Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 362, Noviembre 2011

1. 617. The complaints are contained in communications of May 2010 from the Trade Union of Salvadorian Public Transport Workers (STITCPAS), the Trade Union of Employees and Workers of the Municipality of Mejicanos (SETRAMME), the Trade Union of Workers of the Municipality of Nejapa (ASITAMUNE) and the Trade Union of Schoolteachers with Community Participation (SIMEDUCO).
2. 618. The Government sent its observations in a communication dated 4 November 2010.
3. 619. 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), and the Labour Relations (Public Service) Convention, 1978 (No. 151).

A. The complainants’ allegations

1. 620. In its communication of 20 May 2010, STITCPAS claims that, according to a notarized record issued on 6 February 2010 in San Salvador, STITCPAS was established as an industrial trade union in the presence of 43 founding members who endorsed and approved the record along with the 75 articles of the trade union’s by-laws. On 15 February 2010, the union submitted an application for legal personality to the Ministry of Labour and Social Security together with a list of the founding members.
2. 621. According to STITCPAS, on 23 February 2010, Mr Juan Uclides Hernández, Mr Isaac Ernesto Treminio Orellana, Mr Luis Alonso Méndez Lovo and Mr Luis Alonso Baires Ramírez were dismissed on the grounds that their services were no longer required, when in fact they were dismissed for establishing the trade union, which runs counter to article 47 of the Constitution of the Republic, human rights treaties, the ILO Constitution, and section 248 of the Labour Code, as all these workers are founding members of the union. The workers requested the Ministry of Labour and Social Security to carry out an inspection to ascertain the facts but their request went unanswered.
3. 622. On 1 March 2010, the Ministry of Labour and Social Security requested the trade union to provide the exact address of the companies “FBF”, “Violeta” and “Manolo”. The same day, the trade union sent a written reply containing the information requested.
4. 623. In a telephone call made on 25 March 2010, the head of the National Department for Social Organizations of the Ministry of Labour and Social Security requested the trade union to prove the employment status of a number of workers who were members of the new trade union. The trade union representative replied that he could only provide the daily rosters for workers on the eastern routes. The head of the National Department for Social Organizations indicated that this information was sufficient to establish that there was an employment relationship between the workers and the employer.
5. 624. On 6 April 2010, the trade union sent a written reply containing proof of the employment relationship in the form of: the daily roster of the workers on the eastern routes as issued by Mr Ernesto Anzora, the manager responsible for the eastern routes; and a sworn statement by Mr Rosember Guardado Rodríguez, Mr Santos Miguel Crespín and Mr Luis Alonso Baires, together with various testimonies, as the workers never signed an employment contract or received social security benefits. However, despite having submitted the aforementioned documentary evidence and testimonies in order to confirm the employment status of another 13 workers, the Ministry of Labour and Social Security on 8 April 2010 saw fit to deny legal personality to the trade union, as reflected in decision 22/2010, which, in its third preambular paragraph states: “... that pursuant to the provisions laid down in section 211, paragraph (1), of the Labour Code, according to which a minimum of 35 members is required to establish a trade union and enable it to operate, a requirement that was not met in this case, given that these formalities have served to confirm the employment status of only 31 of the workers who participated in the establishment of the trade union, which may be deduced from the aforementioned facts and numbered provisions, it is not possible for the Ministry of Labour and Social Security to grant legal personality to the trade union”. However, STITCPAS maintains that 43 workers were founding members of the trade union.
6. 625. In its communication of 20 May 2010, SETRAMME claims that on 23 June 2008 an unscheduled inspection was carried out on the premises of the Mejicanos Municipal Authority by the Ministry of Labour and Social Security, during which it was noted that the Municipality of Mejicanos, of which the Mayor is the legal representative, had committed 11 contraventions under section 18 of the Labour Code for not having signed an extension of the individual employment contracts of the following workers: José Israel Menjívar Guardado, Johny Alexander García, Marcial Alvarado Herrera, Santos Erasmo García López, Guillermo Antonio López Carranza, Carmen Elena Hernández Escobar, José Modesto Córdova Murillo, Reyna Vásquez Hernández, Jorge Humberto López Molina, Julián Hernández Morales and Domingo Sorto Hernández. These individuals, who on that date were members of the Municipal Workers’ Association (ATRAM), were threatened with dismissal by the municipal government if they did not leave the trade union. A time limit of ten working days was set for the contraventions committed under section 18 of the Labour Code to be remedied, but the Municipality of Mejicanos failed to act on the Ministry’s recommendation.
