Definitive Report - Report No 362, November 2011

1. 601. The Committee last examined this complaint at its June 2011 meeting [see 360th Report, approved by the Governing Body at its 311th Session (June 2011), paras 612–619].
2. 602. The Government sent new observations in a communication dated 13 May 2011. In a communication dated 9 August 2011, the International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers’ Associations (IUF) supported the complaint of the complainant federation (FESTSSABHRA).
3. 603. 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. Previous examination of the case

1. 604. At its June 2011 meeting, the Committee made the following recommendations on the issues that were still pending [see 360th Report, para. 619]:
2. – As regards the allegations of anti-union dismissal of Ms Berta Aurelia Menjivar (founder member of the trade union branch), and of Mr Joaquín Reyes (member and former union official), Mr José Antonio Valladares Torres and Mr Roberto Carlos Hernández (union officials), and non-payment of wages owed to them, the Committee requests the Government to keep it informed of the final outcome of the legal proceedings against Mr José Antonio Valladares Torres and to send a copy of the court rulings already given regarding the other union officials concerned.
3. – Concerning the alleged intimidation against trade unionists, in particular the stationing inside the plant of armed guards who called on workers not to join the SGTIPAC, the Committee requests the Government to conduct an investigation without delay into these allegations and to keep it informed of the final outcome.
4. – As regards the alleged recognition as a legal entity of a trade union (the Union of Workers of Calvoconservas El Salvador SA de CV) within the company, comprising company heads and trusted individuals, as well as the negotiation of a collective agreement between that union and the company, the Committee once again requests the Government to conduct an investigation without delay into these allegations and to keep it informed of the final outcome.
5. – The Committee requests the Government to obtain information on the pending questions through the employers’ organization concerned.
6. B. New reply from the Government
7. 605. In its communication dated 13 May 2011, the Government states with regard to the alleged dismissals that with respect to the individual labour case brought by Ms Berta Aurelia Menjívar (founding member of the trade union branch) against Calvoconservas El Salvador SA de CV, the First Labour Court of San Salvador, in a ruling issued at 9.15 a.m. on 5 July 2007, acquitted Calvoconservas El Salvador SA de CV. Ms Berta Aurelia Menjívar was claiming compensation for wrongful dismissal and for holiday pay, bonus entitlement and overdue wages corresponding to the first two weeks of February 2007. The above ruling was appealed by the complainant Ms Berta Aurelia Menjívar, and the case was consequently brought before the First Appeal Chamber of the Labour Court of San Salvador, which upheld the ruling (mentioned above), namely, it cleared Calvoconservas El Salvador SA de CV of having to pay Ms Berta Aurelia Menjívar compensation for wrongful dismissal and other employment benefits (the Government attaches copies of the rulings).
8. 606. With respect to the individual labour case brought by Mr Roberto Carlos Hernández (trade union official) against Calvoconservas El Salvador SA de CV, the Government states that the Fourth Labour Court of San Salvador, in a ruling issued on 24 September 2007, cleared Calvoconservas El Salvador SA de CV of the complaint filed against it by the worker Mr Roberto Carlos Hernández, relating to the payment of a benefit equivalent to salaries that had remained unpaid for reasons attributable to the employer. The abovementioned ruling was challenged by Mr Roberto Carlos Hernández, who filed an appeal before the Second Appeal Chamber of the Labour Court of San Salvador, which upheld the ruling under appeal, in other words, it absolved the Calvoconservas El Salvador SA de CV enterprise of the payment of compensation for wrongful dismissal and other employment benefits (the Government attaches copies of the rulings).
9. 607. In the case of Mr José Joaquín Reyes (member and former union official), the Government reports that, in accordance with the labour inspection report dated 15 June 2007, Mr José Joaquín Reyes signed a severance document dated 15 March 2007, terminating his temporary employment contract with the Calvoconsignataria Centroamericana SA de CV enterprise, exonerating the enterprise from any labour-related claims, as was indicated in paragraph 3 of the note dated 28 May 2009 (the Government attaches a copy of the inspection report).
10. 608. Concerning the final outcome of the legal proceedings brought before the civil court of La Unión by the Calvoconservas El Salvador SA de CV enterprise against Mr José Antonio Valladares Torres, the Government reports that on 20 October 2009, the court in question issued a final ruling, dismissing the petition for the termination of the individual employment contract between the Calvoconservas El Salvador SA de CV enterprise, represented by Mr Miguel Ángel Peñalva Arigita, and the worker Mr José Antonio Valladares Torres, on the grounds that the latter enjoyed trade union immunity. In that respect, the court ordered that the worker should continue working in the plaintiff enterprise. The ruling was implemented on 14 December 2009, in the absence of any appeals (the Government attaches a copy of the ruling).
