<<previous  | index  |  next>>

Industry Union of Communications Workers

On April 2, 2003, communications workers petitioned the Ministry of Labor to register SITCOM. The union was formed on March 23, 2003, by thirty-five workers from the Telecommunications Company of El Salvador, S.A. de C.V. (CTE); one from the radio station, Radio Clave; one from Telecommunications and Electric Services (SETELCOM); and one from Electrification and Communications, S.A.³⁴⁵ Shortly thereafter, CTE reportedly pressured the three provisional SITCOM leaders to resign and later fired the two who refused to do so.

After receiving the union registration petition on April 2, the Ministry of Labor notified the four employers and sought to confirm “the [union] founders’ status as employees and . . . the principal activity of [each] company,” as required by law.³⁴⁶ On May 22, 2003, based largely on the companies’ responses, the ministry rejected SITCOM’s petition. The ministry cited three key reasons for its rejection: SITCOM failed to fulfill the requirement that an industry-wide union include workers from at least two companies engaged in the same activity; the union’s provisional president was not employed by CTE at the time of union formation; and four members were “employees of confidence” and, therefore, ineligible to unionize alongside other workers.³⁴⁷ Based on these factors, the ministry found that the workers failed to form an industry-wide organization and also fell short of the mandatory minimum number of workers required to unionize.³⁴⁸

On May 30, 2003, SITCOM petitioned the Ministry of Labor to reverse its decision. The petition asserted that all four companies for which SITCOM workers were employed were, and still are, engaged in the same primary activity of communications. It also criticized the ministry because it did not give the union an opportunity to counter the companies’ official responses to their registration request.³⁴⁹ At this writing, the Ministry of Labor has yet to respond to SITCOM’s petition.

As in the Confecciones Ninos case, described above, the Ministry of Labor denied union registration based on the employers’ versions of events and did not investigate the matter or seek workers’ views. Human Rights Watch believes that a meaningful investigation would have revealed violations of the right to freedom of association and would have cast doubt on employers’ claims. In addition, the ministry relied on outdated international guidelines when it concluded that SITCOM failed to fulfill the criteria to qualify as an industry-wide union.

Criteria for an Industry-Wide Union

The Ministry of Labor determined that CTE was a member of the communications industry but that the other three companies employing SITCOM members were engaged in “activities different from ‘communications.’”³⁵⁰ In reaching its conclusion, the ministry relied on the 1989 definition of “communication” set forth in the U.N. International Standard Industrial Classification of All Economic Activities (ISIC):

Communication services rendered to the public whether by post, wire or radio and whether intended to be received audibly or visually. Services for the exchange or recording of messages are also included. Radio and television broadcasting studies and stations are classified in [another] group.³⁵¹

This definition has been revised twice since 1989. In the latest revision, from 2002, the categories of “telecommunication services,” “pay telephone services,” “radio beacon and radar station operation,” “other telecommunication,” and “radio and television programme transmission,” that were separate and distinct categories in 1989, have been combined into one class under the heading “telecommunications.”³⁵² According to the 2002 criteria:

This class [“telecommunications”] includes: transmission of sound, images, data or other information via cables, broadcasting, relay or satellite; telephone, telegraph and telex communication; transmission (transport) of radio and television programmes; maintenance network; internet access provision; public pay-telephone services. This class excludes . . . production of radio and television programmes, whether or not combined with broadcasting.³⁵³

Thus, the ministry based its rejection of SITCOM’s status as an industry-wide union on an obsolete, narrow definition of the communications sector. Had the ministry applied the 2002 standard, it may have supported union registration. For example, the ministry asserted that “Radio Clave[’s], . . . principle activity is broadcasting, an activity classified under the group . . . ‘Radio and Television Transmissions,’” rather than “communications”; under the 2002 guidelines, however, “Radio and Television Transmissions” is explicitly cited as a “telecommunications” activity.³⁵⁴

In addition, the former general secretary of the El Salvador Association of Telecommunications Workers (ASTTEL), who assisted in the SITCOM organizing drive, explained to Human Rights Watch that both SETELCOM and Electrification and Communications, S.A, are companies formed by former CTE workers and are regularly contracted by CTE to perform projects and services. He argues that these smaller companies, which “perform the same work as CTE” are, like their “mother corporation,” also part of the communications industry.³⁵⁵ The ministry failed to identify the main activities of these two companies in its rejection of SITCOM’s registration petition.

