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V. MINISTRY OF LABOR FAILURE TO ENFORCE LABOR LAWS

I, on the inside, ask, “What happens here? Why don’t we prevent these violations?” . . . We are not going to do it, in the end, because we should not discredit an employer. We need our jobs. We have to let everything go.

—Labor Ministry official, speaking on condition of anonymity.42

The Ministry of Labor’s Labor Inspectorate fails to follow proper inspection procedures, seriously compromising workers’ right to an effective remedy for violations of their human rights.43 It conducts inspections without worker participation, denies workers inspection results, fails to impose employer sanctions, and refuses to rule on matters within its mandate. The Ministry of Labor’s Labor Directorate ignores employer anti-union conduct and impedes union registration, delaying and even preventing the establishment of workers’ organizations in violation of international norms.44 In extreme cases, the Ministry of Labor participates in employer labor law violations by honoring illegal employer requests that violate workers’ human rights.

There are a number of reasons for the failures described in this chapter. Resource constraints are one obstacle to adequate labor law enforcement; thirty-seven labor inspectors reportedly cover a labor force of roughly 2.6 million.45 Of far greater concern is the demonstrated lack of political will of existing Ministry of Labor supervisors and other officials to insist on compliance with domestic labor laws. As a former labor inspector and current labor law professor explained to Human Rights Watch, “There is no political will to enforce the country’s laws. . . . You can see the cultural climate of not bothering the big companies. . . . We fined the small bakeries, the mechanics shops— . . . small businesses, but not the big ones."46 A justice from the Division of Disputed Administrative Matters of the Supreme Court similarly told Human Rights Watch, “the maquila is very much protected here. . . . The Ministry of Labor is very political. . . . It does not apply the law, but politics.”47

Although workers who believe that the Labor Ministry acted illegally in their case—for example by failing to follow mandatory procedures or inaccurately interpreting and applying the law—may appeal to the Division of Disputed Administrative Matters of the Supreme Court, the process is so long and cumbersome that few workers have the time or resources to make use of it.48 According to a justice who serves in this appeals section, rulings in such cases, on average, take roughly one-and-a-half years. He reflected, “We are very slow here. Something that should be done in four months, we do in a year.”49 One advocate for workers’ human rights similarly explained, “the problem is that people see that the procedures are so long and complicated that they don’t turn there.”50

Legal Obligations of the Labor Inspectorate

Under Salvadoran law, the Labor Inspectorate is charged with “ensuring compliance with statutory labor provisions and basic norms of occupational health and safety.”51 The Labor Inspectorate is based in San Salvador, with representatives in a Western Regional Office in Santa Ana and an Eastern Regional Office in San Miguel, and is divided into two departments—the Department of Industry and Business Inspection and the Department of Agriculture Inspection.52 There are twenty-seven inspectors in San Salvador, four in Santa Ana, and six in San Miguel.53

The Law of Organization and Functions of the Labor and Social Welfare Sector (LOFSTPS) establishes Ministry of Labor rules of operation. The law provides that the Labor Inspectorate shall include supervisors and inspectors, who shall conduct programmed and unprogrammed worksite visits—the former part of monthly plans of preventive inspections and the latter, usually solicited by interested parties, in response to specific events “requiring immediate and urgent verification.”54

All such worksite inspections are to be conducted in accordance with established legal procedures. The workplace visits “will occur with the participation of the employer, workers, or their representatives.”55 A legal document—an Acta—must be prepared in the workplace at the conclusion of the inspection, detailing the violations and establishing a time period, not to exceed fifteen days, within which violations must be remedied. An inspector is required to meet with both parties prior to preparing the Acta to discuss steps to be taken to remedy the violations identified and to present the document to both parties to sign if they choose.56 A follow-up inspection must be conducted after the time period for remedying the violations expires. If the follow-up inspection reveals that an employer is still not complying with the law, an inspector must prepare another Acta and turn the case over to higher Labor Inspectorate authorities to levy the corresponding fines. Extending the fifteen-day time period is not allowed.57

The Labor Inspectorate, however, often fails to follow these explicitly mandated inspection procedures. The result is an inspection process that rarely provides effective redress for workers whose rights have been violated and presents little credible threat of punishment for employers who violate those rights.

Failure to Allow Worker Participation in Inspection Visits

They [labor inspectors] didn’t ask us anything. . . . They would stay behind the [production] lines but not ask us how the situation was.