7. 626. On 4 September 2008, the Ministry of Labour and Social Security carried out a second inspection on the premises of the Mejicanos Municipal Authority to ascertain whether the contraventions noted during the previous inspection had been remedied. The second inspection had a negative outcome as the Municipality of Mejicanos had failed to rectify the contraventions of section 18 of the Labour Code which it had committed by not signing the extension of the individual employment contracts of the 11 workers. A management representative stated that: “every possible measure is being taken to transfer those workers to other posts pursuant to the Municipal Administrative Careers Act”. As a result of the municipal government’s threats of dismissal, several members of ATRAM left the association.
8. 627. On 20 July 2009, SETRAMME was established as a trade union of public servants in the presence of 40 founding members who provide services for the Municipality of Mejicanos.
9. 628. Pending the decision of the Ministry of Labour and Social Security of the Republic of El Salvador allowing ATRAM to become a trade union of public servants, on 9 September 2009, some members of ATRAM approached the Labour Rights Centre of the Central American University’s Human Rights Institute to call on the staff of that institution to lodge a complaint with the labour inspectorate regarding unlawful acts against both union members and the members of the union’s executive committee. The allegations relate specifically to the following points:
   • – the establishment of two payrolls, the first of which was signed on 25 August 2009 and the second on 31 August 2009. The second reveals a deduction of between US$20 and US$26 from union members’ wages, including those of executive committee members on days when it convened;
   • – threats of dismissal against organized workers, the executive committee, and in particular against Mr Carlos Enrique Salinas, made by the head of the municipal government and the head of the municipal department for the environment;
   • – the fact that since September 2009, staff employed by the Municipality of Mejicanos have not received social security certificates for the month of September;
   • – the five-month delay in payments from the Pension Funds Administrator for the months of May, June, July, August and September 2009;
   • – delays in paying administrative staff;
   • – harassment and arbitrary transfers of field staff, especially members of ATRAM and its executive committee;
   • – threats and workplace harassment directed at all Municipality of Mejicanos staff by the head of the municipal government, the head of the municipal department for the environment, the head of the municipal department for environmental sanitation and the overall supervisor, stating that if they supported the trade union in its protest action in support of legal entitlements, they would be dismissed;
   • – non-payment of group life insurance, which is administered by a central insurance body; and
   • – the Mejicanos municipal government’s refusal to recognize ATRAM as an organization.
10. 629. ATRAM and SETRAMME requested the Mayor of the Municipality of Mejicanos and the Municipal Council, firstly, to revoke the decision taken by the Municipal Council on 26 August 2009, whereby it suspended Thursday as a weekly rest day for ATRAM members until it could provide the municipal authorities with proof of legal personality, despite the fact that ATRAM had unsuccessfully applied for legal personality on several occasions; and, secondly, to cancel any time off granted in this context by any public servant during the period 2003–06. SETRAMME explains that Thursday is not a rest day for union members but is the day set aside for the activities of ATRAM and the new trade union, SETRAMME.
11. 630. On 23 September 2009, ATRAM lodged a complaint with the labour inspectorate regarding unlawful acts against union members, namely, two administrative penalties comprising deductions from wages not provided for under the Municipal Administrative Careers Act of the Republic of El Salvador, for having missed the deadline for submitting social security certificates and delayed payments from the Pension Funds Administrator. On 24 September 2009, the Ministry of Labour and Social Security granted SETRAMME legal personality. That same month, the trade union lodged a complaint with the labour inspectorate regarding unlawful acts against union officials Mr Julio Trejo Beltrán, Mr Franklin Samuel Parada Pérez and Mr Carlos David Martínez, which included an administrative penalty consisting in a deduction from wages not provided for under the Municipal Administrative Careers Act of the Republic of El Salvador while, in addition, all union members and other workers were obliged to sign two payrolls. One payroll reflected the deduction while the other showed their full wages without deductions. Furthermore, they are currently receiving their social security certificates between ten and 15 days after the deadline. The trade union also complained of the constant harassment of workers in the workplace at the hands of their immediate superiors, the head of the municipal department for the environment, the head of the municipal department for environmental sanitation and the overall supervisor, intended to force the workers to resign.
