Informe definitivo - Informe núm. 324, Marzo 2001

1. 537. The complaints in this case are contained in communications from the World Federation of Trade Unions (WFTU) dated 27 January, 15 April and 13 November 2000, and in a communication from the International Confederation of Free Trade Unions (ICFTU) dated 10 March 2000. The Government sent its observations in communications dated 19 May, 18 July and 8 September 2000 and 26 January 2001.
2. 538. El Salvador has not ratified either 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 complainants' allegations

1. 539. In its communication dated 27 January 2000, the World Federation of Trade Unions (WFTU) states that since 1997 the Union of Workers of the Salvadoran Social Security Institute (STISSS) and the Union of Doctors and Workers of the Salvadoran Social Security Institute (SIMETRISS), of which all the doctors employed by the Salvadoran Social Security Institute (ISSS) are members, have been struggling to get the Government to improve the medical care dispensed by the social security system, with an initial dispute leading in May 1998 to the conclusion of agreements between the Government and the doctors' union under which the latter would be given the possibility of actively participating in future policy-making for the health sector. Given the Government's passive stance and following repeated demands by employees which were ignored by the Ministry of Labour, on 15 November 1999 a nationwide rotating strike was held in all of the social security health care centres with the strikers, demanding that the ISSS comply with the agreement concluded with its directorate in December 1998, calling for a wage increase and an end to plans to privatize health services. The Third Labour Court Judge declared the strike illegal and the Director of the ISSS dismissed 221 employees, as well as 150 employees of the Supply Department, on the pretext that they had abandoned their posts (when in fact they had been shut out).
2. 540. The STISSS and SIMETRISSS members held a 77-day work stoppage because the Government is implementing its plan to privatize public health services by offering a concession on two hospitals in the social security system. The Government being determined to privatize the health services, the abovementioned workers were dismissed, the national police force was called into the workplace in order to intimidate employees, the Christmas bonus and the wages due for November and December 1999 to over 7,000 workers were withheld, as well as trade union dues, and pay deductions were made for those months. Parallel to this, the complainants had recourse to collective bargaining and, as a last resort, to arbitration provided by the Ministry of Labour. The WFTU points out further that the ISSS directorate did not take account of the collective contract signed between the ISSS and SIMETRISS, which prohibits the dismissal, transfer or suspension of workers, with special protection for the members of the trade union executive, except on justified grounds, and provides that collective suspensions of workers cannot be carried out without meeting all the legal requirements for doing so.
3. 541. In its communication of 15 April 2000 the WFTU stated that although the Third Labour Court had initially declared the strike illegal (pursuant to which the Director of the ISSS had carried out the abovementioned dismissals), it decided subsequently that the dismissals were lawful, although ultimately, following an appeal filed by the STISSS, the Labour Court found that this mass dismissal constituted a violation of fundamental rights and of the terms of the collective contract. Middle management coerced and intimidated the workers, threatening them with dismissal if they continued to support the strike. The Government has severely suppressed this workers' movement by applying coercive measures against the workers and the trade union members who supported them in defence of public health.
4. 542. Lastly, in its communication of 13 November 2000, the WFTU states with regard to the workers dismissed arbitrarily after a legal battle waged by the STISSS, that the Civil Division of the Supreme Court of Justice ordered the ISSS to pay damages to the complainants and to comply with the labour provisions that had been violated. However, the Executive Council of the ISSS only partly executed this judgement, unilaterally agreeing that the workers could choose between reinstatement and compensation. The WFTU adds that the irresponsible attitude of the Government and ISSS authorities, who resort to delaying tactics and evasive behaviour to reach their ends, could spark off another labour dispute. For this reason, the Legislative Assembly has been requested to issue a decree to ensure that the authorities execute the court decision and pay the wages and benefits owed to the 221 workers affected.
5. 543. In its communication dated 10 March 2000, the International Confederation of Free Trade Unions (ICFTU) states that the doctors and workers employed by the Salvadoran Social Security Institute (ISSS) who had been on strike since the end of 1999 were victims of government attacks. The latter declared a state of emergency in order to apply an "alternative health plan" under which army barracks would be used and military doctors would replace the striking workers. On 6 March 2000, the deputy commissioner responsible for liaison of the National Civil Police (PNC) and representatives of the striking unions and the Office of the Human Rights Procurator held talks near the ISSS Surgical Medical Centre (San Salvador) with a view to finding a peaceful solution to the workers' public protest and avoiding unnecessary confrontations. In response to this conciliatory stand on the part of the Government, a group of the union strikers agreed to withdraw at noon on the same day from an extremely busy thoroughfare of the city of San Salvador. This did not prevent the Chief of the PNC from confirming an order for the riot squad (UMO) to clear the street, which it did at 11.45 with excessive use of force (including tear gas) affecting ISSS employees and passers-by, among others.
6. 544. Moreover, according to the complainant, the Minister of Internal Affairs announced that it envisaged revoking the legal personality of the SIMETRISSS and the STISSS, as well as that of the Medical Association. Lastly, the Director of the ISSS announced that she would not comply with the decision handed down by the First Labour Court to reinstate the dismissed workers, but that the Government would contest it before the Supreme Court of Justice, a process which could last over a year before a final decision was handed down.

