Interim Report - Report No 342, June 2006

437. The complaints are contained in communications of the Trade Union Federation of Public Service Workers of El Salvador (FESTRASPES) (11 May and 23 September 2005), the Siglo 21 Trade Union Federation (FS-21) (26 October 2005), the International Confederation of Free Trade Unions (ICFTU) (2 December 2005) and the National Federation of Salvadorian Workers (FENASTRAS) (26 April 2006).

1. 438. El Salvador has not ratified 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. The complainants’ allegations

1. 439. In its communication of 18 May 2005, the Trade Union Federation of Public Service Workers of El Salvador (FESTRASPES) alleges that, with the object of defending labour rights and improving the conditions of work of current dockworkers and making use of the right to form trade unions, guaranteed under the Constitution, the Labour Code and the international conventions, the Dockworkers’ Union of El Salvador (STIPES) was formed on 6 December 2004 by 41 workers of private operators, contracted by the Autonomous Port Management Authority (CEPA): REMAR, S.A.; Operadora General, S.A. de C.V.; O&M Mantenimiento y Servicios, S.A. de C.V.; Operadores Portuarios Salvadoreños, S.A. de C.V.; Servicios Técnicos del Pacífico, S.A. de C.V.; and Compañía Operadora de Servicios Integrales.
2. 440. On 7 December documentation on the formation of the trade union was submitted to the Ministry of Labour and Social Security. The Ministry raised objections to the trade union’s statutes relating to spelling errors, resorting to technicalities to delay the process of granting legal personality. The causes of these objections were remedied and the documentation was resubmitted to the Ministry of Labour and Social Security on 5 January 2005. On 13 December, the Ministry of Labour and Social Security, within the terms of the law, sent a communication to the operators who provide services to CEPA in the Port of Acajutla, about the formation of the trade union and on 14 December, in violation of the protection provided in article 248 of the Labour Code to promoters of a trade union, the companies took reprisals against 34 of the 41 founding members, excluding them from the roster of workers assigned by the private operators.
3. 441. In its communication of 2 December 2005, the ICFTU enclosed the following list of dismissals:
4. Name / Company
5. Gregorio Elías Vanegas / REMAR, S.A.
6. Joel Antonio García García / REMAR, S.A.
7. Francisco Gregorio Herrera Arévalo / Operadora General, S.A. de C.V.
8. José Antonio León García / Operadora General, S.A. de C.V.
9. Edwin Gabriel Torrers Castro / Operadora General, S.A. de C.V.
10. Julio Ernesto Martínez / Operadora General, S.A. de C.V.
11. Juan Antonio Hernández Fuentes / Operadora General, S.A. de C.V.
12. Francisco Gregorio Herrera / Servicios Técnicos del Pacífico, S.A. de C.V.
13. Jorge Alberto Pimentel Tobar / Servicios Técnicos del Pacífico, S.A. de C.V.
14. Nelson David Alvarado Rivera / Servicios Técnicos del Pacífico, S.A. de C.V.
15. Jorge Alberto Miranda Cortés / Servicios Técnicos del Pacífico, S.A. de C.V.
16. Carlos Orlando Bolaños Sorto / O&M Mantenimiento y Servicios, S.A. de C.V.
17. Juan Carlos Mejía / O&M Mantenimiento y Servicios, S.A. de C.V.
18. Oscar Armando Iglesias Ramírez / O&M Mantenimiento y Servicios, S.A. de C.V.
19. Moisés Martínez / O&M Mantenimiento y Servicios, S.A. de C.V.
20. Oscar Antonio Cortés Castro / O&M Mantenimiento y Servicios, S.A. de C.V.
21. Juan Carlos Castro Rodríguez / O&M Mantenimiento y Servicios, S.A. de C.V.
22. Juan Antonio Cerna Durán / O&M Mantenimiento y Servicios, S.A. de C.V.
23. Hugo Alexander Martínez López / O&M Mantenimiento y Servicios, S.A. de C.V.
24. Nelson Balmore Cisneros / O&M Mantenimiento y Servicios, S.A. de C.V.
25. Nelson Urrutia Barrientos / O&M Mantenimiento y Servicios, S.A. de C.V.
26. Williams René Texis Rodríguez / O&M Mantenimiento y Servicios, S.A. de C.V.
27. Angel María Umaña / O&M Mantenimiento y Servicios, S.A. de C.V.
28. Tito López Castro / O&M Mantenimiento y Servicios, S.A. de C.V.
29. Guadalupe Espinoza / Operadores Portuarios Salvadoreños, S.A. de C.V.
30. Douglas Gilberto Orellana Siliezar / Operadores Portuarios Salvadoreños, S.A. de C.V.
31. Alfredo Martínez Belloso / Operadores Portuarios Salvadoreños, S.A. de C.V.
32. Simón Vides / Operadores Portuarios Salvadoreños, S.A. de C.V.
33. David Suriel Monge / Operadores Portuarios Salvadoreños, S.A. de C.V.
34. Williams Abraham Monge / Operadores Portuarios Salvadoreños, S.A. de C.V.
35. Luis Alonso Duarte Martínez / Operadores Portuarios Salvadoreños, S.A. de C.V.
36. Nelson Antonio Rodríguez / Operadores Portuarios Salvadoreños, S.A. de C.V.
37. Juan Antonio Blanco / Operadores Portuarios Salvadoreños, S.A. de C.V.
38. Raúl Antonio Sánchez / Compañía Operadora de Servicio Integral (COPESI)
39. Rafael Ernesto Cuellar Gómez / Compañía Operadora de Servicio Integral (COPESI)
40. 442. FESTRASPES adds that STIPES asked the Ministry of Labour to carry out an inspection, which took place on 21 December. In the presence of the inspectors, the legal representative of Operadores Portuarios Salvadoreños, S.A. de C.V. (OPSAL) offered to enlist the group of founder workers who work for that company, as a result of which the workers agreed to sign the inspection report in which it was stated that there had been no breach of the Labour Code by the operator, which constitutes complicity by the Ministry of Labour. The inspection report does not include that undertaking by the company, which was merely a strategy to surprise and deceive the workers.