12. 631. In October 2009, a complaint was filed regarding unlawful acts against union member Mr José Mauricio Andrade, who in August had been forced to sign two payrolls. It was then that he realized that unlawful deductions were being made from the other workers’ wages by means of the two payrolls, one of which reflected the deduction while the other showed their full wages without deductions.
13. 632. SETRAMME alleges that to date no inspector has been sent by the Ministry of Labour and Social Security to investigate the situation. In October 2009, the trade union was told that the Ministry of Labour and Social Security was not competent to carry out such an inspection, as those workers were covered by the Municipal Administrative Careers Act.
14. 633. In October 2009, nine union officials filed a complaint against the Municipality of Mejicanos in the form of a request for an inspection, with the Directorate-General of Inspections of the Ministry of Labour and Social Security, stating that, since 2007, the administration had failed to provide the members of ATRAM and other employees of the Municipality of Mejicanos with the means necessary to do their work and protect their health, and that their working conditions were insalubrious. Furthermore, they complained of constant harassment in the workplace at the hands of their immediate supervisors, the head of the municipal department for the environment, the head of the municipal department for environmental sanitation and high-ranking officials, intended to force the workers to resign.
15. 634. In its communication of 18 May 2010, ASITAMUNE alleges that, on 22 July 2009, the workers of the Municipality of Nejapa met in order to establish the Trade Union of Workers of the Municipality of Nejapa (ASITAMUNE) and duly submitted the relevant documents to the Ministry of Labour and Social Security. As part of the process of granting legal personality, the Ministry sent an official letter to the Nejapa Municipal Council in order to verify the employment status of the union’s founding members, as provided for under the Civil Service Act, the stated aim of which is to regulate relations between the State or municipalities and public servants, to offer them protection and employment stability, to ensure the effectiveness of public institutions, and to ensure that the public administration is based on the recruitment and promotion of staff by merit.
16. 635. ASITAMUNE also claims that, on 29 July 2009, the municipality dismissed several founding members of the trade union, including Mr Manfredo García Nerio, Ms Deisy Yanira Mejía Velásquez and Mr José Lino Mendoza Arias, who are members of the union’s executive committee, which in fact is the main reason why they cannot be dismissed. This was clearly retaliation for the officials having incited the workers to exercise their constitutional right to freedom of association in the defence of their rights. They were dismissed after taking the preliminary steps towards establishing the trade union before it was legally registered. On 9 October 2009, the Ministry of Labour and Social Security acknowledged that, when it dismissed the three workers, the trade union was already in the process of being registered.
17. 636. According to the municipality, the legal and constitutional protection granted to union officials does not apply in the case of employees of the Municipality of Nejapa because their employment conditions are governed by a special law, distinct from the Labour Code, which is the Municipal Administrative Careers Act. This claim is inaccurate, as it is the Constitution itself that protects union officials. The Ministry of Labour and Social Security has neglected its duties by failing to carry out inspections or take steps to verify the violations allegedly perpetrated by the municipality. The administration claims that it is not competent to carry out inspections within decentralized bodies such as municipalities, and despite the workers’ request for the Attorney-General’s Office to intervene, since September 2009, it has neither acted on the request nor taken steps to ensure that due process of law is followed.
18. 637. In its communication of 20 May 2010, SIMEDUCO, a trade union established on 27 September 2008, alleges that, on 31 December 2009, Mr Amado de Jesús Ramos Prieto, the trade union relations secretary, a Nahuatl language teacher in the Nahuatl-speaking areas of the indigenous Izalcos region and a trade union official, was dismissed. Since 1 April 2007, he had worked for the non-governmental organization (NGO) “Círculo Solidario de El Salvador”.
19. 638. In the light of this unfair dismissal, the trade union requested and secured from the Directorate-General of Inspections of the Ministry of Labour and Social Security an unscheduled inspection of the premises of the non-governmental organization in question, which found that Mr Amado de Jesús Ramos Prieto, owing to his position as a trade union official, had been the object of labour discrimination when an arbitrary decision was taken not to renew his contract for another year. The inspection confirmed the contraventions reported by the worker and led to a report ordering the organization to remedy the contraventions or face a fine. However, even following a second inspection and a subsequent conciliation hearing, the worker was not reinstated.
20. 639. On 11 December 2009, Mr Amado de Jesús Ramos Prieto received a memorandum from his employer notifying him of his dismissal with effect from 31 December 2009, which prompted him to apply to the Attorney-General’s Office for the purpose of instituting legal proceedings against the NGO “Círculo Solidario de El Salvador” on the grounds of unfair dismissal by his employer; these proceedings are still ongoing.