Minimum Number of Workers to Form a Union

As mentioned above, the Labor Ministry also found that SITCOM failed to meet the mandatory minimum of thirty-five workers to form a company union at CTE. The ministry noted that CTE had submitted a document “proving the termination of the individual labor contract” of the provisional president of SITCOM on February 1, 2003—roughly seven weeks prior to the union’s founding assembly. CTE also asserted that the union included two “group leaders,” one “supervisor,” and an “assistant”—four “employees of confidence,” who were barred from unionizing with CTE workers.³⁵⁶ Another three workers were disqualified because they worked for the three companies deemed by the ministry not to be within the “communications” category. By excluding these eight workers from the initial thirty-eight founding members of SITCOM, the ministry concluded that SITCOM only had thirty founding members—five workers short of the mandatory minimum required for union registration.³⁵⁷

The workers strongly contest the ministry’s conclusions. First, the workers claim that the categorization of four workers as “employees of confidence” is without merit. According to the former general secretary of ASTTEL, those four employees perform the same jobs as the other workers, have similar work contracts, and are not managers, and therefore, there is no basis for the company’s categorization of them as “employees of confidence.”³⁵⁸ The workers also claim that the provisional president was in fact employed on February 1, 2003, but was forced out and pressured to sign a backdated resignation. The former ASTTEL general secretary told Human Rights Watch, “The provisional president was pressured [when the company withheld] his salary. . . . He gave in and signed a ‘voluntary’ resignation, [backdated] . . . so it did not fall after the union’s formation.” Afterward, he received his back pay and severance.³⁵⁹

CTE also reportedly froze the March 2003 wages of SITCOM’s provisional secretary to force his resignation, but at this writing, he has refused to resign.³⁶⁰ He has, however, reportedly been barred from the workplace since April 2003, and, therefore, under Salvadoran law, is considered fired.³⁶¹ CTE reportedly is refusing to pay his severance legally due or his March 2003 wages until he tenders his resignation. Likewise, in mid-July 2003, CTE reportedly informed SITCOM’s provisional vice-president that if he did not resign or retire within a month, he would be fired. Two weeks later, he was dismissed. CTE has also reportedly offered him his full severance pay, as well as assistance in facilitating his retirement, though he is one year shy of fulfilling the legal criteria for retiring, in exchange for his resignation. At this writing, he has also refused to resign.³⁶² With the latest dismissal of the provisional vice-president, CTE completed its illegal removal from the workplace of SITCOM’s three provisionally elected leaders, leaving the workers’ organization with no leadership.

Human Rights Watch faxed and mailed inquiries regarding the above-described union organizing drive to CTE on August 1 and August 6, respectively. At this writing, we have received no response.

Tainan El Salvador, S.A. de C.V., and the Salvadoran Social Security Institute

The following examples from the Tainan and Salvadoran Social Security Institute labor conflicts provide further evidence of Ministry of Labor failure to follow legally mandated procedures and of its reluctance to uphold Salvadoran labor law. The case studies below address only a handful of the numerous labor rights violations and Ministry of Labor failings that workers claim occurred in the Tainan case between August 2000 and April 2002 and in the ISSS case between September 2001—as early as 1999 according to some—and the present.³⁶³ Both cases are characterized by years of workers’ struggle to exercise their human rights, primarily the right to freedom of association. Human Rights Watch chose to highlight the incidents below because they concisely illustrate issues already underscored in more detailed case studies above. Between June 20 and July 1, we mailed and faxed letters to the former president of Tainan and the current director general of the ISSSseeking their responses to the events described below. At this writing, neither has responded.

