Direct Request (CEACR) - adopted 2014, published 104th ILC session (2015)

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

Article 3 of the Convention. Right of workers’ organizations to organize their activities and to formulate their programmes. In its previous comments, the Committee requested the Government to take the necessary steps to amend article 221 of the Constitution of the Republic to limit the prohibition of the right to strike in the public service to public servants exercising authority in the name of the State. The Committee notes the Government’s indication that the need to maintain public services does not allow the introduction of this amendment. The Committee recalls that, in addition to the possibility of excluding from the right to strike public servants exercising authority in the name of the State, it also considers it acceptable to restrict the right to strike through the establishment of minimum services in essential public services (such as the transport of persons and goods, postal services, etc.), as well as the restriction or prohibition of the right to strike in essential services in the strict sense of the term (those services the interruption of which would endanger the life, personal safety or health of the whole or part of the population). The Committee therefore once again requests the Government to consider the amendment of article 221 of the Constitution as indicated above, and to report any developments in this regard.

In its previous comments, the Committee also requested the Government to take the necessary steps to amend section 529 of the Labour Code 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 also recognized, even where the strike has been decided upon by an absolute majority of the workers. Noting that there have been no changes in this respect, the Committee once again requests the Government to amend section 529 of the Labour Code as indicated above and to report any developments in this regard.

Declaring strikes unlawful. In its previous comments, the Committee noted that section 553(f) of the Labour Code provides 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 the Committee considered that this position is 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 enterprise or establishment, and also places too great a restriction on the right to strike. Noting that there have been no changes on this matter, the Committee once again requests the Government to amend section 553(f) of the Labour Code as indicated above, and to report any developments in this respect.

Finally, the Committee notes that, in Case No. 2957, the Committee on Freedom of Association drew the attention of the Committee of Experts to the allegation that there are no provisions in law granting public servants in the customs service the right to strike (see 370th Report of the Committee on Freedom of Association, October 2013, paragraph 412). In this regard, the Committee considers that certain customs officials exercise authority in the name of the State and that restrictions on the right to strike for that category of public servants are therefore acceptable. Nevertheless, the Committee recalls that in the case of the limitation or prohibition of the right to strike, the workers affected have to enjoy appropriate guarantees to safeguard their interests, which may, for example, take the form of appropriate, impartial and rapid conciliation and arbitration procedures.