Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 393, Marzo 2021

1. 392. The complaint is included in a joint communication from the Union of Municipal Workers of Santa Ana (SITRAMSA) and the National Confederation of Salvadoran Workers (CNTS) of 10 September 2018.
2. 393. The Government sent its observations in a communication dated 9 February 2021.
3. 394. 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. 395. In its communication dated 10 September 2018, the complainant organizations allege that in October 2016 the administration of the ARENA political party, to which the mayor of the municipality of Santa Ana, Mr Moreira Cruz, belonged and its plural municipal council (comprising councillors from his party and other parties, apart from the Farabundo Martí National Liberation Front (FMLN) and the Grand Alliance for National Unity (GANA) political parties), requested SITRAMSA to support them. Since the trade union did not accede to this request, this led to a discrimination campaign against SITRAMSA, threats of dismissals of its members, and non-compliance with the arbitration ruling. The complainant organizations indicate that the arbitration ruling, issued on 27 May 2014 by the Court of Arbitration during the direct reconciliation proceedings, has the status of a collective labour agreement, was registered with the Ministry of Labour and Social Welfare and entered into force on 1 January 2015. The complainant organizations allege that the municipal administration failed to comply with several of the 88 clauses of the arbitration ruling, despite the fact that compliance with all of them was compulsory for both parties.
2. 396. The complainant organizations allege that, at the beginning of 2017, the municipal administration began to delay the payment of instalments for loans that members had with financial institutions, banks and cooperatives, even though those instalments had been deducted from the salaries of workers, who had fallen into arrears and were exposed to the payment of additional interest, and threats of seizure. The complainant organizations allege that the funds had been used by the administration to cover the municipality’s debts, thereby infringing paragraph 77 of the arbitration ruling relating to the retention of union dues, payment of external funds held in custody and workers’ contributions.
3. 397. They also allege that between January and February 2017, the workers who were members of SITRAMSA, Mr Cuellar, Mr Leiva and Mr Mejía, were subject to discrimination as they were trade union members and as the result of personal circumstances, following which they were dismissed. They allege also that 97 employees were suspended and their salaries reduced without justification, in specific violation of paragraphs 17, 35 and 88 of the arbitration ruling, relating to employment stability, and non-discrimination and special rights for trade union members.
4. 398. The complainant organizations state that, in February 2017, in the face of constant violations of freedom of association and the arbitration ruling, and since the authorities and the mayor did not respond, trade union activities were conducted to request observance of employment rights and compliance with the arbitration ruling. Similarly, on 22 February 2017 SITRAMSA lodged a relevant complaint with the Office of the Prosecutor for the Defence of Human Rights, and requested this Office to mediate between the parties. The Mayor’s Office of the Municipality of Santa Ana did not, however, wish to engage in dialogue, as a result of which the Office of the Prosecutor issued a ruling on 12 June 2017, recording the fact that the municipal administration had abused its authority.
5. 399. The complainant organizations state that on 15 February 2018 the management council of SITRAMISA (ten members) was notified of its indefinite suspension with dismissal proceedings. It was also informed that similar proceedings would be instituted against the 40 employees of the trade union committees in the following days, in addition to 37 trade union members, together with a reduction in the salaries of more than 380 workers who had participated in the trade union activities. The council members were also informed that the premises assigned to the trade union was being used by the municipal administration and that henceforth they would be denied entry to the premises. All the officials were forbidden to enter the municipal mayor’s offices, an example of trade union persecution. The complainant organizations state that on 16 February 2018 the municipal authorities arbitrarily closed and seized the trade union premises. The union members were escorted by the police out of the municipal mayor’s offices. The complainants attached a copy of a letter, dated 8 May 2018, which was sent by SITRAMISA to the then lady mayor of Santa Ana. It requested that the trade union officials be reinstated and indicated that the officials were the subject of a court ruling ordering their reinstatement. In the letter, the trade union also requested that the 97 workers who had been suspended and were trade union members be reinstated.
6. 400. The complainant organizations allege that as of 23 February 2018 the members of SITRAMSA were the subject of discrimination as a result of their trade union membership (868 members); similarly, trade unions attached to the municipal government and with a smaller number of members (SITRAMUSA, 68 members, and SEMSA, 49 members) forced the workers to give up their membership of SITRAMSA and the same municipal government conducted anti-union activities by taking photographs of any worker who supported the union. The complainant organizations also report that there were 55 suspensions with dismissal proceedings and 25 dismissals owing to the expiry of contracts, thereby constituting unfair dismissals in different areas. Further, there is a persistent threat that more workers will be dismissed when their employment contracts expire, affecting all the above-mentioned union members.
7. 401. Finally, the complainants allege that in 2017 and 2018 there were delays in the delivery of the basic basket of goods, and the supermarket vouchers, awarded in the arbitration ruling, were not given. Similarly, benefits such as home help in the case of death of family members and life insurance were infringed and abolished, as was paid vacation for administrative employees. The complainant organizations allege that the above measures are designed to undermine the claims that were successful in the arbitration ruling. They also allege that, as of 1 May 2018, the new lady mayor. Ms Calderón de Escalón, adopted the same policy of deleting clauses from the SITRAMSA arbitration ruling. The mayor had stated in newspaper stories that the collective agreement had already expired and, for that reason, the benefits resulting from the agreement were not granted.

