Rapport définitif - Rapport No. 392, Octobre 2020

1. 592. The complaint is contained in communications dated 18 August 2017 and 28 June 2018 from the Trade Union of Employees of the Office of the Ombudsperson for Human Rights of El Salvador (SEPRODEHES).
2. 593. The Government sent its observations in communications dated 25 February and 25 September 2019 and 31 January 2020.
3. 594. 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 complainant’s allegations

1. 595. In its communications, the complainant alleges violations of freedom of association by the titular head of the Office of the Ombudsperson for Human Rights (the Ombudsperson), in particular: violations of freedom of expression and freedom of association; failure to respond to requests and communications, cancellation of planned meetings and hearings and other refusals to participate, in contravention of the arbitration award that serves as the collective labour agreement (the LACCT); and workplace harassment of the Secretary-General of the board of directors, as well as other arbitrary acts carried out on the instructions of the Ombudsperson.
2. 596. The complainant states that on 26 July 2017 industrial action was taken outside one of the institution’s premises to call on the Ombudsperson to resume dialogue, which she had broken off in March 2017, and to comply with the LACCT. In response, that same day, the Ombudsperson issued a memorandum (No. 191/2017) in which she made false accusations in an effort to stigmatize the industrial action as a criminal offence and “acts of vandalism and gender violence” – accusations that constituted an effort to limit freedom of expression and association. In that same memorandum, the Ombudsperson did not recognize the board of directors of SEPRODEHES, refusing to hold dialogue with the trade union, even though it is the legitimate representative of the majority of workers, and called on employees to organize themselves independently of SEPRODEHES. In that regard, the complainant submits the text of several internal communications from the Ombudsperson to the workers, in which she attacks the board of directors and attempts to influence the electoral process, stating, for example: “I believe that the current board of directors is not sufficiently representative and I urge staff members, whether they are union members or not, to seek objective and professional representatives … in order to be able to embark upon mechanisms of dialogue with the administration”; or “I vow to ensure that true representatives will be elected”; or, in a communiqué issued the day before the elections, accusations that members of the board of had committed criminal offences, abandoned their work duties and were only acting in their own interests. The complainant also submits press releases containing statements from the Ombudsperson making serious and unfounded accusations against the members of the trade union’s board of directors (calling its two main leaders “criminals” or stating that “they are not staff members of the institution and they are getting money for nothing”, adding that “these two people and ten other people do not do anything at all” and that “I do not take any notice of criminals”). In addition, the complainant reports that the Ombudsperson denied the request made by the trade union for its members to attend an extraordinary general assembly, arguing that the activity was not “explicitly provided for in the work plan, which they have not even submitted to me correctly” – which was not true, because the board of directors of SEPRODEHES had indeed submitted that work plan.
3. 597. The complainant adds that, during the 2017–18 term of the board of directors, the Ombudsperson systematically and repeatedly failed to respond to documents submitted by the trade union and refused requested hearings: (i) even though the Ombudsperson had signed a memorandum (14/2017 of 12 January 2017) containing the schedule of the year’s twelve meetings, only one meeting was held, on 28 March 2017, and the following meetings were cancelled without notifying the trade union; (ii) by means of memorandum No. 197/2017 of 29 June 2017, the Ombudsperson violated clause 3 of the LACCT, which established that she should have a presence at the meetings, by appointing a committee to represent her; (iii) in memorandum 191/2017 of 26 July 2017 the Ombudsperson annulled the previous memorandum by cancelling the scheduled meetings with the aforementioned committee; and (iv) as of April 2017, the unilateral breakdown of dialogue was confirmed, when the board of directors of the trade union was prevented from participating in budget management, as established in clause 43 of the LACCT. SEPRODEHES affirms that, in spite of these denials, it remains open to dialogue, and on 17 August 2017 it sent a mediation proposal to the Ombudsperson with a view to re-establishing dialogue.
4. 598. Lastly, the complainant alleges workplace harassment of its Secretary-General and other arbitrary anti-union activities. SEPRODEHES alleges that on 12 July 2017, its Secretary-General, Mr Carlos Solórzano Padilla, was relieved of his duties in the institution by means of memorandum No. 1355/2017, which required him to stop the work that had been assigned to him and move out of his office. Several days later, in a continuation of the illegal and arbitrary actions, people who work alongside the Ombudsperson took away the Secretary-General’s computer and attempted to extract information from its hard drive – as a result of his personal objections and those of other executives, the Secretary-General was eventually able to access his personal files. The Secretary-General was also required to present an inventory of the movable property that he used in his work for the institution. In addition, the trade union also makes reference to the dismissal of one of its members on 31 May 2017 but does not provide details indicating that this is an anti-union measure.

