2008 Annual Survey of violations of trade union rights - El Salvador
|Publisher||International Trade Union Confederation|
|Publication Date||20 November 2008|
|Cite as||International Trade Union Confederation, 2008 Annual Survey of violations of trade union rights - El Salvador, 20 November 2008, available at: http://www.refworld.org/docid/4c52ca9411.html [accessed 6 December 2013]|
|Disclaimer||This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.|
Capital: San Salvador
ILO Core Conventions Ratified: 29 – 87 – 98 – 100 – 105 – 111 – 138 – 182
A Constitutional Court ruling declared ILO Conventions 87 and 98 on freedom of association and collective bargaining, ratified by El Salvador in 2006, unconstitutional. National and international trade union leaders denounced the ruling as a further move by the judicial authorities to prevent the free exercise of trade union rights. A new Terrorism Act is being applied to trade unionists to penalise social protest. A trade union leader was assassinated. Several trade union leaders were dismissed for creating trade unions. The Ministry of Labour has been denying unions the right to register.
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. In 2006 the government ratified ILO conventions 87, 98, 135 and 151.
The Civil Service Law has 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 such 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, trade union immunity, 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. Unions must wait four days after receiving the approval of the Ministry of Labour before beginning a strike. 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 by virtue of the San Salvador Protocol to the American Convention on Human Rights signed by El Salvador. Some time ago, an ILO recommendation stated that the reinstatement of dismissed workers was a necessary component of protection against unfair dismissal.
Trade union immunity limited: Trade union immunity is only granted to the 35 founders of a union, so all other members are excluded. What is more, the protection ends 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 and Violations in 2007
Background: El Salvador was the first country in which the Free Trade Agreement with the United States came into force, and is also the first place where its negative effects can be seen and false promises exposed. The trade deficit is on the increase and national producers are the hardest hit. There are not more jobs or increased job stability. Living conditions are not improving. Violence and insecurity are still matters of national concern, not only the acts of common criminals but also the violent acts of repression by the State towards social organisations, and political assassinations.
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 are given them late.
Labour Ministry: anti-union practices at the behest of the employers: 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.
The Ministry of Labour very often denies legal recognition to unions and has on some occasions recognised that these decisions were made at the express request of the employers. 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.
Trade unionists right to work violated: 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.
Inconsistency and anti-union reprisals at Calvo: Calvo was one of the companies that strongly insisted on the importance of ratifying the ILO Conventions on freedom of association, and was one of the first to begin a series of anti-union reprisals during the year. On 4 February, workers at Calvo tinned foods formed the Fishing Industry and Related Activities General Workers' Union, SGTIPAC, which was legally registered in the Ministry of Labour and affiliated to the national centre Confederación Sindical de Trabajadores/as de El Salvador (CSTS). A woman founder and two of its leaders were promptly dismissed, between February and March. Management refused to recognise or negotiate with SGTIPAC and used legal measures to intimidate union members and supporters, while also organising a yellow union to counter SGTIPAC.
A new form of intimidation was introduced in June with the use of a polygraph lie detector. Workers were asked about their loyalty to the company and their attitude towards the union. The practice ceased after the union complained to the relevant authorities about it.
Another means of anti-union repression was a raid by armed guards on the workers' buses to seize the trade union bulletins that their union colleagues had given to them just a few moments earlier outside the plant.
All these practices were reported in the complaint presented by the union and its national centre to the ILO's Committee on Freedom of Association during the last International Labour Conference.
The Ministry of Labour recognised the union in July but by the end of the year SGTIPAC was still asking the company to begin negotiations on a new collective agreement and the reinstatement of the dismissed workers. Calvo-El Salvador's Spanish management continued to firmly refuse to recognise the workers' union or negotiate a collective agreement.
Antiterrorist law as anti-union law?: Vicente Ramírez, President of the National Association of Small Traders and Vendors of El Salvador (ANTRAVEPECOS), was arrested on 16 February for taking part in demonstrations in the municipality of Apopa against the evacuation plans that the municipal authorities were implementing with violence. Ramirez and other arrested leaders were later charged under the terms of the Special Law Against Acts of Terrorism on the false grounds that the workers' mobilisation constituted a terrorist act. In reality the protest was about the violence used by municipal police when trying to evict them from their workplaces. On 5 July, after a major protest campaign and international pressure, Vicente Ramírez was released in exchange for alternative measures.
Raids on trade unionists' homes: In the early morning of 4 September police raided the homes of eight leaders of the El Salvador Hospital Workers' Union, SIGEESAL, and took them into custody. The arrest warrant was issued by the public prosecutor following charges against them by the directors of the Chalchuapa and Santa Ana hospitals, relating to their participation in the health service protests on 6 July.
This happened despite promises made by the Director General of hospitals on 9 July that he would open dialogue with the union to discuss its demands and that there would be no reprisals against the trade union leaders and workers taking part in the protests.
The eight held in custody were accused of "aggravated damage and public disorder" under the terms of the new Special Law Against Acts of Terrorism. In reality they were protesting at corruption in the Health Ministry, the shortage of medicines and the privatisation of health services. They were released on bail by the Santa Ana Court of First Instance, but they are still facing formal public disorder charges.
This recently introduced law can carry with it terms of 40 to 60 years' imprisonment for trade unionists and social activists, for exercising the legitimate right to social protest. It allows any trade union action, such as the defence of the right to work and to health care, to be arbitrarily classified as a terrorist act, and therefore constitutes an attack on freedom of association.
Trade unionist murdered: Miguel Ángel Vásquez Argueta, the Finance Secretary on the Executive Board of the Electrical Sector Workers' Union (STSEL) was murdered on Tuesday 17 July. He was kidnapped on his way home from work. His body was found the following day, with two gunshot wounds to the head. Miguel Vásquez Argueta was not carrying money or any valuables, and only his documents were taken from him. The reasons for his murder are not known, but it is suspected that it was because of his trade union activism.
Labour Ministry rejects union registration following employer challenge: Thirty-eight workers at the AVX company formed a workers' union (SITRAV) on 26 August. The company challenged the formation of the union, using spurious arguments against six of the founders, reducing the number of founding members to 32, which is below the legal minimum.
On 30 October, as the workers were preparing their legal arguments to appeal against this challenge, it was learnt that the Labour Ministry was going to reject the legal registration of SITRAV at the request of a company representative. Immediately afterwards, and backed by this Ministerial decision, the company began to make threats of a campaign of anti-union dismissals.
Application of ILO Conventions short-lived: Although ILO Conventions 87 and 98 on Freedom of Association and Collective Bargaining were ratified in September 2006, it took a long time before they came into force. During this time, several workers' organisations in the public sector, which had historically been denied the right to form trade unions, prepared their documents and their requests for accreditation as trade unions. At least four of them submitted their documents to the Labour Ministry in the early hours of 7 September 2007, the first day the Conventions formally entered into force in the country. This enthusiasm lasted for barely one month, as on 16 October the Constitutional Chamber of the Supreme Court of Justice declared the Conventions unconstitutional. The principal reason was because they extended freedom of association rights to public sector workers, while the constitution does not include them among those who have the right to form unions and far less to go on strike and collectively abandon their posts.