Rapport intérimaire - Rapport No. 356, Mars 2010

1. 700. The Committee last examined this case at its November 2008 meeting [see 351st Report approved by the Governing Body at its 303rd Session, paras 799–835].
2. 701. The Government sent new observations in a communication dated 28 May 2009.
3. 702. El Salvador has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the case

1. 703. At its previous meeting the Committee made the following recommendations [see 351st Report, para. 835]:
   • (a) As regards the alleged anti-union dismissal of Ms Berta Aurelia Menjivar (founder member of the trade union branch), Mr Joaquín Reyes (union member and former official), Mr José Antonio Valladares Torres and Mr Roberto Carlos Hernández (union officials) and the non-payment of the salaries to which they are entitled, the Committee requests the Government to inform it of the outcome of the procedure for the imposition of a fine initiated by the Labour Inspectorate against the company, and to continue to recommend to the company that it reinstate those dismissed.
   • (b) With regard to the allegations of intimidation against trade unionists, the Committee requests the Government to reply specifically to the allegation concerning the stationing within the plant of armed guards who call on the workers not to join SGTIPAC.
   • (c) The Committee notes with regret that the Government has not replied to the allegation concerning the management’s refusal to receive foreign trade union officials, in particular from IUF and Comisiones Obreras de España, despite having indicated or suggested that it would do so. The Committee requests the Government to ascertain the facts of the matter and, if it turns out that the company acted in the manner reported by the complainant organizations, to inform the company that such an attitude does not lead to harmonious labour relations based on mutual respect and dialogue.
   • (d) As regards the alleged recognition as a legal entity of a union (Union of Workers of Calvoconservas El Salvador SA de CV) within the company, comprising company heads and trusted individuals, as well as the negotiation of a collective agreement between that union and the company, the Committee regrets that the Government has made no reference either to the alleged presence of company heads and trusted staff within the said union or to the negotiation of the collective agreement by that union. The Committee requests the Government to carry out an investigation into the alleged facts without delay and to keep it informed in that regard.

B. The Government’s reply

1. 704. In its communication of 28 May 2009, the Government makes the following observations.
2. 705. As regards recommendation (a) regarding the alleged anti-union dismissal of Ms Berta Aurelia Menjivar (founder member of the trade union branch), Mr Joaquín Reyes (union member and former official), Mr José Antonio Valladares Torres and Mr Roberto Carlos Hernández (union officials), and the non-payment of the salaries to which they are entitled, the Government indicates that in the case of Mr Roberto Carlos Hernández, social relations and welfare secretary of the Sectional Executive Board for the Calvoconservas El Salvador SA de CV of the General Trade Union of Workers in the Fishing and Allied Industries (SGTIPAC), the special inspection undertaken has found that there had been contraventions of sections 248, 29(2) and 189 of the Labour Code for de facto dismissal, non-payment of salary arrears due to the employer’s action, and non-payment of annual leave. As a result of this, the employer was fined US$171.42, that is, $57.14 for each contravention.
3. 706. As regards the dismissal of Ms Berta Aurelia Menjivar (founder member of the trade union branch) and of Mr Joaquín Reyes (member and former union official), Mr José Antonio Valladares Torres and Mr Roberto Carlos Hernández (union officials), the Government states that on 14 May 2009, the Ministry sent representatives to the company to interview the human resources director. As regards Ms Menjivar, the director in question states that, in the course of the legal action brought against the company, a definitive ruling in the company’s favour was given on 5 July 2007. An appeal was lodged against that ruling, which was upheld by the First Chamber of Labour Affairs of San Salvador.
4. 707. As regards Mr Roberto Carlos Hernández, in the legal proceedings against the company for non-payment of salaries before the Fourth Labour Court of San Salvador, a ruling was given on 24 September 2007 in the company’s favour, and was upheld by the Second Labour Chamber.
5. 708. As regards Mr Joaquín Reyes, the Government states that, at the official’s request, a special inspection was carried out on 15 March 2007 by the Special Unit for Gender and Prevention of Discrimination. The inspection found that the union official in question voluntarily agreed to the termination of his employment contract on 15 March 2007.
6. 709. With regard to Mr José Antonio Valladares, the Government states that in the proceedings initiated against him before the Civil Court of the Department of La Unión, a ruling is still pending. The Government adds that according to the record of monthly contributions to the national social security fund, the official continues to work for the company.
7. 710. As regards recommendation (c), concerning the management’s refusal to receive foreign trade union officials, the Government states that according to the human resources director of the company, premises have always been provided for dialogue and, if on one occasion it was not possible to receive foreign trade union officials, it was because of other engagements which could not be postponed. The director adds that since that time he has held meetings with International Union of Food workers (IUF) officials.

