Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 333, Mars 2004

1. 543. The complaint is contained in a communication from the National Trade Union Federation of Salvadorian Workers (FENASTRAS) dated 11 September 2003. FENASTRAS sent further information and new allegations in communications dated 24 October and 25 November 2003. The Government sent its observations in communications dated 29 October and 4 November 2003 and 5 and 8 January 2004.
2. 544. 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. 545. In its communication of 11 September 2003, the National Trade Union Federation of Salvadorian Workers (FENASTRAS) states that in 2001 trade union officers María del Rosario Hernández, Marlene Jeannete Arguello Alfaro, Rutilia Rivera de Miranda, Sonia Guadalupe Rivera Argueta and Rosa Sánchez Osegueda were dismissed by the J.R.C. Manufacturing S.A. of C.V. company. FENASTRAS asked for these trade union officials to be reinstated, and this took place on 4 February 2002.
2. 546. On 11 February 2002, FENASTRAS handed written statements from five trade union officials threatened with death by one of the owners of the company because of their position as trade union officials to the Ministry of Labour. In February 2002, Juana Ramírez, a trade union official, was dismissed.
3. 547. FENASTRAS states that, on 7 August 2003, the National Civil Police of El Salvador arrested the finance secretary of the trade union local office executive committee of the J.R.C. Manufacturing S.A. of C.V. company, José Alirio Pérez Cañenguez, and driver Gilberto Antonio Mejía Barrios, accusing them of robbery. This accusation turned out to be false as on 12 August 2003 the Ilopango Court of the Peace released them (provisionally put aside in the absence of sufficient evidence), finding no cause for arrest and thereby indicating that the accusations of the owner of the company in question were false. This trade union official was dismissed.
4. 548. In its communication of 24 October 2003, FENASTRAS states that the Private Security Services Industry Workers’ Trade Union of El Salvador (SITRASEPRIES), established on 11 April 2003, was denied legal personality, which it had requested on 19 May 2003. In August 2003, Carlos Baltazar Martínez Quiteño, trade union official, and Orlando Flores Paz, acting president of the trade union were dismissed; both worked for the Security Consultants S.A. of C.V. company. The trade union requested compensation for dismissal, which was paid.
5. 549. In its communication of 25 November 2003, FENASTRAS states that on 24 October 2003 the entire executive committee of the local office (17 members) was dismissed by the J.R.C. Manufacturing S.A. of C.V. company. FENASTRAS states that in a mediation hearing it was agreed with the company that the wages of these employees would be paid – José Alirio Pérez Cañenguez was also included in the agreement – but the company refuses to allow these employees entry to the facilities, preventing them from being able to protect the interests of the other workers.

B. The Government’s replies

1. 550. In its communications of 29 October and 4 November 2003 and 5 and 8 January 2004, the Government states that, on 15 February 2002, at a mediation hearing organized by the General Labour Directorate at the request of the STITAS trade union of the J.R.C. Manufacturing S.A. of C.V. company, the reinstatement of trade union officials María del Rosario Hernández Perez, Marlene Jeannete Arguello Alfaro, Rutilia Rivera de Miranda, Sonia Guadalupe Rivera Argueta and Rosa Sánchez Osegueda was offered as a conciliatory measure, from 18 February 2002, which was accepted by the trade union.
2. 551. With regard to the death threats against the five trade union officials, the Government states that the Ministry of Labour does not have the authority to hear criminal cases.
3. 552. With regard to the alleged arrest by the National Civil Police of José Alirio Pérez Cañenguez, finance secretary of the trade union local office executive committee of the J.R.C. Manufacturing S.A. of C.V. company, and Gilberto Mejía Barrios in August 2003, both accused of robbery by the legal representative of the company, the relevant competent courts have been handling this situation as the Ministry of Labour and Social Security is excluded from acting in this respect, given that this is a criminal situation rather than a labour one. The Government indicates that it will send the company’s observations once it receives them.
4. 553. With regard to the alleged refusal of legal personality for the Private Security Services Industry Workers’ Trade Union of El Salvador (SITRASEPRIES), which is being established, the Government puts forward the legal arguments set out in the decision of 26 June 2003, which stated that the request for the recognition of legal personality for SITRASEPRIES was without cause for the following reasons:
   • – Article 7 of the Constitution of the Republic, paragraph 3, expressly “prohibits the existence of political, religious or trade union armed groups”. A trade union falls into this category and, in the present case, a trade union formed of persons possessing and using firearms, falls squarely under the abovementioned constitutional prohibition.
   • – The nature of the work carried out by a security agent, i.e. to provide security and surveillance in those areas indicated to him by his employer, means that these employees are trusted, and that this trust is a basic requirement in the existence and continuation of the employment relationship between the agent and his employer.
   • – Despite the above, the law recognizes the possibility of a trusted employee joining a trade union organization so long as the general assembly of the trade union that he wishes to join accepts him as a member, article 221, section 6(a), of the Labour Code. This necessarily implies the prior existence of a trade union organization that is not made up of trusted employees and that has been granted legal personality.
   • – From the above, it can be concluded that trusted employees, as in the present case, lack the legal right to participate as constituent members of a trade union organization as there is still no government body enabled by law to accept them as members. It is therefore not logical to think that trusted employees who try to establish a trade union will themselves be accepted as members.
   • – Consequently, the fact that trusted employees are not able to participate as members of a trade union means that the security agents that have taken part in establishing the trade union in question are not legally empowered for this.
5. 554. The reasons that caused the Ministry of Labour and Social Security to decide that the request for legal personality for the trade union in the process of being established was without cause are founded in law. It is up to the complainant to initiate the legal and administrative actions that it considers relevant for the protection of those trade union rights that have allegedly been violated.
6. 555. Likewise, the request by the complainant for a decision to revoke the denial of legal personality for the trade union and that the latter be granted legal personality immediately is currently being examined, as the granting of legal personality to the trade union being established would contravene the Constitution of the Republic, which, as already shown in article 7, paragraph 3, expressly “prohibits the existence of political, religious or trade union armed groups”.
7. 556. With regard to the alleged dismissal of 17 officials from the trade union organization STITAS on 24 October 2003, the Government states that at the request of the trade union, the General Labour Directorate held a mediation hearing with the result that the company informed the 17 trade union officials dismissed that it was instructed to pay out, in the offices of the General Labour Directorate, those wages that were not paid on the employer’s instructions. The trade union representatives agreed that the wages that were not paid on the employer’s instructions should be paid and that this should take place at the offices of the Ministry.

