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IV. FREEDOM OF ASSOCIATION UNDER DOMESTIC LAW

Each State Party to the present Covenant [ICCPR] undertakes to take the necessary steps . . . to adopt such legislative or other measures as may be necessary to give effect to the rights recognized in the present Covenant.

—ICCPR, art. 2(2).

El Salvador’s Constitution and Labor Code provide that employers, private sector workers, and workers at independent public institutions “have the right to freely associate to defend their respective interests, forming professional associations or unions.”¹⁴ However, all public sector workers not employed in independent institutions (those that, due to the nature of their operations, enjoy economic and administrative autonomy), such as public hospitals and clinics and the state-owned electric company, do not have the right to form and join trade unions or professional associations.¹⁵

The ICCPR and ICESCR permit restrictions on the right to freedom of association only as necessary “in the interests of national security,” “public order,” or “for the protection of the rights and freedom of others.”¹⁶ They note, for example, that the covenants “shall not prevent the imposition of lawful restrictions on members of the armed forces and of the police in the exercise of this right.”¹⁷ The ICESCR adds that such restrictions may also be permissible on workers involved in “the administration of the State.”¹⁸ ILO Convention 98 similarly states, “This Convention does not deal with the position of public servants engaged in the administration of the State, nor shall it be construed as prejudicing their rights or status in any way.”¹⁹ The ILO Committee of Experts has explained, however, that restricting the right of workers employed in the “public administration of the State” to form and join trade unions is compatible with international standards only if “the legislation . . . limit[s] this category to persons exercising senior managerial or policy-making responsibilities” and “they [these senior workers] are entitled to establish their own organizations.”²⁰ This is not the case in El Salvador. Noting that “the denial of the right of public service employees to establish unions is an extremely serious violation of the most elementary principles of freedom of association,” the ILO Committee on Freedom of Association, on several occasions, has “strongly urge[d] the Government as a matter of urgency to ensure that the national legislation of El Salvador is amended so that it recognizes the right of association of workers employed in the service of the State, with the sole possible exception of the armed forces and the police.”²¹ El Salvador has yet to comply.

El Salvador further violates both its international treaty obligations and its duty as an ILO member by failing to adopt implementing laws and regulations to enforce the protections for freedom of association set forth in its Labor Code and Constitution. Instead, major weaknesses and loopholes in Salvadoran labor law allow employers to evade their legal obligation to respect workers’ right to organize. Worker suspension procedures can be manipulated to target union members; union registration is excessively burdensome; anti-union discrimination in hiring is not explicitly banned; and safeguards against anti-union dismissals and suspensions are weak and easily circumvented.

Weak Labor Laws

Much of the [employer] retaliation is for unionizing. Most of the people who try to unionize are fired. And, later, they [employers] develop blacklists. The workers go to ask for work, and they don’t give it to them.

—Labor Ministry official, speaking on condition of anonymity.²²

Inadequate Protections against Anti-Union Suspensions and Dismissals

The Labor Code prohibits anti-union discrimination against workers,²³ yet El Salvador’s laws and procedures fall short of ILO and U.N. human rights standards because they do not adequately give effect to this prohibition. Instead, they fail to protect workers effectively against anti-union suspensions and dismissals, undermining the right to freedom of association and to form and join trade unions.

The Labor Code prohibits employers from firing workers for engaging in legitimate union activity, including labor organizing, but like for all illegal firings, the punishment for violating the provision is a nominal fine. Employers are not required to reinstate fired union members, and the payment due an illegally fired worker is only thirty days’ salary—usually about U.S. $144, the minimum wage in manufacturing—for every year of employment.²⁴

As alleged in the cases of Río Lempa Hydroelectric Executive Commission (CEL) and Lido, S.A. de C.V., detailed in chapter VII below, employers routinely fire union affiliates and pay the small fine for ridding their facilities of trade unionists. Lido reportedly fired thirty union members in May 2002 and another twenty-two between October 14 and November 4, 2002, paying each the low payment due. CEL also reportedly fired roughly thirty-one union members between September 24, 2001, and October 18, 2002. Though CEL claimed that some resigned and others were fired with cause, CEL nonetheless also offered each the minimal compensation owed for illegal dismissal.

