Rapport définitif - Rapport No. 272, Juin 1990

1. 121. The complaint is contained in a communication from the General Trade Union of Workers in the Fishing and Allied Industries (SGTIPAC) dated 12 July 1989. This organisation sent additional information in communications dated 8 August and 10 October 1989. The Government replied in a communication dated 22 March 1990.
2. 122. 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. The complainant's allegations

1. 123. The General Trade Union of Workers in the Fishing and Allied Industries (SGTIPAC) alleges that the fishing enterprises Atarraya SA, Camaronera Industrial Salvadoreña SA de CV (CAMINSA), Pesquera Industrial Salvadoreña SA de CV (PESQUINSA), Camaronera Salvadoreña SA, Pesquera Ruiz Quiros SA, Pesquera del Pacífico SA, Bayena SA de CV, Astilleros del Salvador SA de CV, Marina del Pacífico SA de CV, Promarisal SA de CV, Productos Pesqueros del Mar SA, Pesquera del Mar SA, Productos Cocinados del Mar SA, Mariscos San Simeón and Frutos del Océano SA (Acopuerto de RL) keep a list of the workers who are members of the trade union, and any member chosen by a captain or a skipper of a fishing vessel to join his crew is denied the right to work if his name appears on the list of members.
2. 124. The complainant organisation states further that in the enterprises of the Camaronera Industrial Salvadoreña, SA de CV (CAMINSA), the contracts of the workers Eudulfo Mauricio Tadeo Estupinian, Rigoberto Concepción Hernández, Ismael Antonio Hernández Cueva, David Antonio Henríquez, Félix Herrera Rivera, Jorge Alberto Escalante Cisneros, Alejandro Reyes Artola and Eduardo Martínez were terminated without just cause, simply because these workers are members of the executive of the trade union branch of the Department of Sonsonate. This action flouts the trade union guarantee laid down in labour legislation, according to which trade union officers cannot be suspended, transferred or dismissed without just cause. In the Marina del Pacífico SA de CV enterprise the individual contract of employment of Carlos Alonso Alvarenga was terminated simply because he was a member of the trade union's branch executive of Acajutla.
3. 125. From the documents supplied it appears that the complainant organisation declared a strike on 26 July 1987 in the enterprises Distribuidora Marina SA, Náutica del Litoral SA, Mariscos Crustáceos SA, Pesquera Vidaurre SA and Pesquera del Triunfo in order to obtain satisfaction of several labour and economic demands; the strike was declared legal by the judicial authority (August 1987), which ordered that the basic wage be paid (October 1988) for the entire duration of the work stoppage. As the enterprises failed to pay the wages, the workers initiated attachment proceedings against the assets of these enterprises, which were acted on in January and February 1989. As a result, the workers took the initiative of setting up an enterprise ("Organised Workers' Fishing Enterprise") and applied to the National Centre for Fishery Development and the Naval High Command for temporary fishing licences to enable them to recover their debts and prevent their vessels from falling into disrepair. However, the Commercial Agricultural Bank (the creditor of the enterprises in question) objects to the issue of such licences by the above-mentioned government institutions; this is a delaying tactic in collusion with the employers. In its latest communication, the complainant states that an agreement has not yet been reached (on the one hand the Commercial Agricultural Bank proposed that 50 per cent of wages or allowances be paid and that the workers leave the installations and return the enterprise's assets, while the trade union, on the other hand, proposes that, if the collective agreement continues in force, 80 per cent of wages be paid, with some scope for negotiation, and 100 per cent be paid if individual contracts are terminated).
4. 126. The complainant organisation alleges further that the workers employed by the enterprises Productos Cocinados del Mar SA, Pesquera del Mar SA, Frutos del Océano SA, Mariscos San Simeón SA and Productos Pesqueros del Mar SA, began a strike on 9 December 1987 in support of several demands. The strike was declared illegal on 19 December 1989 by the Civil Court of Usulután on the following grounds: "Having read the record of the strike agreement, the undersigned (Civil Court magistrate) concludes that this document does not meet the requirements laid down by the law and that the strike declared in the enterprises referred to should therefore be declared illegal and a decision be handed down to this effect." According to the complainant organisation, the object of the strike was to obtain the payment of wages which the employer had ceased paying as a result of an illegal suspension of work by employers' representatives, and to recover various benefits and debts owed to the workers by the enterprises concerned. The complainant adds that on 29 June 1989 some 500 troops of the Sixth Infantry Brigade based in Usulután, assisted by military forces belonging to the Navy, violently occupied the dockside installations belonging to Pezca SA de CV, in the Bay of Jiquilisco, El Triunfo port jurisdiction, Department of Usulután; they likewise forced the workers who were striking in legitimate defence of their labour rights to leave their fishing vessels.