Carla Cabrera, Anthony Fashions assembly line worker whose name has been changed for this report.58

Salvadoran law directs inspectors to meet with both employers and workers when they conduct inspections.59 Human Rights Watch found, however, that in many cases, inspectors fail to interview workers, basing their findings solely on employer testimony and potentially flawed company records. This is particularly common when workers allege economic violations, such as a failure to pay salaries, vacation benefits, social security, or legally mandated end-of-the-year bonuses. According to Rolando Borjas Munguía, director general of the Labor Inspectorate, in such cases, “they [inspectors] don’t speak with workers. . . . They just look at the records.”60 The Salvadoran Social Security Institute case, discussed in chapter VII below, illustrates this widespread problem; doctors who brought a complaint against their employer were first notified of the inspection twenty-one days after it occurred and were never interviewed.

Despite legal provisions mandating that workers or their representatives participate in worksite visits,61 inspections commonly take place without their presence. Union leaders and workers’ lawyers complain that they are not informed when inspections are to be conducted, particularly in cases involving dismissals or suspensions, even though they specifically ask to be contacted in the inspection requests. “We want to be present,” a labor lawyer explained, but “they never notify us.”62

Despite the legal requirement,63 none of the labor inspectors whom Human Rights Watch interviewed thought that complainant workers or their representatives must be present during an inspection. One supervisor for the Department of Industry and Business Inspection told Human Rights Watch, “You almost don’t see cases when the workers are there.”64 Similarly, the supervisor of labor inspectors in the Ministry of Labor’s Western Regional Office in Santa Ana explained, “An Acta is prepared if the worker is not present. It says that [the worker] did not sign because he was not present when the inspection was conducted, and it is still valid.”65 A former supervisor of labor inspectors, speaking on condition of anonymity, added, “If inspectors do not think it’s necessary to speak with the workers, they don’t speak with them. They conduct the inspection though the [complainant] worker is not there.”66

Failure to Provide Workers Copies of Inspection Results

It’s a policy of denying them [workers] information—a policy of hiding information. . . . You see the bad faith of the ministry in these cases—the transparency of an entity of the state that should be enforcing labor laws.

—Antonio Aguilar Martínez, associate ombudsman for labor rights.67

As workers are often not interviewed during an inspection and may not even be present, they frequently miss the opportunity to obtain a copy of inspection results while the inspector is still in the workplace. In such cases, complainant workers submit a request to the Ministry of Labor if they want a copy of the results. When they do so, they may be illegally denied access to the inspection document, as alleged in the representative cases of Anthony Fashions, CEL, and the Salvadoran Social Security Institute, discussed in chapter VII below. As one Ministry of Labor official acknowledged, speaking on condition of anonymity, “The affected workers have a right to receive the Acta, [but] they have to ask for it in the moment [of the inspection]. Later, they are not going to want to give it to them.”68

Without inspection results, workers whose complaints are found to be without merit are denied a justification for the decision. Even in cases where workers prevail in part or in full, failure to provide inspection results denies them evidence that could provide essential support in subsequent court actions against their employer. In the Anthony Fashions case, the denial of inspection results deprived workers of evidence of precisely how much their employer owed them; their criminal complaint against the company for wrongfully withholding their bonuses subsequently was dismissed for lack of evidence.69

When questioned about this illegal practice of denying workers copies of inspection results,70 the Labor Inspectorate has offered at least two different justifications—one to Human Rights Watch and the other to workers and their representatives. Both explanations have no basis in law. Instead, they are legal fictions invented to justify government-erected obstacles that impede workers’ right to obtain legal redress when their human rights are violated.

When Human Rights Watch asked Rolando Borjas Munguía, director general of the Labor Inspectorate, why, in some cases, the Labor Inspectorate refuses to provide complainant workers copies of inspection results, he explained that only when those workers are present for the inspection are they entitled to a copy of the Acta. If they are not present, he said, the inspector “drafts a report that is our information and confidential. An Acta cannot be prepared if the complainant is not there. . . . Like the Acta, it [the report] documents if there is a violation or not and establishes a period within which to remedy it.”71 The implication of Borjas’ statement appears to be that if inspectors violate the requirement that complainant workers or their representatives participate in inspections, they must also violate the requirement that an Acta be prepared at the conclusion of each inspection and provided to interested parties.