B. The Government's reply

1. 545. As regards the allegation of excessive use of force by the police, the Government stated in its communication dated 19 May 2000 that the action of the riot squad (UMO) had been aimed at restoring public order on 6 March that year when the STISSS had entirely blocked an extremely busy thoroughfare in the city of San Salvador in blatant violation of citizens' right to freedom of movement. After requesting the trade union members in vain to clear the street, and exhausting the necessary means of persuasion to get them to withdraw of their own accord (including talks and warnings), the UMO had no choice but to intervene in the interest of public order, in accordance with the established procedure for dispersing demonstrators.
2. 546. In response to this police action, a complaint was filed with the courts against the Chief of the National Civil Police (PNC) for arbitrary acts against the public administration; proceedings were initiated on 23 March of the same year before the city's Eighth Magistrates' Court and the case was dismissed in favour of the defendant. According to the record of the proceedings attached by the Government with its reply, the prosecution maintained that at 11.45 on 6 March 2000 the UMO had resorted to excessive use of force (tear gas, a water cannon and physical violence) against unarmed persons carrying out a peaceful demonstration, despite the verbal agreement reached between the trade unionists and the police to unblock the streets; at no time were the trade unionists found to be armed or to have acted violently. This repression therefore constituted a violation of the basic constitutional principles that inform the PNC's conduct as well as abuse of the security forces' discretionary powers, affecting ISSS employees and passers-by, among others. The defence asserted that the security forces had been provoked and that the accused official, who had not participated directly in the operations, had given the order to clear the streets not only after having exhausted the necessary means of persuasion, but also in the belief that he was acting correctly, given the extent of traffic disruption caused by the demonstration. Concluding that the accused had used every means of persuasion to get the demonstrators to clear the blocked thoroughfare and that he had used a reasonable amount of force, the defence requested the judge to dismiss the case in favour of the defendant. The judge did so, based on this argument, on 19 May 2000.
3. 547. As regards the alleged risk that legal personality would be withdrawn from the STISSS and the SIMETRISSS unions, as well as from the city's Medical Association, the Government indicated in a communication dated 18 July 2000 that this allegation was unfounded. The Ministry of Internal Affairs is not the competent body to withdraw legal personality from these entities and, while it is true that at one point the Government was envisaging the possibility of applying this measure to the Medical Association, it is no less true that ultimately it discarded the idea despite the fact that it could have done so pursuant to the Act respecting associations and non-profit foundations, under which "associations and foundations shall be dissolved by judicial decision when they are found to be engaged in illicit activities, aimed at direct profit, contrary to morality, safety and public order, or mismanagement of funds and property belonging to the entity, causing serious and irreparable damage to third parties or to the State", and " the Attorney-General, of his own motion or on the petition of any public authority, as well as the Ministry of Internal Affairs, shall have the capacity to institute proceedings for the dissolution of an association or foundation, should any of the grounds for their judicial dissolution occur".
4. 548. As regards the allegation that the management of the ISSS had the intention not to comply with the court decision to reinstate the workers, the Government stated in its communication dated 8 September 2000 and 26 January 2001 that, after appealing the judgements handed down by the First Labour Court of San Salvador and the Civil Division of the Supreme Court of Justice, both of which ruled in favour of the STISSS, the Executive Council of the ISSS requested the STISSS to offer its employees who had been dismissed the choice between being reinstated, on the same terms under which they had been employed until 29 November 1999, and not returning to their jobs in return for the compensation due under the law. The employer made this offer conditional upon their signing a suspension of the individual contract of employment by mutual agreement between the parties during the period between 29 November 1999 and the date of reinstatement. The agreement was signed by the ISSS and the Human Resources and Legal Committee on behalf of the STISSS. Under these conditions, 187 workers opted for reinstatement and 32 for voluntary retirement with compensation under an out-of-court settlement with the defendant and after abandoning all of the actions brought against it. Finally, the Government indicates that: (1) the ISSS was not legally bound to pay the wages during the conflict since the workers had requested a special leave without pay from 29 November 1999 to 6 August 2000; and (2) the conflict has now been resolved satisfactorily for both parties.