11. 609. As regards the recommendation “(b) Concerning the alleged intimidation against trade unionists, in particular the stationing inside the plant of armed guards who called on workers not to join the SGTIPAC, the Committee requests the Government to conduct an investigation without delay into these allegations and to keep it informed of the final outcome”, the Government reports that, on 14 December 2010, the special unit on gender and the prevention of discrimination in respect of employment of the labour authority carried out an inspection to verify the situation; during the inspection, workers of the Calvoconservas El Salvador SA de CV enterprise were interviewed, and they indicated that there were no acts of intimidation against unionized workers and that the enterprise in question had not employed security guards who were stationed as armed guards inside the plant. Also interviewed during the inspection was worker and union official, Ms Vilma Yamilet Ramos Fuentes, minutes and agreements secretary of the union (SGTIPAC), who confirmed that there had been no security guards in that enterprise and that the unionized workers were not subjected to any form of intimidation (the Government encloses a copy of the inspection report).
12. 610. With regard to the recommendation relating to the Union of Workers of Calvoconservas El Salvador SA de CV (STECCESSACV) (the text of the recommendation was as follows: “As regards the alleged recognition as a legal entity of a trade union (the Union of Workers of Calvoconservas El Salvador SA de CV) within the company, comprising company heads and trusted individuals, as well as the negotiation of a collective agreement between that union and the company, the Committee once again requests the Government to conduct an investigation without delay into these allegations and to keep it informed of the final outcome”), the Government states that it acknowledges the omission by the State of El Salvador with regard to the repeated observations that the Committee on Freedom of Association has issued on this matter to the Government of El Salvador since 2007, when the complaint was presented, and wishes to inform the Committee that it recognizes its legal and moral obligation to reply to the observations made by the Committee on Freedom of Association. In this regard, the new administration, which came into office in 2009, broadened the investigation and confirms the following information, on the basis of the existing records and archives:
13. – With regard to the recognition of the trade union STECCESSACV as a legal entity, the Government reports that although, under section 213, paragraph (a), of the Labour Code, the constituent act of a trade union must indicate, among other things, “the activity that they carry out and that forms the basis of the relationship”, the constituent act of the STECCESSACV omitted this information, which the Ministry of Labour should have asked for at the time, in 2007, in order to prevent the establishment of employer-controlled trade unions, made up of company chiefs and trusted staff. The certification issued by the Calvoconservas El Salvador SA de CV enterprise, recognizing the employee status of the 40 founding members of the STECCESSACV, does not specify the activities or positions of the 40 workers or their relationship with the enterprise. Despite this, on 3 July 2007, the STECCESSACV was granted legal personality.
14. – The omission of this requirement and the late submission, on 26 March 2008, of the request by the Second Disputes Secretary of the SGTIPAC to the then Director General of Inspection for an inspection suggests that it is most likely that the General Labour Directorate of this State department, between the time that “the request” for legal personality was filed and the time that such personality was “granted”, on 3 July 2007, had no evidence that the union in question was made up of workers, managers and trusted staff of the Calvoconservas El Salvador SA de CV enterprise. Unfortunately at the time, in 2008, no action was taken in response to this inspection request, thus affecting the right to freedom of association and specifically the right to adequate protection against any act of interference, as described in Article 2 of ILO Convention No. 98.
15. – The Government adds that, on 10 September 2009, Mr Daniel Ernesto Hernández Castillo, General-Secretary of the Union of Workers of the Food Processing Industry (SITIPA), submitted to the General Labour Inspection Directorate a request for inspection into the “operation of the STECCESSACV”, which was “allegedly” composed of chiefs, trusted staff and employer representatives of the Calvoconservas El Salvador SA de CV enterprise, and for coercing the union officials of the SITIPA, and workers in general, not to join the SITIPA. In response to this request, on 24 and 25 September 2009, the special unit for gender and the prevention of discrimination in respect of employment of this State department conducted an inspection in the Calvoconservas El Salvador SA de CV enterprise and found that the Calvoconservas El Salvador SA de CV enterprise had violated section 229, paragraph (ch), in conjunction with section 205, paragraphs (b) and (ch), of the Labour Code, and Article 2 of ILO Convention No. 98, by carrying out acts of indirect coercion, by allowing officials of the STECCESSACV to give new staff “a document to sign” at the time of their recruitment, in other words a STECCESSACV membership form. In the same inspection report, the labour inspector recommends that the enterprise should refrain from carrying out acts of indirect coercion and ensure that workers are entitled to join any of the three unions within the enterprise. In response to the request for inspection, on 11 November 2009, a further inspection was conducted, during which it was found that the violation of section 229, paragraph (ch), in conjunction with section 205, paragraphs (b) and (ch), of the Labour Code and Article 2 of ILO Convention No. 98 “had been remedied, as acts of indirect coercion no longer took place, as the Calvoconservas El Salvador SA de CV enterprise was not allowing STECCESSACV officials to give membership forms to newly recruited staff” (as indicated in the abovementioned inspection report).
