Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 336, Mars 2005

1. 387. The Committee last examined this case at its meeting in June 2004, and on that occasion presented an interim report [see 334th Report, paras. 468-490, approved by the Governing Body at its 290th Session in June 2004]. The Government sent new observations in a communication dated 8 October 2004.
2. 388. El Salvador has ratified neither the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), nor the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the case

1. 389. At its meeting in June 2004, the Committee made the following recommendations on the allegations that remained pending [see 334th Report, para. 490]:
   • (a) With regard to the dismissal of the 18 people listed by name in the allegations, the Committee requests the Government to indicate whether the 16 workers to whom it referred have taken legal action and, if so, that it inform the Committee of the respective decisions. The Committee requests the Government to provide information on the dismissal of the other workers. The Committee repeats its request to the complainant organization that it indicate the extent to which these dismissals were related to the exercise of trade union rights and whether those dismissed were trade union members.
   • (b) The Committee notes that neither the complainant organization nor the Government has sent the information requested by the Committee in its previous recommendations, which it reiterates here:
     • – The Committee requests the Government to send information without delay on the alleged transfer or prevention from applying for a job that affected Dr. Teresa de Jesús Sosa and Dr. Darío Sánchez, both members of the SIMETRISSS, and regarding the alleged modification of permanent contracts to short-term contracts affecting members of the trade union.
     • – With regard to the allegations relating to illegal deductions from wages affecting 11 persons (some of them trade union members), the Committee requests the Government and the complainant to indicate the name of the workers who were not present at the workplace (ISSS) on 11 September 2001, as well as the legislation to which the Government refers.
     • – With regard to the alleged search of people and vehicles belonging to trade union members of SIMETRISSS and the hiring of private armed guards, the Committee requests the Government and the complainant to provide further information on these allegations.
   • (c) With regard to the alleged dismissal of 30 trade union members, the Committee expects that, if the criminal charges laid against these workers are rejected, the workers concerned will be reinstated in their posts without loss of wages.
   • (d) With regard to the refusal to recognize the STISSS/SIMETRISSS coalition in the revision of the arbitration award, the Committee notes that the issue is currently before the Division of Administrative Law of the Supreme Court of Justice and requests the Government to send it a copy of the decision when this is handed down. However, the Committee points out that legislation should not prevent two trade unions from negotiating jointly if they so wish, including in cases of revision of a collective agreement when one of them is less representative.
   • (e) With regard to the allegation of eviction of the trade union from its premises, the Committee requests the Government to take all possible steps to ensure that the decision of the Attorney-General’s office of the Republic is not delayed, and that it send the Committee a copy of all decisions taken in this respect.

B. The Government’s reply

1. 390. In its communication of 8 October 2004, the Government states that none of the terminations of the contracts of 18 workers at the Salvadoran Social Security Institute (ISSS) has any connection with the exercise of trade union rights. The Government adds that the 18 persons in question presented formal applications to the courts, in most cases demanding the payment of compensation or arrears of wages. The results of these were as follows:
   • – three workers were awarded compensation for wrongful dismissal, another was awarded payment of wage arrears, and a ruling was given in favour of two workers on the grounds that their constitutional rights had been violated;
   • – an application (compensation for wrongful dismissal) is currently being considered by the courts, as well as another application regarding payment of wage arrears; in another case, the appeals court quashed the ruling that had been made in favour of the ISSS;
   • – a ruling in favour of the ISSS was handed down in one case concerning an application for compensation for wrongful dismissal, and in eight cases concerning demands for arrears of wages.
2. 391. As regards the alleged transfer or attempts to prevent workers from applying for posts, which concerned Dr. Teresa de Jesús Sosa and Dr. Darío Sánchez (who, according to the complainant, were members of SIMETRISSS), the Government states that it is not clear that Dr. Sosa was a member of the union, and that in any event she had as far back as January 2000 resigned from her post at the ISSS. The Government adds that the ISSS does not know which post Dr. Darío Sánchez wished to apply for, but points out in any case that under the terms of the arbitration award, the selection process is in the hands of a board comprising representatives of the ISSS and the trade union, and all workers can apply for new or vacant positions.
3. 392. As regards the illegal wage deductions affecting 11 people (including trade unionists), the Government does not know the names of the people involved; it points out that, under the terms of the Labour Code and the arbitration award currently in force, a worker is required to justify absences and that if absences were not paid, it was because there was no good reason for them.
4. 393. As regards the searches of SIMETRISSS members and their vehicles and the hiring of armed guards supposedly to curtail trade union rights, the Government indicates that there have frequently been criminal acts in various ISSS centres, including the Medical Surgical Hospital and the Specialized Treatment Hospital, where there have in the past been cases of theft or removal of various drugs that are difficult for individuals to obtain from pharmacies without a prescription, as well as of medical equipment that is difficult and expensive for the ISSS to buy on the national market. For this reason, senior management decided from 2001 onwards to order searches of all vehicles leaving ISSS premises, including vehicles driven by visitors and other authorized persons. This was a response to the need to ensure the safety of ISSS workers, as well as visitors and authorized persons, and to protect the Institute’s property.
5. 394. As regards the recruitment of armed guards, the Government states that the ISSS, from 2000 onwards, has hired the Compañía Salvadoreña de Seguridad S.A. de C.V. (COSASE) and the Servicios Conjuntos de Seguridad S.A. de C.V. (SERCONSE), both of which have been legally constituted in El Salvador and provide security services to various public and private institutions. Hiring of private security services is permitted under the terms of section 18(h) of the Act respecting the Salvadoran Social Security Institute, and the selection process complied with the Act on procurement and hiring in the public service. At no time were these initiatives intended to curtail trade union freedoms.
6. 395. As regards the dismissal of 30 members of the STISSS, the Government states that these were due to criminal acts committed by the workers concerned against the Institute’s property and staff. Despite this, in June 2004, the new management of the ISSS initiated a process of dialogue and consultation to clarify and resolve any disputes. Evidence of this is the establishment of a STISSS-ISSS subcommittee to review all the recent dismissals independently of any pending court decisions. As a result of this initiative, following an exhaustive review process, an agreement was reached with the STISSS to reinstate a group of 44 workers who had been dismissed for different reasons from 2001 onwards, including the 30 STISSS members named in this complaint. Currently, the 30 workers concerned are working for the Institute under the same conditions before their dismissals.
7. 396. As regards the refusal to recognize the coalition of STISSS and SIMETRISSS for the purpose of reviewing the arbitration award, the Government states that the Division of Administrative Law of the Supreme Court of Justice has not handed down a ruling on the matter.
8. 397. With regard to the allegation concerning eviction of the union from the premises it occupies, the Government states that the Attorney-General’s office has not yet taken a decision on the matter.