C. The Committee's conclusions

1. 549. As regards the mass dismissals at the ISSS at the end of 1999 following a strike, the Committee notes that the Government indicates that: (1) the Executive Council of the ISSS offered the employees dismissed during this dispute the choice between reinstatement, under the same terms as those under which they were employed until 29 November 1999, or not returning to work in exchange for statutory compensation, and made this offer conditional upon the dismissed employees signing a suspension of their individual contracts of employment by mutual agreement between the parties during the period between 29 November 1999 and the date of reinstatement; (2) this agreement was signed by the ISSS and the Human Resources and Legal Committee on behalf of the STISSS; and (3) 187 workers opted for reinstatement and 32 for voluntary retirement with compensation, under an out-of-court settlement with the defendant and after abandoning all the actions brought against it, which brought an end to the conflict in a satisfactory way for both parties. In these circumstances, the Committee will not continue its examination of this allegation.
2. 550. Concerning the allegation that the doctors and workers employed by the ISSS who had been on strike for several months had been the victims of government attacks and that a group of demonstrators were the victims of excessive use of force, the Committee notes that the Government indicates that:
   • (i) the riot squad (UMO) sent to the trade union members a written request asking them to evacuate but they refused to cooperate. The UMO used every means of persuasion to get the demonstrators to leave voluntarily;
   • (ii) the UMO thus had to intervene in order to evacuate the demonstrators, in conformity with the provisions on the maintenance of public order;
   • (iii) following the incidents involving the National Civil Police (PNC), legal proceedings were brought against the Chief of the PNC. The case was later dismissed by the judicial authorities which concluded that he had used every means of persuasion to get the demonstrators to clear the blocked thoroughfare and that he had used a reasonable amount of force. In these conditions, the Committee will not continue its examination of this allegation.
3. 551. As regards the alleged intention of the Government to apply an alternative health plan aimed at replacing workers - doctors and workers employed by the ISSS - who had been on strike for several months by military personnel, the Committee observes that the Government did not send any comments on this allegation. Accordingly, it recalls that the employment of the armed forces or of another group of persons to perform duties which have been suspended as a result of a labour dispute can, if the strike is lawful, be justified only by the need to ensure the operation of services […] whose suspension would lead to an acute crisis. The utilization by the Government of labour drawn from outside the undertaking, with a view to replacing striking workers, entails the risk of derogation of the right to strike which may affect the free exercise of trade union rights [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, para. 574]. Nonetheless, considering that the activities carried out by doctors and auxiliary medical personnel of the ISSS form part of services that are essential in the strict sense of the term, since medical care - whether that dispensed by a doctor or, for example, authorization issued by an institution to care for a patient - is a service the interruption of which could endanger the life, personal safety or health of the patients, and that the strike declared in this essential service lasted for several months, the Committee considers that the use of military personnel to perform the duties of doctors and auxiliary medical personnel of the ISSS does not violate the principles of freedom of association.
4. 552. Concerning the alleged risk that legal personality would be withdrawn from the SIMETRISSS and the STISSS unions, as well as the city's Medical Association, the Committee notes the Government's communication to the effect that this allegation is unfounded since the Ministry of Internal Affairs is not the competent body to withdraw legal personality from these entities, and while it is true that the Government envisaged the possibility of applying this measure to the Medical Association under the Act respecting associations and non-profit foundations, it ultimately discarded the idea.