Tainan El Salvador, S.A. de C.V.

Tainan was a textile factory that operated in the San Bartolo Free Trade Zone from May 2000 until April 26, 2002, employing roughly 1,200 workers. Tainan workers began to organize in or around August 2000. From approximately February 2001 until factory closure, they were allegedly the victims of anti-union conduct, including the February 2001 dismissal of two union leaders, illegal suspensions, and the withholding of salaries due. Nonetheless, the union reportedly amassed a membership of over 50 percent of the workforce—the requirement under the Labor Code for contract negotiations—and on April 18, 2002, presented a collective bargaining request to the company. Eight days later, the factory closed.³⁶⁴ From February 2001 until factory closure, the Labor Ministry repeatedly failed to enforce labor law on behalf of Tainan workers, including by refusing to rule on matters within its jurisdiction, failing to enforce inspection orders, and temporarily granting the employer’s request to withhold illegally workers’ wages.

On November 21, 2002, after months of discussions, representatives of Tainan Enterprises Company, Ltd., Tainan’s parent company in Taiwan, and the Union of Textile Industry Workers (STIT) reached an agreement for the factory to reopen, described as a “good faith effort by both parties to find a positive solution to the situation created by the closing of the former Tainan facility.”³⁶⁵ According to The Gap, Inc., one of the U.S.-based companies sourcing from Tainan between February 2001 and April 2002, The Gap also “collaborated with external stakeholders, including NGOs and trade union organizations, to facilitate dialogue between the union and Tainan” and is “pleased that an agreement was reached.”³⁶⁶

The agreement provides that the labor terms and conditions at the new factory—called Just Garments—are to be governed by a collective agreement “to ensure good, harmonious labor relations” and that a workers’ representative and the former Tainan president will be board members.³⁶⁷ In letters to potential corporate clients sent on April 8, 2003, these two board members described Just Garments as “creating a model of excellence in the industry of cooperation and fair labor relations that will guarantee not only a high quality product, but one that will be made with justice.”³⁶⁸ At this writing, however, the factory remains closed, as details are still being finalized for the company’s opening and as clients are still being sought.³⁶⁹

While the agreement establishing Just Garments may provide a satisfactory resolution to the labor conflict between former Tainan workers and their ex-employer, it does not absolve the government of responsibility for its repeated failure to protect workers’ human rights prior to the factory closure. Instead, it is an example of independent efforts to find a solution to alleged labor rights abuses in the face of the government’s serious breach of its obligation to do so.

Failure of Labor Inspections to Follow Proper Procedures

On October 30, 2001, Raquel Salazar Hernández, secretary of organization and statistics for STIT, submitted an inspection request to the director general of the Labor Inspectorate asking for a ruling on the legality of over ninety worker suspensions, initiated by the factory on October 15, 2001, and lasting until November 5 for workers in the ironing section and November 12 for those in packing.³⁷⁰ Roughly three months later, on February 4, 2002, a labor inspector declared the suspensions illegal. The inspector noted that while Tainan asserted that the suspensions were due to lack of raw material, “the employer representative could not prove, with any documentation, that the lack of raw material was not the fault of the employer.” The inspector ordered Tainan to pay workers their salaries for the time they were suspended by February 11, 2002.³⁷¹

On February 12, 2002, Hernández requested a follow-up inspection because the company had not paid the workers by the deadline. In the request, Hernández noted that management representatives had told workers that “they would request that the Ministry of Labor ‘reconsider’ the findings of the report of February 4, 2002.”³⁷² According to STIT’s lawyer, Tainan subsequently submitted additional documentation to demonstrate that the suspensions were due to lack of material, not attributable to the employer.³⁷³ The evidence was reportedly presented to and accepted by the head of the Department of Industry and Business Inspection of the Labor Inspectorate.³⁷⁴ Salvadoran law, however, allows an employer to submit such additional evidence to the head of the relevant Labor Inspectorate department only during the evidentiary period of sanctions proceedings, initiated against an employer after a follow-up inspection has revealed employer failure to remedy an identified labor law violation.³⁷⁵ At this writing, the workers have not received the payments ordered—their unpaid wages for the period of their suspensions.