Other Labor Ministry officials not present during Human Rights Watch’s interview with Borjas, however, stated that the law does not allow for such substitution of a confidential report for an Acta.72 The other Labor Ministry representatives unanimously concurred that even if complainant workers do not participate in inspections, they have a right to a copy of the results. For example, the head of the Ministry of Labor’s Western Regional Office in Santa Ana commented that, in such cases, absent complainant workers “can ask for a copy of the Acta. They have a right to a copy. . . . They have the right to know what the ministry does. . . . It is a [confidential] report only when an inspection was not performed.”73 The supervisor of labor inspectors of Santa Ana similarly added that if a complainant worker is not present for the inspection but “later wants a copy of the Acta, it is turned over. If we didn’t, this would leave [the worker] at a disadvantage. Imagine, he wouldn’t have a copy of the Acta for another process.”74

Asked to comment on Borjas’ explanation to Human Rights Watch, the judge for the First Labor Court of San Salvador responded, “The report—they have invented that. They should prepare an Acta. . . . They make it [the report] confidential, but it should not be confidential. It does not have to do with private things. . . . A report should complement an Acta, but not replace it.”75 The associate ombudsman for labor rights similarly explained, “It’s a lie that it [inspection results] is not turned over because it’s a report.”76

The Labor Inspectorate has regularly provided a very different explanation to workers for denying them access to inspection results. Workers told Human Rights Watch that, instead, the Labor Inspectorate invokes articles 39b and 40a of the LOFSTPS law described above and article 597 of the Labor Code. LOFSTPS article 39b requires inspectors to “maintain strict confidentiality with respect to any complaint about which they have knowledge regarding a violation of a legal provision,” and article 40a prohibits them from “revealing any information about affairs subject of an inspection.”77 Labor Code article 597 establishes that legal documents prepared by the Labor Inspectorate “will not be valid in labor cases or conflicts.”78

This explanation is also flawed. The Labor Code article cited is irrelevant to whether complainant workers have a right to a copy of inspection results. And the interpretation suggested for the LOFSTPS articles ignores both common sense and a basic rule of statutory interpretation—the principle of internal consistency. LOFSTPS cannot require that inspection results be discussed with parties to a complaint, that those parties be provided an opportunity to sign the document setting forth the findings, and at the same time, prohibit disclosure of those results to the same parties. Furthermore, in many cases, complainant workers have been provided copies of inspection results.

When Human Rights Watch questioned a former supervisor of inspectors about the interpretation offered by the Labor Inspectorate of LOFSTPS articles 39b and 40a, he replied that those articles “refer to people who have nothing to do with the worker. . . . [The Labor Ministry’s construal] is a very superficial interpretation due to ignorance or malice.”79 A labor law professor and former labor inspector similarly concluded that such an interpretation “is illogical. It’s as if you went to the doctor and he didn’t tell you what you have.”80

Failure to Enforce Inspection Orders and Impose Sanctions

Generally, they [Labor Ministry officials] don’t impose fines, even when they find that a violation has not been remedied.

—Carlos Aristides Jovel, judge, First Labor Court of San Salvador.81

Both the labor minister and a supervisor of labor inspectors for the Department of Industry and Business Inspection in San Salvador told Human Rights Watch that the Labor Inspectorate does not extend the period within which an employer must remedy identified violations.82 The minister stated categorically, “If the time period expires, that’s final.”83 Human Rights Watch found, however, that inspectors often fail to impose sanctions and illegally increase the time periods provided for employers to remedy labor law violations.84

In some cases, the time period is suspended indefinitely and inspectors’ orders are never enforced, as allegedly occurred in the Tainan case, discussed in chapter VII. Inspectors declared worker suspensions at Tainan illegal, ordered the company to pay suspended workers’ back wages, but reportedly failed to sanction the company when it failed to do so. At this writing, almost two years later, workers have yet to receive their money due. In other cases, as explained by the head of the Ministry of Labor’s Western Regional Office, if ministry officials can persuade employers to remedy violations, they will extend the deadline for them to do so without imposing fines. He clarified, “We believe that we can be flexible.”85 The supervisor of labor inspectors for the same office similarly explained, “If [the employer] demonstrates the will to resolve the problem, we give a new time period, trying to maintain harmony among the workers, the employer, and the institution. Otherwise, we would be an institution like the police.”86 A labor inspector for the Department of Industry and Business Inspection in San Salvador also implied that the time period established by an inspector for remedying a violation is flexible, saying that only “if in the follow-up inspection the [employer] does not show the will to pay [money owed], is the sanctions process initiated.”87

A former supervisor of labor inspectors from the Department of Industry and Business Inspection in San Salvador related to Human Rights Watch a November 2000 case that illustrates this problem:

I went to perform an inspection at a company in response to a complaint that they didn’t pay salaries or benefits. The head of the company then requested a meeting with Borjas. . . . The director [Borjas] talked to me, and I went to the meeting. The owner asked for more time, a longer period than I had given in the Acta. Borjas gave the company more time—two more months. The first thing he did wrong was to override the Acta. Then . . . the owner of the company told him that a union had formed in the company and asked him what to do about it. Borjas said to fire all the union leaders.88

Failure to Rule on Alleged Violations and Misapplication of the Law

In some cases, inspectors conduct inspections but fail to issue findings on any or all of the labor law violations alleged in the inspection request, as in the Confecciones Ninos, S.A. de C.V., and El Salvador International Airport cases, described in chapter VII. In other cases, inspectors improperly apply the law, as also occurred in the case of the El Salvador International Airport. In still other cases, particularly those involving worker suspensions, inspectors may declare certain matters outside their jurisdiction, even when the issues are within the Labor Inspectorate’s legal mandate, as illustrated here by the Anthony Fashions and Tainan cases.

