Rapport intérimaire - Rapport No. 372, Juin 2014

1. 157. The Committee examined this case at its November 2012 meeting and presented an interim report [see 365th Report, paras 603–623, approved by the Governing Body at its 316th Session (November 2012)].
2. 158. In a communication of 9 July 2013, the complainant organizations (the Trade Union Confederation of El Salvador Workers (CSTS), the Trade Union Federation of Food, Beverage, Hotel, Restaurant and Agro-Industry Workers of El Salvador (FESTSSABHRA), and the LIDO SA de CV Company Trade Union (SELSA)) sent additional information.
3. 159. At its March 2014 meeting [see 371st Report, para. 5], the Committee made an urgent appeal to the Government and drew 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 at its 184th Session, it could present a report on the substance of the case even if it had not received the information or observations of the Government in due time. To date, no information has been received from the Government.
4. 160. 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), the Workers’ Representatives Convention, 1971 (No. 135), and the Labour Relations (Public Service) Convention, 1978 (No. 151).

A. Previous examination of the case

1. 161. In its previous examination of the case, the Committee formulated the following conclusions and recommendations on the pending matters [see 365th Report, paras 618–622]:
   • – The Committee observes that, in the present case, the complainants allege: (1) that the company placed 17 workers, and later another 15 workers, on compulsory annual leave, in clear violation of the right to strike; (2) that between 8 and 12 July 2011, Guadalupe Atilio Jaimes Pérez, General Secretary of SELSA, was arrested and that criminal charges were brought against him following a false accusation by the assistant production manager of LIDO SA de CV alleging that he had been threatened; (3) that, on 17 July 2011, the strike was declared illegal by the judicial authority which ordered that it be called off despite the fact that the purpose of the strike was to seek a wage increase; and (4) that the company began dismissing the union’s representatives at LIDO SA de CV and at FAMOLCAS SA de CV, a subcontractor (Ana María Barrios Jiménez, María Isabel Oporto Jacinta and Oscar Armando Pineda).
   • – The Committee takes note of the Government’s statement that the judicial authority ordered the release of Guadalupe Atilio Jaimes Pérez, who had been accused by the assistant production manager of having threatened him on the LIDO SA de CV premises and that he had remained under arrest from 9 to 12 July 2011. The Committee requests the Government to clarify whether this union leader is still facing criminal charges and, if so, to inform it of the sentence handed down.
   • – The Committee take notes that, according to the Government, the SELSA union leader formally notified the Minister of Labour and Social Welfare that the collective dispute had been dropped, that the case had been shelved and that SELSA had reached this decision in order to focus on revising the collective agreement that was due to expire. The Committee requests the Government to keep it informed of developments in this regard.
   • – Regarding the allegation that the company placed workers on compulsory annual leave during the strike, the Committee notes the Government’s indication that, according to the company, the workers’ annual leave had been advanced at the request of a trade union leader. The Committee requests the complainants to reply to this assertion. With respect to the allegation relating to the declaration of the strike as illegal, the Committee observes that the objective of the strike was a wage increase and that the declaration of the illegality of the strike on this basis does not appear to be justified. The Committee expresses its concern and requests the Government to inform it of the judicial ruling declaring the workers’ strike at LIDO SA de CV to be illegal.
   • – Finally, the Committee observes that the Government has not responded to the allegation regarding the dismissal of trade unionists Ana María Barrios Jiménez, María Isabel Oporto Jacinta and Oscar Armando Pineda and requests it to send its observations without delay.