Another round of suspensions occurred on April 5, 2002, affecting workers in the cutting, sewing, and finishing sectors of the company.³⁷⁶ On April 10, 2002, Hernández made a written request to the director general of the Labor Inspectorate for an investigation to determine whether these suspensions were legal. As before, the suspensions were allegedly due to a lack of raw material resulting from factors beyond the employer’s control.³⁷⁷

On April 15, 2002, a labor inspector conducted an inspection during which she documented insufficient raw materials and work orders. But the inspector failed to determine whether the employer was at fault and whether the suspensions were legal.³⁷⁸ STIT submitted a request to the Labor Inspectorate to rule on this outstanding matter.³⁷⁹ On April 19, 2002, the Labor Inspectorate issued a resolution stating that the legality of the suspensions was outside the jurisdiction of the Labor Inspectorate and, instead, “corresponds exclusively to the . . . the Labor Courts.” The resolution also voided the April 15, 2002, inspection results.³⁸⁰

Complicity in Labor Law Violations: Granting Illegal Employer Requests

On August 21, 2001, workers at Tainan declared a one-day strike.³⁸¹ On November 1, Tainan’s former head of human resources, Angela Zuleyma Parada, reportedly called eleven workers to her office, seven of whom were union leaders, and informed them that unless they signed letters confessing to their participation in the “violent events” of the August 21 strike, she would not pay them their salaries for the two-week period from October 15 to October 28, 2001.³⁸² The workers refused to sign the letters, and Parada refused to pay them, depositing the eleven workers’ paychecks with the Section of Third-Party Funds in the Custody of the Accounting Department of the Ministry of Labor.³⁸³ On November 5, 2001, workers submitted a formal request to the Labor Inspectorate for an inspection into the failure to pay their salaries.³⁸⁴ No inspection was conducted.

Roughly a week later, workers, along with a delegate from the Human Rights Ombudsman’s Office, went to the Ministry of Labor to claim the workers’ salary checks. They were reportedly attended to by an Accounting Department official, José Alfredo Flores Montano, who refused to turn over the checks to the workers unless they signed “receipts of confession,” provided by the employer.³⁸⁵ According to Antonio Aguilar Martínez, associate labor rights ombudsman, Flores mistook the ombudsman’s delegate for a Tainan worker and “said you have to sign our sheet here . . . . When the [delegate] said that he was from the ombudsman, [Flores] denied him a copy of the sheet.”³⁸⁶ The ombudsman’s office delegate reportedly asked Flores to explain the legal basis for the procedures being followed, to which he responded only that he “had received instructions in that regard,” without specifying who issued the instructions.³⁸⁷ Pressured by the ombudsman’s office delegate, Flores ultimately turned the workers’ salaries over to them without requiring them to sign the requested confessions.³⁸⁸ In an interview with Human Rights Watch, Antonio Aguilar Martínez asked:

How is it possible that the ministry is practically converted into the company’s bank? . . . It’s a mentality that favors business. It doesn’t bother them to violate the rights of workers. The officials follow orders from above in favor of the companies.³⁸⁹

Salvadoran Social Security Institute

The ISSS is El Salvador’s public health care system and consists of hospitals and clinics throughout the country. As early as 1999 and continuing through this writing, labor unrest has plagued the public health sector, largely in response to government proposals and efforts to privatize the system. The privatization plans are vehemently opposed by workers’ and doctors’ unions. The labor conflict has reportedly included retaliatory firing of union leaders, union member dismissals without the due process required for public sector employees, illegal salary withholdings, and forced eviction of union members from their offices by riot police.³⁹⁰ The case study below provides only one example of labor law violations reportedly suffered by ISSS doctors and workers and the Ministry of Labor’s inadequate response.

