Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 305, Novembre 1996

1. 254. The complaint in this case is contained in a communication from the General Industrial Trade Union of Health Workers (SIGESAL), dated 12 February 1996. Subsequently, the SIGESAL presented additional information in a communication dated 7 May 1996.
2. 255. The Government sent its observations in communications dated 8, 23 and 28 May 1996.
3. 256. 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 complainant's allegations

1. 257. In its communication of 12 February 1996, the General Industrial Trade Union of Health Workers (SIGESAL) states that it has been legally established for 16 years with a legal personality and that until May 1995, it was known as the Nursing Personnel Craft Union of El Salvador; however, in agreement with the association's general assembly, it opted to transform from a "craft" union (sindicato de gremio) into an "industrial" union (sindicato de industria) after submitting, in May 1995, the reforms of its by-laws. However, since that date the Ministry of Labour has not at all responded to these reforms. The complainant organization points out that the trade union has 256 members, most of whom are public officials, that it is one of the most representative in the public health sector and that since the general assembly approved the change of the trade union's legal nature and in accordance with the reforms of its by-laws, it has been operating in this capacity.
2. 258. The complainant organization adds that, on 1 April 1995, the ordinary general assembly elected the board of management for the 1995-96 period and that it duly submitted the new list of officials to the Ministry of Labour; furthermore, on 24 May of the same year, it legally registered this board with the corresponding credentials. Notwithstanding these facts, on 22 January 1996, the Minister of Public Health and Social Security requested the National Department of Social Organizations of the Ministry of Labour to annul the resolution under which instructions were given to register the union's board of management, whose members are employees at the Rosales Hospital, on the grounds that public officials are not entitled to belong to a trade union and therefore to be elected as officials. Subsequently, the National Department of Social Organizations of the Ministry of Labour, without paying any heed to the trade union's opinion, decided on 25 January 1996 to annul the resolution acknowledging the board of management and ordered that: the registration of this board should be cancelled; the officials should return the credentials entrusted in them to the Ministry of Labour; and the workers in the Rosales Hospital belonging to the union should resign because they were not entitled to belong to it. Finally, the complainant organization states that it submitted a request to the respective Minister to repeal this resolution; to date, however, it has not received a reply and this appeal is pending. The hospital administrator also ordered the elected officials to hand over the trade union premises and the trade union assets on the grounds that they were not entitled to use these because they do not legally represent the workers' organization. Furthermore, the hospital administration is planning to close the trade union premises with the backing of the national civil police.
3. 259. In its communication of 7 May 1996, the complainant organization states that the management of the Rosales Hospital ordered that all the workers should be informed of the Ministry of Labour's resolution to annul the registration of the union's board of management and to require workers to resign from the union; it proceeded to return trade union contributions. Furthermore, in November 1995, workers started to be threatened with dismissal if they did not resign from the trade union. The complainant organization adds that the Secretary-General, the First Disputes Secretary and four other trade union officials were transferred without being previously consulted; it encloses copies of the transfer orders. Finally, the complainant organization alleges that the management of the Rosales Hospital, accompanied by vigilantes and the national police, made a violent search of the SIGESAL offices.

