Effect given to the recommendations of the committee and the Governing Body - Report No 349, March 2008

Effect given to the recommendations of the Committee and the Governing Body

1. 101. The Committee last examined this case at its June 2007 meeting, when it made the following conclusions and recommendations concerning alleged anti-union acts carried out by the company Servicios San José SA de CV against officials and members of the union (SETRASSAJO) [see 346th Report, paras 927 to 929]:
   • – The Committee further notes the Government’s statement that the SETRASSAJO did not report the alleged persecution to the labour inspectorate and that the administrative authority’s actions were therefore restricted to conciliation with respect to the dismissal of the trade union officials and the 11 members, namely, endeavouring to get them reinstated. The Committee also notes that the Government adds that the SETRASSAJO finally reported the events to the special unit on gender and the prevention of discrimination in respect of employment and that, as the company is refusing to reinstate the dismissed officials and members, the sanctioning process has begun to impose a fine on the company.
   • – The Committee observes that these are serious allegations of anti-union acts committed against a trade union executive committee and 11 of its members for legitimately exercising their trade union activities; the acts include dismissals, threats, pressure and the alleged continual changing of the company’s name to prevent the formation of trade unions. The Committee recalls, first, that, under Article 2 of Convention No. 87, recently ratified by El Salvador, workers, without distinction, shall have the right to establish or join trade union organizations of their own choosing, and that no person should be dismissed or prejudiced in employment by reason of trade union membership or legitimate trade union activities, and it is important to forbid and penalize in practice all acts of anti-union discrimination in respect of employment [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 771]. Taking into account the Government’s statement that it has started the sanctioning process against the company, with the intention of imposing a fine on it because of its refusal to reinstate the dismissed workers, the Committee requests the Government to take the necessary measures so that the sanctions imposed in this process are sufficiently dissuasive to ensure that the company allows its workers to freely exercise their trade union rights by putting an end immediately to all anti-union acts against the officials and members of the SETRASSAJO and by reinstating them without delay, and paying the wages they are owed and appropriate compensation. The Committee requests the Government to keep it informed on this matter.
   • – The Committee urges the Government to ensure that an independent investigation is carried out without delay into the allegations of assaults on SETRASSAJO workers by the company’s private security services and into the alleged death threats used to urge workers to resign from their trade union. The Committee requests the Government to take measures to punish those guilty of the assaults and to provide protection to the threatened workers.
2. 102. In its communication dated 31 August 2007, the Government states that under the sanctioning process the company Servicios San José SA de CV was fined US$550, namely US$50 for each of the 11 violations of section 248 of the Labour Code, by having dismissed 11 workers who were union officials. With regard to the Committee’s recommendation that the sanctions imposed should be sufficiently dissuasive, section 627 of the Labour Code clearly establishes that those guilty of Labour Code violations that do not have a specific penalty shall be fined up to US$57.14 per violation, with the amount of the fine depending on the seriousness of the violation and the financial resources of the offender. The legally appropriate sanction was therefore imposed in this case. Furthermore, the unionized workers continue to receive the wages that had not been paid for reasons imputable to the employer, in the same amount and manner as when they were performing their duties.
3. 103. With regard to the Committee’s recommendation that an independent investigation should be carried out without delay into the alleged assaults on SETRASSAJO workers by the company’s private security services and into the alleged death threats used to urge workers to resign from their trade union, the Government recommends that the workers concerned lodge a complaint with the Attorney-General’s Office without delay so that an investigation is launched to identify those responsible and criminal proceedings initiated, given that these allegations were made at the request of the plaintiff.
4. 104. The Committee notes that, according to the Government, the dismissed union officials continue to receive their wages and the company Servicios San José SA de CV was fined US$550. The Committee reiterates its previous recommendation that these union officials be reinstated without delay and paid outstanding wages (until the date of their reinstatement) and appropriate compensation. The Committee requests the Government to keep it informed on this matter and, in consultation with workers’ and employers’ organizations, to increase the legally recognized fines for violations of trade union rights. The Committee recalls that it has already pointed out that the exercise of trade union rights – whether the right to establish trade union organizations or the right to adequate and effective protection against acts of anti-union discrimination – is guaranteed neither by the legislation, whose fines do not appear to have any dissuasive effect, nor in practice. The Committee reminds the Government once again that it may avail itself of ILO technical cooperation for preparing future trade union legislation that has procedures for dealing with anti-union discrimination which are rapid and effective and provide for sufficiently dissuasive sanctions. On the other hand, with regard to the alleged assaults on SETRASSAJO workers by the company’s private security services and the alleged death threats used to urge workers to resign from their trade union, the Committee requests the complainants to advise the workers concerned – as suggested by the Government – to lodge a complaint with the Attorney-General’s Office without delay in order to punish those guilty of carrying out these assaults and threats and to protect the threatened workers.
5. 105. The Committee requests the Government to keep it informed of developments on these issues.