests to be kept informed of development - Report No 302, March 1996

1. 142. The complaints in this case are contained in communications from the International Confederation of Free Trade Unions (ICFTU) and the International Textile, Garment and Leather Workers' Federation, dated 27 March and 4 April 1995 respectively. Subsequently, the International Textile, Garment and Leather Workers' Federation sent additional information in a communication dated 26 May 1995.
2. 143. The Government sent partial observations in a communication dated 12 February 1996.
3. 144. El Salvador has not ratified either the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87), or the Right to Organize and Collective Bargaining Convention, 1949 (No. 98).

A. The complainants' allegations

1. 145. In its communications of 27 March and 4 April 1995, the International Confederation of Free Trade Unions (ICFTU) and the International Textile, Garment and Leather Workers' Federation allege that on 20 March 1995, Juan José Huezo, Secretary-General of the National Trade Union Federation of Salvadorean Workers (FENESTRAS) and Secretary-General of the Trade Union of Workers in the Textiles, Similar and Affiliated Industries (STITAS) and Mrs. Sarahi Molina, Secretary of National and International Relations of FENESTRAS and official of STITAS, went to the JATEX enterprise to discuss issues concerning the staff with the owner of this enterprise. The complainant organizations state that whilst the discussions were taking place, the police entered and arrested Mr. Huezo and obliged Mrs. Sarahi Molina to sign, at gunpoint and in front of the police, an agreement accepting the conditions proposed by the enterprise. The complainant organizations add that during his transfer to the police station Mr. Huezo was beaten up by the police and initially informed that a considerable number of serious charges would be brought against him.
2. 146. Furthermore, the International Textile, Garment and Leather Workers' Federation states that on 1 March 1995, Mrs. Julia Esperanza Quintanilla, who took an active part in the setting up of a trade union in the Gabo S.A. enterprise, had strong stomach pains and asked her employer to allow her to seek medical assistance; however in direct retaliation for her trade union activities the authorities refused her request. The complainant organization points out that the trade unionist waited until the lunch break to ask for assistance at the local social security hospital which refused any medical treatment on the grounds that her employer had not paid social security contributions or submitted any documentation on her job and that finally she died that same night. The complainant organization states that a number of workers asked the enterprise to be allowed to take time off work to go to her funeral and that in spite of their request being refused 18 workers did go to the funeral and were consequently dismissed.
3. 147. The complaint organization adds that on 8 March 1995, the owners of the Sanobang Wool Apparel El Salvador S.A. enterprise, in the El Pedregal free zone, detained three workers - one of whom was a member of the executive of the trade union set up in the enterprise - and refused to let them go if they did not sign their resignations. The complainant organization points out that subsequently the owners of the enterprise called in the police and that these three workers were arrested and dismissed - and that the enterprise refused to reinstate them.
4. 148. In its communication of 26 May 1995, the International Textile, Garment and Leather Workers' Federation alleges that a campaign is being carried out by the owners of the textiles factory, Mandarín International, operating in the free zone of San Marcos, to put an end to the enterprise trade union. The complainant organization points out that from the time that the Mandarín International Trade Union of Workers was legally recognized on 9 February 1995, the enterprise has been carrying out a systematic campaign to destroy the trade union and intimidate the 850 workers. The enterprise has carried out two lock-outs and dismissed 150 workers belonging to the trade union; furthermore, it has recruited 24 private security guards who have threatened and insulted the workers and detained trade union officials. The complainant organization states that the administrator of the free zone of San Marcos informed the workers that "blood would flow" if, in one way or another, the trade union did not leave the Mandarín International enterprise. Finally, the complainant organization adds that on 15 May 1995, the trade union in the Mandarín International enterprise decided to call a strike to protest against the illegal dismissals and that during the strike the security guards attacked the trade union officials. During this attack, the trade union official, Mrs. Marta Rivas, had one of her legs fractured and the Secretary-General of the trade union was detained for several hours and beaten up by the company guards.