Not only does Salvadoran law authorize inspectors to determine the legality of worker suspensions, but every inspector to whom Human Rights Watch posed the question agreed that the issue is within the Labor Inspectorate’s jurisdiction.89 The judge for the Third Labor Court of San Salvador similarly explained, “They [inspectors] can document [the underlying facts]. They can impose a fine. They can verify whether the suspension is legal or illegal.”90

When inspectors fail to rule on allegations of labor law violations, misapply the law, or declare certain matters outside their jurisdiction, they force workers to turn to labor courts if they wish to challenge the legality of employer conduct and seek legal redress. The judicial process, in most cases, however, lasts longer and is more arduous than the Ministry of Labor’s administrative procedures.91 Furthermore, for suspended workers who have no income, time is of the essence. Economic necessity may press suspended workers to resign before judicial proceedings are completed and accept whatever compensation package may be offered. Thus, in the case of worker suspensions, by declining to rule on the legality of employer conduct, the Labor Inspectorate increases the pressure on suspended workers to resign and helps employers take advantage of legal loopholes, detailed above, to circumvent workers’ human rights protections, like those governing the right to organize.

Participation in Labor Law Violations: Granting Illegal Employer Requests

In some cases, the Ministry of Labor indirectly participates in employer abuses of workers’ human rights and labor law violations by honoring illegal employer requests that harm workers.

As noted, employers may require fired workers to sign resignations in exchange for their severance pay in order to circumvent Labor Code protections against anti-union dismissals and firing workers to destroy a union. Employers may also demand that workers confess to participating in certain activities, like workplace violence, or make written promises, such as to forgo strikes, as a condition for collecting their salaries. Commenting on such practices, a Labor Ministry official speaking on condition of anonymity told Human Rights Watch, “In practice, they do it, but it is not legal. It should not be done.”92

It is illegal for employers to impose conditions on the payment of salaries or benefits already owed to workers. Labor law requires employers to pay each worker her salary, defined as “the monetary consideration that the employer is obligated to pay to a worker for the services provided,” and the Constitution establishes workers’ right to earn a minimum wage and prohibits the withholding of workers’ salaries and benefits.93 Similarly, both the Labor Code and the Constitution establish that a worker fired without just cause has the right—with no additional conditions attached—to severance pay from her employer.94

Actions by employers that violate these legal provisions are bad enough in themselves, but the situation is made worse by the fact that employers sometimes enlist the assistance of Ministry of Labor personnel in such schemes and that the Ministry of Labor personnel acquiesce. Under certain circumstances, employers choose to deposit salaries and other payments owed to workers with the Ministry of Labor. In some such cases, employers who seek to force out particular employees or impose specific terms on them ask the ministry to honor requirements that workers tender resignations, confessions, and the like as a condition of receiving salaries and other benefits that they have already earned. As documented in chapter VII, the Ministry of Labor sometimes does so.

Obstacles to Union Registration

Under Salvadoran law, the Labor Directorate is legally obligated “[t]o facilitate the constitution of union organizations and comply with the functions that the Labor Code and other laws set out with respect to their management and registration.”95 As such, it is responsible for reviewing and assessing petitions to register workers’ organizations and implementing and applying El Salvador’s many requirements for registering a labor organization.

In violation of international law,96 the Labor Directorate tends to interpret these requirements narrowly, creating obstacles to the right to organize—unless the union is employer supported, in which case the Labor Directorate tends to apply an expansive interpretation, facilitating union registration. The Labor Directorate may also look the other way when anti-union conduct prevents workers from exercising their right to organize, despite Labor Code provisions that prohibit employers from “trying to influence workers regarding their right to association” and “taking actions that have as their goal impeding union formation.”97

In the Confecciones Ninos and SITCOM cases, detailed in chapter VII below, the Labor Ministry arbitrarily rejected applications for union recognition when it accepted the employers’ accounts of the underlying facts without first investigating workers’ claims that would have supported the validity of the applications. In contrast, in the CEL case, the ministry reportedly granted legal personality to an employer-supported union without investigating allegations that its members had failed to resign from the independent union first, in violation of the Labor Code’s prohibition on dual union membership.98