B. New allegations from the complainants

1. 162. In their communication of 9 July 2013, the complainant organizations state categorically, in relation to the Government’s previous statements to which the Committee referred in its penultimate recommendation, that the information from the Government that the workers’ annual leave had been advanced at the request of a trade union leader is false, and that there is no documentation to prove that the annual leave had been advanced at the request of a trade union leader; the complainants characterize the advance of annual leave as an anti-union measure.
2. 163. The complainants state that, on 2 September 2011, as part of the collective bargaining taking place as the collective agreement was due to expire, the SELSA trade union requested the Minister of Labour to invite the company to the direct negotiation and conciliation stages.
3. 164. Article 1 of the preliminary draft of the collective agreement which SELSA was expecting to negotiate included all workers working directly or indirectly for LIDO SA de CV at the Boulevard plant who were subcontracted by FAMOLCAS SA de CV (which shared the same owners as LIDO SA de CV). This also contributed to the company’s intransigence, since it maintained a double standard by paying subcontracted workers less. The wages of the workers in the company are amongst the lowest in the industry in the country, at only US$281.40 dollars per month plus some benefits payable under the collective agreement. The wages of workers subcontracted by FAMOLCAS are even lower, at between $229 and $240 per month without any additional benefits.
4. 165. The complainants state that, on 15 and 19 December 2011, the Ministry of Labour invited the company to begin the direct negotiation process and the company did not attend. Hence, the direct negotiation stage ended on 3 January 2012. The conciliation stage finished subsequently, on 20 January 2012, despite the company not having attended three meetings organized by the Ministry of Labour. The company did not attend any of the official meetings. The union subsequently proposed arbitration as a solution in an attempt to avoid a strike. The company did not respond to that proposal either. As a result, the union was legally entitled to call a strike as from 21 February and up to 20 March 2012. Following a personal intervention from the Minister of Labour, the company participated in a dialogue forum. However, the representatives of LIDO attended merely to argue that, as a result of family disputes, the companies, which were under the control of their family members, owed them $5 million, and that, in order to absorb the debt, they had planned to recover $1.2 million in expenses over four years between 2010 and 2014, the same period in which they were not in a position to increase wages. In other words, the proprietors of LIDO requested the workers to accept a pay freeze, which has so far lasted four years, and it would take a further two years to pay the costs of the family dispute.
5. 166. In view of the company’s intransigence concerning participation in the collective bargaining stages, SELSA completed all of the legal procedures and informed the Director General of Labour that the strike broke out on 19 March 2012. On 22 March and 9 April, SELSA wrote to the Ministry of Labour, requesting it to conduct the procedure under article 532 of the Labour Code to determine those workers who were to be present at the workplace, in view of the fact that the company was denying the strikers access to the workplace and started hiring strike-breakers, a procedure wholly inconsistent with the provisions of article 532. On 21 March, the Director-General of Labour notified the company that it must declare, within the legal time limit, whether it would exercise the right enshrined in article 532 of the Labour Code to meet with the trade union and determine the number, type and names of the workers who would be present in the company to carry out the types of work referred to in article 532. Almost immediately, the General Secretary of the SELSA trade union requested that the action be characterized as a strike, since the LIDO management was not doing so. Thus began the proceedings of the Fourth Labour Court of San Salvador. The bargaining unit of the dispute leading to the strike was lawfully the 151 workers of LIDO SA de CV, 57 per cent of whom supported the strike, thus exceeding the 51 per cent required by law. However, as a result of undue influence from the company, the Fourth Labour Court unlawfully included the subcontracted workers in the count. It was the union’s intention to include them in the future, but they did not belong to the bargaining unit at that time. The Court also included in the count 14 company directors who are registered with the company for social security purposes but who are its proprietors. The judge declared the strike unlawful without considering all these irregularities. This demonstrates, once again, the shortcomings of the existing mechanisms in the legislation of El Salvador.
6. 167. The complainants state that the trade union’s struggle always included precisely those subcontracted workers, since article 1 of the preliminary draft of the collective agreement (the remaining articles of which were never discussed) provided that all benefits should be applicable to any worker, whether employed on a temporary, casual, occasional, interim or permanent basis, who performs work at the plant or in any LIDO subsidiary.

C. The Committee’s conclusions

1. 168. The Committee regrets that, despite the time that has elapsed since the beginning of the case, the Government has not provided the information requested, despite being invited to do so by means of an urgent appeal (in March 2014). The Committee expects that the Government will be more cooperative in the future by providing the information requested.
2. 169. Under these circumstances and in accordance with the applicable rules of procedure [see 127th Report, para. 17, approved by the Governing Body], the Committee finds itself obliged to present a report on the substance of the case without the benefit of the information that it had expected to receive from the Government.
3. 170. The Committee recalls 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 in law and in fact. The Committee remains confident that, while the procedure protects governments from unfounded accusations, governments must in turn recognize the importance of formulating detailed replies concerning allegations made against them for the purposes of an objective examination.
4. 171. The Committee notes the additional information provided by the complainants on 9 July 2013 in response to its recommendations, whereby they: (1) deny that the workers’ annual leave in 2011 was advanced at the request of a trade union leader and consider the advanced annual leave to be an anti-union measure; and (2) explain the reasons and irregularities which, in their view, pertain to the declaration that the 2011 strike was illegal. The Committee requests the Government to send its observations on the complainants’ latest communication without delay.
5. 172. Furthermore, given the total absence of any information from the Government, the Committee once again reiterates the recommendations of its November 2012 meeting, and requests it to obtain the comments of the company, via the employers’ organization concerned, before sending the information requested.