B. The Government’s reply

1. 599. In its communications, the Government provides the responses of the Ministry of Labour and Social Welfare and the Office of the Ombudsperson to the allegations made in the complaint.
2. 600. The Government states that, although it is true that SEPRODEHES sent a document to the National Department of Social Organizations (DNOS) on 29 August 2017 to request that they instruct the titular head of the Office of the Ombudsperson to stop interfering in the exercise of freedom of association, DNOS replied stating that it was not in a position to intervene and issue such instructions to the Office of the Ombudsperson. The Government specifies that it is not that it did not want to support the trade union, but that it was not able to intervene because there is an express prohibition on doing so. Nonetheless, the judicial route was available to the trade union for it to assert any rights that they considered to have been violated.
3. 601. As for the Ombudsperson, she affirms that: (i) it was in fact the board of directors of the trade union that carried out a repeated and systematic campaign to discredit the titular head of the Office of the Ombudsperson and those who work alongside her, and she believes that “their actions were borderline criminal, characterized by violence towards a woman and disrespect for her authority”, as well as harassment of workers who did not go along with their efforts to harangue and blockade management; (ii) their disrespectful conduct towards the titular head of the Office of the Ombudsperson and those who work alongside her made holding dialogue impossible, regardless of their willingness; (iii) the alleged violations have been presented out of context and are not true – at no time did she obstruct the right of staff members to organize; (iv) her goodwill towards the working class was made clear when she took responsibility for the implementation of the LACCT, even though it lacked funding, so that all the workers could benefit from it, and she has faithfully complied with all the rights and benefits that the LACCT confers on the staff; (v) with regard to the schedule of meetings, the Secretary-General of SEPRODEHES was asked to submit the work plan with the activities listed, in accordance with clause 19 of the LACCT, but he did not do so; (vi) the members of the trade union and its board of directors had had absolute freedom to demonstrate, they hurled all sorts of insults at the Ombudsperson and carried out multiple protest actions, including road closures and generally limiting staff members’ access to their work; and (vii) as a show of goodwill towards the complainant organization, on 7 October and 24 November 2016 and 27 January 2017, fifteen notices were submitted withdrawing actions that the previous titular head of the Office of the Ombudsperson had brought against the board of directors of SEPRODEHES.
4. 602. With regard to the alleged harassment of the Secretary-General of the complainant organization by removing him from his work duties, the Government states that his removal was linked to the fact that, in accordance with the LACCT, the Secretary-General had a 100 per cent exemption from the working day in order to carry out his trade union activities. In this regard, the Government understands that by being part of the board of directors and having this full trade union leave, the Secretary-General had implicitly given up his work duties, which still needed to be done. In that regard, the Government reports that, in response to his dismissal, the Secretary-General brought a case alleging “clear injustice”, which was dismissed by the Civil Service Tribunal on 8 June 2018 in a ruling declaring that the allegation of clear injustice was without basis.
5. 603. Lastly, in its communication dated 31 January 2020, the Government states that: (i) on 16 October 2019 the Legislative Assembly elected a new titular head of the Office of the Ombudsperson, who, in a television interview two days later, expressed his intention not to conflict with SEPRODEHES and to work harmoniously with the whole institution; and (ii) at a press conference on 21 October 2019, SEPRODEHES gave the new Ombudsperson their vote of confidence, after holding a meeting at which they discussed issues of interest to the trade union and the new Ombudsperson committed to respecting the rights and benefits that had been obtained through the collective agreement.

