Informe definitivo - Informe núm. 313, Marzo 1999

1. 85. This complaint is contained in a communication from Communications International dated 26 August 1998.
2. 86. The Government sent its comments in communications dated 2 November and 17 December 1998.
3. 87. El Salvador has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), or the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant's allegations

1. 88. In its communication dated 26 August 1998, Communications International (CI) states that the Salvadoran Association of Workers of the National Telecommunications Administration, ANTEL (ASTA) is one of its affiliated organizations and has requested it to present a complaint against the Government of El Salvador for the violation of trade union rights.
2. 89. The CI explains that on 27 August 1997, the ASTA-ASTTEL trade unions requested the authorities of the Ministry of Labour to recognize the legal existence of the National Union of Telecommunications and Related Unions (ATANTEL) and that on 2 September of the same year the Ministry of Labour refused to recognize ATANTEL contending that the National Telecommunications Administration (ANTEL) was an independent public institution and that it was illegal to recognize trade unions that were not enterprise-based. The members of ATANTEL lodged an application for reconsideration before the same ministry, which was in turn rejected. In September/October 1997 amendments were made to the bill for the privatization of ANTEL. This delayed decisions on ATANTEL's new requests for legal recognition. During this period, Communications International and its affiliates in the region sent various messages of solidarity to the authorities of El Salvador in support of the telecommunications' workers and their right to organize.
3. 90. According to the CI, on 29 December 1997 the winding up of ANTEL began and all its workers were paid and dismissed, then later contracted by the new enterprise, Telecommunications Company of El Salvador (CTE S.A. de C.V.). However, on 2 January 1998, 72 workers were dismissed, all of whom were leaders or former leaders of the ASTA-ASTTEL, ATTES and SINTEL trade unions. The enterprise stated that these workers were opposed to the privatization process. It justified the dismissals by claiming that the workers in question were not working efficiently, given that they spent their time on other activities which were incompatible with the enterprise's new functions (i.e. trade union activities). The complainant organization adds that a group of workers from the ASTA-ASTTEL unions convened a meeting to establish a trade union within the enterprise. The National Telecommunications Administration (ANTEL) was dissolved and wound up in accordance with Decree No. 53, as amended. All its assets and liabilities were transferred to the Telecommunications Company of El Salvador, a limited liability company (CTE S.A. de C.V.) and to Telecommunications International, also a limited liability company (INTEL S.A. de C.V.). On 13 February 1998, the Ministry of Labour rejected the request for legal recognition made by the ASTA-ASTTEL workers. Consequently, on 22 February 1998, 39 workers held a meeting and approved the establishment of a trade union called ASTTEL. The new request for recognition was also rejected by the Ministry of Labour, which claimed that the abbreviation ASTTEL had nothing to do with the official name of the union (Works Union of Telecommunications Workers). On 1 May 1998, 44 workers met and approved the establishment of the Trade Union for the Unity of Workers of the Telecommunications Company of El Salvador S.A. de C.V. (SUTTEL), but on 24 June 1998 the Ministry of Labour rejected the legal existence of that union, arguing that national legislation does not allow the organization of trade unions until six months have passed since a prior request for recognition.
4. 91. The CI stresses that although the workers have used all possible means provided by law, the authorities have found a variety of arguments to reject the legal existence of the trade union and states that the workers have submitted a legal claim to the Supreme Court of Justice of El Salvador.
5. 92. In the view of the CI, the behaviour of the Ministry of Labour of El Salvador in this case -- and possibly also the relevant legal provisions -- are incompatible with the right of workers to establish organizations of their own choosing, without prior authorization, and the dismissal of workers from the enterprise constitutes an act of anti-union discrimination.

B. The Government's reply

1. 93. In its communication dated 2 November 1998, the Government states that on 7 August 1997 the Chairman of the provisional executive committee of the Union of Workers in Telecommunications and Related Industries (ANANTEL), requested in writing that it be granted legal personality. According to its certificate of establishment it was set up on 31 July 1997 by 46 workers from the National Telecommunications Administration, four workers from the El Salvador Information Service Agency and two workers from the José Simeón Cañas Central American University radio station. On 2 September 1997 the request to grant legal personality to this union was denied because the workers of independent public institutions -- such as the National Telecommunications Administration (ANTEL) -- can only form works unions, in accordance with clause 20, section 209 of the Labour Code, which provides that "a works union consists of workers employed in the same enterprise, commercial establishment or independent public institution". The application by the provisional executive committee for reconsideration of that decision was dismissed because the workers of the National Telecommunications Administration (ANTEL) were not being refused the right to set up a trade union but were simply being told that the Labour Code stipulates that they should establish themselves as a works union. In a decision dated 27 April 1998 the office of the procurator for the defence of humans rights exonerated the Ministry of Labour and Social Welfare from any responsibility in this matter.