B. The Government’s reply

1. 640. In its communication of 4 November 2010, the Government, with regard to the case brought by STITCPAS, states that sections 211 and 219 of the Labour Code provide that a minimum of 35 members is required in order to establish a trade union and that in order for it to exist legally, it must obtain legal personality, which is granted following the approval of the union’s by-laws and confirmation of the employment status of the 35 founding members.
2. 641. The trade union, on applying for legal personality from the Ministry of Labour and Social Security, submitted a copy of the minutes of the meeting at which the trade union was established by 43 founding members, as well as two copies of the union’s by-laws and a certified copy of the minutes of the meeting at which they were approved. In this context, on 22 February 2010, the Ministry of Labour and Social Security ordered the relevant letters to be sent to the employers, requesting them to confirm the employment status of the union’s 43 founding members. Each one of the employers received an official notification of the order with the exception of three that were not notified owing to the inaccuracy of the address provided. The trade union was informed of the situation and was asked to provide the correct addresses of the employers in order to expedite its application for legal personality.
3. 642. The Government states that the replies fell into three categories: (a) employers that confirmed the employment status of 14 of the union’s founding members; (b) employers that failed to confirm the employment status of 15 of the union’s founding members; and (c) employers that did not reply at all. This means that the employment status of only 14 of the union’s founding members is legally recognized (section 219 of the Labour Code).
4. 643. With regard to case (b) employers that failed to confirm the employment status of 15 of the union’s founding members, the Ministry of Labour and Social Security ordered inspections to be carried out, which led to confirmation of the employment status of three of the 15 founding members in question. It should be noted that the “inspections”, although not provided for in such cases by the Labour Code or the Act on the structure and functions of the labour and social security sector, have proved to be an essential tool in establishing the employment status of union members, which is a legal requirement that must be fulfilled before trade unions can be granted legal personality.
5. 644. The employment of 31 of the 43 founding members of STITCPAS has thus been confirmed. However, the fact remains that a minimum of 35 members with confirmed employment status is required for the union to obtain legal personality, according to section 219 of the Labour Code.
6. 645. With regard to the trade union’s arguments cited above, the submission of a record of attendance for one working day (16 February 2010) is not sufficient to allow an employment relationship to be established by presumption, given that, for such a presumption to be valid, proof is required that one person provides a service to another for more than two consecutive working days, as stipulated in section 20 of the Labour Code.
7. 646. With regard to the allegations made by the interested party (the refusal to grant legal personality to STITCPAS without receiving the testimonies that otherwise would have confirmed the employment status of a number of the union’s founding members), the Ministry of Labour and Social Security has revoked its previous decision to refuse legal personality to the trade union and has requested the testimonial evidence offered by STITCPAS.
8. 647. With regard to the trade union’s allegations concerning the failure to carry out the necessary inspections following the dismissal of Mr Juan Uclides Hernández, Mr Isaac Ernesto Treminio Orellana, Mr Luis Alonso Méndez Lovo and Mr Luis Alonso Baires Ramírez, the Directorate-General of Inspections of the Ministry of Labour and Social Security has ordered the relevant inspections, which are currently ongoing.
9. 648. With regard to the complaint lodged by SETRAMME, the Government notes that municipal labour relations are governed by section 1 of the Municipal Administrative Careers Act, while the bodies responsible for implementing it in the interests of settling any internal labour disputes arising within the municipal administration are the municipal commissions for administrative careers, as stipulated in section 17 of the Municipal Administrative Careers Act. Moreover, section 2, paragraph 2, of the Labour Code states that: “The Code is not applicable in cases where the relationship between the State, municipalities, autonomous or semi-autonomous official institutions, with their employees is of a public nature, as in the case of appointments to posts specified in the Wages Act as dependent on the General Fund or Special Fund of the institution in question or included in the municipal budget, or when the relationship originates from a contract for the provision of technical or professional services”. In the light of this, the Government explains that, as the SETRAMME case concerns employees who were appointed to their post, the Ministry of Labour and Social Security declined to carry out unscheduled inspections requested by SETRAMME members.