C. The Committee’s conclusions

1. 398. The Committee notes that the pending allegations in this case concern the following issues: dismissal of 18 workers and 30 trade union members employed by the Salvadoran Social Security Institute (ISSS); illegal wage deductions affecting 11 persons (including trade unionists); transfer of or measures to prevent two workers from applying for posts, in contravention of the arbitration award in force; searches of trade union members and their vehicles; arbitrary refusal to recognize the coalition of the trade union organizations STISSS and SIMETRISSS for the purpose of negotiating a review of the collective agreement; and violent and arbitrary eviction of the union from its premises by the Institute.
2. 399. As regards the allegations of dismissal, the Committee notes with satisfaction the Government’s statement to the effect that the 30 members of the STISSS who had been dismissed have been reinstated in their posts, together with 14 other workers. The Government notes also that, with regard to the other 18 dismissed workers, the courts ruled in favour of six of the workers, and in favour of the ISSS in nine cases, that proceedings concerning two workers have not been concluded, and that the application in another case was rejected. The Committee notes the Government’s statements to the effect that none of the 18 cases was connected with the exercise of trade union rights, and that in the judicial proceedings the workers sought only compensation or payment of wage arrears.
3. 400. The Committee also notes that, according to the Government, Dr. Teresa de Jesús Sosa (who, according to the complainant, had been transferred) resigned from her post at the ISSS in January 2000, and it is not clear that she was a trade union member. As to the Government’s statements regarding the allegation that Dr. Darío Sánchez, a member of the union, had been prevented from applying for a post, the Committee notes that the complainant has not indicated which post was involved, and that new or vacant posts in the ISSS are filled by a board comprising representatives of the ISSS and the trade union.
4. 401. As regards the alleged illegal wage deductions affecting 11 workers (including trade union members), the Committee regrets that the complainant has not provided any of the information requested, in particular the names of the workers concerned. It notes the Government’s statements that it does not have the names of these individuals, and that according to the Labour Code and the arbitration award in force, workers are required to justify their absences, and that if a worker was not paid the wages due, it was because of insufficient reasons for the absence from work.
5. 402. The Committee also notes the Government’s statements regarding the searches of vehicles and the hiring of private armed guards, in which it emphasizes that these measures are legal and intended to ensure security and prevent thefts of expensive medical equipment or other property belonging to the Institute. The Committee regrets that the complainants have not yet provided the information which it had requested on these matters, and indicates that it will not continue with the examination of these issues if the requested information has not been sent by its next meeting.
6. 403. Lastly, the Committee requests the Government:
   • (i) to keep it informed of:
     • – any court decision regarding the refusal of the ISSS to recognize the coalition of the STISSS and SIMETRISSS for the purpose of reviewing the arbitration award;
     • – any decision by the Attorney-General’s office concerning the alleged eviction of the union from its premises; and
   • (ii) to carry out an independent investigation into the alleged conversion of permanent contracts to short-term contracts to the detriment of trade union members, and to keep it informed of developments in this respect.