Report in which the committee requests to be kept informed of development - Report No 380, October 2016

1. 409. The complaint is contained in communications dated 4 May and 20 July 2015 from the Union of Health Workers (SITRASALUD).
2. 410. The Government sent its observations in a communication dated 26 May 2016.
3. 411. El Salvador has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), the Workers’ Representatives Convention, 1971 (No. 135), and the Labour Relations (Public Service) Convention, 1978 (No. 151).

A. The complainant’s allegations

1. 412. In its communications of 4 May and 20 July 2015, the Union of Health Workers (SITRASALUD) denounces the refusal of the authorities to register a branch of the union, to authorize a reform of the union’s constitution changing the status of the organization and to register its executive committee, and also reports the detention of a trade unionist and acts of anti-union discrimination.
2. 413. The complainant organization alleges that on 20 November 2014 it applied for registration of the executive committee of a branch of the trade union at the Dr José Molina Martínez National Psychiatric Hospital, with the aim of establishing a branch of SITRASALUD at the hospital. In reply to the application, the authorities called for the submission of copies of individual identity documents and payslips of the members of the branch. These documents were duly submitted (even though the complainant considered that these were unlawful requirements since they were not laid down in the union constitution or by law). Nevertheless, by a decision of 26 November 2014, the Labour Organizations Department at the Ministry of Labour and Social Welfare rejected the application for registration of the union branch with the observation that the members were public servants and there was no provision for establishing branches in public service unions or any possibility for unions of private-sector workers to have branches constituted by public servants.
3. 414. The complainant organization explains that, in view of the rejection of the application, the union’s general assembly approved a reform of the union constitution, agreeing to change the status of the union – from a union governed by the Labour Code to a union having public status. SITRASALUD adds that such reforms had been approved for other trade unions from 2009 with the entry into force of Conventions Nos 87, 98, 135 and 151 in El Salvador (the complainant supplies detailed information and documentation on the approval of these reforms and changes of status for other trade union organizations). However, the complainant reports that the Labour Organizations Department, by a decision of 23 April 2015, rejected its request to change its status. Further to this decision, the trade union lodged an appeal on 27 April 2015, alleging violations of the principle of equality and of freedom of association. Moreover, the complainant reports that the Ministry of Labour suggested that the complainant organization should dissolve itself and form a new union, whereas SITRASALUD considers it unacceptable that a request to reform its union constitution, which had been granted to other unions, was rejected.
4. 415. Furthermore, the complainant reports that on 14 July 2015 the Labour Organizations Department issued a decision rejecting the application for registration of the new executive committee of SITRASALUD, which had been elected by the general assembly that took place on 30 June 2015.
5. 416. With regard to allegations of anti-union discrimination, the complainant organization denounces the fact that in September 2014, after organizing trade union activity involving a four-hour cut in working hours in the administrative area of the national hospital in Suchitoto, the hospital director filed a complaint for deprivation of freedom against Ms Nora Samayoa, the general secretary of the union branch at the Suchitoto hospital. As a result of this complaint, the national civil police arrested and detained Ms Samayoa, who was subsequently released. The complainant also alleges that despite the fact that the Suchitoto Court of First Instance ordered a stay of proceedings in favour of Ms Samayoa, pay deductions were made on 16 February 2015 for the days when Ms Samayoa was in custody. The complainant further alleges that other illegal deductions were made from Ms Samayoa’s salary, with a double deduction for 14 January 2015 – the day when she was summoned by the Public Prosecutor’s Office on the grounds that she had failed to provide notification of her absence, though in fact she had done so, according to SITRASALUD.
6. 417. The complainant organization adds that since her release Ms Samayoa has been the victim of workplace harassment by the hospital director, claiming that the director refuses to grant her trade union leave, places notes on her file without bringing them to her attention or discussing them with her, makes the human resources staff draft notes containing untruths with regard to Ms Samayoa and publicly accuses the union and its officers of working against the institution. Furthermore, the complainant denounces the fact that Ms Samayoa was demoted in retaliation for holding trade union office.
7. 418. The complainant organization further alleges that since 13 March 2015 the general secretary of SITRASALUD, Ms Ana Silvia Navarrete de Cantón, has been subjected to workplace harassment on account of her union activity, being threatened with pay cuts and dismissal. The complainant indicates that in May 2015 a pay cut was made – even though she had submitted her work attendance cards and had been duly authorized to undertake union activities since 2009 – in violation of the agreements signed with the union, leaving her with a salary of only US$1.11.
8. 419. The complainant organization also alleges that officials in various departments of the Ministry of Health refuse to grant union leave to branch officers on the grounds that they lack the relevant credentials, whereas they have been denied these documents by the Ministry of Labour and Social Welfare.
9. 420. Lastly, the complainant organization alleges that on 3 June 2015 it requested the Minister of Health to grant leave to enable its members to attend the general assembly for the election of the executive committee on 30 June 2015 but that this had not been granted as of the date of presentation of the complaint.

