Observation (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)

The Committee notes the observations of the International Organisation of Employers (IOE), received on 1 September 2014. The Committee also notes the observations of the International Trade Union Confederation (ITUC), received on 1 September 2014, on matters under examination by the Committee.

The Committee notes the Government’s reply to the observations of the ITUC of 2011 concerning the murder of Victoriano Abel Vega, Secretary-General of the Union of Municipal Workers and Employees of the Municipality of Santa Ana. The Government indicates that the case has been assigned to the Central Intelligence Division of the General Prosecution Office of the Republic and that it is currently under active investigation. The Committee deeply deplores and firmly condemns the murder of Victoriano Abel Vega, which is the subject of Case No. 2923 of the Committee on Freedom of Association. Recalling that the absence of judgments against those guilty of crimes against trade union leaders and members creates a situation of impunity in practice which reinforces the climate of violence and insecurity, which is extremely damaging to the exercise of trade union activities, the Committee strongly urges the Government to take all the necessary measures without delay to identify those responsible and punish those guilty of this crime.

The Committee notes the Government’s reply to the 2013 observations of the National Business Association (ANEP) concerning the Bills which empower the President of the Republic to select the members representing employers on joint or tripartite executive boards, which is the subject of Case No. 2980 of the Committee on Freedom of Association. In this regard, the Committee notes the joint observations of the IOE and the ANEP received on 2 September 2014, denouncing the failure to give effect to the recommendations made by the Committee on Freedom of Association in that case. Recalling the importance, under the terms of Article 3 of the Convention, of guaranteeing the full autonomy of employers’ and workers’ organizations to select their representatives on joint and tripartite bodies, and for them to be consulted in depth on draft legislation covering this matter, the Committee urges the Government to take all the necessary measures to give full effect to this provision of the Convention.

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 comment, the Committee requested the Government to: (i) indicate whether the public employees and officials referred to in sections 4 and 73, second paragraph, of the Civil Service Act (LSC) enjoy the guarantees laid down in the Convention; and (ii) take the necessary measures to ensure that officials who are denied the right of association under articles 47, 219 and 236 of the Constitution enjoy the guarantees laid down in the Convention. The Committee notes the Government’s indication in its report that: (i) most categories of public employees referred to in section 4 of the LSC (and particularly officials responsible for collecting, paying and maintaining accounts, financial managers, storekeepers, caterers, auditors, contract personnel without decision-making authority and who are not in managerial or confidential positions) enjoy the guarantees laid down in the Convention; (ii) a preliminary draft amendment of the LSC was submitted on 24 May 2011, which was agreed to by the trade unions and includes the amendment of section 4 and the reduction in the categories of public servants excluded from the civil service; (iii) employees who do not enjoy collective labour rights are mainly those envisaged in section 73 of the LSC, read together with articles 47, 219 and 236 of the Constitution; and (iv) these provisions have not prevented the registration of two unions of employees in the judiciary.

While taking due note of the Government’s statement on the recognition of the right to organize for most categories of the workers referred to in section 4 of the LSC, the Committee recalls that, with the sole exception of the armed forces and the police, all workers without distinction whatsoever, under the terms of Article 2 of the Convention, shall have the right to establish and join organizations. The Committee therefore once again requests the Government to take the necessary measures to amend articles 47, 219 and 236 of the Constitution, as well as sections 4 and 73 of the LSC, as indicated above, and to report any developments in this respect.

Membership of more than one union. 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 the prohibition of membership of more than one union is a protection measure for occupational associations. In this respect, the Committee recalls the importance, in light of Article 2 of the Convention, that workers who have more than one job in various occupations or sectors are able to join the corresponding unions and, also, that workers have the possibility, if they so wish, to join simultaneously unions at the branch and enterprise levels. The Committee therefore requests the Government to take the necessary measures to amend section 204 of the Labour Code as indicated above, and to report any developments in this regard.

Minimum membership to establish an organization. In its previous comments, the Committee referred to the need to amend section 211 of the Labour Code and section 76 of the LSC, which set out the requirement of a minimum of 35 members to establish a workers’ union, and section 212 of the Labour Code which sets out the requirement of a minimum of seven employers to establish an employers’ organization. In this respect, the Committee notes the Government’s indication that the provisions respecting the minimum number of workers to establish a union are intended to ensure that the unions have sufficient strength and representativeness. The Committee recalls that the minimum membership requirement should be set within reasonable limits and should not constitute an obstacle to the establishment of organizations. The Committee requests the Government to take the necessary measures to amend the provisions referred to above and to report any developments in this respect.

Requirements for the acquisition of legal personality. In its previous comments, the Committee requested the Government to take measures to amend section 219 of the Labour Code, which provides that, in the process of the registration of the union, the employer shall certify that the founding members are employees. While noting the Government’s indication that it will seek alternative procedures in practice to verify that the members of a union are employees, the Committee once again requests the Government to take the necessary measures to amend section 219 of the Labour Code, for example by providing explicitly 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, and to report any developments in this respect.

Waiting period for the establishment of a new union following a refusal of its registration. In its previous comments, the Committee requested the Government to amend section 248 of the Labour Code to eliminate the waiting period of six months required to try once again to establish a union. The Committee notes the Government’s indication that in practice internal procedures have been established which allow a social organization to file a further application on the day following the refusal of its registration. The Committee requests the Government to take the necessary measures to set out in law the practice that it describes, and therefore to amend section 248 of the Labour Code. The Committee requests the Government to report any developments in this regard.

Article 3. Right of workers’ and employers’ organizations to elect their representatives in full freedom. While noting that there have been no changes in this respect since its previous comments, the Committee once again requests the Government to take measures to amend article 47(4) of the Constitution, section 225 of the Labour Code and section 90 of the LSC, 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, and to report any developments in this regard.

The Committee hopes that the Government will adopt the necessary measures, in consultation with the most representative workers’ and employers’ organizations, to amend the provisions referred to above. The Committee requests the Government to report on any developments in this respect and reminds it that it may have recourse to the technical assistance of the Office.

The Committee is raising other matters in a request addressed directly to the Government.