C. The Committee’s conclusions

1. 557. The Committee notes that the complainant organization, in the present case, has alleged successive dismissals of trade union officials by the J.R.C. Manufacturing S.A. of C.V. company; death threats against five trade union officials; the arrest and prosecution of a trade union official and another worker for alleged robbery; and the denial of legal personality to a trade union made up of private security agents and the dismissal of two of its officials.
2. 558. With regard to the alleged dismissal of the five trade union officials in 2001, the Committee notes the Government’s statement that these officials were reinstated on 18 February 2002. The Committee requests the Government to inform it of the reasons for the dismissal of trade union official Juana Ramírez in February 2002.
3. 559. With regard to the death threats against five trade union officials at the J.R.C. Manufacturing S.A. of C.V. company by one of the owners, the Committee regrets that the Government has restricted itself to indicating that the Ministry of Labour is not competent to hear criminal cases. The Committee recalls that freedom of association can only be exercised as conditions in which fundamental human rights, and in particular those relating to human life and personal safety, are fully respected and guaranteed [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 46]. The Committee emphasizes that, as indicated in the complaint, the threats were supported by written statements and it requests the Government to take steps urgently to ensure that the competent authorities carry out an investigation and, if the allegations are confirmed, to punish the guilty parties so that adequate protection is guaranteed to these officials.
4. 560. With regard to the alleged arrest and prosecution of trade union official José Alirio Pérez Cañenguez for alleged robbery, the Committee notes the Government’s statement that this issue has been put before the courts and that it has asked the company to provide observations in this respect. The Committee notes that in the attached information sent by the complainant organization there is a legal decision that infers that the official in question has not been held and that the legal authorities have declared dismissal without prejudice of the case pending new elements and/or evidence. In these circumstances, the Committee considers that these trade union officials should be reinstated in their posts without loss of pay and be authorized to exercise their trade union activities. The Committee requests the Government to keep it informed of any new legal decision handed down on this matter.
5. 561. With regard to the alleged denial of legal personality for the private security agents’ trade union SITRASEPRIES, the Committee notes that the Government confirms the refusal of legal personality and indicates that it is examining the request by the complainant that this decision upholding refusal be revoked. The Committee notes the arguments put forward by the Government that, in its opinion, the granting of this legal personality would be illegal (the Constitution of the Republic – article 7 – prohibits the existence of armed groups, these are trusted employees and they may only join a trade union that has been established with workers of another kind who will accept them as members). The Committee notes in this respect that this constitutional provision should not prevent workers from carrying arms when this is necessary because of the nature of their work.
6. 562. In this respect, the Committee recalls that, in accordance with the principles of freedom of association only the armed forces and the police can be excluded from the right to establish trade unions – which is a fundamental right. Consequently, all other workers, including private security agents should freely be able to establish trade union organizations of their own choosing. In these circumstances, the Committee believes that the denial of legal personality for the SITRASEPRIES trade union is a serious violation of freedom of association and it urges the Government to recognize this trade union and to keep it informed in this regard. The Committee observes that the Security Consultants S.A. of C.V. company has dismissed two SITRASEPRIES officials, although it notes that, according to the documents attached by the complainant, the employees concerned ended up accepting legal compensation.
7. 563. With regard to the dismissal of 17 trade union officials of STITAS by the J.R.C. Manufacturing S.A. of C.V. company, the Committee notes the Government’s statement that, in a mediation hearing organized by the General Labour Directorate, the company accepted to pay the unpaid wages. The Committee regrets that the Government has provided no information on the specific facts that led to these dismissals; neither has it said whether these trade union officials – who, according to the allegations, are prevented from entering the company – remain dismissed and it requests that the Government send it this information without delay. The Committee recalls the principle according to which 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 of decisions and principles of the Freedom of Association Committee, 1996, para. 696]. The Committee requests the Government, if it is proven that any of these officials was dismissed by reason of his trade union activities, to ensure his reinstatement in the post without loss of pay.