B. The Government’s reply

1. 421. In its communication of 26 May 2016, the Government sent its observations in response to the allegations of the complainant organization.
2. 422. As regards the allegations of violation of freedom of association and discriminatory treatment in refusing to accept the reform of the union constitution and the change in the status of SITRASALUD, the Government admits that, while the Ministry of Labour and Social Welfare in previous years had allowed other trade unions (the General Union of Health Ministry Employees of El Salvador (SIGESAL), the Union of Nursing Professionals, Technicians and Auxiliaries of El Salvador (SIGPTESS), and the Rural, Urban and Peri-urban Education Teachers’ Union of El Salvador (SIMEDUCO)) to reform their rules and modify their class and status, in April 2015 it refused the request made by SITRASALUD to change its status from private to public. The Government explains that this decision was based on the finding that in the legal, institutional and jurisprudential context there was no possibility to modify the status of a trade union. The Government also states that the appeal against the decision was rejected by the Labour Organizations Department. Nevertheless, the Government explains that the rejection of the change in status – since it lay outside the scope of the applicable regulations – did not deprive the complainant of the possibility of satisfying its claim through other channels. Accordingly, the Government states that on 16 October 2015, SITRASALUD composed of public servants was established, and was granted legal personality by a decision of 7 December 2015. The Government also states that SITRASALUD of private status is maintained. The Government therefore considers that the complainant’s allegation is unfounded and also denies that the Ministry of Labour and Social Welfare suggested that the union should dissolve itself in order to establish a new union.
3. 423. The Government further indicates, in general terms, that after the reform of the National Constitution in 2009 – which recognized the right of freedom of association for public officials, public employees and municipal employees – the Government had the difficult task of adjusting the respective administrative procedures and, with a view to speeding up claims in the sector, the change of status from private to public was permitted between 2010 and 2014. The Government also states that the decision was taken to establish new institutional guidelines and criteria relating to the approval of reforms of trade union constitutions in order to ensure uniformity of reasoning in decisions issued by the Labour Organizations Department from 2015 onwards, the objective being to achieve consistency with the regulations in force and to uphold trade union rights.
4. 424. As regards the allegation of refusal to register the executive committee of the union branch at the Dr José Molina Martínez National Psychiatric Hospital requested in November 2014, the Government indicates that there is provision for the establishment of branches for private unions in enterprises but not for state institutions, since the collective rights of public servants do not cover this possibility. The Government explains that the registration of executive committees is a regulated function of the administration and not a discretionary act, and that the requirement to submit individual identity documents and payslips is not an arbitrary or illegal criterion but a mechanism for verifying compliance with the requirements laid down in the Labour Code.
5. 425. As regards the allegation of refusal to renew the executive committee of the complainant organization elected on 30 July 2015, the Government indicates that on 7 August 2015 the union submitted a request that was rejected when it proved to be a case of public servants who were members of a private union. The Government states that the “private” SITRASALUD nevertheless resolved the problem of lack of leadership by holding an extraordinary assembly on 15 December 2015 and submitting the relevant documentation to the Labour Organizations Department, which then registered the executive committee. The “public” SITRASALUD was established on 16 October 2015 and its executive committee was registered on 19 February 2016.
6. 426. As regards the alleged detention of Ms Samayoa, the Government indicates that, as the police record of 29 September 2014 shows, Ms Samayoa’s arrest was due to a complaint that she committed the offence of depriving the director of the national hospital of Suchitoto of her freedom. The Government explains that Ms Samayoa was released on 2 October 2014, four days after she was arrested, with the imposition of non-custodial measures obliging her to appear before the Court of First Instance and forbidding her to change residence during the proceedings or to communicate with certain persons, including the victim, except on work-related matters. The Government adds that a preliminary hearing was held on 16 February 2015, where a stay of proceedings in favour of Ms Samayoa was ordered, as a result of which the non-custodial measures were revoked – reserving for one year the prosecutor’s right to reopen the proceedings if fresh evidence emerged (the Government indicates that it was unaware of the latter scenario, since after one year a definitive acquittal would be issued where possible).