41. 443. The trade union requested the Ministry of Labour for another inspection which took place on 7 January 2005, at which the legal representative of REMAR, S.A. and the president of the interim executive committee of the trade union who works in that company were present. The company claims that at no time was entry to the company’s installations prohibited, but that it was CEPA that did not allow the workers to enter. The Ministry of Labour inspector confined himself to recommending the worker to “investigate in the CEPA the barring of access to the installations as a better way of resolving his labour problem”. Again the Ministry of Labour adopts an attitude of complicity in the face of breaches of labour rights and the anti-trade union attitudes of the port operators and CEPA, which is nothing more than shady practice by the Ministry of Labour to prevent the legalization of STIPES.
42. 444. Inspections of the other four operators were requested, but the Ministry of Labour side-stepped its responsibility when it shelved these requests, arguing, orally, that if inspections and re-inspections were required, application would have to be made to a higher level.
43. 445. FESTRASPES alleges that on 14 February 2005, in a notice issued on 28 January 2005, the Ministry of Labour stated:
44. That in accordance with the procedure established in article 219, paragraph 2 of the Labour Code, letters were sent to the employers asking them to confirm that the founding members of the prospective trade union were employees. Replies had been received to all those letters denying their employee status for which reason, the necessary legal requirement to form an industry trade union has not been satisfied. Therefore, in the light of the foregoing, this Ministry rules that the application for the grant of legal personality to the Dockworkers’ Union of El Salvador, acronym STIPES is inadmissible.
45. FESTRASPES indicates, however, that on 15 February 2005, the trade union asked for the decision of the Ministry of Labour to be reversed, based on evidence of the permanent employment relationship shown by social security certificates and seeking the granting of legal personality to STIPES. The various operating companies contributed to the social security of the workers forming the trade union, which proves the existence of the employment relationship. The measures taken by the port operators and CEPA violate the right to organize and the Ministry of Labour has violated the Organization and Functions of the Labour and Social Security Sector Act since, instead of fulfilling its legal functions of facilitating the formation of trade union organizations, it acted as accomplice to the port operators and CEPA in refusing to grant legal personality to STIPES without justification.
46. 446. In its communication of 23 September 2005, FESTRASPES alleges that on 26 August 2005, Mr. Alberto Escobar Orellana, second disputes secretary of the Education Workers’ Union of El Salvador (STEES), was dismissed by the employers’ representatives of the Universidad Centroamericana “José Simeón Cañas” where he had been working since 11 March 1999 on the grounds that, as a “non-established lecturer” of the university, he was not a permanent worker, but that his contract was for professional services and had expired on 15 July of the current year. The trade union official concerned requested the Ministry of Labour and Social Security for an inspection in respect of violation of his rights and office as trade union official.
47. 447. The inspection took place on 5 September 2005 with the presence of two inspectors from the Ministry of Labour, who interviewed the employer’s representative, the chief of the university personnel department. In the inspection, the inspectors had sight of all the contracts of employment from the day when the worker concerned started work at the university, which showed his continuity of service and that under article 25 of the Labour Code he was a permanent worker who enjoyed all the labour rights established in the Labour Code. It was also found that the worker’s rights as a holder of trade union office had been infringed, in that Mr. Alberto Escobar Orellana had been appointed his trade union’s second disputes secretary on 19 August 2005, as shown in Ministry of Labour letter No. 352/2005. For all the foregoing reasons, the inspectors recommended that the employer should reinstate the worker and trade union official, Mr. Alberto Escobar Orellana, and the employer was given two days to comply with that recommendation, which is in accordance with circular No. 003/05 signed by the Minister and Vice-Minister of Labour in which employers are recommended to reinstate trade union officials dismissed without due cause in their normal work.
48. 448. However, FESTRASPES continues, on 8 September a further inspection was carried out by the Ministry of Labour when it was found that the employer had not complied with the recommendation to reinstate the abovementioned worker and trade union official in clear violation of article 47 of the Constitution of El Salvador and article 248 of the Labour Code. It was also found that his salary had not been paid for reasons imputable to the employer, in violation of article 29, section 2 of the Labour Code.
49. 449. In its communication of 26 October 2005, the FS-21 alleges that on 9 August 2005, the Salvadorian Metal Engineering Workers’ Union (SITRASAIMM), constituted as an industry trade union, applied for legal personality and approval of its statutes to the Ministry of Labour and Social Security. On 15 August, the Ministry of Labour informed it as follows:
50. Because the prospective trade union is an industry trade union, this Ministry must write to the employers of the founder members of the trade union asking them to certify their status as employees, in accordance with the provisions of article 219, paragraph 2, of the Labour Code. For that purpose, it must have the necessary information concerning the companies where these members work, such as their address and name of their legal representative, and as that information has not been provided by the interested parties, it is not possible to proceed with the requirements indicated in the abovementioned article.
51. The trade union provided the required information and on 22 August 2005, the Ministry notified objections to the statutes, which were remedied by the trade union on 2 September.
52. 450. On 12 October 2005, the Ministry of Labour notified the trade union that it had been refused legal personality (a copy of the administrative decision is annexed) arguing chiefly that: (1) article 2 of the trade union statutes (which establishes that “the following may become members: workers in the metal engineering industry and similar, and workers engaged in the selling of certain products for industrial or personal use and workers in consulting and advisory firms who provide services within companies in this branch”) contravenes article 209(3) of the Labour Code (definition of industry trade union); and (2) ten of the founder members did not belong to companies in which the trade union sought to act.
53. 451. On 13 October 2005, the trade union lodged an appeal with the Ministry of Labour and Social Security against the refusal to grant legal personality, requesting the Ministry to carry out inspections in the companies to ascertain the actual tasks performed by the workers in the companies for which the founders work. To date, there has been no response by the Ministry to this appeal.
