Rapport intérimaire - Rapport No. 353, Mars 2009

1. 899. The complaint is contained in a communication by the Trade Union of Workers of the Confitería Americana SA de CV Enterprise (STECASACV) dated 3 March 2008 and is supported by the Trade Union Confederation of Workers of El Salvador (CSTS) and the Trade Union Federation of Food, Beverage, Hotel, Restaurant and Agro-Industry Workers of El Salvador (FESTSSABHRA), which also signed the complaint. The STECASACV sent additional information in a communication dated 26 June 2008.
2. 900. At its November 2008 session, the Committee observed that, despite the time which had elapsed since the submission of the complaint, it had not received the observations that the Government had been requested to provide. The Committee issued an urgent appeal to the Government drawing its attention to the fact that, in accordance with the procedural rules set out in paragraph 17 of its 127th Report, approved by the Governing Body, it might present a report on the substance of the case at its next meeting, if the requested observations had not been received in full and in due time. Accordingly, it urged the Government to send its observations as a matter of urgency [see 351st Report, para. 9]. Since then, the Committee has not received any observations from the Government concerning this case.
3. 901. 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. The complainant’s allegations

1. 902. In its communications dated 3 March and 26 June 2008, the STECASACV claims that it was established on 19 April 1986 and that in May 2006 it had 180 members (90 per cent of the staff of the enterprise, of which 75 per cent were women). Its membership has now fallen to only eight.
2. 903. According to the complainant trade union, at the beginning of March 2006, the enterprise Confitería Americana SA de CV submitted to the General Labour Directorate of the Ministry of Labour and Social Security a request to reduce the conditions contained in clauses 19, 25, 30, 44, 45, 50, 51, 52, 57 and 59 of the collective labour agreement in force; since then, a series of measures have been taken by the employer’s representatives, which include coercing members to leave the union and join an alternative organization, which was granted by the Ministry of Labour and Social Security legal status in record time and union accreditation for the collective labour agreement that the complainant trade union had signed with the enterprise. On 26 September 2007, the enterprise requested the judicial authorities to dissolve the complainant trade union and cancel its registration, on the grounds that it did not have the minimum number of members required under the Labour Code.
3. 904. The complainant trade union explains the context of the abovementioned measures and indicates that, following the request by the enterprise to reduce the conditions contained in ten clauses of an economic nature of the collective labour agreement in force, the complainant trade union requested the intervention of the General Labour Inspector. The first inspection was conducted on 6 April 2006, during which the union’s complaint, highlighting the coercive measures applied by the employer against the workers, was brought to the attention of the employer’s representatives. The intervention of the General Labour Inspectorate was requested again and a further inspection was conducted on 29 May 2006, revealing an infraction of the Labour Code. A follow-up inspection was scheduled to ensure that the infraction had been remedied and was conducted on 20 June 2006, when it was found that no remedial action had been taken; the necessary reports were then drawn up, leading to the imposition of a sanction provided for by law (a fine).
4. 905. The complainant trade union adds that, in an act of reprisal for the steps taken to impose sanctions, the enterprise intensified its coercive measures to the extent of threatening with dismissal those who did not leave the complainant trade union; the first withdrawal of membership took place on 24 June and a mass withdrawal was set in motion on 26 June 2006. As an indication of the extent to which the workers were induced, the complainant organization attached as an annex the first notice of withdrawal and 32 others, dated 26 June 2006. These demonstrate two things: first, the same format was used and submitted for each worker; and second, the forms were all filled in by the same person, as the same handwriting is used. Nevertheless, they were accepted by the Ministry of Labour and Social Welfare, which did not even notice that the name of the complainant trade union (which was the subject of the withdrawal notices) had been misspelt, rendering the forms invalid. The union approached various bodies (the Ministry of Labour and Social Welfare, the Office of the Human Rights Ombudsperson and the Labour Committee of the Legislative Assembly) without achieving any results.
5. 906. According to the complainant trade union, in order to achieve its objectives, the enterprise went on to establish with the workers (who in a systematic and subtle way managed to leave the complainant organization) a trade union association known as the Trade Union of Workers of the Confitería Americana SA de CV Enterprise (ASTECASACV). In record time, the Ministry of Labour and Social Welfare granted legal status to this association by a decision of 21 February 2007 and granted the newly established association union accreditation for the collective labour agreement that had been signed by the complainant trade union.
6. 907. In these circumstances, the complainant trade union, mindful of the aims of the enterprise to reduce the conditions contained in the clauses of an economic nature that were favourable to workers, appealed on 15 March 2007 to the Administrative Disputes Chamber of the Supreme Court of Justice, challenging the legality of the abovementioned decision. To date, this matter has not been settled (such cases take three to four years in El Salvador).
7. 908. In October 2007, the enterprise filed a judicial application to the First Labour Court of the San Salvador legal district to dissolve and cancel the registration of the trade union. A court ruling was issued dismissing the application, as the judge hearing the case deemed that, on the date the application had been filed, less than one year had passed since the union’s membership had been below the minimum required by the Labour Code in order to be able to exist legally. According to the complainant trade union, the employer’s representatives will in the future be able to resubmit the application to dissolve and cancel the registration of the trade union. Finally, the complainants transmitted the inspection reports relevant to this case.