16. – On 5 May 2011, a further investigation was conducted at the Calvoconservas El Salvador SA de CV enterprise, to determine whether there were employer representatives and workers in positions of trust among the STECCESSACV founding members, as has been claimed by the SGTIPAC and the SITIPA. The results of this investigation are conclusive and confirm the claims made in 2007 and 2008, respectively, by the SGTIPAC and the SITIPA. This inspection revealed that, of the 40 founding members of the STECCESSACV, on 27 May 2007, five founding members were company chiefs, and 16 founding members held supervisory positions, and were presumably representatives of the employer under section 3 of the Labour Code. On the other hand, it is worth noting that Mr Salvador Augusto Escamilla Fuentes was not serving as a chief or supervisor but as an electrician, but with a monthly salary of US$1,050.15, as was the case with Ms Nidia Armida Cruz de Álvarez, who, even though she clearly is neither a chief nor a supervisor, receives a monthly salary of US$900.15, well above the US$195.00 monthly salary paid to operators at the time of the establishment of the STECCESSACV. It should also be noted that the Calvoconservas El Salvador SA de CV enterprise agreed that the STECCESSACV could provide membership forms to newly recruited staff as noted during the inspection conducted on 24 and 25 September 2009. There is no doubt that these are acts of interference by the Calvoconservas El Salvador SA de CV enterprise. In this respect, paragraph 858 of the Digest of decisions and principles of the Freedom of Association Committee of the Governing Body of the ILO, holds that “as regards allegations of anti-union tactics in the form of bribes offered to union members to encourage their withdrawal from the union and the presentation of statements of resignation to the workers, as well as the alleged efforts made to create puppet unions, it considers such acts to be contrary to Article 2 of Convention No. 98, which provides that workers’ and employers’ organizations shall enjoy adequate protection against any acts of interference by each other or each other’s agents in their establishment, functioning or administration.” Given this situation, the Government informs the Committee on Freedom of Association that, as a new administration, it acknowledges the violation by the Government of El Salvador, in 2007 and 2008, of the right to freedom of association recognized by the Constitution of the Republic, and of ILO Conventions Nos 87 and 98, on the grounds that it did not demand that the constituent act of the STECCESSACV provide details of the post or activity that the 40 founding members of the union in question carried out for the Calvoconservas El Salvador SA de CV enterprise, a situation that led to the granting of legal personality to a trade union that had over 25 per cent of members with employer representation functions. It should be noted, furthermore, that, in less than three months, a collective labour agreement was negotiated with the STECCESSACV, which is the party to that contract, a situation that complicates this situation given that, by law, there can be only one collective labour agreement per enterprise. This situation could be rectified by establishing an allied agreement the next time the collective agreement is reviewed, to somehow restore the spirit of the original collective labour agreement. With regard to the collective agreement, the Government states that, in accordance with File No. 12 of 2007, which was processed in the Department of Collective Labour Relations of the General Labour Directorate, the process of negotiating the collective agreement began on 22 September 2007, and ended on 11 November 2007, as part of the direct negotiation stage, in which the current Ministry did not intervene at all.
17. – In conclusion, the Government states that, by decision of 7 February 2008, the General Labour Directorate dismissed the application for the conclusion of a collective labour agreement submitted by Mr Alexander Reyes, Secretary-General of the SGTIPAC, for being inadmissible on the grounds that, pursuant to paragraph 4 of section 272 of the Labour Code, “in an enterprise there can only be one collective labour agreement, whose provisions shall apply to all employees of the enterprise who have subscribed to it, even if they do not belong to the contracting union, as well as to workers who join the enterprise during the period when the collective labour contract or agreement is in force.”
