Observation (CEACR) - adopted 2015, published 105th ILC session (2016)

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 Trade Union Confederation (ITUC), received on 1 September 2015, alleging violations of the Convention in specific enterprises and public institutions, and the observations of the Salvadorean Trade Union Coordination (CSS), received on 9 September 2015. In addition, the Committee notes the joint observations of the International Organisation of Employers (IOE) and the National Business Association (ANEP), received on 1 September 2015. The Committee requests the Government to provide its comments on all the abovementioned observations.

The Committee also notes the observations of the IOE received on 1 September 2015, which are of a general nature.

Follow-up to the conclusions in the Committee on the Application of Standards (International Labour Conference, 104th Session, June 2015)

The Committee takes note of the discussion held in the Conference Committee on the Application of Standards in June 2015 on the application of the Convention by El Salvador. It notes that the Conference Committee requested the Government to: (i) take all necessary measures without delay to identify those responsible for the murder of Victoriano Abel Vega and punish those guilty of this crime; (ii) ensure the full autonomy of employers’ and workers’ organization in the joint and tripartite decision-making bodies, which necessitates the convocation and immediate setting up of the Higher Labour Council where the legal reforms necessary to guarantee this autonomy should be the subject of consultations. In order to achieve this, the Government should abstain from requesting consensus from the trade union confederations and federations for the nomination of their representatives to the Higher Labour Council; (iii) revise on a tripartite basis in the Higher Labour Council, Presidential Decree No. 86, which created the Presidential Commission for Labour Affairs; and (iv) accept ILO technical assistance with a view to bringing its legislation and practice into conformity with the provisions of the Convention.

With regard to the murder of the trade union leader Mr Victoriano Abel Vega in January 2010, which is the subject of Case No. 2923 before the Committee on Freedom of Association, the Committee notes that, according to the Government, in July 2015 the Ministry of Labour met with the General Prosecutor of the Republic and that the latter undertook to speed up the investigation process. The Committee recalls that the absence of judgments against those guilty of crimes against trade union leaders and members creates, in practice, a situation of impunity, reinforcing the climate of violence and insecurity and thereby seriously damaging the exercise of trade union rights. Observing that more than five years have elapsed since the murder of Mr Victoriano Abel Vega, the Committee once again strongly urges the Government to take all necessary measures to determine criminal liability and to punish the perpetrators of this crime in the near future.

With regard to the observance of the autonomy of employers’ and workers’ organizations to appoint their representatives in joint and tripartite decision-making bodies, the Committee notes that, according to the Government: (i) except for the Higher Labour Council (CST), all the joint and tripartite bodies in the country, including the Higher Council on Wages, are functioning properly; (ii) since the entry into force of the reform of the procedures for election to the executive bodies of various joint and tripartite institutions, such institutions, especially the Salvadorean Social Security Institute, the Salvadorean Vocational Training Institute and the Social Fund for Housing, have been functioning normally; (iii) the representatives both of employers’ organizations and of workers’ organizations have full autonomy in the activities they carry out in these joint and tripartite bodies; and (iv) the abovementioned reforms allow equitable participation by all organizations of workers and employers, the latter representing small and medium-sized enterprises as well as large enterprises. The Committee also notes that, in their observations, the IOE and the ANEP assert that: (i) the President of the Republic continues to appoint at his discretion the private sector representatives to the joint and tripartite bodies; and (ii) the situation has worsened since this matter was discussed in the Committee on the Application of Standards, as evidenced by the appointment of a person who is not representative of the private sector to the governing board of the Development Bank of El Salvador. The Committee observes that the 19 decrees adopted on 22 August 2012 (Decrees Nos 81 to 99) provide that the employer representatives who are to sit on the executive councils of the abovementioned institutions shall be chosen and appointed by the President of the Republic from an open list of candidates from employers’ organizations, which have duly approved legal status, and which shall select their candidates in accordance with their internal regulations.

While recalling that this matter gave rise to recommendations by the Committee on Freedom of Association in June 2013 in the context of Case No. 2980, the Committee emphasizes that the full autonomy of employers’ and workers’ organizations to determine their representatives, envisaged in Article 3 of the Convention, also applies to the appointment of their representatives to joint and tripartite bodies. It follows that mechanisms that grant discretion to the executive to select such representatives are contrary to the Convention. The Committee regrets the absence of any progress in law and practice in this matter, and again urges the Government to take the necessary steps, in consultation with the social partners, to amend the 19 decrees adopted on 22 August 2012 so that they reflect the guarantees laid down in the Convention. The Committee requests the Government to report on all progress made in this matter.

As regards the failure to appoint workers’ representatives to the Higher Labour Council (hereinafter “the Council”), the Committee takes note of the Government’s report and of the observations of the IOE and the ANEP which both refer to the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144). The Committee also notes the conclusions and recommendations of June 2015 made by the Committee on Freedom of Association in Case No. 3054. The Committee notes that: (i) the Council’s regulations stipulate that the worker members are to be appointed by trade union federations and confederations registered with the Ministry of Labour and Social Welfare but provide for no specific mechanisms to regulate such appointments; (ii) in 2013, two groups of federations and confederations submitted two different lists of representatives; (iii) the Government indicates that since then it has been trying to get all the federations and confederations to reach a consensus on the appointment of worker representatives; and (iv) the existence of divergences between various blocks of trade union organizations has prevented the conclusion of such an agreement. Lastly, the Committee notes that on 17 November 2015, the Government expressed the intention of engaging a mediation process to facilitate the reactivation of the Council and requested assistance from the Office in identifying a mediator. The Committee wishes to recall in this connection that: (i) according to Article 3 of the Convention, in appointing workers’ and employers’ representatives to joint and tripartite bodies, the autonomy of their representative organizations must be observed; (ii) where the appointment of representatives is based on “most representative” status, the determination of the most representative organization should always be based on objective, precise and pre-established criteria so as to avoid any partiality or abuse in decision-making; and (iii) any dispute as to the appointment of workers’ or employers’ representatives should be settled by an independent body that has the confidence of the parties. Observing the central role played by the Higher Labour Council in developing social dialogue in the country, the Committee underscores the need to reconstitute the Council as a matter of urgency, since it has not functioned since 2013. The Committee trusts that the mediation process announced by the Government will allow the workers’ representatives to the Council to be appointed in the near future and in accordance with the guarantees laid down in the Convention. The Committee requests the Government to report on all progress in this regard.