10. 649. The Ministry of Labour and Social Security is competent in cases involving municipal public servants employed under temporary or casual contracts for educational, consultative, advisory and training purposes among others, as set out in section 2, paragraph 3, of the Municipal Administrative Careers Act; this stipulates that employment relationships involving such temporary workers are governed by the Labour Code. The Ministry is therefore only competent to hear cases involving alleged violations of labour rights affecting temporary workers hired by municipalities; cases involving municipal public servants who are part of the municipal administrative careers system come under the terms of the Municipal Administrative Careers Act, which establishes the relevant procedures and designates the authorities competent to settle internal disputes arising from an employment relationship.
11. 650. With regard to the workers’ allegations concerning unlawful acts committed by the Mejicanos municipal government (unlawful deductions from wages of between US$20 and US$26, threats of dismissal against the members of SETRAMME’s executive committee, failure to provide them with the relevant social security certificates, delayed payments from the Pension Funds Administrator in May, June, July, August and September 2009, delay in paying administrative staff, harassment and arbitrary transfers of field staff, threats and harassment directed against all staff by the heads of various municipal departments, non-payment of group life insurance, and refusal to recognize ATRAM, the Government reiterates that it is the Municipal Administrative Careers Act that regulates municipal labour relations and that the municipal commissions for administrative careers are the authority responsible for settling any internal disputes arising within the municipal administration, as stipulated in section 21, paragraph 3, of the Act. The Ministry of Labour and Social Security is therefore not competent to deal with applications from workers of the Municipality of Mejicanos. The Government nevertheless maintains that the municipal workers “are not left without legal protection or in a legal limbo because there is no law to protect them” as they claim; it is rather that the complainant organizations failed to direct their requests to the competent authority, which is the Mejicanos municipal commission for administrative careers.
    • Complaint concerning the violation of the right to freedom of association of ASITAMUNE officials
12. 651. With regard to the case brought by ASITAMUNE concerning the dismissal of the municipal employees and union officials Mr Manfredo García Nerio, Ms Deisy Yanira Mejía Velásquez and Mr José Lino Mendoza Arias, the Government notes that this case also relates to an employment relationship arising from an administrative act in the form of an “appointment”. In this case, the competent authority is the Nejapa municipal commission for administrative careers, as stipulated in section 17 of the Municipal Administrative Careers Act and section 2 of the Labour Code. That being the case, the Ministry of Labour and Social Security was unable to carry out the labour inspection requested by the trade union, for the reasons cited in the previous case involving SETRAMME.
13. 652. Moreover, between November and December 2009, the union officials referred their case to the Attorney-General’s Office in order for it to be settled in court. The Ministry of Labour and Social Security accordingly requested information on the steps taken by the Attorney-General’s Office. The Ministry will inform the Committee of these once it has received a reply.
14. 653. These considerations notwithstanding, the Salvadorian State acknowledges that the Municipality of Nejapa has adversely affected the exercise of the right to freedom of association by abolishing the posts of Mr Manfredo García Nerio, Ms Deisy Yanira Mejía Velásquez and Mr José Lino Mendoza Arias, without placing them in posts of a similar or higher grade in accordance with section 53 of the Municipal Administrative Careers Act, offering instead to compensate them for the loss of their posts, which constitutes a violation of the right to adequate protection against acts of anti-union discrimination in respect of their employment set out in article 47, paragraph 6, of the Constitution of the Republic and Article 1 of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). In view of this and in accordance with 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), steps will be taken to raise awareness of both the protection given to the right to freedom of association and the special protection given to trade union officials. It is important to note that the full exercise of the right to freedom of association is a work in progress in the country owing to the scant protection currently given to labour rights and the lack of cooperation between workers and employers in ensuring the protection of those rights. With its lead role in the public labour administration, the Ministry of Labour and Social Security is making every effort to establish and consolidate a State that is genuinely governed by the rule of law.