54. 452. The FS-21 adds that, taking an anti-trade union attitude, the management of the companies Metalúrgica Sarti, S.A. de C.V., Reselcon, S.A. de C.V. and Servicios Talsa, S.A. de C.V. dismissed worker promoters and founders of SITRASAIMM, as listed below:
55. No. / Worker’s name / Company / Date of dismissal
56. 1 / Francisco Samuel Romero Beltrán / Servicios Talsa, S.A. de C.V. / 20 June 2005
57. 2 / Salvador González Aguilar / Servicios Talsa, S.A. de C.V. / 30 June 2005
58. 3 / Vicente Ramos Escobar / Servicios Talsa, S.A. de C.V. / 30 June 2005
59. 4 / Carlos Antonio Nerio Hernández / Reselcon, S.A. de C.V. / 30 June 2005
60. 5 / Marcelino Arquel Franco Valle / Metarlúrgica Sarti, S.A. de C.V. / 30 June 2005
61. 6 / José Antonio Serrano Rivera / Metarlúrgica Sarti, S.A. de C.V. / 30 June 2005
62. 7 / José Emilio Urbina / Metarlúrgica Sarti, S.A. de C.V. / 30 June 2005
63. 8 / José Miguel Amaya Chicas / Metarlúrgica Sarti, S.A. de C.V. / 30 June 2005
64. 9 / José Amílcar Maldonado Castillo / Metarlúrgica Sarti, S.A. de C.V. / 30 June 2005
65. 10 / Manuel de Jesús Ramírez / Servicios Talsa, S.A. de C.V. / 1 September 2005
66. 11 / Israel Ernesto Avila / Reselcon, S.A. de C.V. / 1 September 2005
67. 453. To these, according to the ICFTU, can be added a further seven dismissals by the company Castillo’s Rent on 15 October 2005 of Carlos Alberto Gregorio Garrido, Elmez Ezequiel Carballo Marroquín, Mario Ricardo Hernández, Jorge Ernesto Rodríguez Pérez, Danilo Salvador Castro Molina, José Armando Chávez Ramos and Jorge Alberto Peña.
68. 454. The FS-21 adds further that on 15 August 2005, the Private Security Workers’ Union of El Salvador (SITRASSPES) submitted an application for legal personality and approval of its statutes to the Ministry of Labour and Social Security. The Ministry informed the trade union of the need to provide the Ministry with information on the companies for which the constituents performed their services, such as their address and name of their legal representative. On 22 August 2005, the trade union met this requirement by providing the information requested on each of the companies and on 23 August 2005, the Ministry of Labour and Social Security notified objections to the statutes, which were remedied by the trade union on 30 August 2005.
69. 455. On 12 October, the Ministry notified the refusal to grant legal personality to the trade union chiefly on the following grounds: (1) the Constitution of the Republic, in article 7, paragraph 3, expressly prohibits the existence of organized armed groups of a trade union nature; (2) by the very nature of the work performed, private security workers perform a dual trust function: just as the employers trust in them to perform the work entrusted to them, which is discretionary, the users, residents of a particular housing estate, company executives, public officials or employees, private, state or autonomous institutions, banks, etc., all rely on these workers fulfilling the specific purposes designated for them; and (3) article 221 of the Labour Code allows for the possibility of trusted employees joining a trade union, provided that the general assembly of that union accepts them as such. This necessarily means the prior existence of a trade union organization which is not formed by trusted employees and to which legal personality has been granted by the Ministry of Labour. For the foregoing reasons, the Ministry concludes that trusted employees, under current legislation, may not participate as founder members of a trade union organization since there is no government body empowered to allow their admission.
70. 456. On 13 October 2005, the trade union lodged an appeal with the Minster of Labour against the refusal to grant legal personality, which has not so far resulted in any response by the Ministry of Labour, and renewed its application for legal personality. With reference to the SITRASSPES case, the FS-21 indicates that the situation is even worse and the Ministry of Labour has failed to comply with the recommendation of the ILO Committee on Freedom of Association in Case No. 2299 relating to El Salvador that trade unions formed by workers working in private security firms should be granted legal personality.
71. 457. Some of the private security firms have taken steps to dismiss (two) or transfer (five) workers as reprisals against some founders of SITRASSPES:
72. No. / Name of worker / Firm / Date of dismissal / Action
73. 1 / Juan Vidal Ponce / SSASE, S.A. de C.V. / 20 October 2005 / Dismissal
74. 2 / Wilfredo Argueta Rivas / COPROSE, S.A. de C.V. / 17 October 2005 / Dismissal
75. 3 / Santiago Sion / Guardianes, S.A. de C.V. / 20 September 2005 / Transfer
76. 4 / Raúl Deleón Hernández / Guardianes, S.A. de C.V. / 20 September 2005 / Transfer
77. 5 / Carlos Antonio Cushco Cunza / Guardianes, S.A. de C.V. / 20 September 2005 / Transfer
78. 6 / Ricardo Hernández Cruz / Guardianes, S.A. de C.V. / 20 September 2005 / Transfer
79. 7 / Nicolás Pineda / COSASE, S.A. de C.V. / 14 September 2005 / Transfer
80. 458. The FS-21 indicates that in the case of SITRASAIMM, the Ministry of Labour omitted to take any action because of the existence of anomalies relating to the provisions of article 2 of the trade union statutes, which was a breach of the right of audience and protection as fundamental guarantees of due process. By its actions, the Ministry of Labour violated the provisions of the Organization and Functions of the Labour and Social Security Sector Act since, by failing to apply the provisions of article 8, paragraph (b), of the Act according to which: “specific functions of the Ministry of Labour are (b) to facilitate the constitution of trade union organizations”, it played a complicit role with the companies in which the founders of SITRASAIMM and SITRASSPES work, by refusing to grant them legal personality without justification, thus violating their freedom of association despite their having fulfilled the legal requirements.