2. 94. The Government indicates that section 2 of the Privatization Act of the National Telecommunications Administration provides as follows: "The division of ANTEL will be carried out by transferring its assets, rights and liabilities to the following limited liability companies: Telecommunications Company of El Salvador, a limited liability company, which could use the trade name of ANTEL, and which in future will be abbreviated to CTE S.A. de C.V.; and Telecommunications International, a limited liability company, which in future will be abbreviated to INTEL S.A. de C.V. Both enterprises will provide public telecommunications services. These companies will be considered for all legal purposes to be private companies regulated by the provisions of the above Act, the Commercial Code and other applicable national legislation. The wording of the Privatization Act uses the expression "the companies" for these enterprises.
3. 95. Section 43 of the above Act provides as follows: "Once the procedure indicated in the two previous sections has been verified, the company CTE S.A. de C.V. will conclude employment contracts with the former workers of ANTEL, except those working at the ANTEL hospital, who will retain at least the same salaries with their new employer. If after these contracts have been concluded, any of the workers thus contracted are dismissed on any of the grounds for termination of contract with liability for the employer established in the Labour Code, the employer will pay special compensation equivalent to what the worker would otherwise have earned over 18 months of service. The workers providing services at the ANTEL hospital and who have not been retained by the ISSS will receive a bonus of an additional 25 per cent to that established in section 41 of this Act".
4. 96. The Government adds that on 5 January 1998 the Chairman of the provisional executive committee of the Works Union of Telecommunications Workers of El Salvador (ASTTEL) requested that legal personality be granted to this union which, according to its certificate of establishment, was founded on 2 January 1998 by 43 workers from CTE S.A. de C.V. An inspection was carried out at CTE S.A. de C.V. to ascertain whether the founders of the union were working at 9 a.m. on 2 January 1998. The inspection report established that: (a) the Works Union of Telecommunications Workers of El Salvador (ASTTEL) was established on the basis of a notarial certificate on the premises of the Salvadoran Association of Telecommunications Workers, with Dr. Lilian Guadrón acting as the attesting notary; (b) on the day the notarial certificate was executed (2 January 1998), which was when CTE S.A. de C.V. began its operations, ten of the union's founders did not provide any services to CTE S.A. de C.V. and consequently the employment relationship did not come into being as they did not even turn up for work that day, therefore labour legislation is not applicable to them and they do not constitute workers; (c) a further 20 founders of the trade union were not present at 9 a.m. on 2 January 1998 at the place where, according to the notarial certificate, the constituent meeting of the trade union was held. These persons categorically stated that they had signed the certificate of establishment on a different date and in a different place, not during the constituent meeting of the union, which explains why their signatures are on the certificate although they did not attend. The report also reveals other anomalies and irregularities in the certificate which clearly indicate intentional falsification; (d) five founders received the special compensation referred to in section 43 of the Privatization Act of the Telecommunications Administration following their dismissal on 2 January 1998, as evidenced by the corresponding liquidation documents issued in accordance with the provisions of section 402 (20) of the Labour Code, and were therefore no longer employees of CTE S.A. de C.V. at the time when the certification and other documents were submitted.
5. 97. Furthermore, the notarial certificate infringed legislation in the following ways, inter alia: (a) the occupation or trade of the alleged executing parties was not recorded, in violation of section 32, No. 40 of the Notary Act; (b) instead of recording their occupation or trade, in the preamble to the certificate, under general information relating to the executing parties, the notary states that they are workers of CTE S.A. de C.V., thus infringing section 32, No. 60, which provides that "the notary shall not put anything attributed to the appearing parties with which they have not expressly agreed" and at no time, as seen in the document itself, did the executing parties make such a statement to the notary; (c) section 32, No. 90 was also violated, which provides that "involuntary deletions, amendments, insertions, crossings out and any other corrections shall be noted and certified in full at the end of the instrument, in the presence of the appearing parties and above the signatures" and in the notarial certificate in question the involuntary deletions -- of the names of both the notary and the trade union -- were not certified, which automatically renders the document invalid under the provisions of section 263 of the Code of Civil Procedure, which section 602 of the Labour Code expressly stipulates to be applicable to industrial procedures; and (d) section 32, No. 10 was also violated, which stipulates that "the notary shall explain to the executing parties the legal effects of the certificate or contract and note that this has been done in the instrument", yet there is no indication in the certificate that the legal effects of the instrument were explained to the executing parties and nothing was recorded to this effect; (e) the provisions of section 51 of the Notary Act were not fulfilled as the notary did not sign any of the sheets that comprise the notarial certificate and the stamp that should be at the top of sheet No. 3 is missing.