15. 654. With regard to the case brought by SIMEDUCO concerning the dismissal of the trade union official Mr Amado de Jesús Ramos Prieto, the Government notes that on 2 March 2010, Mr Jesús Ramos Prieto visited the offices of the Directorate-General of Inspections of the Ministry of Labour and Social Security and requested an inspection in order to confirm his employment status. The request was granted and a special inspection was carried out on 18 March 2010, followed by a second inspection on 6 April 2010, which revealed that the NGO “Círculo Solidario de El Salvador”, where Mr Ramos Prieto was employed, had not remedied the contravention noted during the initial inspection. As a result, the case was referred to the Department for Industry, Commerce and Services Inspections for the appropriate fine to be imposed. At that stage, the special representative of the NGO “Círculo Solidario de El Salvador” contested the special inspection, describing it as inaccurate and arguing that the case had been detrimental to the foundation as it was forced to pay wage arrears attributed to the employer without any legal basis. The Department for Industry, Commerce and Services Inspections determined that line of argument to be invalid and pointed out that, in accordance with article 47, paragraph 6, of the Constitution of the Republic and section 248, paragraph 1, of the Labour Code, trade union officials cannot be dismissed, transferred or given less favourable employment conditions. Furthermore, it determined that the foundation had violated section 29, paragraph 2, of the Labour Code by dismissing Mr Amado de Jesús Ramos Prieto without due process and by owing him wage arrears which had arisen from factors attributable to the employer. The Ministry is currently considering the matter of a fine.
16. 655. Mr Ramos Prieto is fully entitled to bring his case before a court, and accordingly visited the offices of the Attorney-General on 22 January 2010 in search of a labour attorney to represent him. On 15 February 2010, he referred his case to the Santa Tecla labour court in the Department of La Libertad in order to institute the relevant proceedings, which are ongoing.
17. 656. However, on 7 May 2010 an out-of-court settlement was reached (a copy of which is provided by the Government) whereby Mr Amado de Jesús Ramos Prieto receives from the NGO “Círculo Solidario de El Salvador” the sum of US$10,692 in wage arrears attributable to the employer, which fulfils his legal entitlement to protection from dismissal during the period of his election and term of office as a trade union official; and the sum of US$712.80 in compensation. In the record of the settlement, Mr Amado de Jesús Ramos Prieto is declared free of any further liability that might arise from the employment relationship and the NGO “Círculo Solidario de El Salvador” is similarly granted a full and final settlement. Therefore, while Mr Amado de Jesús Ramos Prieto’s rights were violated by the organization he worked for, the fact remains that the State responded in the appropriate way through the relevant institutions.

C. The Committee’s conclusions

1. 657. With regard to the alleged dismissal of four STITCPAS officials (Mr Juan Uclides Hernández, Mr Isaac Ernesto Treminio Orellana, Mr Luis Alonso Méndez Lovo and Mr Luis Alonso Baires Ramírez) on 23 February 2010 following the trade union’s establishment by 43 workers on 15 February of the same year (35 being the legal minimum), the Committee notes that the labour inspectorate is currently carrying out inspections, requests the Government to inform it of the outcome of those inspections and, should the anti-union dismissal of the four officials be proven, to take measures to reinstate them without loss of pay or statutory benefits. The Committee requests the Government to keep it informed of any developments in this regard.
2. 658. The Committee also takes note of the allegation made by STITCPAS that, despite having submitted proof of the employment status of 13 of its members with various transport companies, as requested by the Ministry of Labour and Social Security (given that, according to STITCPAS, they are genuine workers despite not having an employment contract or receiving social security benefits), the Ministry subsequently refused to grant legal personality to STITCPAS as it could confirm the employment status of only 31 of the workers (instead of the legal minimum of 35).
3. 659. The Committee takes note of the Government’s statements in which it confirms that, in the course of the registration procedure, during which a number of employers opted not to divulge the employment status of some union members, the employment status of 31 of the 43 founding members of STITCPAS was confirmed, although the fact remains that a minimum of 35 members with confirmed employment status is required in order for a trade union to obtain legal personality, under the terms of section 219 of the Labour Code. With regard to the trade union’s argument that it had submitted a record of attendance for one working day (16 February 2010), this was not sufficient to prove the existence of an employment relationship by presumption, given that, for such a presumption to be valid, proof is required that one person provides a service to another for more than two consecutive working days, as stipulated in section 20 of the Labour Code. Nevertheless, the Committee welcomes the fact that, in the light of the complaint lodged with the Committee (regarding the refusal to grant legal personality to STITCPAS without having received the testimonies that otherwise would have confirmed the employment status of a number of the union’s founding members), the Ministry of Labour and Social Security has revoked its previous decision to refuse legal personality to the trade union and has requested the testimonial evidence offered by STITCPAS. The Committee requests the Government to keep it informed of any developments in this regard.