B. The Government's reply

1. 260. In its communication of 8 May 1996, the Government states that the Nursing Personnel Craft Union of El Salvador was set up on 10 April 1978, that its by-laws were approved on 15 December 1978 and that all the signatories to the act of constitution of the union stated that they were members of the nursing profession; furthermore, in article 5, paragraph 1, of the above-mentioned by-laws, it is stipulated that "only workers employed in nursing the sick shall be accepted as members of the trade union". In accordance with sections 47 and 204 of the Labour Code, private employers and wage earners, as well as workers in independent social institutions, are entitled to associate freely by forming occupational associations. Section 2 of the Labour Code states that it applies to employment relationships concluded by the State, local authorities and independent public institutions and their workers; however, it does not apply to relationships of this kind under public law and those that have been created by an Administrative Act - as well as the appointment to a post under the Salaries Act financed by the general funds and special funds of these institutions.
2. 261. The Government adds that on 7 April 1995 documentation was submitted to the National Department of Social Organizations concerning the election of the general board of management of the Nursing Personnel Craft Union of El Salvador, and that this department issued a resolution on 24 May registering this board. On 22 January 1996, the Minister of Public Health and Social Welfare requested this department to annul the said resolution because the board of management was entirely made up of employees of the Rosales Hospital who, because they worked for a public institution dependent upon the Minister in question and were not members of the nursing profession, could not belong to it. The Government states that section 209 of the Labour Code provides in its first paragraph that a craft union consists of workers engaged in the same occupation, craft, trade or speciality. Consequently, the National Department of Social Organizations issued its resolution on the following grounds: the Labour Code does not apply to employees or workers who are specifically appointed under the Salaries Act, which is the case of workers at the Rosales National Hospital because it is a dependency of the Ministry of Public Health and Social Welfare. In accordance with the definition of a craft union given in the Labour Code, a union of this type should be made up of workers in a particular branch of activity - in this specific case in the nursing profession, as stated by the founding members of the trade union on 10 April 1978 who set up a union for nursing personnel. The members of the board of management, however, carry out duties in this hospital which differ from those qualifying for membership of the craft trade union, i.e. technicians, workers, boiler-workers, vigilantes, storeroom assistants, telephone operators and cooks - and none are actually involved in the nursing profession; and therefore all workers employed in the Rosales Hospital in another capacity should resign on these grounds.
3. 262. The Government states that although the wording used in the by-laws that members must be part of the nursing profession is sufficiently wide in scope, when taken in conjunction with the Labour Code, it is evident that workers, telephone operators and cooks are not looking after the sick but carrying out completely different functions. The case is different for other types of trade unions, such as works or industrial trade unions, to which all workers in an enterprise might belong irrespective of the actual work they do; it suffices that they work in the same enterprise. According to the Government, the complainant organization may not - and should not - have members who do not work as nurses, given that the Labour Code does not apply to workers employed by the Rosales National Hospital because their appointment is specifically governed by the Salaries Act. The Government adds that the union in question may continue to operate as long as all its members are engaged in the nursing profession.
4. 263. In its communications of 23 and 28 May 1996, the Government states that workers in El Salvador enjoy full freedom of association and right of organization. The only restrictions placed on these rights by law is that there should be no undermining of the physical integrity or private life of individuals - and this is precisely what the Nursing Personnel Craft Union of El Salvador (SIGESAL) is trying to do by claiming that it wants to transform from a craft union to an industrial union; however, it is not enough merely to transform the by-laws of a craft union, given that Salvadorian legislation provides that both these categories of union must fulfil certain vital requirements. For example, a craft union consists of workers engaged in the same occupation, craft, trade or speciality; and an industrial trade union consists of employers or workers belonging to enterprises engaged in the same branch of industry, commerce or services (section 209 of the Labour Code). Finally, the Government points out that the Rosales Hospital is dependent on the Ministry of Public Health and Social Welfare and that consequently its workers are public officials; in this capacity they are amongst those specified by the Labour Code as not being entitled to set up freely occupational or trade union associations (section 204 of the Labour Code).