6. 98. On the basis of all the above considerations and the legal provisions cited, and given the lack of the legal quorum necessary to establish an occupational association as stipulated in section 211 of the Labour Code, the Ministry of Labour and Social Welfare decided to "deny the request for legal personality made by the Works Union of Telecommunications Workers of El Salvador".
7. 99. The Government states that on 23 February 1998, the Chairman of the provisional executive committee of the Works Union of Telecommunications Workers of El Salvador (ASTTEL) -- a trade union which had been established before a notary at 9 a.m. on 22 February 1998 -- requested that the trade union be granted legal personality. On 30 March 1998 a decision was handed down which stated that, according to the records, on 2 January 1998 an application had been made to establish the Works Union of Telecommunications Workers of El Salvador; the granting of legal personality to that trade union was denied on the grounds listed in the decision handed down by the Ministry of Labour on 11 February 1998; on 22 February 1998 an application was made to establish another trade union with the same name and address as the previous one; its request to be granted legal personality was submitted to the Ministry of Labour on 23 February 1998 by a different person acting as chairman of the provisional executive committee, in violation of the provisions of section 248 of the Labour Code which stipulates "a subsequent application to establish a trade union may only be made six months after the previous one".
8. 100. In addition, this trade union was founded by 39 persons, 14 of whom had been involved in establishing the previous one; a further four were employees in positions of responsibility and one was the employers' representative of the Telecommunications Company of El Salvador S.A. de C.V. Both these circumstances, either together or individually, reduce the number of founding members to less than 35 persons, infringing the provisions of section 211 of the Labour Code which provides that "any workers' union requires a minimum of 35 members to be set up and operate".
9. 101. Therefore, for the reasons given and the legal provisions cited, the Ministry of Labour denied the request for the granting of legal personality to the Works Union of Telecommunications Workers of El Salvador.
10. 102. On 28 May 1998, the Government continues, three members of the provisional executive committee of the Trade Union for the Unity of Workers of the Telecommunications Company of El Salvador (SUTTEL) requested that their trade union be granted legal personality. On 17 June 1998 an administrative decision was handed down which states that under the relevant legal provisions it was not permitted to make a further application to establish the union as six months had not passed since the application had been made to establish the Works Union of Telecommunications Workers of El Salvador, and neither was any reference made to the purpose of the union. For the reasons given and the legal provisions cited, the Ministry denied the granting of legal personality to SUTTEL.
11. 103. On 30 June 1998 an administrative decision declared inadmissible the request made by three members of the provisional executive committee of this trade union to reconsider its request for legal personality as, according to the Code of Civil Procedure, that request should have been made on the day of or the day following the contested decision.
12. 104. Lastly, the Government states that on 7 September 1998 the Chairman and Vice-Chairman of the provisional executive committee of the Works Union of Telecommunications Employees of El Salvador (SITTEL), founded at 9 a.m. on 23 August 1998, requested that the trade union be granted legal personality. This request is still pending.
13. 105. As regards the allegations concerning the dismissal of 72 workers on 2 January 1998, all of whom were leaders or former leaders of the trade unions ASTA, ASTTEL, ATTES and SINTEL, the Government refers in its communication dated 17 December 1998 to a communication from the Telecommunications Company of El Salvador, the contents of which is summarized below.
14. 106. According to the Privatization Act of the National Telecommunications Administration, the employment relationships of all the ANTEL staff ended on 31 December 1997 when the assets, rights and liabilities of ANTEL were transferred to CTE S.A. de C.V. and all workers were paid the corresponding types and amounts of compensation, annual bonuses and holiday pay established in ANTEL's privatization provisions. These payments were recorded in documents where each of the compensated workers confirmed the termination of his or her employment relationship, stating that ANTEL had fully met the obligations arising from the Privatization Act of the National Telecommunications Administration, declaring it to be free from any responsibility of an industrial nature and releasing it from further obligations. Consequently, on 31 December 1997 all ANTEL workers stopped work, were legally compensated and ANTEL ended its operations. The payments in question were officially investigated by the Court of Audit of the Republic, as no payment could be made that was not stipulated by law. ANTEL fully concluded its activities.