Under Salvadoran law, union leaders enjoy greater, yet still insufficient, legal protections. Once they are elected, it is illegal to fire or suspend union leaders without prior judicial approval for one year after their terms expire.²⁵ However, employers are not required to reinstate union leaders fired or suspended without judicial authorization. Instead, employers can legally fire or suspend union leaders so long as they pay their salaries and benefits until the end of the protected period. As an interim justice for the Second Court of Labor Appeals explained to Human Rights Watch, “The principal [legal] obligation of the employer is not to give the worker work but to pay the worker.”²⁶ Thus, an employer who bars a union leader from the workplace but continues to pay her as if she were still laboring has not run afoul of the law since the union leader, technically, is still an employee.

As illustrated in the representative cases of Lido and CEL, this is an effective and widely used method of weakening or eliminating unions, as it prevents union leaders from entering the workplace and interacting with other union members. Lido reportedly fired eleven union leaders in May 2002 and, in an agreement reached before the Labor Directorate and reaffirmed in judicial conciliation, agreed to pay them the full compensation owed under the Labor Code, though denying them additional benefits due under their collective bargaining agreement. At this writing, the eleven have not been allowed back in the workplace. CEL also reportedly fired roughly six union leaders between September 2001 and October 2002 and in at least two cases, also agreed to pay their full compensation due. In both cases, the firings severely weakened the unions, as the union leaders could not effectively represent their members while barred from the workplace.

Without the right to reinstatement for anti-union dismissals, existing labor law provisions do not fully protect workers from employer reprisals for exercising their right to freedom of association. One labor lawyer described these hollow safeguards as the commercialization of freedom of association, noting that the financial consequences for violating these provisions are merely a cost of doing business—an investment in a union-free workplace.²⁷

No Explicit Protection against Anti-Union Discrimination in Hiring

El Salvador’s laws further undercut workers’ right to freedom of association by failing to protect workers against blacklisting—refusing to hire individuals identified on a blacklist as actual or suspected trade union members or supporters. Although the Labor Code prohibits discrimination or retaliation against workers for engaging in union activity, the law defines “workers” as employees or laborers, thereby limiting this protection only to those already employed.²⁸ There is no explicit bar on anti-union discrimination against job applicants or in recruitment, only general Labor Code and Constitutional principles of equality and non-discrimination on the basis of the enumerated categories of nationality, race, sex, or religion.²⁹ To Human Rights Watch’s knowledge, no case has yet been presented seeking a legal ruling on whether these principles could be broadly construed also to prohibit anti-union discrimination in hiring. As a result, under the current law, blacklisted job applicants—such as the former Anthony Fashion Corporation, S.A. de C.V. (Anthony Fashions), employees, discussed in chapter VII below—enjoy no legal remedy.

Obstacles to Union Registration

Like El Salvador’s laws governing anti-union discrimination, its legislation establishing union registration requirements, according to the ILO, “seriously infringes the principles of freedom of association.”³⁰ Although the Constitution provides that the norms governing union formation “should not hinder freedom of association,” in 1999, the ILO observed that the “excessive formalities” with which workers seeking to unionize must comply “are contrary to the principle of the free establishment of trade union organizations.”³¹ Among the burdensome formalities identified by the ILO are the Labor Code requirements that six months pass before workers whose application to establish a trade union is rejected can submit a new application; that the union have a minimum of thirty-five members; and that workers in independent public institutions form enterprise-based, rather than industry-wide, unions.³² The ILO has issued recommendations on several occasions since 1999 to streamline union registration “with a view to amending the legislation so that the current excessive formalities that apply to the establishment of trade union organizations are removed.”³³ None of the relevant provisions has been changed.

