Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 323, Novembre 2000

1. 162. The complaints in this case are contained in communications dated 31 May 2000 from the Trade Union Federation of Food Sector and Allied Workers (FESTSA), the Ministry of Education Workers' Union (ATRAMEC) and the Company Union of Workers of Doall Enterprises S.A. (SETDESA).
2. 163. 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. 164. In its communication of 31 May 2000 the Trade Union Federation of Food Sector and Allied Workers (FESTSA) stated that on 4 March of the same year, it held its constituent meeting with the participation of representatives of the following unions: the Company Union of Workers of Nestlé El Salvador S.A. (SETNESSA); the Company Union of Lido S.A. (SELSA); the Trade Union of Workers of the Dairy Companies Foremost S.A. (SITREFOSA); the Industrial Trade Union of Sweets and Food Pastes (SIDPA); and the Company Union of Workers of the Agency El Carmen S.A. (SETAELCA). On 29 March 2000, the Federation initiated formal proceedings to acquire legal personality, and to that end supplied a copy of its founding instrument and two copies of its by-laws, as well as a number of other documents which the competent authorities had requested, although this was not legally necessary. Despite this, the registration authority of the Ministry of Labour and Social Security informed FESTSA that it would not approve the by-laws or grant legal personality because of procedural errors, although the authorities could have overlooked these.
2. 165. In a communication of 31 May 2000, the Ministry of Education Workers' Union (ATRAMEC) alleges that since 1983 it has been trying to acquire legal personality from the Ministry of Labour and that on 24 March 2000 it established itself as a trade union in accordance with the procedure laid down in the Labour Code. On 5 April, it submitted the documents required by the Ministry for granting legal personality. Despite this, the Ministry informed the union officially on 4 May that the application was refused because, according to article 47 of the Constitution, only private workers and employers or those employed by autonomous institutions - i.e. not state employees, such as the persons listed as the constituent members of the trade union in this case - had the right to establish trade unions.
3. 166. In a communication of 31 May 2000, the Company Union of Workers of Doall Enterprises S.A. (SETDESA) alleges the dismissal by Doall Enterprises S.A. of 58 of its employees, an action presumably intended to prevent these employees from establishing a trade union within the company. On 20 November 1999, the constituent assembly of SETDESA took place and on 22 November the founding instrument was deposited with the Ministry of Labour and Social Security, together with two copies of the union's by-laws as approved at its constituent assembly. Despite this, on 23 and 24 November, the company began selective dismissals of SETDESA members, members of their families, their associates and sympathizers. In order to obtain their salaries and redundancy payments, they were required to sign blank sheets (which were subsequently used as resignation letters). The workers in question received their wages on the 29th of the month, not the 23rd when they were actually dismissed. On 1 December 1999 the Ministry of Labour asked Doall Enterprises S.A. whether it employed the SETDESA members. The company responded by presenting the employees' letters of resignation.
4. 167. However, under the terms of article 248 of the Labour Code, "members of trade union executive bodies that have or are in the process of acquiring legal personality may not be dismissed, except for valid reasons that have been confirmed by the competent authority". Under article 214(2) of the Labour Code, "from the date on which the founding instrument is deposited with the competent authority and until sixty days after the union in question is registered, the founder members, up to a maximum number of 35, shall enjoy the guarantees defined in section 248 of this Code". In January 2000, the Ministry of Labour decided in the light of the workers' resignations that they had no connection with the company and thus did not meet the minimum conditions needed to establish a company union; the workers appealed against this decision. In the meantime, the complainants had requested help from the Independent Monitoring Group of El Salvador (GMIES), the final instance of appeal, in establishing whether or not the founders of SETDESA had been the victims of arbitrary acts. On 10 January 2000, the Group concluded that there had de facto been repeated violations of labour and trade union rights in that the company had illegally terminated the employment of 58 workers between 28 September and 3 December 1999. Fifty-six of these individuals had ceased to work between 22 November and 3 December, one on 28 September and another on 15 November. Only one had been reinstated. Of the workers who had been dismissed, 38 were founders and officials of SETDESA. The GMIES also concluded that the company had coerced the workers into signing blank sheets (which subsequently turned out to be letters of resignation). On 10 December some of these workers received offers of reinstatement from Doall Enterprises S.A.