Failure of Labor Inspections to Follow Proper Procedures

In October 2001, the Salvadoran Social Security Institute deducted one day’s pay from doctors’ salary checks with no explanation. According to a Union of Medical Workers of the Salvadoran Social Security Institute (SIMETRISS) leader and the union’s attorney, the deduction was likely taken in retaliation for a one-day work stoppage staged by the doctors.³⁹¹ Between November 20 and December 4, 2001, SIMETRISS presented to the Labor Inspectorate requests for inspections in eight ISSS facilities, alleging that “our affiliates have been the victim of salary deductions in the month of October 2001, without any reason given by the ISSS, nor any relevant legal justification.”³⁹²

On January 25, 2002, the Labor Inspectorate reportedly issued a resolution stating that, based on its inspections, there was no violation of the doctors’ labor rights and the case was, therefore, closed. The resolution came as a complete surprise to the doctors, none of whom had been interviewed, much less knew that the inspection was being conducted. In reaching their decision, the inspectors apparently had relied on an inspection of company pay records. A pay records review, however, can only address one of the two key issues raised by the doctors; records can speak to whether salary deductions were taken but not to whether they were legal. For labor inspectors to determine whether the salary deductions were illegal, they must investigate and assess the validity and legality of the employer’s justification for the deductions, considering evidence such as employer and worker testimony.

On February 1, 2002, the general secretary of SIMETRISS learned that on January 11, 2002, the Labor Inspectorate had indeed ordered an “inspection of pay records of the doctors in the installations of the administrative offices of ISSS.”³⁹³ Notified of the inspection twenty days after it occurred, SIMETRISS was unable to participate in the inspection process. Furthermore, the inspection order had not required that workers be interviewed during the inspection nor that the legal cause for the deductions be determined, as workers had requested.³⁹⁴

If the union had been notified, it likely would have challenged the accuracy of the employer salary records. Ernesto Gomez, a lawyer for SIMETRISS, told Human Rights Watch that most public sector workers are paid through direct deposit of their salaries into their bank accounts, rather than with check or cash. Workers are reportedly required to sign pay records as proof of payment before they can confirm the money has actually been deposited in their accounts. “Looking at the pay records does not tell you anything. You have to see the workers’ accounts. . . . Having seen the pay records is not conclusive.”³⁹⁵ For example, according to an October 2002 report from the Human Rights Ombudsman’s Office, the ISSS failed to pay roughly sixty-five workers for the month of September 2002, even though “they were given pay receipts and made to sign the respective records of salary payment.”³⁹⁶

The January 25 resolution also stated that the Inspectorate would not provide the complainant doctors with a copy of the inspection report, as it was confidential.³⁹⁷ In a communication to the Labor Inspectorate, SIMETRISS complained that the inspections violated articles 47-51 of the Law of Organization and Functions of the Labor and Social Welfare Sectors, which require the participation of the complainant workers, preparation of the inspection report in the worksite, and provision of a copy of said report to each of the parties.³⁹⁸ SIMETRISS concluded, “These supposed legal requirements were absolutely not upheld, given that the Ministry of Labor and Social Welfare relied exclusively on the records of the ISSS.”³⁹⁹ SIMETRISS also asked, “[H]ow can a process be confidential for . . . the parties? [W]here does that position come from? How can it be that the director general of the Labor Inspectorate denies a worker who is part of the process access to his own legal report, alleging, ironically, ‘confidentiality’?”⁴⁰⁰ On April 26, 2002, SIMETRISS filed a complaint with the Division of Disputed Administrative Matters of the Supreme Court, requesting that the procedures followed by the Labor Inspectorate in this case be declared illegal.⁴⁰¹ No ruling had been issued at the time of this writing.