2007 Annual Survey of violations of trade union rights - El Salvador
|Publisher||International Trade Union Confederation|
|Publication Date||9 June 2007|
|Cite as||International Trade Union Confederation, 2007 Annual Survey of violations of trade union rights - El Salvador, 9 June 2007, available at: http://www.refworld.org/docid/4c52ca3228.html [accessed 25 April 2014]|
Capital: San Salvador
ILO Core Conventions Ratified: 29 – 87 – 98 – 100 – 105 – 111 – 138 – 182
Following a vigorous campaign by trade unions and labour organisations, the government ratified the ILO conventions on freedom of association. It was a Pyrrhic victory, however, since the provisions have not yet come into force and new restrictions were introduced. The head office of one confederation was raided and a leader was imprisoned under false charges. A number of cases of violation of freedom of association resulted in favourable legal rulings.
Trade union rights in law
The Constitution and Labour Code recognise the right of private sector workers and employees of autonomous public agencies to form trade unions. All public sector workers not employed by autonomous agencies, such as public hospitals and the State owned electricity company, do not have the right to join or form trade unions, and cannot engage in collective bargaining. This year the government ratified ILO conventions 87, 98, 135 and 151. However, they have not yet come into force since the government insisted on the adoption of binding reforms to the Law on the Civil Service and the law on the Constitution. The latter will require a second ratification by a new Assembly, to be elected in 2009, which means the conventions cannot come into force till then either.
The new Civil Service Law, which did come into force, increased the restrictions on organising in the public sector. The people excluded from the scope of the Convention, and thus from the right to organise, are not only senior civil servants, but also people with as diverse jobs as warehouse managers, treasurers, tax collectors, paymasters, etc. In addition, the law fails to include provisions relating to the other fundamental rights required for exercising freedom of association in the public sector, such as those relating to the forming of federations and confederations, the enjoyment of trade union protection, the honouring of collective agreements, the implementation of anti-discriminatory practices and non-interference by state officials in trade union affairs. The Constitution does, however, allow State employees to organise themselves in associations in order to defend their interests.
Restrictions on freedom of association: To be legally registered, trade unions must follow complex procedures, including the requirement to obtain prior authorisation from the government. What is more, if legal registration of a union is denied, any attempts to promote organising of the union are banned for the next six months. A union must have a minimum of 35 members in the workplace and members of a union's leadership bodies must be Salvadorian by birth. Trade unions cannot take part in political activities.
Restrictions on the right to collective bargaining: The state restricts the negotiation of collective agreements by stipulating in the Labour Code that in order to engage in collective bargaining for the first time a union's membership must represent at least 51 percent of the workforce in the company or workplace.
Strike restrictions: There are restrictions on the right to strike, including the requirement that 51 per cent of workers, whether or not they are members of a union, must support a strike in an enterprise. A strike can only be called if it concerns a change or renewal of a collective agreement or the defence of the workers' professional interests. According to the Ministry of Labour, all strikes in El Salvador have been illegal. That approach is backed up in law, since appealing against any legal ruling declaring a strike to be illegal is prohibited.
Inadequate protection against unfair dismissal: The Labour Code does not provide for the reinstatement of dismissed workers, although that right does exist based on the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (San Salvador Protocol) that El Salvador signed. Some time ago, an ILO recommendation stated that the reinstatement of dismissed workers was a necessary component of protection against unfair dismissal.
Trade union protection limited: Trade union protection is only granted to the 35 founders of a union, so all other members are excluded. What is more, the protection ends at the moment the official notification of the acceptance or rejection of a request for legal registration is received, thus leaving all the workers who were entitled to form a union totally unprotected from dismissal thereafter.
Trade union rights in practice
Weak protection and anti-union tactics: There is severe discrimination against workers because of their union membership or activities, despite the fact that anti-union discrimination is banned by law. The ban on discrimination includes the period prior to the legal registration of a union, when workers cannot theoretically be dismissed since their names are included on the application to register the union.
Labour inspectorate – failing in its duty: Another obstacle to the observance of trade union rights is the Labour Inspectorate's failure to apply proper inspection procedures or enforce the law, ignoring anti-union behaviour and preferring not to fine big companies. Unions have complained they are not allowed to take part in inspections and are often not notified when inspections take place, while workers have reported that labour inspectors do not even speak to the workforce. Similarly, workers are not allowed to see the inspectors' reports or receive them late.
Labour Ministry undermining collective agreements: On various occasions, the Labour Ministry has given legal backing to employers' requests to remove clauses from collective agreements. In that way, the Ministry has been disregarding the legality of those agreements and the fact that they were agreed collectively.