B. The Committee’s conclusions

1. 909. The Committee regrets that, despite the time that has elapsed, the Government has not provided its observations as requested, even though it has been invited on several occasions, including by means of an urgent appeal, to present its observations on the case.
2. 910. In these circumstances, and in accordance with the applicable rules of procedure [see 127th Report, para. 17, approved by the Governing Body at its 184th Session], the Committee is bound to present a report on the substance of the case without the benefit of the information which it had hoped to receive from the Government.
3. 911. The Committee reminds the Government that the purpose of the whole procedure established by the International Labour Organization for the examination of allegations of violations of freedom of association is to promote respect for this freedom, both in law and in practice. The Committee is confident that, if the procedure protects governments from unreasonable accusations, governments, on their side, will recognize the importance of formulating, for objective examination, detailed replies concerning allegations made against them.
4. 912. The Committee notes that, in the present case, the complainant trade union basically alleges that, in the light of its objection to the request by the Confitería Americana SA de CV enterprise to reduce the conditions contained in ten clauses of the collective agreement, the enterprise: (1) coerced the members of the union to leave the union and join an alternative organization, which was granted by the Ministry of Labour and Social Security legal status and union accreditation for the collective labour agreement; and (2) requested the judicial authorities to dissolve and cancel the registration of the complainant union organization, on the grounds that it no longer had the minimum number of members required by law, as its membership had decreased as a result of pressure by the enterprise from 180 to eight.
5. 913. More specifically, the Committee notes that, according to the complainant trade union, on 24 June 2006, in an act of reprisal for the steps by the labour inspectorate, at the trade union’s request, to impose sanctions, the enterprise threatened to dismiss those who did not leave the complainant trade union, leading to 33 withdrawals of membership (the complainant trade union highlights that the withdrawal forms – which are attached – were all in the same format and were all filled out by the same person). The Committee notes that, indeed, the complainant trade union has provided a labour inspection report noting that the enterprise’s workers were coerced to withdraw their union membership and that, on the basis of the inspection reports, the labour inspectorate imposed a fine on the enterprise. Likewise, the Committee observes that, according to the complainant trade union, the enterprise proceeded to establish a new trade union association (ASTECASACV) and that the Ministry of Labour granted it in record time its legal status and union accreditation for the collective agreement. The complainant organization challenged the administrative decision granting union accreditation before the judicial authorities, which have not yet issued a ruling on the matter. Lastly, the complainant organization alleges that the enterprise filed in October 2007 a judicial application to cancel the registration of and dissolve the complainant organization. The court ruled against the dissolution of the union, as the trade union’s membership had been below the minimum level required by the Labour Code for less than one year, which, in the opinion of the complainant organization, will enable the enterprise in due course to resubmit its application to dissolve the trade union.
6. 914. The Committee urges the Government to send its observations on the allegations and all the administrative decisions without delay – in particular those which relate to anti-union discrimination and interference – and rulings on this case (application to dissolve the trade union; application relating to union accreditation for the collective agreement) and expects that, through the employers’ organization concerned, it will also benefit from the comments of the enterprise.
7. 915. Given the lack of observations on the part of the Government and the seriousness of the allegations, the Committee underscores in general that Convention No. 98 prohibits all acts of anti-union discrimination and interference in union matters and, therefore, any practice that involves pressure to join or leave a trade union, the promotion of workers’ organizations by the employer and measures aimed at dissolving a trade union by an employer, which, according to the allegations, used pressure to bring about a reduction in union membership. The Committee requests the Government to guarantee that these principles are respected and to ensure an effective remedy for the workers and the trade union.