81. 459. In the case of SITRASSAIM, the Ministry of Labour interpreted and applied incorrectly the provisions of article 209, paragraph (3), of the Labour Code, which defines industry trade unions in the following terms: “article 209, an industry trade union is a trade union formed by employers or workers belonging to companies dedicated to the same industrial, commercial, services, social or similar activities”. In the case concerned here, all the workers who participated in the formation of SITRASAIMM work in companies in the metal engineering industry, which consists of a series of economic activities which extend beyond the mere transformation of raw materials into a finished or semi-finished product, this being the definition used by the Ministry of Labour, thus leaving out all those intangible industries such as the cultural industry, or where applicable, the tourist industry where there is no transformation of raw materials. In light of the above, it is clear that in the decision of the Ministry of Labour there prevailed a restricted and even discriminatory definition concerning recognition of the right to organize of the workers belonging to SITRASAIMM. It is particularly serious that the Ministry of Labour did not apply the provisions in the last part of the abovementioned article 209, paragraph (3), of the Labour Code, which uses the expression “and similar”, which indicates clearly that there must be a broad criterion consistent with the economic realities imposed by globalization relating to the classification of industrial activities, which must include all operations which by their characteristics and specificities are similar and thus form part of the same industrial activity, even when the specific activities carried on by the various companies which make up a given industrial branch are different. It would be illogical to classify as part of a same industrial activity stores which sell products of different kinds, even when they carry on the same activity, which in this case would be commerce.
82. 460. In addition, the ICFTU supports the complaint submitted by the FS-21 and refers in particular to the refusal to grant legal personality to the trade unions SITRASAIMM and SITRASSPES. The ICFTU adds that in the company Hermosa Manufacturing, 64 members were dismissed with the intention of eliminating the trade union branch in the company. Among those dismissed were officials Estela Marina Ramírez, Flor Jazmín Zometa, Sara Guadalupe Beltrán de Puentes, Sonia Marily Reyes Linares, Julia Estarada Rosa, Tomasa Martínez and María Raquel Cornejo de Vélez. In the CMT clothing company, seven branch officials of the General Union of Seamstresses (SGC), María Rosa Beltrán Meléndez, Teresa Martínez Guerra, Morena Escobar de Paulino, Dora Alicia Rivas Osegueda, Cecilia Lizeth Abarca de García, Eva Lorena Umaña Pacheco and Blanca Araceli Fuentes Castro, were all dismissed on 25 October 2005.
83. 461. In its communication dated 28 April 2006, FENASTRAS alleges that the Private Security Services Workers’ Union (SITISPRI) was denied legal personality.
84. B. The Government’s reply
85. 462. In its communication of 18 October 2005, the Government states that the Secretariat of State for Labour employed the legal procedures set out in labour legislation, with the object of securing the reinstatement of the worker and trade union official Mr. Alberto Escobar Orellana, who was dismissed from the Universidad Centroamericana “José Simeón Cañas” (UCA), on 26 August 2005.
86. 463. In this regard it had been envisaged to carry out an inspection on 30 August 2005 at the premises of the workplace concerned, which could not be done because no employers’ representative was available to meet the designated labour inspector. He therefore left a summons to the legal representative to appear at the Labour Inspection Department for the hearing of proceedings relating to the dismissal of Mr. Alberto Escobar Orellana. This, too, could not take place due to the failure of the employer’s side to attend. In the light of the foregoing and as the persuasive approach had been exhausted, a further inspection of the workplace in question was carried out with the head of the personnel department of the Universidad Centroamericana “José Simeón Cañas” who, on being notified of the purpose of the inspection, stated that the personal contract of employment between the employer and Mr. Escobar was for a fixed term, i.e. from 11 March to 15 July 2005, for which reason he was informed on 18 August that he would be given no further assignments. Despite this, the Labour Inspection Department found that the Universidad Centroamericana “José Simeón Cañas” (UCA) had infringed articles 248 and 229, obligation 2, of the Labour Code, in having unfairly dismissed Mr. Alberto Escobar Orellana, who had the status of trade union official and, as a result of that dismissal, had ceased paying a salary for reasons imputable to the employer. Consequently, in the inspection report, the employer was given two working days to remedy the infractions concerned.
87. 464. Following the expiry of the abovementioned time limit on 8 September 2005, the re-inspection carried out to determine whether the infractions had been corrected found that they had not been rectified. Consequently, proceedings for the imposition of a fine in accordance with the Labour Code are now in progress, information on which will be provided in due course.
88. 465. The Ministry of Labour, through the Labour Inspectorate, took all legal measures to ensure compliance with the labour rights which had been violated, such as reinstatement and payment of a salary which had not been paid for reasons imputed to the employer. It should be emphasized that there is no provision for reinstatement in national labour legislation.
89. 466. Notwithstanding the work of enforcement of labour legislation carried out by the Ministry of Labour under administrative proceedings through the Labour Inspectorate, the worker concerned still has the right to use legal mechanisms, such as the courts, and he has also been informed that he may seek legal aid. The Ministry of Labour will continue to assist the worker when he so requests.
90. 467. In its communication of 11 January 2006, the Government states that the Ministry of Labour through the Directorate General for Labour Inspection sought voluntary correction of the labour offences found, with the object of achieving the reinstatement in their respective workplaces of the workers who founded the Dockworkers’ Union of El Salvador (STIPES), who were dismissed on 14 September 2005 by the private operators contracted under a tendering process held by the Autonomous Port Management Authority (CEPA). To that end, the Labour Inspectorate carried out a total of five inspections in the respective operator firms, with the corresponding re-inspections from 7 November, in which the reinstatement of the workers and payment of wages not paid for reasons imputable to the employer were sought.
