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Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - El Salvador (RATIFICATION: 2006)

The Committee notes the Government’s reply to the comments from the International Trade Union Confederation (ITUC) of 2009. The Committee also notes the recent comments from the ITUC, dated 4 August 2011, referring to matters already raised by the Committee, and also to the refusal to register the executive committee of a trade union in the construction industry and to the murder of the general secretary of the Union of Municipal Workers and Employees of Santa Ana (SITRAMSA) on 15 January 2011. The Committee recalls that workers’ and employers’ organizations can only exercise their trade union rights in a climate that is free of violence or threats of any kind and when murders or attacks on the physical integrity of union leaders and members occur, an independent judicial inquiry must be conducted immediately, since this is the most suitable method for fully clarifying the facts, determining where responsibilities lie, punishing the guilty parties and preventing the repetition of similar events. The Committee requests the Government to send its observations in this respect.

Article 2 of the Convention. Right of workers, without distinction whatsoever, to establish and join organizations of their own choosing without prior authorization. Exclusion of various categories of workers from the guarantees of the Convention. In its previous comments the Committee referred to sections 4 and 73, second paragraph, of the Civil Service Act, as amended by Legislative Decree No. 78 of August 2006, under which certain public officials and employees and public sector workers are excluded from the guarantees of the Convention. The Committee understood that the previous provisions of the Civil Service Act had been cancelled further to the revision of the Constitution and therefore no longer applied. The Committee notes the Government’s statement in its report that the provisions of the Civil Service Act have not been cancelled; on the contrary, both standard-setting bodies agree to regulate accordingly the rights of public servants with regard to the right of association. The Committee therefore requests the Government to provide information in its next report on whether the public employees and officials mentioned in sections 4 and 73, second paragraph, of the Civil Service Act enjoy the guarantees laid down in the Convention.

In its previous comments the Committee also noted that article 47 of the Constitution of the Republic was amended by Decree No. 33 of 2009. The Committee observed that article 47 provides that the following shall not have the right of association: members of the judiciary, public servants who have authority to make decisions or hold managerial positions, or are employees with duties of a highly confidential nature, private secretaries of high-ranking officials (article 219 of the Constitution), diplomatic representatives (article 236 of the Constitution), assistants of the Public Prosecutor, or persons serving as assistant employees, assistant prosecutors, labour prosecutors and delegates. The Committee recalled that the officials in question should enjoy the right to establish and join organizations of their own choosing without prior authorization. The Committee notes the Government’s statement that the provisions in question are in conformity with the provisions of the Labour Relations (Public Service) Convention, 1978 (No. 151), (Article 1(2)). The Committee recalls that, under the provisions of Article 2, “workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organization concerned, to join organizations of their own choosing without previous authorization”, and that the right to organize should therefore be considered as a general principle, the only exception to which is that stipulated in Article 9, which permits States to determine the extent to which the guarantees provided for in the Convention apply to the armed forces and the police (see 1994 General Survey on freedom of association and collective bargaining, paragraph 45). The Committee requests the Government to take the necessary steps to ensure that the officials in question enjoy the guarantees laid down in the Convention and to provide information in its next report on any measures taken in this respect.

The Committee also asked the Government in its previous comments to take the necessary steps to ensure that workers in private security firms enjoy the right to establish or join trade union organizations. The Committee notes with interest the Government’s statement that all requests to grant legal personality to trade unions originating from workers in the private security sector have received a positive response and that three trade unions and six branch unions have been registered.

In its previous comments the Committee referred to the need to amend section 204 of the Labour Code, which prohibits membership of more than one union. The Committee notes the Government’s indication that it will provide information in due course on any progress made on this matter. The Committee recalls that workers who are engaged, whether in the public or private sector, in different activities in more than one job should be able to join the corresponding unions and that, in any case, workers should be able, if they so wish, to join unions at the branch and enterprise levels at the same time. The Committee expresses the strong hope that the Government will take the necessary steps without delay to have section 204 of the Labour Code amended as indicated and requests it to provide information on this matter in its next report.

Minimum membership. In its previous comments the Committee referred to the need to amend section 211 of the Labour Code and section 76 of the Civil Service Act, which set the requirement of at least 35 members in order to establish a workers’ organization, and section 212 of the Labour Code, which establishes a requirement of a minimum of seven employers in order to form an employers’ organization. The Committee notes the Government’s statement that a draft decree has been drawn up with a view to amending section 211 of the Labour Code, which has been submitted to the Higher Labour Council (CST) for consultation. The Committee requests the Government to provide information on any developments in this respect and trusts that sections 212 of the Labour Code and 76 of the Civil Service Act will also be amended in such a way as to reduce the minimum number of workers needed to establish a workers’ union or an employers’ union.

Requirements for the acquisition of legal personality. In its previous comments the Committee asked the Government to take steps to amend section 219 of the Labour Code, which provides that, in order for trade unions to be legally constituted, within five days of the documentation being submitted to it, the Ministry of Labour and Social Insurance shall request the employer to certify that the founder members are employees. The Committee notes the Government’s statement that the planned audit – backed by the ILO aimed at revising and streamlining administrative procedures with a view to making them more effective – has not yet taken place. The Committee hopes that the audit referred to by the Government will take place in the near future and that the Government will take the necessary steps to amend section 219 of the Labour Code, for example by providing that the Ministry of Labour will carry out the certification by checking the list of employees of the enterprise or establishment provided by the employer.

Waiting period for the establishment of a new union. In its previous comments the Committee asked the Government to take steps to amend section 248 of the Labour Code, which provides that “further steps may not be taken to establish another union until six months have elapsed since the previous application”. The Committee notes the Government’s indication that a draft decree has been drawn up with a view to amending the abovementioned section, and this has been submitted to the CST for consultation. The Committee hopes that section 248 of the Labour Code will be amended in the near future so as to eliminate the waiting period required for a further application to establish a union. The Committee requests the Government to provide information on any further developments in this respect.