Ministry of Labor practices in this area have drawn court censure. For example, on March 29, 2000, the Division of Disputed Administrative Matters of the Supreme Court ruled that the Ministry of Labor acted illegally when it denied the registration petition of the Union of Workers of the Tourism, Hotel, and Similar Industries on June 26, 1998. The Supreme Court found that the Ministry of Labor misinterpreted the Labor Code to bar workers in independent public institutions from forming industry-wide unions; failed to follow mandatory procedures when it cited shortcomings in the union’s petition without giving workers the mandatory opportunity to remedy them; and misapplied the law to the facts when it held that the union failed to describe employers’ activities, the union’s purpose, and the activities of the founders. The Supreme Court—over two years after the illegal denial of the union’s petition—ordered the Ministry of Labor to “issue a new resolution that orders the denied registration.”99

Again, on August 25, 2000, the Division of Disputed Administrative Matters of the Supreme Court held that the Ministry of Labor had illegally denied union registration, this time to the Union of the Unit of Workers of the Telecommunications Company of El Salvador, S.A. de C.V. (SUTTEL), on June 16, 1998. The ministry reportedly rejected SUTTEL’s registration petition—without first providing the workers the mandatory fifteen-day opportunity to remedy the shortcomings—on the grounds that it was presented within six months of a prior petition from the same workers and failed to set forth the union’s purpose. The Supreme Court rejected these grounds. It found that the registration petition sufficiently set forth the union’s purpose as “representing the interests and rights of the affiliates and members,” paraphrasing language directly from Labor Code article 229, and that the forty-four workers who formed SUTTEL on May 24, 1998, were different from those who attempted to unionize on January 2, 1998. The Supreme Court ordered the ministry to “issue a new resolution granting the legal personality denied and list the union in the respective registry”—once again, over two years after the workers’ initial attempt to unionize.100

Also in 2000, in the case of the Trade Union Federation of Food Sector and Allied Workers (FESTSA), the ILO Committee on Freedom of Association stated, “The Committee deeply regrets that, given that the problem [denial of legal personality] arose from procedural errors which could easily have been rectified, the authorities did not attempt to obtain the further documentation or information required by asking the founders of the Federation to rectify procedural anomalies found in the constituent document within a reasonable period.”101

Deprivation of Access to Health Care

In some cases, employers deduct social security payments from workers but then fail to submit the funds to the Salvadoran Social Security Institute, as required by law. As a result, those workers and their families are uninsured and have been turned away from government-run health clinics. Because many of the workers are poor, it is difficult or impossible for them to afford private health care. When forced to pay, they and their families may simply forgo needed treatment. The government’s response in such cases has been inadequate. Its failure to prosecute these cases vigorously, report evidence of such violations immediately to the ISSS for investigation, and create a mechanism so that affected workers can obtain timely access to clinics violates workers’ right to health.

The right to health is recognized as an economic and social right whose full realization must be progressively achieved under international human rights law. The ICESCR provides for “the right of everyone to the enjoyment of the highest attainable standard of physical and mental health” and obliges states parties to create “conditions which would assure to all medical service and medical attention in the event of sickness.”102 Similarly, the Protocol of San Salvador establishes “the right to health, understood to mean the enjoyment of the highest level of physical, mental and social well-being,” and requires states parties to make “[p]rimary health care, that is, essential health care, . . . available to all individuals and families in the community” and to extend “the benefits of health services to all individuals subject to the States’ jurisdiction.”103 The Protocol of San Salvador further mandates that states parties adopt “such legislative or other measures as may be necessary for making those rights a reality.”104 The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) adds that states parties must also “ensure to women appropriate services in connection with pregnancy, confinement and the post-natal period, granting free services where necessary.”105

El Salvador’s Constitution recognizes the “obligation of the State to ensure to the inhabitants of the Republic enjoyment of . . . health” and establishes social security as an “obligatory” institution of “public service.”106 Under Salvadoran law, employers are required to insure their workers by depositing monthly with the Salvadoran Social Security Institute employer dues and worker contributions, deducted from employee salaries.107 Upon presentation of their “Affiliation Cards” and “Employer Certificates” or “Certificates of Rights and Payments,” workers, their spouses, life partners, and children are eligible for free ISSS health services, including “necessary care during pregnancy, child birth, or post-partum.”108 Employer delay in making social security payments is punishable with up to a 10 percent surcharge of the total amount due.109

Inspectors from the ISSS Department of Affiliation and Inspection oversee enforcement of the Social Security Law and its regulations.110 According to several Labor Ministry officials, when labor inspectors uncover employer violations of social security obligations, they also notify the ISSS inspection department.111 Thus, in theory, two bodies of inspectors—from the ISSS and from the Labor Inspectorate—coordinate to ensure the effective application of Salvadoran laws governing social security.