91. 468. Despite the constant efforts by the Labour Inspectorate, the results of each inspection were not positive, since the trade union workers concerned have still not been reinstated in their jobs. As all means of persuasion and recommendation had been exhausted, the matter passed to proceedings for the imposition of fines, information on which will be provided in due course. It should be mentioned that the Labour Code does not provide for reinstatement, thus the Labour Inspectorate can do no more than recommend it and establish the amount of unpaid wages not paid for reasons attributable to the employer as an administrative offence which must imperatively be remedied. However, the exhaustion of the administrative proceedings does not mean that the worker is without protection, since he has the judicial route to claim fulfilment of unfulfilled labour rights, and they have already been advised to use this route. The Ministry of Labour will continue to assist the workers whenever they so request.
92. 469. In addition, the Government reports that, after pursuing the legal proceedings laid down in the Labour Code and having considered the legal implications, the Ministry of Labour decided by a resolution of 3 October 2005 to declare inadmissible the granting of legal personality to the Private Security Workers’ Union of El Salvador (SITRASSPES). The reasons on which it based this refusal are as follows:
93. (1) the founding members of the trade union are workers who provide their services for private security firms and for the performance of their work they must be equipped with firearms and as well as all other kinds of arms, since the principal purpose of their work is to protect the physical safety of natural persons and the safeguarding of material assets, whether moveable or fixed;
94. (2) article 7, paragraph (3), of the Constitution of the Republic expressly prohibits the existence of armed groups having the character of trade unions;
95. (3) the nature of the work performed by workers in private security firms involves a dual function of trust, both for the employers with whom they have a contract of employment, and the persons to whom they provide their services. Thus, given that the users rely on workers in such firms to perform the function assigned to them, they are qualified as trusted employees. This status is conferred due to the highly personal relationship of trust that exists between workers and employers, without which there could be no employment relationship;
96. (4) article 221 of the Labour Code disqualifies trusted employees from belonging to a trade union, except by agreement taken in the General Assembly which allows their admission. Thus, as workers in security firms are trusted employees, they are not eligible to belong to a trade union, since there is no government organ which can authorize their admission.
97. 470. As regards the refusal to grant legal personality to the Salvadorian Metal Engineering Workers’ Union (SITRASAIMM), the legal grounds taken into account in the resolution of 4 October 2005 which declared the application inadmissible are as follows:
98. (a) the prospective trade union cannot be considered to be an industry trade union, which, according to article 209, paragraph (3), of the Labour Code: “is a trade union formed by employers or workers belonging to companies dedicated to the same industrial, commercial, services, social or similar activities” and, in the present case, the companies in which the founder members of the trade union work are not dedicated to the same business or activity, the field of each of the companies being as follows:
99. – Sociedad Metarlúrgica Sarti, S.A. de C.V. has the object of “dedicating itself to functions of an industrial type and, specifically, foundry work for the manufacture of any class of metal object, manufacture and construction of agricultural machinery for sugar refining, coffee processing, cotton, construction and manufacture of metal structures and shelves for stores, buildings, roofs, etc. and any other legal activity permitted under the laws of the country”;
100. – Sociedad Servicios Talsa, S.A. de C.V. has the object of “providing natural or legal persons with advisory services, consultancy and technical assistance in the areas of production, quality control and marketing of all classes of services”, i.e. the business carried on by this company is the provision of certain services;
101. – Sociedad Reselcon, S.A. de C.V. has the object of “providing advisory, consultancy and technical assistance services, and import, export and marketing services for agricultural and livestock products, and other industrial articles or implements”, i.e. the business carried on by this company is the provision of services or commercial activities;
102. – Sociedad Castillo’s Rent Car, S.A. de C.V. has the object or purpose of “anything to do with imports and exports of motor vehicles and provision of motor repair services, etc.”.
103. By stating that “the following may become members: workers in the metal engineering industry and similar, and workers engaged in the selling of certain products for industrial or personal use and workers in consulting and advisory firms who provide services within companies in this branch”, article 2 of the statutes of the trade union concerned contain a contravention of article 209, paragraph (3), of the Labour Code, since that article limits the concept of industry trade union to a specific activity and not a generic activity under the same heading.
104. (b) Moreover, the prospective trade union was constituted with a total of 49 founder members distributed across each of the companies in which they perform services as follows: a total of 18 workers perform services in the company Metalúrgica Sarti, S.A. de C.V.; a total of five workers perform services for Reselcon, S.A. de C.V.; one worker performs services for the company Servicios Talsa, S.A. de C.V.; and a total of 16 workers perform services for the company Castillo’s Rent Car, S.A. de C.V. From the foregoing it can be inferred that as only the company Metalúrgica Sarti, S.A. de C.V. is engaged in the metal engineering industry, the number of workers required by article 211 of the Labour Code is reduced to 18 founder members, and it is therefore not admissible to grant legal personality to the prospective trade union.
105. 471. In addition, the complainant states that the refusal to grant legal personality to the SITRASAIMM and SITRASSPES trade unions is a violation of the ILO Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). There is no doubt whatsoever that this assertion has no legal basis, since El Salvador has not yet ratified the Convention concerned or the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), for which reason these are not at present laws of the Republic. Nevertheless, national law recognizes the right of association in the broad sense and the right to organize and collective bargaining of private employers and workers and workers in official autonomous institutions.
106. 472. With respect to the Hermosa Manufacturing case, it should be explained that the company has ceased operations indefinitely, for which reason some workers decided to initiate the corresponding labour proceedings. Despite this, every effort was made by the Ministry of Labour through the various inspections and conciliation proceedings between workers and the employer to investigate and seek agreement on the company’s failure to implement labour rights.
107. 473. With regard to the 64 workers mentioned by the complainant, the Government asks that the complainant should provide the names of all and each of them, and the dates of the dismissals as better evidence of its observations.
