Direct Request (CEACR) - adopted 2013, published 103rd ILC session (2014)

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

The Committee notes that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request.

Repetition

The Committee notes the comments submitted by the International Trade Union Confederation (ITUC) in 2013 and requests the Government to provide its observations thereon as well as on prior ITUC comments dealing with the refusal to register the executive committee of a trade union in the construction industry and with the murder of the general secretary of the Union of Municipal Workers and Employees of Santa Ana (SITRAMSA) on 15 January 2011. The Committee notes that the comments of the National Business Association of Private Enterprises (ANEP) of 2012 are being examined under ILO Convention No. 98.

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 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.

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 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 hopes 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 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 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. 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.

Public servants. In its previous comments, 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 requests the Government to provide information in its next report on any developments in this respect.