15. 107. The compensation payments made to the 72 persons referred to by the complainant organization amounted to a total of 7,353,113 colons and 91 centavos. Section 43 of the above-mentioned Privatization Act stipulates that "once the procedure outlined in the previous two sections has been carried out, the company CTE S.A. de C.V. will conclude employment contracts with the former workers of ANTEL. If after concluding these contracts any of the workers thus contracted are dismissed on the grounds for termination of contract with liability for the employer set out in the Labour Code, the employer shall pay special compensation equivalent to what the worker would otherwise have earned over 18 months of service". It was in keeping with this legal provision that CTE S.A. de C.V. contracted all the former workers of ANTEL in new employment relationships, entirely independent of and with no connection whatsoever to the previous one. The contracted workers included the workers mentioned by the complainant organization. Following their dismissal each of them was paid special compensation equivalent to the sum of 18 months' salary, except for two who did not collect their compensation, but it remains available for them. CTE S.A. de C.V. paid the 72 workers a total amount of 5,185,226 colons and 90 centavos. Each of the workers signed the corresponding confirmation of receipt on the form that the general directorate of the labour inspectorate provides for this purpose, in accordance with section 402 (2) of the Labour Code, confirming the termination of their individual contracts of employment, stating that CTE S.A. de C.V. had fully complied with the provisions of section 43 of the Act, each of them declaring said company to be free of any responsibility of an industrial nature. Dismissal as grounds for the termination of individual employment contracts is regulated by sections 55 et seq. of the Labour Code and originates from section 38, No. 11 of the Constitution of the Republic, according to which the Labour Code "shall in particular include the following rights (...) 11. An employer who dismisses a worker without valid grounds is required to compensate him in accordance with the law".
16. 108. The conclusion to be drawn from all the above is that there has been no violation of trade union rights.

C. The Committee's conclusions

1. 109. The Committee observes that in the framework of the privatization process of the National Telecommunications Administration (ANTEL) the complainant organization has alleged: (1) the refusal to recognize the trade union ATANTEL in September 1997; (2) the refusal to recognize another trade union set up by a group of workers from ASTA-ASTTEL on 13 February 1998; (3) the refusal to recognize a further trade union called ASTTEL set up on 22 February 1998; (4) the refusal to recognize a trade union called SUTTEL on 24 June 1998 and (5) the dismissal of 72 workers, all of whom were leaders or former leaders of the trade unions ASTA-ASTTEL, ATTES and SINTEL, on 2 January 1998 (the privatization process of ANTEL was completed at the end of December 1997) by the enterprise Telecommunications Company of El Salvador S.A. de C.V., to which the assets, rights and liabilities of the privatized enterprise (ANTEL) were transferred.
2. 110. The Committee notes that according to the Government: (1) the trade union ATANTEL was not recognized by the authorities because the workers of the former ANTEL did not set themselves up as a works union, which was a requirement as ANTEL was an independent public institution; of the 52 founders six were working in bodies other than ANTEL; (2) the trade union ASTTEL was not recognized because on the day it was established ten founders did not fulfil their work obligations, 20 did not attend the constituent meeting, five had received the special compensation provided in ANTEL's Privatization Act and had thus lost the status of employees. Furthermore, the notarial certificate contained various legislative infringements (the occupation or trade of the founders was not stated, the involuntary deletions of the names of the notary and the union were not noted down, the notary had not signed the individual sheets of the notarial certificate and the stamp was missing on one sheet); there was not the necessary quorum of workers/founders; (3) the trade union ASTTEL was again refused legal personality at a later date owing to the lack of the legal quorum that section 211 of the Code establishes, which is a minimum of 35 members (of the 39 founders, 14 had participated in setting up the previous trade union, four others were employees in positions of responsibility and one was an employers' representative) and furthermore because section 248 of the Labour Code provides that "a subsequent application to establish a trade union may only be made six months after the previous one"; (4) the application to establish the trade union SUTTEL was considered to be inadmissible and the granting of its legal personality was denied because six months had not passed since the application had been made to establish the trade union ASTTEL (whose legal personality had been denied); subsequently the request by three founders of SUTTEL to reconsider this administrative decision was dismissed as inadmissible as it did not comply with the time limit. The Committee also notes that the request for legal personality submitted by the trade union SITTEL on 7 September 1998 is still pending but it observes that this matter was not raised by the complainant organization.