In practice, however, this may not occur. As illustrated in the representative case of Anthony Fashions, described below in chapter VII, even when the Labor Inspectorate has evidence of employer failure to comply with social security laws, it may fail to inform the ISSS or take any steps to remedy the situation. The result, as in the Anthony Fashions case, is that workers—some of whom are pregnant—may face significant obstacles to the enjoyment of their right to health. Unable to access free ISSS facilities because their employer failed to make mandatory social security payments, leaving them uninsured, workers must choose between costly private health care and forgoing treatment. And if the workers are financially able to opt for private treatment, they may never recover their costs—an additional deterrent to seeking private care. Employers who violate social security regulations, including by failing to make mandatory social security payments or failing to provide workers with their affiliation cards, are “responsible for the damages and injuries that the workers may suffer as a result of noncompliance.”112 The responsibility falls to the workers, however, to pursue claims against their employers to recover their costs—a process that could be lengthy, arduous and, in the case of Anthony Fashions, ultimately unsuccessful if the employer cannot even be found in order to be served with process.



42 Human Rights Watch interview, Labor Ministry official, San Salvador, February 9, 2003.

43 The ICCPR requires states parties to “ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy.” ICCPR, art. 2(3)(a).

44 ILO Committee on Freedom of Association, Legal formalities for the establishment of organizations (Right of workers and employers, without distinction whatsoever, to establish organizations without previous authorization), para. 249.

45 Juan Manuel Sepúlveda Malbrán, ed., Las organizaciones sindicales centroamericanos como actores del sistema de relaciones laborales [Central American union organizations as actors in the system of labor relations] (San José, Costa Rica: International Labor Office, 2003), p. 170.

46 Human Rights Watch interview, Roberto Burgos, former labor inspector and current labor law professor, Central American University José Simeón Cañas, San Salvador, February 4, 2003.

47 Human Rights Watch interview, justice, speaking on condition of anonymity, Division of Disputed Administrative Matters of the Supreme Court, San Salvador, February 12, 2003.

48 The official name of this body is the Sala de lo Contencioso Administrativo de la Corte Suprema de Justicia or Division of Disputed Administrative Matters of the Supreme Court. It exercises jurisdiction over “controversies that arise with respect to the legality of the actions of Public Administration.” Law of Jurisdiction over Disputed Administrative Matters, Decree No. 81, November 14, 1978, reprinted in Diario Oficial, no. 236, vol. 261, December 19, 1978, art. 2.

49 Human Rights Watch interview, justice, speaking on condition of anonymity, Division of Disputed Administrative Matters of the Supreme Court, San Salvador, February 12, 2003.

50 Human Rights Watch interview, Victor Aguilar, director, Union Coordinator of Salvadoran Workers (CSTS), San Salvador, February 5, 2003.

51 Law of Organization and Functions of the Labor and Social Welfare Sector (LOFSTPS), Decree No. 682, April 11, 1996, reprinted in Diario Oficial, no. 81, vol. 331,May 3, 1996, art. 34. Officials of the Ministry of Labor’s General Directorate of Social Welfare (Social Welfare Directorate) are also authorized to conduct worksite investigations with respect to health and safety matters. They may issue recommendations to improve workplace health and safety and, after consulting with the employer in question, may issue binding orders. When the seriousness or imminence of a hazard so warrants, the director general of the Social Welfare Directorate may also ask the Labor Inspectorate to close a worksite or prohibit the use of certain machines or equipment deemed to present a serious danger to the life, physical integrity, or health of the workers. Ibid., arts. 62-65.

52 Ibid., arts. 33, 36.

53 Human Rights Watch interview, Rolando Borjas Munguía, director general, Labor Inspectorate, San Salvador, February 13, 2003; Human Rights Watch interview, Eduardo Avila, labor inspector, Department of Industry and Business Inspection, San Salvador, February 13, 2003; Human Rights Watch interview, Edmundo Alfredo Castillo, supervisor of labor inspectors, Department of Industry and Business Inspection, San Salvador, February 13, 2003;Human Rights Watch interview, Hernán Guerra Hernández, director, Ministry of Labor Western Regional Office, Santa Ana, February 17, 2003; Human Rights Watch telephone interview, David Chávez, director, Ministry of Labor Eastern Regional Office, June 24, 2003. There are three inspectors and one supervisor in Santa Ana and five inspectors and one supervisor in San Miguel.

54 LOFSTPS, arts. 41-44.

55 Ibid., art. 47.

56 Ibid., arts. 49, 50. If one party chooses not to sign the Acta, the document is nonetheless valid. Ibid., art. 50.

57 Ibid., arts. 53, 54.

58 Human Rights Watch interview, Carla Cabrera, Anthony Fashions worker, San Salvador, February 3, 2003.

59 LOFSTPS, arts. 47, 49.

60 Human Rights Watch interview, Rolando Borjas Munguía, director general, Labor Inspectorate, San Salvador, February 13, 2003.