108. 474. On the CMT, S.A. de C.V. case, the Government reports that the employer considered that the measures taken by the workers and trade union officials in taking over the installations of the company’s plant causing disruption to it, and the insults proffered against the employers’ representatives, were due cause for holding their personal contracts of employment terminated. Despite this, the workers and trade union officials, relying on article 248 of the Labour Code, requested the intervention of the Labour Inspectorate to bring about the reinstatement in their jobs and payment of wages not paid for reasons imputable to the employer. In that regard, the Labour Inspectorate carried out the requested inspections and ordered the reinstatement of the workers in their jobs and the immediate payment of the wages not paid for reasons imputable to the employer. However, the employer’s side refused to rectify the violations specified, adding that they were unaware that the dismissed workers had the status of trade union officials. However, the Ministry of Labour will continue to seek the reinstatement and payment of wages not paid for reasons imputable to the employer, by pursuing the appropriate industrial proceedings. The Government will continue to report on the results of the respective court proceedings and the proceedings undertaken at administrative level.
109. 475. As regards the cases of violation of the labour rights of the worker founders of SITRASSPES, the Government reports on their employment situation as follows:
110. – Mr. Juan Vidal Ponce: the employing company, SSASE, S.A. de C.V., paid him the wages not paid for reasons imputable to the employer, but he was not reinstated, for which reason he is pursuing proceedings for imposition of a fine on the company;
111. – Mr. Wilfredo Rivas Argueta: his reinstatement by the company COPROSE, S.A. de C.V. was achieved, and he was paid the wages unpaid for reasons imputable to the employer;
112. – with respect to the cases of the workers Santiago Sion and Raúl Deleón Hernández, both from the company Guardianes, S.A. de C.V., the relevant inspection was carried out and it was found that they had indeed been transferred to a different place to perform their services. The employer was therefore given a deadline to remedy the violation. In the light of the foregoing, the result of the reinspection will be reported when it has taken place;
113. – Mr. Nicolás Pineda Escobar, was successfully reinstated, but payment of wages unpaid for reasons imputable to the employer is outstanding;
114. – in the case of Carlos Antonio Cushco Cruzna and Ricardo Hernández Cruz, after reviewing the record of complaints, it was found that no proceedings or action had been taken at their request, although both work for the company Guardianes, S.A. de C.V.
115. 476. Finally, the Government refers to the allegations that the workers Francisco Samuel Romero Beltrán, Salvador González Aguilar, Vicente Ramos Escobar, Carlos Antonio Nerio Hernández, Marcelino Arquel, Franco Valle, José Antonio Serrano Rivera, José Emilio Urbina, José Miguel Amaya Chicas, José Amílcar Maldonado Castillo, were dismissed from their jobs because they were founder members of the Salvadorian Metal Engineering Workers’ Union (SITRASAIMM).
116. 477. The Government indicates in this respect that it should be taken into account that the dismissal of the workers in question predated the application for legal personality by the trade union to this Ministry, i.e. the dismissals of the workers took place during June 2005 and the trade union submitted the application for legal personality to the Ministry of Labour on 9 August 2005. This can be seen from the table annexed by the complainant which shows the names of the dismissed workers with the respective dates of dismissal.

C. The Committee’s conclusions

1. 478. The Committee observes that in the present complaints, the trade union organizations have submitted the following allegations: the refusal by the Ministry of Labour to grant legal personality to the Dockworkers’ Union of El Salvador (STIPES), the Salvadorian Metal Engineering Workers’ Union (SITRASAIMM) and the Private Security Workers’ Union of El Salvador (SITRASSPES), and reprisals for the formation of these trade unions (34 dismissals in the case of STIPES and two dismissals and five transfers in the case of SITRASSPES); dismissal of the official of the Education Workers’ Union of El Salvador (STEES), Mr. Alberto Escobar Orellana; dismissal of 64 members or officials of the trade union branch operating in the Hermosa Manufacturing company; and dismissal of seven trade union officials in the CMT clothing company, all members of the General Union of Seamstresses.
2. Refusal by the Ministry of Labour to grant legal personality to the trade unions STIPES, SITRASAIMM and SITRASSPES
3. 479. With respect to the granting of legal personality to STIPES, the Committee notes that according to a decision of the Ministry of Labour of 15 February 2005, this refusal was because the employers said that the founder members of the trade union were not employees and that employee status was a necessary legal requirement to form an industry trade union. The Committee notes that the complainant organizations highlight the fact that the trade union requested a revocation of the refusal to grant legal personality, indicating that the founders had a permanent employment relationship as can be shown by the fact that the various companies paid the trade union founders’ social security contributions (the complainant organization annexes the documents showing the social security affiliation of the 12 founders). The Committee also observes that in its reply the Government itself reported that the Labour Inspectorate sought voluntary correction of the labour offences found, with the object of achieving the reinstatement in their respective workplaces of the worker founders of STIPES; however, the Government recognizes that “the results were not positive”. The Committee concludes that the founders of STIPES possessed employee status and thus enjoyed the right to form the trade union of their choosing. In any case, the Committee recalls that even if such workers did not have a permanent employment relationship, for example if they had been independent workers, they would still have the right to form such organizations as they saw fit as can be seen from the following principles of the Committee:
4. – By virtue of the principles of freedom of association, all workers – with the sole exception of members of the armed forces and police – should have the right to establish and to join organizations of their own choosing. The criterion for determining the persons covered by that right, therefore, is not based on the existence of an employment relationship, which is often non-existent, for example in the case of agricultural workers, self-employed workers in general or those who practise liberal professions, who should nevertheless enjoy the right to organize.
5. – All workers, without distinction whatsoever, whether they are employed on a permanent basis, for a fixed term or as contract employees, should have the right to establish and join organizations of their own choosing [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, paras. 235 and 236].
6. 480. In these circumstances, the Committee urges the Government to grant legal personality to STIPES without delay and firmly trusts that the Ministry of Labour will allow the appeal against the decision of the Ministry of Labour refusing such legal personality. The Committee requests the Government to keep it informed in this regard.
7. 481. As regards the refusal by the Ministry of Labour to grant legal personality to SITRASSPES, the Committee notes the Government’s assertions that: (1) private security workers are issued with firearms and other weapons while article 7, paragraph 3, of the Constitution of the Republic expressly prohibits the existence of armed groups of a trade union character; and (2) article 221 of the Labour Code prohibits trusted employees from belonging to a trade union and workers in private security firms have a dual function of trust (to the employers and the persons to whom they provide their services).