7. 427. As regards the allegations of anti-union discrimination, the Government states that, according to the information supplied by the director of the Suchitoto national hospital: (i) 43 members of SITRASALUD work at this institution and no complaints of any kind have ever been received; Ms Samayoa is the only person who has claimed to be a victim of harassment; (ii) the deductions from Ms Samayoa’s salary were justified and carried out in accordance with the national legislation; (iii) union leave could not be granted to Ms Samayoa since she did not submit any credentials issued by the Ministry of Labour and Social Welfare accrediting her as branch general secretary; (iv) as regards the notes placed on file, it is untrue that Ms Samayoa was not notified; and (v) as regards the allegations accusing the hospital director of drawing up notes containing untruths and publicly denigrating the union, the hospital director indicated that she was unaware of these accusations and claimed that there was no evidence in this respect. Furthermore, as regards the allegation of a double pay deduction imposed on Ms Samayoa – when she was summoned to the Public Prosecutor’s Office – the Government indicates that this was done in accordance with the national legislation since at no time did she report her absence or submit any documentation to justify it.
8. 428. As regards the allegation of pay deductions imposed on Ms Samayoa in relation to her four days in custody, the Government indicates that these were effected in accordance with the regulations in force, including article 203 of the Labour Code, which provides that “where non-attendance at work is due to detention of the worker by order of the authorities followed by legal proceedings in which a penalty is imposed, such non-attendance shall not be considered justified”.
9. 429. As regards the allegations of demotion of Ms Samayoa in retaliation for her trade union activities, the Government states that, by virtue of an inspection record issued by the Medical Profession Board of Control, it was established that Ms Samayoa was not authorized to undertake professional duties in the area of social work to which she was assigned. Consequently, the Medical Profession Board of Control, at its meeting of 9 November 2015, ordered the hospital management to assign Ms Samayoa to different duties.
10. 430. As regards the allegations of workplace harassment, threats and pay deductions relating to SITRASALUD general secretary, Ms Navarrete de Cantón, the Government indicates that, according to the information supplied by the Ministry of Health, there is no evidence of workplace harassment or threats against Ms Navarrete de Cantón and, since the complainant does not provide any details or identify any person(s) who supposedly carried out such actions, it is difficult to supply precise information in turn. As regards the allegation of unjustified deductions, the Government indicates that Ms Navarrete de Cantón brought a claim in October 2015 before the Civil Service Tribunal alleging unjustified pay deductions and a ruling was issued on 5 October 2015 dismissing the claim on the following grounds: it had been established that the deduction (relating to May 2015) was made on the basis of internal administrative procedures; the employee did not provide any credentials for the trade union office she claimed to occupy; she did not show that she had obtained any leave from the hospital director; and she failed to provide any justification for her absence from work in March, April and May 2015.
11. 431. As regards the allegation that leave was not granted to the officers of union branches, the Government indicates that for such leave to be granted the person concerned must make the relevant application accompanied by the credentials issued by the Ministry of Labour and Social Welfare. It is not possible for trade union leave to be granted without the person concerned formally accrediting his/her position as union officer; otherwise the authorities would risk a reprimand from the Court of Auditors for authorizing unjustified absences.
12. 432. As regards the allegation that leave was not granted for attending the ordinary general assembly for the election of the executive committee on 30 June 2015, the Government points out that the allegation is unfounded since by official communication of 22 June 2015 the Health Minister authorized paid leave for the members of SITRASALUD so that they could attend the general assembly (the Government forwards documents with the respective authorizations issued to the trade union and to the various hospitals concerned).