Arbitrary denial of legal recognition: The Ministry of Labour very often denies legal recognition to unions. It did this in the case of SITEVMAIES, but after an international complaint the union gained its legal recognition. Since it is not possible to appeal against these administrative rulings those benefiting from the denial of legal recognition enjoy impunity, since court cases can last up to 18 months, during which time the company can have destroyed the union by sacking its founder members. That means that even if the case is won, in practice it is generally lost, since the union no longer has the support of the workers who were its original members.
Mass dismissals undermining trade unions: Mass dismissals of workers and union leaders, without severance pay, are very common in El Salvador. The de facto acceptance of that practice has encouraged employers' use of the strategy to undermine trade unions.
Flexible employment practices are working against freedom of association: Employment practices such as subcontracting workers via third companies are also becoming a hindrance to organising and collective bargaining. In these cases, the employers' responsibilities are diluted and totally unclear, since the company and management that workers have to deal with directly are not the legal employers. As a result, far from engaging in a collective bargaining process the company will never even recognise the union.
Violation of the right to work for being a trade unionist: Discriminatory "blacklists" are one of the tools used most frequently by employers against trade unions, in particular in the export processing zones. By denying jobs to people with some previous links to trade unions, companies are excluding virtually all trade unionists from these zones, thus making it harder to create new unions. The various firms are all involved in sending these lists to one another. What is more, despite receiving repeated complaints, the state institutions are doing nothing to tackle this problem.
Export processing zones (EPZs) supported in their anti-union policy: Although the right to collective bargaining is recognised in law, it is not applied in the EPZs, owing to the extreme anti-union discrimination practiced by employers and the government's abdication of its responsibility to defend the collective bargaining rights of workers in EPZs. Any attempt at organising is repressed and the workers are threatened with dismissal if they attempt to form or join or a union or else with the closure of the company, which would leave everyone jobless.
The special incentives these companies enjoy are facilitating and supporting these anti-union policies. The maquiladoras can close down their business whenever they feel that their profits are threatened by unions' insistence on their rights, leaving behind debts owed to the workers and the state. In such situations there is no scope for bringing a legal complaint and no state fund for making severance payments to the affected workers. With the FTA coming into force there is no prospect of that changing, since these are some of the guarantees to incoming companies.
Violations in 2006
Background: On 1 March 2006 the Free Trade Agreement with the United States came into force. At the end of the year the labour organisations, which had opposed such commercial agreements from the outset, complained that the government's promises had not been kept. On the contrary, the trade deficit had grown, many maquiladoras had closed down rather than increasing investment, and in all some 90,000 jobs had been lost. Insecurity and social unrest are still prevalent in the country. The adoption of ILO conventions 87 and 98 needs to be understood as part of the government's moves to sign an Association Agreement with the EU, which should also facilitate the exporting of Salvadorian products to that market.
Attack on the head office of a confederation, and arrest and torture of a trade union leader: Between 11pm on 5 July and 3am on 6 July, the police raided the head office of the Confederación Sindical de Trabajadores Salvadoreños (CSTS) without a search warrant. Daniel Ernesto Morales, the Press and Communications Secretary of the CSTS and a member of the food union Sindicato de Dulces y Pastas Alimenticias, was captured and then tortured. The pretext used by the police was that they were looking for weapons in organisations around the university, where there had recently been some student demonstrations. However, the CSTS and other union organisations complained that this was just another example of trade union repression.
There were various "coincidences". On the same day a press conference had been held at the CSTS office to complain about the escalating repression against civil society and trade unions. The CSTS had also requested a hearing with the Inter-American Commission on Human Rights (CIDH) a few days later (on 19 July) to inform the Commission about the anti-union policies of the Government of El Salvador. It should also be stressed that no other organisation had been raided by the police, though there were many in the area, and the CSTS was not even the closest to the university.
What is more, the trade union leader who was arrested and tortured had filed the court case against the company DIANA, owned by Environment Minister Hugo Barrera, which had sparked off a fierce anti-union campaign in that company (see 2006 Survey). Daniel Ernesto was conditionally released four days later following a strong solidarity campaign and international pressure.
Hermosa employees still unprotected and on blacklists: The 190 workers who were dismissed in May 2005, when the "Hermosa Manufacturing" factory was closed, have still not received any of the compensation owed by the company for lost wages and severance pay. The closure had taken place one month after a union had been created in the maquiladora and workers had begun making claims for non-payment of social security and pension fund contributions. In all, 825,000 dollars are owed to the workers and the state. Throughout 2006 the workers exhausted every means of claiming their rights. The only result was that a blacklist containing their names was passed around the maquiladoras in the area so they ended up not being recruited by other factories.
Entire leadership of a union dismissed: In April the Sindicato de Baterias de El Salvador (SITRAEBES) lost all of its leaders through dismissal.
Harassment of trade unionists: The Federación Sindical Salvadoreña complained on 27 July that a number of workers had been sent anonymous letters referring to the "destruction of the union". They also reported harassment of union leaders and raids on offices. The federation made an official complaint to the Attorney-General in charge of protecting human rights.