B. The Government's reply

1. 168. In its reply of 24 July 2000, the Government states with regard to the supposedly unjustified refusal to grant legal personality to FESTSA, that the procedure for granting legal personality to federations is the same as the one applied to trade unions and that the complainant did not meet all the criteria: under section 258 of the Labour Code, the participation of a federation's constituent trade unions must have been agreed by each union's general assembly; each union's representatives must be officially appointed; and those representatives must be present at the constituent meeting duly accredited and authorized. These requirements in their turn presuppose the existence of official convocations and official records, so that even if these documents are not expressly required, it is still necessary to examine them in order to establish the legality of the assemblies which authorize a union's participation in the establishment of federations. The Government adds that the authorizing notary did not comply with all the requirements of section 259 of the Legal Code, under the terms of which the competent official or notary responsible for drafting the official records of the constituent assembly must record the name, address and category of each organization, the number and date of the agreement conferring legal personality and the number and volume of the official bulletin in which the union's registration entry is published. The Government concludes from this that the Federation in question was not established in accordance with the relevant legal criteria and therefore refused to grant it legal personality.
2. 169. As regards the refusal to grant legal personality to ATRAMEC, the Government states that in accordance with article 47 of the Constitution of the Republic, private employers and workers and those in autonomous official institutions have the right to establish trade unions in accordance with section 204 of the Labour Code, which states that the following categories of persons, without distinction of nationality, sex, race, creed or political conviction, have the right to associate freely by forming professional associations or trade unions in defence of their common economic and social interests: (a) private employers and workers; and (b) workers employed by autonomous official institutions. Consequently, as stated clearly in the official decision of the Labour and Social Security Secretariat, the founders of the trade union in question are not entitled to establish such a union because they are public employees, a fact acknowledged by the founders themselves in the official records referred to above. The founders' application is thus not admissible, since public employees are prevented by law from establishing unions, and section 2 of the Labour Code clearly states that its provisions do not apply to public employees. The complaint presented by the trade union ATRAMEC, which operates only de facto, given that its by-laws have not been approved and it has no legal personality owing to the legal problems that have been described, is therefore based on arguments that are clearly refutable in legal terms (see following paragraphs).
3. 170. The Government states that under the terms of the Constitution of the Republic all private employers and workers, without distinction of nationality, sex, race or political conviction, and irrespective of the nature of their work or activities, have the right to associate freely in the defence of their respective interests by establishing professional associations or trade unions, in accordance with the principles of equality before the law (article 3) and of non-discrimination (ILO Convention No. 111). Employees of autonomous official institutions have the same right. If the Constitution itself states that the exercise of this right is reserved for private employers and workers, it means that workers employed in the service of the State may not exercise it. This state of affairs is justified by the fact that the State provides essential public services which must not be interrupted for any reason. Authorization to establish professional associations or trade unions of public service employees could lead to strikes, pre-empting possible examination of disputes by labour courts and tribunals (section 546 of the Labour Code). In other words, the existing public order could be jeopardized by trade unions which disregarded the Constitution and the Labour Code, the principle of lawful authority and the rule of law. The Labour Code does not authorize government employees to establish trade unions and the complaint should therefore not be based on this particular body of law. The Government states that, although the General Secretary elect of the Ministry of Education Workers' Union (ATRAMEC) refers to the official records of the constituent meeting, that document is not legally valid for the reasons already explained. It was therefore incorrect to lodge an appeal against a decision on the basis of the Constitution and the Labour Code, let alone to argue that the decision in question was arbitrary and illegal.
4. 171. As regards the allegations concerning Doall Enterprises S.A., the Government states that on 20 January 2000, the Ministry of Labour and Social Security decided not to grant legal personality to the Company Union of Workers of Doall Enterprises S.A. because the union's founders resigned from the company at 10 a.m. on 20 November 1999, which terminated the employment relationship and freed the company of any responsibility. The union's constituent assembly was held at 11 a.m. on the same day, that is, one hour after these workers had resigned from their posts. According to section 209(2) of the Labour Code, a "company union" is one established by workers who all work at the same enterprise; given the resignations referred to here, the union's founders, at the time when the union was established, no longer worked for the company and thus did not meet the basic condition for establishing the union; for this reason, legal personality was not granted. The decision was based on the fact that a key legal requirement for establishing a trade union had not been met; it was not an attempt to deny the right of workers to establish trade unions, since on 6 March 2000 legal personality was granted to another trade union (the Company Union of Employees of Doall Enterprises) which had complied fully with all the legal requirements. On that date, the complainants and other workers at the company who were attempting to establish the union were reinstated and, if they continue to work there, will be free to establish another union, in which case, provided that the founding instrument and other documents filed comply with sections 213 and 219 of the Labour Code, the Ministry of Labour would have no objection to granting legal personality.