61 LOFSTPS, arts. 47, 49.

62 Human Rights Watch interview, Ernesto Gómez, labor lawyer, San Salvador, February 15, 2003.

63 LOFSTPS, arts. 47, 49.

64 Human Rights Watch interview, Ada Cecilia Lazo Gutiérrez, supervisor of labor inspectors, Department of Industry and Business Inspection, San Salvador, February 13, 2003.

65 Human Rights Watch interview, Hector Alfredo Contreras, supervisor of labor inspectors, Ministry of Labor Western Regional Office, Santa Ana, February 17, 2003.

66 Human Rights Watch interview, former supervisor of labor inspectors, San Salvador, February 15, 2003.

67 Human Rights Watch interview, Antonio Aguilar Martínez, associate ombudsman for labor rights, Human Rights Ombudsman’s Office, San Salvador, February 14, 2003.

68 Human Rights Watch interview, Labor Ministry official, San Salvador, February 11, 2003. LOFSTPS provides that the parties—the defendant employer and the complainant workers—shall be provided the opportunity to sign the Acta. LOFSTPS, art. 50.

69 E-mail messages from Gilberto García, director, Center for Labor Studies and Support (CEAL), to Human Rights Watch, April 17 and July 10, 2003.

70 See LOFSTPS, art. 50.

71 Human Rights Watch interview, Rolando Borjas Munguía, director general, Labor Inspectorate, San Salvador, February 13, 2003.

72 Human Rights Watch interviewed Borjas during a meeting with the minister of labor and the directors general of the Labor Directorate, the Labor Inspectorate, the Social Welfare Directorate, and the General Directorate of International Labor Relations.

73 Human Rights Watch interview, Hernán Guerra Hernández, director, Ministry of Labor Western Regional Office, Santa Ana, February 17, 2003.

74 Human Rights Watch interview, Hector Alfredo Contreras, supervisor of labor inspectors, Ministry of Labor Western Regional Office, Santa Ana, February 17, 2003.

75 Human Rights Watch interview, Carlos Aristides Jovel, judge, First Labor Court of San Salvador, San Salvador, February 14, 2003.

76 Human Rights Watch interview, Antonio Aguilar, associate ombudsman for labor rights, Human Rights Ombudsman’s Office, San Salvador, February 14, 2003.

77 LOFSTPS, arts. 39(b), 40(a).

78 Labor Code, art. 597.

79 Human Rights Watch interview, former supervisor of labor inspectors, speaking on condition of anonymity, San Salvador, February 15, 2003.

80 Human Rights Watch interview, Roberto Burgos, former labor inspector and current labor law professor, Central American University José Simeón Cañas, San Salvador, February 4, 2003.

81 Human Rights Watch interview, Carlos Aristides Jovel, judge, First Labor Court of San Salvador, San Salvador, February 14, 2003.

82 Human Rights Watch interview, Jorge Isidoro Nieto Menéndez, minister of labor, San Salvador, February 13, 2003; Human Rights Watch interview, Ada Cecilia Lazo Gutiérrez, supervisor of labor inspectors, Department of Industry and Business Inspection, San Salvador, February 13, 2002.

83 Human Rights Watch interview, Jorge Isidoro Nieto Menéndez, minister of labor, San Salvador, February 13, 2003.

84 See LOFSTPS, arts. 53, 54.

85 Human Rights Watch interview, Hernán Guerra Hernández, director, Ministry of Labor Western Regional Office, Santa Ana, February 17, 2003.

86 Human Rights Watch interview, Hector Alfredo Contreras, supervisor of labor inspectors, Ministry of Labor Western Regional Office, Santa Ana, February 17, 2003.

87 Human Rights Watch interview, Giselda Yanet Cornejo de De León, labor inspector, Department of Industry and Business Inspection, San Salvador, February 13, 2003.

88 Human Rights Watch interview, Orlando Noé Zelada, former supervisor of labor inspectors, Department of Industry and Business Inspection, San Salvador, February 15, 2003.

89 See, e.g., Human Rights Watch interview, Ada Cecilia Lazo Gutiérrez, supervisor of labor inspectors, Department of Industry and Business Inspection, San Salvador, February 13, 2003; Human Rights Watch interview, Giselda Yanet Cornejo de De León, labor inspector, Department of Industry and Business Inspection, San Salvador, February 13, 2003; Human Rights Watch interview, Hector Alfredo Contreras, supervisor of labor inspectors, Ministry of Labor Western Regional Office, Santa Ana, February 17, 2003; Human Rights Watch interview, former supervisor of labor inspectors, speaking on condition of anonymity, San Salvador, February 15, 2003.