B. The Government’s reply

1. 402. In its communication of 9 February 2021, the Government submits its observations, together with those of the Mayor’s Office of the Municipality of Santa Ana. As regards the alleged non-compliance with the arbitration ruling, the Mayor’s Office indicates that the ruling was issued on 27 May 2014, and was in force for three years, from 1 January 2015 to 31 December 2017. The Mayor’s Office indicates that, although the ruling could be extended automatically, provided that none of the parties requested it to be revised, in this case, both parties (the municipality of Santa Ana and SITRAMSA) did request the arbitration ruling to be revised before the Public Service Tribunal. Therefore, since such a revision was requested, the ruling was not extended for one more year and remained in force until 31 December 2017. The Mayor’s Office also states that to date no other valid collective labour agreement exists, that has been concluded by the municipality of Santa Ana and SITRAMSA. The municipal Mayor’s Office emphasizes that when the Mayor took power, in May 2018, the ruling in question was no longer valid and that, in any case, she was not aware which benefits from the ruling were not complied with.
2. 403. In relation to the alleged threats of dismissal of trade union members and the alleged prohibition on entry to the municipal mayor’s offices, those offices indicate that since the current administration came to powers, i.e. on 1 May 2018, it has always observed and guaranteed the social and individual rights of any person who is a trade union member. The mayor’s offices state that it was the municipal authorities which were in power from 1 May 2015 to 30 April 2018, that put forward requests for authorization of dismissal of various municipal employees to the judge of the Santa Ana Labour Court. These employees include the SITRAMSA officials, who were deemed to have undertaken actions that were construed as reasons for dismissal under the Municipal Administrative Career Act, as they had endangered the health of the population of Santa Ana, unlawfully obstructed the collection of solid waste by the municipality, and used violent means to close municipal facilities and obstructed lorries collecting solid waste from leaving. In view of the above, the Municipal Council of Santa Ana requested authorization for dismissal of the union officials from the judge of the Santa Ana Labour Court, prior to taking the decision to dismiss them. Since the municipal employees involved, including the union officials, were made aware of the requests that had been filed against them, they abandoned their posts in February 2017 and did not report for work.
3. 404. The Government indicates that it requested information on this case from the judge of the Santa Ana Labour Court and that the judge had responded that his records contained the details of two cases which were already finalized and had been filed: (i) as regards Ms Cuellar, a final ruling was issued on 4 April 2018 declaring that the request to nullify the dismissal was not receivable, as confirmed by the Chamber of Second Instance; and (ii) as for Ms Leiva, on 27 February 2018, a final ruling was issued declaring the dismissal to be null and void, as confirmed by the respective Chamber of Second Instance. The case was currently with the First Labour Chamber, since an appeal had been lodged against an initial ruling made on 20 July 2020. The Government attached a note from the Santa Ana Labour Court in which the labour judge states that he could not provide the Government with information on the dismissal authorization proceedings concerning the SITRAMSA officials, because their names or case numbers had not been communicated.
4. 405. Finally, the Government indicates that it will continue to follow up on this case and provide information on any progress made.