3. 111. The Committee notes that between September 1997 and June 1998 the authorities refused to grant legal personality to several trade unions which tried to set themselves up within ANTEL and in one of the two companies which acquired ANTEL's rights and liabilities following its privatization (Telecommunications Company of El Salvador S.A. de C.V.). One of these trade unions was twice refused legal personality. The Committee observes that the grounds given for refusing legal personality include: trying to establish a union which did not constitute a works union (but instead included workers from various institutions) in an independent public institution where only works unions are authorized; the lack of the minimum number of members stipulated by law -- i.e. 35; the legal impossibility of establishing a new trade union until six months have passed since an application was made to establish a previous one (even if it did not obtain legal personality); and non-compliance with requirements of form in the notarial certificate documenting the constituent meeting of the trade union. In the Committee's opinion, these grounds represent serious obstacles to trade union registration. In this respect, the Committee draws to the Government's attention that such requirements must not be such as to be equivalent in practice to previous authorization, or as to constitute such an obstacle to the establishment of an organization that they amount in practice to outright prohibition (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 244).
4. 112. In this respect, the Committee has considered that "although the founders of a trade union should comply with the formalities prescribed by legislation, these formalities should not be of such a nature as to impair the free establishment of organizations" (see Digest, op. cit., para. 248). In the Committee's view, it appears in the present case that legislation imposes a series of excessive formalities for the recognition of a trade union and the acquisition of legal personality that are contrary to the principle of the free establishment of trade union organizations (the requirement that the trade unions of independent institutions should be works unions), that make it difficult to set up a trade union (minimum number of 35 workers to establish a works union) or that in any case make it temporarily impossible to establish a trade union (the requirement for six months to have passed before applying to establish another trade union even if the previous one did not obtain legal personality).
5. 113. In view of the above, the Committee concludes that the legislation violates the principles of freedom of association and regrets that in applying this legislation the authorities have refused legal personality to a number of trade unions in process of being set up in the ANTEL enterprise and in the Telecommunications Company of El Salvador S.A. de C.V. The Committee therefore urges the Government to take measures with a view to amending legislation so that the current excessive formalities that apply to the establishment of trade union organizations are removed and so that workers do not have to constitute enterprise-based works unions if they do not consider this to be appropriate. Lastly, as regards the trade union SITTEL, the establishment of which is still pending (according to the Government), the Committee regrets that the application for recognition and registration made by SITTEL in August 1998 has not been dealt with and is still pending. The Committee requests the Government to accelerate the procedure and register the union.
6. 114. With respect to the allegation concerning the dismissal of 72 workers (all of whom were leaders of ASTA-ASTTEL, ATTES and SINTEL) on 2 January 1998 (the privatization process of ANTEL was completed at the end of December 1997) by the Telecommunications Company of El Salvador S.A. de C.V., to which the assets, rights and liabilities of the privatized enterprise (ANTEL) were transferred, the Committee notes the Government's statements that: those concerned were paid the corresponding compensation and benefits, these persons accepted them and confirmed in writing the termination of their employment relationship on 31 December 1997; subsequently, in accordance with the Privatization Act they were contracted by the new enterprise and dismissed on 2 January 1998 on the grounds for termination of contract with liability for the employer established in the Labour Code, as provided in the Privatization Act, which stipulated further compensation for such an eventuality (in the case in point this was accepted by 70 of the 72 workers, who declared the enterprise to be free of any responsibility); the workers who did not accept the compensation were Mr. Luis Wilfredo Berrios and Mrs. Gloria Mercedes González. In this connection, the Committee observes that the Government has not denied the status of trade union leaders or former leaders of the 72 dismissed workers or that the dismissal was based on the grounds for termination of contract with liability for the employer, which does not call for the grounds for the dismissal to be cited.
7. 115. In view of the above, the Committee deeply regrets these dismissals and calls the attention of the Government to the fact that proprietorial changes should not directly or indirectly threaten unionized workers and their organizations. (Digest, op. cit., para. 715). The Committee also points out that in cases of staff reductions, the Committee has drawn attention to the principle contained in the Workers' Representatives Recommendation, 1971 (No. 143), which mentions amongst the measures to be taken to ensure effective protection to these workers, that recognition of a priority should be given to workers' representatives with regard to their retention in employment in case of reduction of the workforce (Article 6(2)(f)) (see Digest, op. cit., para. 960). Likewise, in a previous case in which the Government considered the dismissal of nine trade union leaders to be part of restructuring plans, the Committee emphasized the advisability of giving priority to workers' representatives with regard to their retention in employment in case of reduction of the workforce, to ensure their effective protection (see Digest, op. cit., para. 961).
8. 116. This being the case, given that 70 of the 72 dismissed trade union leaders or former leaders accepted the legal compensation, the examination of the case will only proceed with respect to the two who did not accept it. The Committee requests the Government to take steps with a view to reinstating these trade union leaders (Mr. Luis Wilfredo Berrios and Mrs. Gloria Mercedes González) in their posts and to guarantee that in future proprietorial changes that occur in the framework of privatization do not directly or indirectly threaten unionized workers and their organizations.