C. The Committee's conclusions

1. 264. The Committee notes that the allegations in this case refer to the refusal of the administrative authorities to recognize the transformation of a craft union into an industrial union and the annulment of the registration of its board of management, as well as to the transfer of trade union officials, threats of dismissal against trade union members and the search of trade union premises.
2. 265. Concerning the alleged refusal of the administrative authorities to recognize the change in status of the Nursing Personnel Craft Union of El Salvador to become an industrial union (General Industrial Trade Union of Health Workers) and the annulment of the registration of the board of managers - which had initially been registered - the Committee notes the Government's reply to the effect that: (1) when the craft union in question was set up (1978) all the founding members stated that they were engaged in the nursing profession; (2) in May 1995 the National Department of Social Organizations registered the board of management of the Nursing Personnel Craft Union of El Salvador; (3) in January 1996 the Minister of Public Health and Social Welfare requested the administrative authorities to annul the registration of the board of management on the grounds that it consisted totally of employees of the Rosales Hospital who, because they worked for a public institution and did not exercise the profession of nurse (such as workers, technicians, telephone operators, vigilantes, etc.) could not, in accordance with the by-laws of the craft union, be members of the board of management; (4) the administrative authorities annulled the registration of the board of management taking into account the arguments put forward by the Ministry of Public Health; (5) transforming a craft union into an industrial union requires more than merely reforming the by-laws as it must comply with the requirements laid down in the Labour Code; and (6) given that the Rosales Hospital is dependent upon the Ministry of Public Health and Social Welfare its employees are public officials, who are not included amongst those who have freedom of association under the Labour Code.
3. 266. In this respect, the Committee notes that the Government refers in its reply to two different issues. On the one hand, it states that the workers in the Rosales Hospital are public officials and, as such, are not covered by the scope of the Labour Code and consequently do not enjoy the right of organization; on the other hand, it points out that the registration of the board of management of the union was annulled because its members were not carrying out the profession of nurse as stipulated in the former by-laws of the "craft" trade union (union of workers in the same occupation).
4. 267. As regards the first issue, the Committee reminds the Government that workers and employers, without distinction whatsoever, including public officials, should have the right to establish organizations of their choosing and to join these organizations, with the only condition that they should respect the by-laws of these organizations. In these circumstances, the Committee urges the Government to take the necessary steps to amend the legislation so that public officials, including hospital staff, may enjoy the right to establish and join organizations of their choosing. The Committee urges the Government to take measures to bring its legislation into conformity with the principles of freedom of association and to keep it informed on any measures that it might adopt in this respect and reminds it that the ILO's technical assistance is at its disposal.
5. 268. As concerns the second issue, the Committee notes that the complainant organization submitted changes to its by-laws to the administrative authorities, stating that it had decided to transform the craft union into an industrial union in May 1995 and that although the administrative authorities did not reply to the trade union on this matter, the Government registered the board of management in the same month; however, this registration was subsequently annulled at the request of the Ministry of Public Health and Social Welfare. Furthermore, the Committee notes that the Government did not indicate the way in which the trade union failed to comply with the provisions under the Labour Code to transform itself into an industrial union (in this respect, the Government clearly notes that the members of the board of management had different occupations and functions - as in the case of industrial unions - although within the health sector). In this context, the Committee reminds the Government that "workers should be free to decide whether they prefer to establish, at the primary level, a works union or another form of basic organization, such as an industrial or craft union" (see Digest of Decisions and Principles of the Freedom of Association Committee, 4th edition, 1996, para. 279) and that "freedom of association implies the right of workers and employers to elect their representatives in full freedom" (see Digest, op. cit., para. 350).
6. 269. In these circumstances, the Committee urges the Government to take steps to recognize the transformation of the Nursing Personnel Craft Union of El Salvador into an industrial union and to register immediately once again the board of management which was duly elected. The Committee requests the Government to respect the principles mentioned in the paragraph above and to keep it informed in this respect.
7. 270. As regards the allegations concerning the transfer of the Secretary-General, the First Disputes Secretary and other trade union officials from their posts - the complainant organization submitted copies of the transfer orders - and the threats to workers that they would be dismissed if they did not resign from the union, the Committee regrets to note that the Government did not submit its observations. In this respect, the Committee draws the Government's attention to the fact that "one of the fundamental principles of freedom of association is that workers should enjoy adequate protection against all acts of anti-union discrimination in respect of their employment, such as dismissal, demotion, transfer or other prejudicial measures. This protection is particularly desirable in the case of trade union officials because, in order to be able to perform their trade union duties in full independence, they should have a guarantee that they will not be prejudiced on account of the mandate which they hold from their trade unions" and that "no person should be dismissed or prejudiced in his or her employment by reason of trade union membership or legitimate trade union activities, and it is important to forbid and penalize in practice all acts of anti-union discrimination in respect of employment" (see Digest, op. cit., paras. 724 and 696). Given the Government's failure to reply to these allegations and in spite of repeated requests, the Committee urges the Government to take measures to reinstate in their original posts the trade union officials who were transferred and ensure that no worker is threatened with being dismissed if he or she does not resign from the trade union in question. The Committee requests the Government to keep it informed in this respect.
8. 271. Finally, concerning the allegation that vigilantes and the national police made a violent search of the trade union premises, the Committee also regrets to note that the Government failed to submit any observations on this matter. The Committee stresses that "the entry by police or military forces into trade union premises without a judicial warrant constitutes a serious and unjustifiable interference in trade union activities" (see Digest, op. cit., para. 176). The Committee therefore requests the Government to take steps to ensure that in future no searches of trade union premises are carried out without a judicial warrant.