4. 660. With regard to SETRAMME’s complaint, the Committee takes note of the allegations regarding: acts of anti-union discrimination against its officials and members of the previous workers’ association ATRAM; threats of dismissal; the refusal to extend the contracts of 11 members of ATRAM after the municipal government threatened them with dismissal if they did not leave the trade union, which resulted in the departure of several members from ATRAM; the refusal to recognize ATRAM; unlawful financial penalties, including deductions from the wages of officials and other members of SETRAMME; considering Thursday to be a rest day for workers who are members of ATRAM and SETRAMME when it is in fact the day set aside for the organizations’ activities; as well as other violations of labour laws and the Ministry of Labour and Social Security’s failure to carry out the inspections requested by the trade union.
5. 661. The Committee takes note of the Government’s statements according to which: (1) municipal labour relations are governed by section 1 of the Municipal Administrative Careers Act, and the bodies responsible for implementing the Act in the interests of settling any internal labour disputes arising within the municipal administration are the municipal commissions for administrative careers, as stipulated in section 17 of the Municipal Administrative Careers Act, which establishes the relevant procedures and designates the authorities competent to settle internal disputes arising from a given employment relationship. Section 2, paragraph 2, of the Labour Code states that: “The Code is not applicable in cases where the relationship between the State, municipalities and autonomous or semi-autonomous official institutions and their officials is of a public nature, as in the case of appointment to a post specified in the Wages Act as dependent on the General Fund or Special Fund of the institution in question or included in the municipal budget, or when the relationship originates from a contract for the provision of technical or professional services”. In the light of this, the Government explains that, as the SETRAMME case concerns employees who were appointed to their posts, the Ministry of Labour and Social Security declined to carry out the unscheduled inspections requested by SETRAMME members; (2) the Ministry of Labour and Social Security is only competent in cases involving public servants employed under temporary or casual contracts for educational, consultative/advisory and training purposes, among others, as stipulated in section 2, paragraph 3, of the Municipal Administrative Careers Act, which stipulates that employment relationships involving such temporary workers are governed by the Labour Code; and (3) with regard to the workers’ allegations concerning unlawful acts (including unlawful deductions from wages of between US$20 and US$26, threats of dismissal made against the members of SETRAMME’s executive committee, failure to provide them with the relevant social security certificates, delayed payments from the Pension Funds Administrator in May, June, July, August and September 2009, delay in paying administrative staff, harassment and arbitrary transfers of field staff, threats and harassment directed against all staff by the heads of various municipal departments, non-payment of group life insurance, and refusal to recognize ATRAM), the Government reiterates that it is the Municipal Administrative Careers Act that regulates municipal labour relations and that the municipal commissions for administrative careers (and not the Ministry of Labour and Social Security) are the authorities responsible for settling any internal disputes arising within the municipal administration, as stipulated in section 21, paragraph 3, of the Act. Nonetheless, the municipal workers “are not left without legal protection or in a legal limbo”; rather, the complainant organizations failed to direct their requests to the competent authority, which is the Mejicanos municipal commission for administrative careers.
6. 662. The Committee draws attention to the number and seriousness of these allegations which, should they prove to be founded, would constitute serious violations of ILO Conventions Nos 87 and 98. Noting the Government’s insistence that the authority competent to hear the allegations in the present case is not, contrary to SETRAMME’s claim, the Ministry of Labour and Social Security but rather the Mejicanos municipal commission for administrative careers, the Committee invites SETRAMME to formally present its allegations to the municipal commission, and requests SETRAMME and the Government to inform it of the outcome of this process. The Committee notes, however, that in another part of its reply, the Government states that: “the full exercise of the right to freedom of association is a work in progress in the country owing to the scant protection currently given to labour rights and the lack of cooperation between workers and employers in ensuring the protection of those rights”. The Committee considers that various aspects of the present case bear testament to the fragility and ineffectiveness of the framework protecting union rights at the municipal level, and requests the Government to hold consultations without delay with the most representative organizations of workers and employers in order to examine and improve the situation so as to afford adequate protection to union rights in the municipal sector, and to keep it informed of any developments in this regard.
7. 663. However, the Committee wishes to point out that, with regard to one of the allegations made by SETRAMME, concerning the refusal to extend the contracts of 11 members of ATRAM who had previously been threatened with dismissal by the municipal government if they did not leave the union (the Ministry of Labour and Social Security was the competent authority as the case involved temporary workers), SETRAMME claims that the Municipality of Mejicanos did not respect the time frame established by the labour inspectorate for rectifying the alleged contraventions. The Committee considers that the situation of workers under temporary contracts in the Municipality once again bears testament to the shortcomings of the framework protecting trade union rights at the municipal level. The Committee urges the Government to take steps to give effect to the decisions of the labour inspectorate to extend the employment contracts of the 11 ATRAM members and to keep it informed of any developments in this regard.