Legal Loopholes

Forced Resignations to Circumvent Labor Law Protections

The Labor Code prohibits actions taken to dissolve a union.³⁴ On its face, this prohibition would seem to take a significant step towards counteracting the potentially deleterious effects of El Salvador’s weak protections against anti-union dismissals by eliminating one of employers’ primary motivations for anti-union firings—union destruction. The Labor Code provides for sanctions of ten to fifty times the monthly minimum wage against employers who fire workers “with the object or effect” of destroying a union and bars dissolution of a union due to insufficient membership, when that low membership is caused by illegal dismissals.³⁵

In practice, however, a legal loophole largely negates any positive impact of this provision because the law is silent on union destruction through employer-coerced resignations. As alleged in the representative cases of CEL, Lido, and the El Salvador International Airport, elaborated in chapter VII, employers may circumvent this Labor Code prohibition by directly or indirectly pressuring already fired or suspended union members to tender resignations, in exchange for full payment of severance due and, often, waivers of all legal claims against the employers. And as alleged in the case of the Industry Union of Communications Workers (SITCOM), also detailed below in chapter VII, employers may pressure actively employed workers to tender their resignations and may use tactics such as withholding their salaries until they do so. If workers resign under pressure or tender retroactive resignations after they have been fired, they are not considered fired workers, and the above-described prohibition, therefore, does not apply. In such cases, workers are faced with the draconian choice of enjoying their right to freedom of association or greater economic stability and money to provide for their families.

Suspensions to Circumvent Labor Law Protections

Employers also flout the weak protections against anti-union firing by using suspensions to coerce worker resignations. They do so legally by exploiting loopholes in the law on labor suspension. Under Salvadoran law, there are eighteen causes for which an employer can legally suspend workers. Eleven can be unilaterally invoked without prior administrative or judicial authorization. One of the most commonly cited is force majeure, defined to include such things as insufficient product orders or “lack of raw material,” when the consequences are not the fault of the employer.³⁶ Sometimes these causes are cited legitimately as grounds for suspending operations temporarily, but often they are used to circumvent labor laws governing anti-union dismissals.

A suspension for a force majeure or “lack of raw materials” can legally last for nine months and often creates economic pressures for workers to resign, since workers are unpaid during this period. Workers in these circumstances are usually unwilling or unable to wait out the suspension without pay, hoping for possible reinstatement.³⁷ A former supervisor of labor inspectors noted, “This is a legal hole that the law has regarding automatic suspensions for lack of raw materials. [Employers] use it for various purposes. . . . They can suspend workers for nine months. . . . [The workers] are not going to wait nine months.”³⁸ As such, these provisions can be and are used as a tool to coerce workers to resign. The head of the Labor Inspectorate of the Ministry of Labor’s Western Regional Office in Santa Ana commented that, when an employer wishes to terminate an employment relationship, “An employer should fire, not suspend.”³⁹

There is some evidence that employers have cited these grounds selectively against unionized workers, as reportedly occurred in the El Salvador International Airport and Tainan El Salvador, S.A. de C.V. (Tainan), cases, elaborated in chapter VII below. The Union for the El Salvador International Airport Establishment (SITEAIES) was severely weakened when the employer, invoking force majeure, disproportionately suspended union members. Many of the union members, in desperate need of funds, accepted the offer of severance pay in exchange for their resignations and waivers of employer liability. As a Tainan union leader explained to the Ministry of Labor in April 2002 when Tainan began suspending, rather than firing, workers, “[The employer] knows that the majority of these [suspended workers] are affiliates of our union and that, in the face of the uncertainty of a suspension in the terms set forth by the company, [they] will choose to receive the money that the company offers” in exchange for submitting their resignations.⁴⁰ By using suspensions to pressure union members to resign, rather than firing the workers directly, employers circumvent both the bans on anti-union dismissals and on firing workers in an attempt to destroy a union.⁴¹