C. The Committee’s conclusions

1. 711. The Committee takes note of the Government’s observations concerning the recommendations made in the previous examination of this case.
2. 712. As regards recommendation (a) concerning the alleged anti-union dismissal of Ms Berta Aurelia Menjivar (founder member of the trade union branch), Mr Joaquín Reyes (union member and former official), Mr José Antonio Valladares Torres and Mr Roberto Carlos Hernández (union officials) and the non-payment of the salaries to which they are entitled, the Committee recalls that in its previous examination of the case, it requested the Government to inform it of the outcome of the procedure for the imposition of a fine initiated by the labour inspectorate against the company, and to continue to recommend to the company that it reinstate those dismissed. In this regard, the Committee notes that according to the Government: (1) in the case of Mr Roberto Carlos Hernández, the special inspection revealed that there had been contraventions of sections 248, 29(2), and 189 of the Labour Code for de facto dismissal of the worker in question, non-payment of salary arrears brought about by the employer, and failure to pay annual vacation benefits, and imposed a fine of $171.42; (2) as regards the dismissal of Ms Berta Aurelia Menjivar (founder member of the trade union branch), the human resources director reported that, in the legal proceedings against the company before the First Labour Court of San Salvador, a definitive ruling was given on 5 July 2007 in the company’s favour, and upheld by the First Labour Chamber of San Salvador; (3) as regards Mr Joaquín Reyes, at his request a special inspection was carried out on 15 March 2007 by the Special Unit for Gender and Prevention of Discrimination and found that he had voluntarily agreed to termination of his employment contract on 15 March 2007; (4) in the case of Mr Roberto Carlos Hernández, in the legal proceedings against the company for non-payment of salary arrears before the Fourth Labour Court of San Salvador, a ruling was given on 24 September 2007 in the company’s favour and upheld by the Second Labour Affairs Chamber; and (5) lastly, in the case of Mr José Antonio Valladares Torres, in the proceedings against him before the Civil Court of the Department of La Unión, a ruling is still pending, and according to the record of monthly social security contributions to the national social security fund, he continues to work in the company.
3. 713. The Committee takes note of this information, and recalls the importance which it attaches to sanctions against acts of anti-union discrimination established by national legislation being sufficiently dissuasive in conformity with the principles of freedom of association. The Committee requests the Government to keep it informed of the final outcome of the proceedings against Mr José Antonio Valladares Torres and send a copy of the court decisions already handed down in connection with the other union officials concerned in this case.
4. 714. As regards recommendation (b) concerning the allegations of intimidation against trade unionists, and in particular the allegation concerning the stationing within the plant of armed guards who called on workers not to join the SGTIPAC, the Committee regrets that the Government has not sent its observations in this regard. The Committee recalls that freedom of association can only be exercised in conditions free from pressure and threats against trade union officials and members, and requests the Government to conduct an investigation without delay into the allegations and to keep it informed of the final outcome.
5. 715. As regards recommendation (c) concerning the company’s refusal to receive foreign trade union officials, in particular from the IUF and Comisiones Obreras de España, the Committee notes that the Government, in its observations, refers to the company’s reply which indicates its commitment to dialogue and states that, since the allegations were made, it has held meetings with the IUF. The Committee recalls the importance that it attaches to the principle that no obstacle should be placed in the way of the affiliation of workers’ organizations, in full freedom, with any international organization of workers of their own choosing [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para.735].
6. 716. As regards recommendation (d), the Committee recalls that it had requested the Government to carry out an investigation without delay into the alleged recognition as a legal entity of a union (the Union of Workers of Calvoconservas El Salvador SA de CV) within the company, comprising company heads and trusted individuals, as well as the negotiation of a collective agreement between that union and the company. The Committee regrets that the Government has not sent its observations in this respect and once again requests the Government to conduct an investigation without delay into these allegations and to keep it informed of the final outcome.