B. The Government's reply

1. 149. In its communication dated 12 February 1996, the Government stated that Mandarín International S.A. of C.V. categorically refuted the allegations made as being unfounded, tendentious and far from the truth. Mandarín International presented the resignations, dated 21 December 1995, of all of the trade union officials to the Ministry of Labour and Social Security and in which it can be noted that all of the irrevocable resignations from the officers' positions they previously held were undertaken voluntarily and without coercion and that they refused the reinstatement offered to them by the company to work in the same posts which they held previously and with the same working conditions. Moreover, the Government indicates that the company has stated that the resignation forms of the workers concerned were made on forms issued by the Inspection Department of the Ministry of Labour and Social Security which may only be transmitted in personal form to the persons concerned.
2. 150. Concretely, the Government states that the Mandarín International representative presented minutes established on 21 December 1995 which indicate that Eliseo Castro Pérez, General Secretary, Marlene Abrego, minutes and agreements secretary, René Flores Monge, cultural and propaganda secretary, Ana Ruth Barrientos, secretary of adolescent matters, Marta Aracely Rivas Ayala, secretary of national relations, Ana Silvia Urrutia Barcia, financial secretary and Marta Leonor Mejia, disputes secretary were offered reinstatement in their jobs, but decided not to accept them for personal reasons, being compensated for 100 per cent of their regular and supplementary benefits, including trade union immunity (fuero sindical). The Government adds that the same minutes show the vast and inclusive settlement which was granted to the trade union officials of Mandarín International referred to in this case, thus ending the economic collective dispute which was placed before the Ministry of Labour and Social Security. Moreover, the company representative clarified that the Ministry of Labour and Social Security, the Assistant Defence Attorney for the Rights of Women and the Assistant Defence Attorney for Human Rights were guarantors for the agreement made between the company and the union.