B. The Government's reply

1. 127. The Government states that collective labour disputes have arisen between the General Trade Union of Workers in the Fishing and Allied Industries and the enterprises Atarraya SA, Promarisal SA de CV and Marina del Pacífico SA de CV, as a result of the complainant being denied the right to work and because of membership of this trade union organisation (as regards the other enterprises which allegedly took anti-union measures, no collective labour disputes have been initiated against them by the complainant trade union). At the first stage of the proceedings, the legal representatives of the defendant enterprises were summoned; they denied the charges brought against them and insisted on the right of the enterprises they represented to control access to their installations, for which purpose they distribute to their gatekeepers a weekly list of the workers on the payroll so that they may be allowed access to the installations.
2. 128. As regards the alleged dismissal of the officers of the SGTIPAC's branch office in the Department of Sonsonate, employed in the Camaronera Industrial Salvadoreña SA de CV enterprise, the Government states that the General Labour Directorate summoned the legal representative of the enterprise for conciliation and the latter, through his proxy, stated that owing to the nature of the fishing industry, the crews of vessels are chosen in full independence by the captains or skippers of the vessels. Since this was the case of the plaintiffs in that court action, if the latter were not accepted as crew members, the enterprise could not force them to be. As regards the case of Mr. Rigoberto Concepción Hernández, he resigned of his own accord, and his remuneration was accordingly suspended.
3. 129. The Government states further that the first strike referred to by the complainant organisation was ruled legal, and began on 26 July 1987; the second was ruled illegal and began on 9 December the same year (the Productos Pesqueros del Mar SA enterprise, explained the Government, was not involved in either of these disputes). The Government states that the Ministry of Labour and Social Welfare does not normally have competence to declare a strike illegal or legal, and that this is for the competent judicial authority to determine, without right of appeal. Moreover, it should be pointed out that the General Labour Directorate complied with the procedures laid down by law for the negotiation of collective labour disputes and that the Minister of Labour and Social Welfare participated directly in the hearings (as did the Labour and Social Welfare Commission of the Legislative Assembly and the Private Secretary of the President of the Republic), with a view to achieving an equitable settlement of the dispute. In this context, a series of meetings was held between the parties and the representatives of the Commercial Agricultural Bank of El Salvador, as this bank is the mortgagee of the enterprises involved in the dispute. The latest of these meetings was held on 3 July 1988 in the presence of the Minister of Labour and Social Welfare. Since June 1989, with the arrival of the new government administration, the parties to the dispute have expressed their willingness to settle this dispute through the established legal procedures. The bank concerned therefore proposed an alternative settlement to the dispute and the opposing party was heard; both parties expressed the desire and intention to return to work for the sake of smooth labour-management relations, which should always prevail at the workplace.
4. 130. Lastly, the Government points out that in the port of Triunfo, in the Department of Usulután, five enterprises are in the throes of a strike which has been declared legal, while four others are engaged in a similar dispute, which, however, has been ruled illegal. On 29 June 1989 the vessels "Mufi", "Humeito", "Mayguay", "Dany" and "Lulu", were recovered, not having been attached by court order, as was clear from the records of the competent court and those of the Court of the First Instance of this judicial district. It has also been ascertained that these vessels do not belong to the enterprises which are liable for payment of wages, the strike having been declared legal. Therefore the Government has at no time violated the workers' right to strike, but in order to be fair has guaranteed respect for the rights of employers and third parties.

C. The Committee's conclusions

1. 131. The Committee regrets that as regards the alleged dismissal of eight trade union officers in the fishing sector, the Government has confined itself to a general statement to the effect that the crews of vessels are chosen by captains or skippers acting in full independence. The Committee likewise regrets that out of the 15 cases referred to by the complainant of the use of membership lists by fishing enterprises to deny unionists the right to work, the Government has only provided observations on three enterprises (against which complaints were lodged with the Ministry of Labour and Social Welfare). The Government confined itself to stating that these enterprises had denied the charges.
2. 132. In this respect, considering that the Government's replies are unsatisfactory, the Committee draws the Government's attention to the fundamental principle that no person should be dismissed or prejudiced in his employment by reason of his trade union membership or legitimate trade union activities, and to the importance of forbidding and penalising in practice all acts of anti-union discrimination in respect of employment (see 270th Report, Case No. 1460 (Uruguay), para. 63). The Committee therefore requests the Government to conduct a careful inquiry into all of the cases of discrimination alleged by the complainant organisation, to remedy all of those discovered and to punish those responsible.
3. 133. As regards the strikes under way in various fishing enterprises since the second half of 1987, the Committee observes that the first of these (which began on 26 July 1987) was declared legal by the judicial authority, which ordered the payment of basic wages throughout the duration of the work stoppage; the Committee notes the fact that, according to the Government, the authorities have taken initiatives to settle the collective dispute and that the parties currently express the wish and intention to achieve a settlement.
4. 134. As regards the second strike (which began on 9 December 1987), the Committee observes that the judicial authority declared it illegal, but regrets that the text of the judicial decision (sent by the complainant trade union) does not, strictly speaking, cite any grounds, as it merely states that "having read the record of the strike agreement, the undersigned (Civil Court magistrate) concludes that this document does not meet the requirements laid down by the law and that the strike should therefore be declared illegal". However, the Committee regrets that the complainant organisation waited until July 1989 (the date of its complaint) to challenge the judicial decision declaring the strike illegal, handed down in December 1987, because the dispute has been complicated further and aggravated since then. The Committee cannot fail to point out a certain amount of confusion both in the allegations of the complainant trade union and in the Government's reply in this regard.
5. 135. In these circumstances, the Committee requests the Government to adopt measures to ensure that the competent labour authorities enable a settlement to be reached between the parties and trusts that these collective disputes, which began in 1987, will soon be settled to the satisfaction of all of the interested parties. The Committee requests the Government to examine the possibility of amending the legislation on strikes with a view to clarifying the rights of trade union organisations.