C. The Committee’s conclusions

1. 604. The Committee observes that in this case various allegations have been made that indicate the existence of a conflict situation and a lack of dialogue between the leadership of the Office of the Ombudsperson (the employer institution) and the complainant organization. On the one hand, the trade union reports acts of anti-union reprisal and stigmatization by the Ombudsperson in response to the exercise of legitimate trade union activities; failure to respond to requests and communications, cancellation of planned meetings and hearings and other refusals to participate, in contravention of the arbitration award that serves as the collective labour agreement (the LACCT); as well as anti-union discrimination, in particular the workplace harassment of the Secretary-General of the board of directors. On the other hand, the Government states that the Ministry of Labour authorities did not have the jurisdiction to intervene in the conflict and, with regard to the allegation of workplace harassment of the Secretary-General of the complainant organization, specifies that his removal was linked to his trade union leave, as established in the LACCT, and that the Civil Service Tribunal had made a ruling declaring that the case brought by the Secretary-General alleging clear injustice in this regard was without basis. The Government has also sent the response of the Ombudsperson, in which she states that: (i) it was in fact the board of directors of the trade union that, while having complete freedom to exercise their functions, behaved disrespectfully towards her and those who worked alongside her and that this had made holding dialogue impossible, regardless of their willingness; (ii) the goodwill of the Ombudsperson towards the working class was made clear when she took responsibility for the implementation of the LACCT, even though it lacked funding, so that all the workers could benefit from it, and she has faithfully complied with all the rights and benefits that the LACCT confers on the staff; and (iii) that goodwill was also demonstrated by the notices submitted withdrawing actions that the previous titular head of the Office of the Ombudsperson had brought against SEPRODEHES.
2. 605. Noting the differences between the allegations made by the complainant and the response of the Ombudsperson, the Committee observes the animosity in the public declarations of the Ombudsperson towards the trade union leadership, which the union provides extensive documentation to support and the Ombudsperson does not deny. The Committee observes, for example, that while the Ombudsperson indicates in her written statement to the Committee that she respects freedom of association and that members of the board have complete trade union leave to carry out their duties, in statements to the press she accuses them of being “criminals” or states that “they are not staff members of the institution and they are getting money for nothing”, adding that “these two people and ten other people do not do anything at all”. On the other hand, the Committee observes that the Ombudsperson states that it was in fact the trade union that carried out a repeated and systematic campaign to discredit the titular head of the Office of the Ombudsperson, and she believes that “their actions were borderline criminal, characterized by violence towards a woman and disrespect for her authority”, although she does not provide any supporting evidence to back up these assertions. The Committee also takes note of the internal communications in which the Ombudsperson used her position in the institution to attack the board of directors and interfere in the trade union elections, sending internal communications to workers urging them to elect different leaders to the board of the trade union. The Committee recalls in this regard that when the authorities intervene during the election proceedings of a union, expressing their opinion of the candidates and the consequences of the election, this seriously challenges the principle that trade union organizations have the right to elect their representatives in full freedom [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 640]. The Committee considers that statements such as these interfere in the right to freely elect leaders and do not contribute to the development of harmonious labour relations.
3. 606. In that respect, the Committee has highlighted the importance for harmonious labour relations of full and frank consultations on matters affecting the workers’ occupational interests, and stressed the importance that immediate action be taken to create a climate of trust based on respect for business and labour organizations, so as to promote stable and solid industrial relations [see Compilation, 2018, paras 1519 and 1520]. In these circumstances, the Committee invites the authorities concerned to continue facilitating constructive dialogue between the leadership of the Office of the Ombudsperson and the complainant organization, including to address any matters raised in the complaint that remain unresolved, with a view to ensuring complete respect for freedom of association in the institution in question and promoting harmonious labour relations.