The Committee’s conclusions

1. 433. The Committee observes that the complaint is concerned with allegations of the Government’s refusal to register a branch of a trade union, to authorize a reform of the union constitution modifying its status and to register its executive committee, and also allegations of the detention of a trade union officer, refusal to grant trade union leave and anti-union discrimination against union officers.
2. 434. The Committee observes that the complainant organization denounces the Government’s refusal to register a trade union branch in November 2014, to approve the change in union status from private to public adopted by reform of its constitution in April 2015 and to register its executive committee in August 2015. While duly noting the difficulties faced by the complainant in this process of change and noting with regret the resulting temporary lack of leadership, the Committee also recognizes the problems indicated by the Government concerning the absence of legal mechanisms for changing organizational forms that are subject to different sets of regulations. The Committee appreciates that, according to the Government’s indications, the complainant’s wishes could nevertheless be satisfied through the establishment of a new union with the same name composed of public servants and that, also according to the Government’s indications, the current executive committees of both unions (public and private) are registered, and so the problem of lack of leadership appears to have been resolved. Moreover, the Committee notes the Government’s statement that it decided to adopt new institutional guidelines and criteria for approving reforms of trade union constitutions, with a view to ensuring consistency with current regulations and upholding trade union rights. The Committee expects that this process will be completed in consultation with the most representative organizations and will enable the issue of establishing branches in unions of public servants to be addressed, and also trusts that the adopted guidelines and criteria will be in full conformity with the principles of freedom of association. The Committee recalls that the right to official recognition through legal registration is an essential facet of the right to organize since that is the first step that workers’ or employers’ organizations must take in order to be able to function efficiently, and represent their members adequately (see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 295).
3. 435. The Committee observes that the complainant organization also denounces the detention of a trade unionist, her exposure to discrimination and harassment, and other acts of anti-union discrimination against union members and officers, including pay deductions and refusals of union leave.
4. 436. As regards the allegation of the detention of Ms Samayoa, the Committee observes that, according to the Government, the trade unionist was released four days after her arrest, on 2 October 2014, with the imposition of non-custodial measures, that on 16 February 2015 a stay of proceedings was ordered in favour of Ms Samayoa, as a result of which the aforementioned measures were revoked, and that since one year has elapsed since the stay of proceedings, a definitive acquittal should be issued.
5. 437. As regards the allegation of pay deductions imposed on Ms Samayoa in relation to her four days in custody, the Committee observes that one of the regulations cited by the Government to justify such deductions applies in the case of “legal proceedings in which a penalty is imposed” on the person concerned. The Committee requests the Government, in the case that the definitive acquittal of Ms Samayoa is confirmed, to provide information on reimbursement of the deduction corresponding to the period she spent in preventive custody.
6. 438. As regards the allegation of the anti-union demotion of Ms Samayoa, the Committee notes the explanations and documents supplied by the Government indicating that, as a result of the inspection proceedings conducted by the Medical Profession Board of Control at the hospital, establishing that this person did not have the necessary qualifications to perform the duties assigned to her, the Board ordered a change in her duties.
7. 439. As regards the other allegations of anti-union discrimination and harassment against Ms Samayoa, the Committee observes that there are discrepancies in the accounts of the facts provided by the complainant and the Government and that most of the declarations made by the Government to deny the allegations are based on information supplied by the hospital director, who was accused of carrying out these acts. The Committee therefore requests the Government to carry out an investigation to examine the allegations, inviting the complainant to provide the Government with any details and evidence at its disposal to facilitate the investigation. The Committee requests the Government to keep it informed in this respect.
8. 440. As regards the allegations of workplace harassment, threats and anti-union discrimination against SITRASALUD general secretary, Ms Navarrete de Cantón, the Committee notes the Government’s indications that it has no evidence of the foregoing and that the complainant’s allegations do not include precise details that make it possible to provide further information. The Committee invites the complainant organization to provide any details and evidence at its disposal relating to the allegations to enable the Government to conduct an investigation, failing which the Committee will not pursue its examination of this allegation.
9. 441. As regards the allegation of unjustified pay deductions imposed on the general secretary in May 2015, the Committee notes that, according to the information supplied by the Government, the Civil Service Tribunal considered that internal administrative procedures concerning deductions had been followed; that Ms Navarrete de Cantón did not provide any credentials for the trade union office she claimed to occupy; that she did not show that she had obtained any leave from the hospital director; and that she failed to provide any justification for her absence from work in March, April and May 2015. Should it not receive any specific additional information from the complainant, the Committee will not pursue its examination of this allegation.
10. 442. As regards the allegation that trade union leave was not granted for attendance at the general assembly of 30 June 2015, the Committee observes that, according to the information and documents supplied by the Government, paid leave was authorized for SITRASALUD members so that they could attend the general assembly.
11. 443. As regards the allegation that leave was not granted to branch officers for lack of credentials when the provision of those credentials had been refused by the authorities, the Committee observes that the allegation is related to the non-recognition of branches for public sector unions and trusts that the consultations previously recommended to the Government will make it possible to establish the basis for finding shared solutions to this issue. The Committee also invites the Government to promote social dialogue between the complainant organization and the health service authorities concerned, with a view to addressing the question of trade union leave and promoting harmonious collective relations.