Article 3. Right of workers’ and employers’ organizations to elect their representatives in full freedom. In its previous comments the Committee asked the Government to take steps to amend article 47(4) of the National Constitution, section 225 of the Labour Code and section 90 of the Civil Service Act, which establish the requirement to be “a national of El Salvador by birth” in order to hold office on the executive committee of a union. The Committee notes the Government’s statement that it will provide information in due course on the progress made towards this end. The Committee recalls that foreign workers should be allowed access to trade union office, at least after a reasonable period of residence in the host country (see General Survey, op. cit., paragraph 118). The Committee therefore trusts that the Government will take the necessary steps to have article 47(4) of the Constitution, section 225 of the Labour Code and section 90 of the Civil Service Act amended accordingly.

Right of organizations to organize their activities in full freedom and to formulate their programmes. In its previous comments the Committee noted that section 529 of the Labour Code provides that decisions regarding strikes require an absolute majority of the workers in the enterprise or establishment affected by the dispute, and that if the requirement is met, the decision should be binding for all the staff. Otherwise, if the decision obtains less than an absolute majority, the unions and the workers who are active in the dispute shall be required to respect the freedom to work of those not participating in the strike. The Committee asked the Government to take the necessary steps to have section 529 amended so that when a decision is taken to call a strike, only the votes cast are taken into account, and so that the principle of the freedom to work of non-strikers and the right of employers and managerial staff to enter the premises of the enterprise or establishment are recognized even where the strike has been decided upon by an absolute majority of the workers. The Committee notes the Government’s indication that it will provide information in due course regarding any progress made on this matter. The Committee recalls that if a member State deems it appropriate to establish in its legislation provisions which require a vote by workers before a strike can be held, it should ensure that account is taken only of the votes cast and that the required quorum and majority are fixed at a reasonable level (see General Survey, op. cit., paragraph 170). The Committee further recalls that the principle of the freedom to work of non-strikers and the right of employers and managerial staff to enter the premises of the enterprise or establishment must be recognized even in cases where the strike has been decided upon by an absolute majority of the workers. The Committee requests the Government to take the necessary steps, taking account of the abovementioned principles, to amend section 529 of the Labour Code and to send information on this matter in its next report.

Declaring strikes unlawful. In its previous comments the Committee noted that section 553(f) of the Labour Code establishes that strikes shall be declared unlawful “where inspection shows that the striking workers do not constitute at least 51 per cent of the personnel of the enterprise or establishment” and considered that this provision is not only inconsistent with section 529, second paragraph, which establishes the right to strike of unions representing at least 30 per cent of the workers in the establishment or enterprise, but also places too great a restriction on the right to strike. While noting the Government’s statement that it will report on any progress made in this area, the Committee requests the Government to take the necessary steps to amend or abolish section 553(f) of the Labour Code and to provide information on this matter in its next report.

Essential services. In its previous comments the Committee noted that section 553(a) of the Labour Code provides that strikes shall be declared unlawful when they are called in essential services and that section 515 (concerning compulsory arbitration) provides that essential services are deemed to be services the interruption of which would endanger or threaten to endanger the life, personal safety or health or the normal conditions of existence of the whole or part of the population. Bearing in mind that the Labour Code does not specify which services are deemed to be essential and that, according to the Government, the Director-General of Labour is the person who determines whether a service is essential, being the authority competent to settle the dispute, the Committee asked the Government to provide information on the services that the Director-General of Labour has so far deemed to be essential. The Committee notes the Government’s indication that to date no cases have arisen involving the definition of essential services on the part of the Director-General of Labour.

Public servants. In its previous comments the Committee referred to article 221 of the Constitution of the Republic, which prohibits strikes by public and municipal workers. The Committee recalled that prohibition of the right to strike in the public service should be limited to public servants exercising authority in the name of the State and asked the Government to take the necessary steps to have article 221 amended accordingly. The Committee notes the Government’s statement that it will provide information in due course on any progress made on this matter. The Committee hopes that the Government will take all the necessary steps, taking account of the abovementioned principle, to amend article 221 of the Constitution of the Republic and will provide information in its next report on any developments in this respect.

Article 6. Right of workers’ and employers’ organizations to establish federations and confederations. In its previous comments the Committee noted that section 259 of the Labour Code provides for delegates of the Ministry of Labour and Social Insurance or of the public notary to participate in the constituent assembly of a federation or confederation in order to draw up the record of all the decisions taken. The Committee asked the Government to consider amending the legislation so as to make the presence of these representatives optional for the trade union organization and to provide information in its next report on any developments regarding the amendment of section 259 of the Labour Code. The Committee notes the Government’s indication that the purpose of the presence of the delegate or notary, as governed by the abovementioned provision, is not to issue an opinion on whether or not the federation or confederation should be constituted, but to attest to the facts, place, day and time relating to the act of constitution and also to the status of those attending the assembly, which is noted in the respective record.

Public sector. In its previous comments the Committee asked the Government to take the necessary steps to ensure that organizations of public employees may join federations, confederations and central organizations of their choosing including organizations whose membership includes private sector workers. The Committee notes the Government’s indication that recognition has been given in practice to the right of public sector trade unions to join federations and confederations in accordance with the case law issued by the Constitutional Division of the Supreme Court of Justice, which has declared that when a given legal body does not indicate the procedures or stages to be followed for particular proceedings, the “principle of the unity of the legal system” must be applied, which implies incorporation of the system of standards (amparo ruling No. 698 99 of 27 September 2001). The Committee further notes the Government’s indication that three trade union federations of public servants have been established to date.