8. 664. With regard to the allegation concerning the dismissal of the union officials Mr Manfredo García Nerio, Ms Deisy Yanira Mejía Velásquez and Mr José Lino Mendoza Arias on 25 July 2009 following the establishment of ASITAMUNE – and specifically, according to the allegations, for establishing the union and for having encouraged workers to exercise their constitutional right to freedom of association – the Committee takes note of the Government’s statements according to which: (1) the Ministry of Labour and Social Security was unable to carry out the inspection requested by ASITAMUNE as it is not competent in such matters, since municipal labour relations are regulated by the Municipal Administrative Careers Act and are the responsibility of the municipal commissions for administrative careers, in this case, the Nejapa municipal commission for administrative careers, which is responsible for resolving internal disputes arising from an employment relationship; (2) the trade union referred the case to the Attorney-General’s Office in order for it to be settled in court, and requests to be kept informed by the latter; (3) the Municipality of Nejapa has adversely affected the exercise of the right to freedom of association by abolishing the posts of the three union officials without placing them in posts of a similar or higher grade in accordance with section 53 of the Municipal Administrative Careers Act, offering instead to compensate them for the abolition of their posts, which constitutes a violation of the right to adequate protection against acts of anti-union discrimination in respect of their employment as stipulated in article 47, paragraph 6, of the Constitution of the Republic and Article 1 of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98); (4) steps will be taken to raise awareness of both the protection given to the right to freedom of association and the special protection given to union officials; and (5) the Ministry of Labour and Social Security is making every effort to establish and consolidate a State that is genuinely governed by the rule of law.
9. 665. The Committee notes with regret that, according to the Government’s reply, the Municipality of Nejapa failed to honour its obligation to ensure respect for section 53 of the Municipal Administrative Careers Act by abolishing the posts of the three union officials without placing them in posts of a similar or higher grade. The Committee notes that, according to the Government, the question of the dismissal of the three union officials has been referred to the Attorney-General’s Office in order for it to be settled in court, and requests the Government to keep it informed of any measures adopted by that authority. The Committee requests the Government to communicate its conclusions to the Municipality of Nejapa, to draw attention to the importance the Committee attaches to the Municipality’s effective implementation of section 53 of the Municipal Administrative Careers Act, and to reinstate the union officials without loss of pay or statutory benefits.
10. 666. With regard to the allegation concerning the dismissal on 31 December 2009 of the SIMEDUCO official Mr Amado de Jesús Ramos Prieto following the decision not to renew his contract owing to his status as a union official, the Committee takes note of the Government’s statements according to which: (1) inspections were carried out on the premises of the NGO “Círculo Solidario de El Salvador” (his employer) in March and April 2010 and revealed a breach of legislation that had not been remedied by the employer, and for which a fine is currently being considered; (2) the administrative authority determined that the employer’s appeal was invalid, given that, in accordance with article 47, paragraph 6, of the Constitution of the Republic and section 248, paragraph 1, of the Labour Code, union officials cannot be dismissed, transferred or given less favourable employment conditions; furthermore, it determined that the foundation had violated section 29, paragraph 2, of the Labour Code by dismissing Mr Amado de Jesús Ramos Prieto without due process and by owing him salary arrears attributable to the employer; (3) the trade union official referred his case to the Santa Tecla labour court in the Department of La Libertad in order to institute the relevant proceedings but, on 7 May 2010, he concluded an out-of-court settlement under which he received from the NGO “Círculo Solidario de El Salvador” the sum of US$10,692 in salary arrears attributable to the employer, which fulfils his legal entitlement to protection from dismissal during the period of his election and term of office as a union official; and the sum of US$712.80 in compensation; in the record of the settlement, Mr Amado de Jesús Ramos Prieto is declared free of any further liability that might arise from the employment relationship, and the NGO “Círculo Solidario de El Salvador” is similarly granted a full and final settlement. Under these circumstances, while the Committee regrets the anti-union dismissal of the union official, it notes that he reached an out-of-court settlement with his employer, thereby ending his employment relationship with the latter and forgoing the right to reinstatement guaranteed to him under national law. The Committee will therefore not pursue its examination of this allegation.