90 Human Rights Watch interview, Ovidio Ramírez Cuéllar, judge, Third Labor Court of San Salvador, San Salvador, February 12, 2003.

91 The judge for the First Labor Court of San Salvador told Human Rights Watch that it takes a minimum of one-and-a-half years to complete all levels of appellate review in a labor case. Human Rights Watch interview, Carlos Aristides Jovel, judge, First Labor Court of San Salvador, San Salvador, February 14, 2003.

92 Human Rights Watch interview, Labor Ministry official, San Salvador, February 11, 2003.

93 Labor Code, arts. 29(1), 119; Constitution, art. 38(2), (3).

94 Labor Code, art. 58; Constitution, art. 38(11).

95 LOFSTPS, art. 22(b).

96 See ICCPR, art. 22; ICESCR, art. 8; ILO Convention 87, art. 2; ILO Convention 98, art. 1; ILO Committee on Freedom of Association, Legal formalities for the establishment of organizations (Right of workers and employers, without distinction whatsoever, to establish organizations without previous authorization), paras. 248, 249.

97 Labor Code, arts. 30(4), 205(ch).

98 Petition for revocation from Alirio Salvador Romero Amaya, general secretary, Union of Electric Sector Workers (STSEL), to Jorge Isidoro Nieto Menéndez, minister of labor, July 5, 2002.

99 Sentence CAS84S9800.01, Division of Disputed Administrative Matters of the Supreme Court, Case No. 84-S-98, March 29, 2000.

100 Sentence, Division of Disputed Administrative Matters of the Supreme Court, Case No. 101-R-98, August 25, 2000.

101 ILO, Complaint against the Government of El Salvador presented by FESTSA, SETDESA and ATRAMEC, para. 172. The union reportedly again requested legal personality on May 27, 2002, and the Ministry of Labor granted the request on July 1, 2002. ILO Committee on Freedom of Association, Introduction to Report 329 (November 2002), Report No. 329, Vol. LXXXV, 2002, Series B, No. 3, para. 43.

102 ICESCR, art. 12(1), (2)(d).

103 Protocol of San Salvador, art. 10.

104 Ibid., art. 2.

105 Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), G.A. Res. 34/180, 34 U.N. GAOR Supp. (No. 46) at 193, U.N. Doc. A/34/46, December 18, 1979, art. 12. El Salvador ratified CEDAW on September 18, 1981.

106 Constitution, arts. 1, 50, 65.

107 Regulations for the Application of the Social Security Regime, Decree No. 37, May 10, 1954, reprinted in Diario Oficial, no. 88, vol. 163, May 12, 1954, arts. 47, 48; see also Social Security Law, Decree No. 1263, December 3, 1953, reprinted in Diario Oficial, no. 226, vol. 161, December 11, 1953, art. 33.

108 Regulations for the Application of the Social Security Regime, arts. 14, 16; Social Security Law, arts. 3, 48, 59, 71. Article 3 of the Social Security Law exempts from coverage only those employees “whose income is higher than an amount that will be determined by the respective regulations.” And article 16 of the Regulations for the Application of the Social Security Regime establishes that, in emergencies, the requisite certifications may be provided after receipt of treatment.

109 Regulations for the Application of the Social Security Regime, art. 49. A fifteen-day delay in making payments is punishable with an additional charge of 5 percent of the total amount due, while a delay of over fifteen days can result in an additional 10 percent charge. Ibid. Under the Social Security Law, however, employer delay in payment is punishable with a 1 percent surcharge for each month or fraction of a month overdue. Social Security Law, art. 33.

110 Regulation for the Affiliation, Inspection and Statistics of the Salvadoran Social Security Institute, Decree No. 53, June 11, 1956, reprinted in Diario Oficial, no. 114, vol. 171, June 19, 1956, art. 21. Under the Social Security Law, the director general of the ISSS is responsible for ensuring compliance with the Social Security Law and its regulations. Social Security Law, art. 18(b).

111 Human Rights Watch interview, Labor Ministry official, speaking on condition of anonymity, San Salvador, February 11, 2003; Human Rights Watch interview, Eduardo Avila, labor inspector, Department of Industry and Business Inspection, San Salvador, February 13, 2003; Human Rights Watch interview, Edmundo Alfredo Castillo, supervisor of labor inspectors, Department of Industry and Business Inspection, San Salvador, February 13, 2003.

112 Regulation for the Affiliation, Inspection and Statistics of the Salvadoran Social Security Institute, arts. 15, 16.


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December 2003