C. The Committee’s conclusions

1. 406. The Committee observes that in this case, the complainant organizations allege that, at the beginning of 2017 and after not supporting the party to which he belonged, the then mayor of Santa Ana and the municipal council of the mayor’s office (excluding the FMLN and GANA political parties) undertook a campaign of discrimination against SITRAMSA, threatening its officials with dismissal and failing to comply with various clauses of the arbitration ruling issued in 2014 (a ruling which has the status of a collective labour agreement). They also allege that suspensions and dismissals of trade union members (including the ten members of the management council) took place and that the union premises were closed. The Committee notes that, according to the complainant organizations, on 22 February 2017 SITRAMSA reported these matters to the Office of the Prosecutor for the Defence of Human Rights.
2. 407. As regards the alleged failure to comply with the arbitration ruling (clauses relating to employment stability; non-discrimination: retention of trade-union dues and payment of external custodial funds; economic assistance, etc.), the Committee notes that the mayor’s office of the municipality of Santa Ana indicates that: (i) both the municipality of Santa Ana and SITRAMSA made a request to the Public Service Tribunal for the ruling to be revised, for which reason it was not automatically extended and was in force until 31 December 2017, (ii) it was unaware which benefits from the ruling were not complied with and, in any case, when it took power in May 2018, the ruling was no longer valid, and (iii) no valid collective agreement with SITRAMSA currently exists.
3. 408. The Committee observes that the complainant organizations attached to their complaint a copy of the arbitration ruling and that, according to the provisions of paragraph 83, the ruling was valid for three years as of 1 January 2015, after which date it would be automatically extended for one-year periods, provided that no party requested it to be revised. The Committee notes that although it is not clear from the complaint that any of the parties requested the ruling to be revised, the municipal mayor’s office indicates that both parties appear to have requested such a revision and that the ruling seemingly ceased to be valid at the end of 2017. The Committee notes, in any case, that the complainant organizations allege that the failure to comply with the ruling appears to have begun at the start of 2017, and regrets to observe that, in its response, the municipal mayor’s office simply indicates that it was unaware which benefits from the ruling were not complied with. In any case, the current administration took up office in May 2018, when the ruling was no longer in force. Recalling that agreements should be binding on the parties and that mutual respect for the commitment undertaken in collective agreements is an important element of the right to bargain collectively and should be upheld in order to establish labour relations on stable and firm ground [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, paras 1334 and 1336], the Committee requests the Government and the complainant organizations to provide information and specific documentation relating to the revision of the arbitration ruling. Similarly, it requests the Government, if the ruling is valid, to take all necessary measures to ensure full compliance therewith.
4. 409. As regards the alleged suspensions and dismissals of union members (including the ten members of the SITRAMSA management council), the Committee notes that the municipal mayor’s office indicates that: (i) since it came to power on 1 May 2018, it has always observed and guaranteed the rights of trade union members, (ii) the previous municipal administration had made requests for authorization of dismissal of various municipal employees, including the SITRAMSA officials, for having endangered the health of the population of Santa Ana, unlawfully obstructing the collection of solid waste by the municipality, using violent means to close municipal facilities, and obstructing lorries collecting solid waste from leaving, and (iii) in February 2017, the municipal employees, including the union officials, were made aware of the requests that had been made against them, abandoned their posts and did not report for work. The Committee also notes that the Government has attached a note from the judge of the Santa Ana labour court, which states that: (i) Ms Cuellar, a member of SITRAMSA, is the subject of a final ruling declaring that the request to nullify the dismissal is not receivable, and (ii) Ms Leiva, a member of SITRAMSA, is the subject of a final ruling declaring her dismissal to be null and void, as confirmed by the chamber of second instance, and which is currently with the first labour chamber as the result of an appeal lodged against an initial ruling made on 20 July 2020 (copies of the rulings are not attached).
5. 410. The Committee observes that the complainant organizations attached to their complaint a copy of the ruling handed down by the Office of the Prosecutor for the Defence of Human Rights on 12 June 2017, noting that the ruling confirms the violation of labour rights, trade union freedoms, and those deriving from the right of association, owing to unlawful acts or those infringing the employment stability of union officials and trade union persecution. The Office of the Prosecutor indicated that the municipal mayor bears responsibility for these violations and recommended to that authority that the necessary administrative proceedings be undertaken to reinstate the union officials, and also other workers, immediately. It also indicated that it would inform the Minister of Labour and Social Welfare of the ruling so that the Minister exercised appropriate supervision.
6. 411. The Committee also notes that the complainant organizations attached a copy of a letter which SITRAMSA sent on 8 May 2018 to the then lady mayor of Santa Ana. The Committee observes that in the letter the trade union requests that the SITRAMSA officials be reinstated and indicates that the officials were the subject of a judicial ruling ordering that they be reinstated. In the letter, the union also requested that the 97 suspended workers who were members of the trade union be reinstated. The Committee notes that although the information provided by the complainant organizations would appear to show that the union officials were the subject of a ruling ordering their reinstatement and that those officials had seemingly not been reinstated, at least as of the date of submission of the complaint, according to the municipal mayor’s office the union officials had abandoned their posts in February 2017, when they were made aware of the requests for dismissal that had been made against them. Furthermore, the Committee points out that in a note attached by the Government and signed by the judge of the Santa Ana Labour Court, the judge indicated that he could not provide information relating to the dismissal authorization proceedings concerning the SITRAMSA officials, because their names or case numbers had not been communicated.
7. 412. Recalling in general that no person should be dismissed or prejudiced in employment by reason of trade union membership or legitimate trade union activities, and that it is important to forbid or penalize in practice all acts of anti-union discrimination in respect of employment [see Compilation, para. 1075], the Committee requests the Government and the complainant organizations to supply a copy of any court ruling issued in relation to the dismissals of the union members and officials. The Committee urges the Government to take all the necessary initiatives, including by means of dialogue with SITRAMSA, to ensure that the union officials are immediately reinstated, provided that these officials are the subject of relevant court orders, and also that workers for whom the anti-union nature of their suspensions or dismissals has been confirmed are reinstated.
8. 413. As regards the allegation that the discrimination campaign against SITRAMSA and its members appears to have originated because the trade union had not allegedly supported the political party to which the then municipal mayor of Santa Ana belonged, the Committee reaffirms the principle expressed by the International Labour Conference in the resolution concerning the independence of the trade union movement that governments should not attempt to transform the trade union movement into an instrument for the pursuance of political aims, nor should they attempt to interfere with the normal functions of a trade union movement because of its freely established relationship with a political party [see Compilation, para. 724].
9. 414. As regards the allegation that the municipal authorities arbitrarily closed and seized the trade union’s premises, thereby denying access to those premises for officials and members, who were escorted by the police out of the municipal mayor’s offices, while regretting that the Government has not submitted any detailed observations in this regard, the Committee recalls that the access of trade union members to their union premises should not be restricted by the state authorities [see Compilation, para. 290] and urges the Government to guarantee strict observance of such access.