8. 482. The Committee wishes to recall that it examined these arguments in practically identical terms in a previous case on the right of workers in private security firms to belong to a trade union [see 333rd Report, Case No. 2299 (El Salvador), paras. 543-564]. On that occasion, the Committee formulated the following conclusions and recommendations [see 333rd Report, paras. 561-562]:
9. With regard to the alleged denial of legal personality for the private security agents’ trade union SITRASEPRIES, the Committee notes that the Government confirms the refusal of legal personality and indicates that it is examining the request by the complainant that this decision upholding refusal be revoked. The Committee notes the arguments put forward by the Government that, in its opinion, the granting of this legal personality would be illegal (the Constitution of the Republic – article 7 – prohibits the existence of armed groups, these are trusted employees and they may only join a trade union that has been established with workers of another kind who will accept them as members). The Committee notes in this respect that this constitutional provision should not prevent workers from carrying arms when this is necessary because of the nature of their work.
10. In this respect, the Committee recalls that, in accordance with the principles of freedom of association only the armed forces and the police can be excluded from the right to establish trade unions – which is a fundamental right. Consequently, all other workers, including private security agents should freely be able to establish trade union organizations of their own choosing. In these circumstances, the Committee believes that the denial of legal personality for the SITRASEPRIES trade union is a serious violation of freedom of association and it urges the Government to recognize this trade union and to keep it informed in this regard. …
11. 483. The Committee reiterates the abovementioned conclusions and urges the Government without delay to grant legal personality to SITRASSPES without delay and to give its firm undertaking that the Ministry of Labour will allow the appeal against the decision of the Ministry of Labour refusing such legal personality. The Committee requests the Government to keep it informed in this regard.
12. 484. As regards the refusal by the Ministry of Labour to grant legal personality to SITRASAIMM, the Committee notes the Government’s statements that the founders of the trade union sought to form an industry trade union but the companies in which they worked did not form part of the same business and article 209, paragraph (3), of the Labour Code, which defines industry trade unions in the following terms: “an industry trade union is formed by employers or workers belonging to companies dedicated to the same industrial, commercial, services, social or similar activities” limited the concept of industry trade union to a specific activity and not to a generic activity under the same heading. Moreover, according to the Government, only 18 of the 49 founder members belonged to a company engaged in the metal engineering industry (Metalúrgica Sarti, S.A. de C.V.), which did not reach the minimum number of workers required by the legislation. The other companies were engaged in the provision of certain services (advisory, consultancy and technical assistance, in production, quality control and marketing of all kinds of services), e.g. Servicios Talsa, S.A. de C.V., the performance of commercial services and activities (advisory, consultancy and technical assistance, and import, export and marketing of agricultural and livestock products and other industrial articles or implements), e.g. Reselcon, S.A. de C.V. or have as their object “anything to do with imports and exports of motor vehicles and provision of motor repair services”, e.g. Castillo’s Rent Car, S.A. de C.V.
13. 485. Furthermore, in the decision to refuse legal personality to the trade union it is indicated that, according to the companies concerned, ten of the 47 founders did not work in the companies concerned. This question appears to be related to the allegations of anti-trade union dismissals of SITRASAIMM founders (which are dealt with below in the section on allegations of dismissals), dismissals which could possibly have been invoked to argue that the trade union did not have the minimum number of workers required by the legislation.
14. 486. The Committee notes the assertions by the complainant organizations that: (1) article 209 of the Labour Code, in defining industry trade unions, includes the expression “and similar [activities]” and the Ministry of Labour chose to adopt a narrow meaning which discriminated against the SITRASAIMM trade union while the expression concerned implies a broader meaning relating to the classification of industrial activities even when the specific activities carried on by the various companies forming part of a given industrial branch are different; and (2) all the worker founders of SITRASAIMM work in companies in the metal engineering industry.
15. 487. The Committee observes that the definition of industry trade union in article 209 of the Labour Code is subject to different interpretations by the Government and the complainant organizations. Taking into account the Government’s assertions that certain companies do not belong to the metal engineering industry, the Committee requests the complainants to provide their comments in this regard and to clarify the status of metal engineering worker of each of the founders of SITRASAIMM (except those of Sociedad Metalúrgica Sarti, S.A. de C.V. whose metal engineering status is recognized by the Government). The Committee requests the Government to inform it of the result of the administrative appeal by SITRASAIMM against the refusal to grant legal personality.
16. 488. More generally, at least two of the three cases involving refusal of legal personality show clearly that the law must be reformed such that the right of trade unions to establish and to join organizations of their own choosing and the right to appropriate and effective protection from acts of anti-trade union discrimination are recognized without any greater limitations than those envisaged in the principles of freedom of association (which refer to the armed forces and the police). The Committee reminds the Government that ILO technical cooperation is available to it for the preparation of future trade union legislation. The Committee considers that, among other things, the new legislation should guarantee that proceedings on the case of anti-trade union discrimination should be rapid and effective, and should avoid the Ministry of Labour informing the employer of the names of founders of a trade union asking the employer to state whether or not they are employees. This type of check should be carried out in another way, for example by requiring companies to provide the Ministry of Labour with the full list of workers on its payroll so that it can check whether or not the founders are employees.
17. Dismissals and transfers of founders of the trade
18. union organizations STIPES, SITRASAIMM and SITRASSPES and dismissals of other trade unionists
19. 489. The Committee notes that the complainant organizations allege: (1) 34 dismissals of founders of STIPES, who are mentioned by name; (2) 11 dismissals of founders of SITRASSAIMM; (3) two dismissals and five transfers of founders of SITRASSPES; (4) the dismissal of the STEES trade union official, Mr. Alberto Escobar Orellana; (5) the dismissal of 64 members of the Hermosa Manufacturing company (seven of them trade union officials) with the intention of eliminating the trade union branch in the company; and (6) the dismissal of seven trade union officials in the General Union of Seamstresses (SGC) branch in the CMT clothing company.