18. – Finally, the Government considers that it has complied with the recommendations made by the Committee on Freedom of Association and requests that the present case be treated as closed.

C. The Committee’s conclusions

1. 611. The Committee observes that the pending issues refer to allegations of anti-union dismissals at the Calvoconservas El Salvador SA de CV enterprise and the establishment of a trade union within the enterprise made up of staff in positions of trust and executive posts.
2. 612. With respect to the pending allegations of dismissals of union officials, the Committee notes that on 15 March 2007, the trade union member and former union official, Mr José Joaquín Reyes, signed a severance document for the liquidation of benefits due, which served as a voluntary termination of the employment contract that bound him to the enterprise, freeing it of any claim. The Committee also notes, with interest, that according to the Government, in accordance with a judicial ruling (that the Government encloses), the enterprise reinstated the union official, Mr José Antonio Valladares Torres, in his post on the grounds that he could not be dismissed on account of his trade union immunity.
3. 613. With regard to the request made during the previous examination of the case to provide the text of the rulings relating to other trade union members, the Committee notes the Government’s indication that the first instance and appeal rulings that it provides, concerning Ms Berta Aurelia Menjívar (founding member of the trade union branch) and Mr Roberto Carlos Hernández (union official), absolved the enterprise of the payment of compensation for wrongful dismissal and other employment benefits. The Committee observes that it appears from the rulings handed down concerning Ms Berta Aurelia Menjívar (founding member of the trade union branch, according to the allegations) that this trade union member did not ask to be reinstated but rather requested the payment of compensation for wrongful dismissal, which was denied as she was unable to directly prove her dismissal (the only thing that was proven, on the basis of witness statements, was that she worked for more than two days, in a relationship of subordination, for the enterprise and that there was no evidence of a written contract); in any event, Ms Berta Aurelia Menjívar did not lodge her appeal within the legally stipulated period of 15 days following the alleged dismissal. As for the rulings relating to Mr Roberto Carlos Hernández (union official, according to the allegations), it appears from the rulings that this union official did not ask to be reinstated, but instead requested the payment of wages that had not been paid for reasons attributable to the employer; the ruling upholds the fact that the parties were bound by an employment relationship and that Mr Roberto Carlos Hernández had the status of trade union official, but does not uphold the dismissal (allegedly on 29 March 2007) and notes that the legal action was not lodged within the legally stipulated time frame. Taking account of these rulings and the fact that the alleged acts date back to 2007, the Committee will not pursue its examination of these allegations.
4. 614. Concerning the alleged intimidation against trade unionists, in particular the stationing inside the plant of armed guards who called on workers not to join the SGTIPAC, the Committee had requested the Government to conduct an investigation without delay into these allegations and to keep it informed of the final outcome. The Committee notes that in compliance with this recommendation the Government ordered an inspection of the enterprise in December 2010, which found that the SGTIPAC trade union officials and workers denied the presence of guards or of intimidation against workers or trade unionists. Given these circumstances, and unless the complainant organizations provide additional information on the subject, the Committee will not pursue its examination of these allegations.
5. 615. As to the inquiry requested by the Committee into the alleged recognition as a legal entity of a trade union (the Union of Workers of Calvoconservas El Salvador SA de CV) within the company, comprising company chiefs and trusted individuals, as well as the negotiation of a collective agreement between that union and the company, the Committee notes the Government’s statements, following the corresponding investigation, to the effect that: (1) according to the allegations, five founding members of the STECCESSACV had the status of company chiefs and 16 founding members were supervisors, which is why, under prevailing legislative provisions, they were representatives of the employer; (2) the enterprise agreed that this trade union could provide membership forms for new staff, which constitutes an act of interference committed by the enterprise in violation of ILO Conventions Nos 87 and 98. This is the responsibility of the former Ministry, which granted legal personality to a union that had over 25 per cent of members with employer representation functions, which led to the union in question negotiating a collective agreement; (3) this complicates the situation, as under prevailing legislation there can only be one collective agreement that applies to all workers; (4) consequently, the collective agreement request submitted by the representatives of the other trade union (SGTIPAC), the complainant organization in the present case, was not declared admissible; (5) the next time the collective agreement is reviewed this situation can be rectified by establishing an allied agreement (between trade unions) in order to achieve a true collective agreement. Under these circumstances, the Committee requests the Government to ensure that unions with a substantial membership with employer representation functions should not be able to engage in collective bargaining on behalf of the other workers.