C. The Committee's conclusions

1. 151. First of all, the Committee regrets that the Government has only communicated partial observations on the serious allegations submitted, in spite of the time which has elapsed since the complaint was presented.
2. 152. The Committee notes that the allegations refer to the death of a trade unionist, as well as to arrests, physical attacks on and threats against trade union officials and trade unionists, and to anti-union dismissals - within various enterprises, including in free zones.
3. 153. The Committee would like to draw the attention of the Government to the fact that "the rights of workers' and employers' organizations can only be exercised in a climate that is free from violence, pressure or threats of any kind against these organizations' leaders and members, and that it is for governments to ensure that this principle is respected" (see 291st Report, Case No. 1700 (Nicaragua), para. 310 and 294th Report, Case No. 1761 (Colombia), para. 726).
4. 154. With respect to the allegation concerning the death of a trade unionist belonging to the trade union in the Gabo S.A. enterprise, Mrs. Julia Esperanza Quintanilla, on 1 March 1995, the Committee deeply regrets this death and requests the Government to take the necessary steps to carry out an independent inquiry to look into the allegations (according to the complainant organization the management at the enterprise refused the trade unionist the possibility of seeking medical assistance) and, if these are confirmed, to bring appropriate action before the law courts to establish responsibilities and punish those who are guilty. The Committee requests the Government to keep it informed in this respect.
5. 155. As regards the alleged arrest of the trade union official, Juan José Huezo, on 12 March 1995 by the police, the Committee requests the Government to inform it whether he is still in prison and, in the affirmative, to explain the grounds for his arrest. Similarly, the Committee requests the Government to release him immediately if his arrest was connected with his trade union activities - if this has not already been done. The Committee points out to the Government that "the detention of trade unionists for trade union activities or membership is contrary to the principles of freedom of association" (see 243rd Report, Cases Nos. 953, 973, 1016, 1150, 1168, 1233, 1258, 1269, 1273 and 1281 (El Salvador), para. 387). The Committee requests the Government to keep it informed on the situation of Mr. Huezo.
6. 156. As regards the alleged detentions of a member of the trade union executive and two workers from the Sanobang Wool Apparel El Salvador S.A. enterprise by the authorities of the enterprise on 8 March 1995, as well as the detention of Elisio Castro Pérez, Secretary-General of the trade union of the textiles factory Mandarín International, by company guards and physical attacks against the trade union official of the same trade union, Mrs. Marta Rivas (both of which occurred on 15 May 1995), the Committee notes that according to the complainant organization those detained were deprived of their freedom for a number of hours. The Committee requests the Government to take steps to carry out an inquiry on these allegations of physical attacks and arrests carried out by members of the enterprise's security staff and ensure that if it is ascertained that the trade unionists in question were unlawfully deprived of their freedom - even if this was only for a short lapse of time - and that Mrs. Rivas was physically assaulted by the guards of the Mandarín International, appropriate action is brought before the courts to ensure that those guilty are duly punished. The Committee reiterates the principle mentioned in the previous paragraph and requests the Government to keep it informed in this respect.
7. 157. As regards the allegations concerning the anti-union dismissals, the Committee notes that these concern 18 workers from the Gabo S.A. enterprise who attended the funeral of the trade unionist, Mrs. Julia Esperanza Quintanilla, during working hours; a member of the trade union executive and two workers from the Sanobang Wool Apparel El Salvador S.A. enterprise who refused to sign their resignations; and 150 members of the trade union of the Mandarín International enterprise. The Committee notes that the Government has not indicated the reasons for the initial dismissal of seven trade union officials at the Mandarín International union and restricts itself to stating that they had resigned from their trade union positions, had refused an offer from the company to be reinstated in their posts and had accepted the corresponding indemnities. Moreover, the Committee notes that the Government did not provide observations on the allegations concerning the anti-trade union dismissals in the Gabo S.A. enterprise and that no information was provided on the allegations concerning the dismissal of 150 trade union members at Mandarín International. The Committee wishes to draw the Government's attention to the fact that "no person should be dismissed or prejudiced in his employment by reason of his trade union membership or legitimate trade union activities ... and the importance of forbidding and penalizing in practice all acts of anti-union discrimination in respect of employment" (see 270th Report, Case No. 1460 (Uruguay), para. 63, 272nd Report, Case No. 1506 (El Salvador), para. 132, and 295th Report, Case No. 1764 (Nicaragua), para. 461). Furthermore, with respect to the dismissal of the 18 workers from the Gabo S.A. enterprise, the Committee is of the opinion that attending the funeral of a trade unionist who - according to the allegations - died as a result of her employers' refusal to allow her to seek the immediate medical assistance she needed, was a justified trade union act. The Committee considers that the means of dismissal in the above-mentioned circumstances is an excessive measure and that the workers in question should be reinstated in their jobs if they so desire. The Committee will examine the question of the alleged dismissals at Sanobang Wool Apparel El Salvador S.A. enterprise under Case No. 1853, in which the complainant furnished greater and more detailed information on the circumstances surrounding the dismissals.
8. 158. In these circumstances, the Committee requests the Government to take steps immediately to carry out an inquiry in the enterprises mentioned in the previous paragraph (Gabo S.A. enterprise and Mandarín International) and if it is confirmed that the alleged dismissals were based on the fact that those concerned were trade union officials or trade unionists or that they had carried out lawful trade union activities, it should take steps to ensure that the dismissed workers are immediately reinstated in their jobs if they so desire. The Committee requests the Government to keep it informed of the developments in this regard.
9. 159. Finally, as concerns the allegations submitted by the complainant organizations concerning two enterprises in free zones of El Salvador (according to the International Textile, Garment and Leather Workers' Federation, Mrs. Sarahi Molina, Secretary of National and International Relations of FENESTRAS and trade union official of STITAS, had been obliged by the JATEX enterprise to sign "at gunpoint and in front of the police" an agreement accepting the enterprise's conditions; and the administrator of the San Marcos free zone had on repeated occasions informed the workers that "blood would flow" if, in one way or another, the trade union did not leave the Mandarín International enterprise), the Committee requests the Government to carry out a full inquiry as a matter of priority in the above-mentioned enterprises and to take strong measures to provide effective protection for workers in these enterprises. The Committee requests the Government to keep it informed in this respect.