20. 490. The Committee notes the Government’s statements that: (1) the Ministry of Labour conducted five inspections in the companies to which the founders of STIPES belonged, urging the reinstatement of the dismissed workers and payment of wages unpaid for reasons imputable to the employer but without positive results; proceedings for the imposition of fines were then initiated, of which the Committee will be kept informed; reinstatement is not provided for in the Labour Code but workers may apply to the courts to enforce unfulfilled labour rights; (2) the Ministry of Labour succeeded in obtaining the reinstatement in their jobs of the founders of SITRASSPES, Wilfredo Argueta Rivas (who had been dismissed) and Nicolás Pineda (who had been transferred); Juan Vidal Ponce (who had been dismissed) was paid his wages which had not been paid for reasons imputable to the employer, but he was not reinstated because proceedings for imposition of a fine were pending; with respect to Santiago Sion and Raúl Deleón Hernández the company was given a deadline to transfer these workers back to the place where they had previously worked; Carlos Antonio Cushco Cunza and Ricardo Hernández Cruz did not submit any application to the Ministry of Labour concerning their alleged transfer but continue to work for the same company; (3) the founders of SITRASAIMM were dismissed according to the allegations on 30 June 2005, while the application for the grant of legal personality to the trade union was submitted on 9 August 2005 (the Government does not send information on the alleged dismissal of Manuel de Jesús Ramírez and Israel Ernesto Avila dismissed on 1 September 2005); (4) the Ministry of Labour considered that the trade union official of STEES, Mr. Alberto Escobar Orellana had been unfairly dismissed, in violation of articles 248 and 229(2), of the Labour Code, but the employer neither remedied the offence nor paid the salary unpaid for reasons imputable to the employer; therefore proceedings for imposition of a fine were pending, of which the Committee would be kept informed. The Government indicates that the Ministry of Labour had urged the reinstatement of the worker and payment of the salary.
21. 491. As regards the dismissal or transfer of founders of STIPES, SITRASAIMM and SITRASSPES, the Committee observes that article 248 of the Labour Code provides as follows:
22. Members of executive committees of trade unions with legal personality or in the process of obtaining such legal personality may not be dismissed, transferred or subject to a worsening in their conditions of work, nor suspended for disciplinary reasons during the period of their election and term of office; and until after one year from having ceased their functions, other than for just cause as previously determined by the competent authority .
23. The protection to which the previous paragraph refers shall commence from the date on which the founders apply to the administrative authority for the purpose of registering the trade union.
24. The guarantee established in paragraph one also protects:
25. (a) promoters of the formation of a trade union, for the period of 60 days from the date on which the National Department of Social Organizations in the Ministry of Labour and Social Security at their request notifies the employer or employers of their appointment. (...)
26. 492. Furthermore, and in general, the Committee recalls that no person shall be prejudiced in his employment by reason of his trade union membership or legitimate trade union activities, whether past or present [see Digest, op. cit., para. 690] and that the necessary measures should be taken so that trade unionists who have been dismissed for activities related to the establishment of a union are reinstated in their functions, if they so wish [see Digest, op. cit., para. 757]. In addition, taking into account the content of article 248 of the Labour Code of El Salvador, transcribed in the previous paragraph, and the refusal of certain companies to correct infringements of freedom of association despite the calls of the Ministry of Labour, the Committee points out that the existence of legislative provisions prohibiting acts of anti-union discrimination is insufficient if they are not accompanied by efficient procedures to ensure their implementation in practice [see Digest, op. cit., para. 742].
27. 493. In these circumstances, the Committee urges the Government to continue, as it has been doing up to now, to seek the reinstatement of the 34 founders of STIPES, the founder of SITRASSPES, Mr. Juan Vidal Ponce and the trade union official of STEES, Mr. Alberto Escobar Orellana, and to inform it of the result of the proceedings for the imposition of a fine undertaken by the Ministry of Labour. The Committee also requests the Government to continue to seek the transfer of Santiago Sión and Raúl Deleón Hernández, founders of SITRASSPES, to the posts which they previously occupied in their companies and suggests to the complainant organizations that they invite Mr. Carlos Antonio Cushco Cunza and Mr. Ricardo Hernández Cruz, also founders of SITRASSPES, to lodge a complaint about their alleged transfer with the Ministry of Labour so that it can take action in their case.
28. 494. The Committee requests the complainant organizations to submit their comments on the Government’s statement that nine of the founders of SITRASAIMM were dismissed in June 2005 while the trade union’s application for legal personality was submitted on 9 August 2005, thus suggesting that those dismissals were not related to the formation of the trade union. The Committee requests the Government to send its observations on the alleged dismissal of the founders of SITRASAIMM, Mr. Manuel de Jesús Ramírez and Mr. Israel Ernesto Avila on 1 September 2005, i.e. after the application for legal personality submitted by the founders of the trade union.
29. 495. As regards the dismissal of 64 trade unionists in the Hermosa Manufacturing company (among them seven trade union officials designated by name), the Committee notes the Government’s statements that the company has ceased operations indefinitely and that the Ministry of Labour is taking steps and carrying out inspections to investigate and try to reach agreement on the failure to implement labour rights. The Committee requests the Government to ensure that those dismissed receive all the legal compensation due and invites the complainant organizations, as requested by the Government in its reply, to communicate the names of the 57 trade unionists to which the complaint refers (the names of the seven officials are already given in the allegations).
30. 496. As regards the alleged dismissal of seven trade union officials in the CMT clothing company branch of the SGC, the Committee notes that the Labour Inspectorate has sought the reinstatement of the dismissed workers and payment of wages unpaid for reasons imputable to the employer. The Committee requests the Government to continue seeking the reinstatement of the seven trade union officials and payment of the wages due.
31. 497. The Committee requests the Government to send its observations on the communication of FENASTRAS dated 28 April 2006 relative to the legal personality of the SITISPRI trade union.