C. The Committee's conclusions

1. 172. As regards the refusal to grant legal personality to the Trade Union Federation of Food Sector and Allied Workers (FESTSA), which was established on 4 March 2000 and comprised five trade unions, the Committee notes that according to the Government, the Federation did not comply with legal requirements (sections 258 and 259 of the Labour Code) when it was constituted; under the law, each union must have official convocations and records (for examination), and a notary or competent official must draft an official record of proceedings of the constituent assembly indicating the name, address and category of each organization involved, the number and date of the agreement granting legal personality, and the number and volume of the official bulletin in which the registration entry is published. The Committee deeply regrets that, given that the problem arose from procedural errors which could easily have been rectified, the authorities did not attempt to obtain the further documentation or information required by asking the founders of the Federation to rectify procedural anomalies found in the constituent document within a reasonable period. The Committee recalls that, although the founders of a trade union should comply with the formalities prescribed by legislation, those formalities should not be of such a nature as to impair the free establishment of organizations (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 248), and requests the Government to keep it informed of any follow-up to a renewed application by FESTSA for legal personality.
2. 173. With regard to the refusal to grant legal personality to the Ministry of Education Workers' Union (ATRAMEC) in May 2000, the Committee notes that according to the Government, the Constitution of the Republic grants the right of association to workers in the private sector and to those employed in autonomous official institutions, but not to workers employed in the service of the State (public service and government employees), since the State provides essential services which must not be interrupted for any reason. The Committee is bound to emphasize that the denial of the right of association of public service employees to establish unions is an extremely serious violation of the most elementary principles of freedom of association. Consequently, the Committee urges the Government as a matter of urgency to ensure that the national legislation of El Salvador is amended in such a way that it recognizes the right of association of public service employees, with the sole possible exception of the armed forces and the police.
3. 174. With regard to the complaint by the Company Union of Workers of Doall Enterprises S.A. (SETDESA), the Committee notes the Government's statements to the effect that: (1) the union of SETDESA was not granted legal personality because one hour before the foundation of the union the founders themselves had resigned in writing; (2) the workers who had attempted to establish the union were subsequently reinstated and may, if they so wish, establish another union; and (3) on 6 March 2000, other workers established a different union which was granted legal personality. The Committee notes that the Government has not sent its observations on the allegations that the resignations of the SETDESA founders were the result of coercion by company representatives to sign blank sheets of paper. Under these circumstances, the Committee feels it has no choice but to conclude that the company attempted to block the establishment of SETDESA. Given that the founders were able subsequently to rejoin the company and that the Government states that they can establish another union if they so wish, the Committee will confine itself to expressing its profound regret at the anti-union acts of discrimination and interference on the part of the company and to drawing the attention of the founders of SETDESA to the fact that they may, if they so wish, make further attempts to obtain legal personality for this union.