Article 2 of the Convention. Right of workers to establish and join organizations of their own choosing without distinction and without previous authorization. Exclusion of some categories of public workers from the guarantees of the Convention. In its previous comments, the Committee requested the Government to take the necessary measures to revise the provisions of the Constitution of the Republic and the Civil Service Act (LSC), which exclude certain categories of public servants from the right to organize (members of the judiciary, public servants who have authority to make decisions or hold managerial posts, employees with duties of a highly confidential nature, private secretaries of high-ranking officials, diplomatic representatives, assistants of the Public Prosecutor, or auxiliary agents, assistant prosecutors, labour prosecutors and delegates). The Committee notes that the Government indicates that: (i) the draft reform of the LSC proposed by the Civil Service Tribunal in 2011 is still before the Labour and Social Welfare Committee of the Legislative Assembly; (ii) the reform of section 73 of the LSC implies amending articles 219 and 236 of the Constitution, which is a long and complex process; and (iii) the restrictions in the current legislation have not precluded the existence of 101 trade union organizations in the public sector. While noting the information supplied by the Government, the Committee recalls first that according to Articles 2 and 9 of the Convention, all workers, with the sole exception of members of the armed forces and the police, shall enjoy the guarantees set in the Convention. It further recalls that laws and regulations providing that high-level officials must form separate organizations from those of other public servants are compatible with the Convention, provided that they limit this category to persons exercising senior managerial or policy-making responsibilities. The Committee accordingly requests the Government once again to take the necessary measures to revise articles 219 and 236 of the Constitution and section 73 of the LSC as indicated above, and to report on all progress in this regard.

Membership of more than one trade union. For several years, the Committee has been asking the Government to take the necessary steps to revise section 204 of the Labour Code (CT), which prohibits membership of more than one trade union, so as to enable workers who have more than one job in various occupations or sectors to join the corresponding unions, and also to give them the possibility, should they so wish, to join branch and enterprise unions simultaneously. Noting that, according to the Government, an inter-institutional team was set up in 2015 to examine the feasibility of the legislative amendments requested, the Committee requests the Government to provide information on any progress made in this regard.

Minimum membership to establish an organization. For several years, the Committee has been asking the Government to take the necessary steps to revise section 211 of the CT and section 76 of the LSC, which lay down a requirement of a minimum of 35 members to establish a workers’ union, and section 212 of the CT, which sets a requirement of a minimum of seven employers to establish an employers’ organization. The Committee notes that the Government indicates that a draft amendment of section 211 of the CT, which would reduce the minimum required to 20 workers has been under discussion in the Labour and Social Welfare Committee of the Legislative Assembly since 2007. Noting also the establishment of the abovementioned inter-institutional team, the Committee requests the Government to provide information on any progress made in revising the abovementioned provisions.

Requirements for the acquisition of legal personality. In its previous comments, the Committee requested the Government to take steps to amend section 219 of the CT, which provides that, in the process to register the union, the employer shall certify that the founding members are employees. The Committee notes that the Government indicates that, in order to verify that the founding members of the union are not employers’ representatives, the list the employer uses to certify that the workers are employees is not enough, and that payslips or work certificates showing the job held are also necessary. Observing that the information supplied by the Government appears to show that, in practice, employers are still asked to certify that the founding members are employees, the Committee again recalls that the communication to the employer of the names of members may give rise to acts of discrimination against workers who are forming a trade union. On the basis of the foregoing, the Committee again requests the Government to take the necessary measures to amend section 219 of the CT in order to ensure that the list of members of a union in the process of being formed is not communicated to the employer.

Waiting period for the establishment of a new union following the refusal of its registration. In its previous comments, the Committee requested the Government to take measures to revise section 248 of the CT by eliminating the waiting period of six months required to submit a new application where a former application to register a union had been denied. The Committee notes that the Government: (i) reiterates that in practice, the Ministry of Labour accepts a new application for registration the day after the refusal; and (ii) reports that a proposal to amend section 248 of the CT as requested by the Committee is before the Legislative Assembly. The Committee requests the Government to report on all progress made in revising the abovementioned provision.

Article 3. Right of workers’ and employers’ organizations to elect their representatives in full freedom. In its previous comments, the Committee requested the Government to take measures to revise article 47(4) of the Constitution of the Republic, section 225 of the CT and section 90 of the LSC, which lay down a requirement to be “a national of El Salvador by birth” in order to hold office on the executive board of a union. The Committee notes that the Government indicates that: (i) in practice, most of the foreigners employed in the country hold managerial posts, which under the legislation of El Salvador precludes their holding trade union office; and (ii) the abovementioned inter-institutional team will examine the possibility of revising the provisions in question. Recalling that foreign workers should be allowed access to trade union office at least after a reasonable period of residence in the host country, the Committee again requests the Government to take the necessary steps to amend these provisions as indicated above.

With regard to the invitation extended by the Conference Committee on the Application of Standards to the Government to accept technical assistance from the Office in order to bring its law and practice into line with the provisions of the Convention, the Committee welcomes the request for assistance made by the Government in September 2015 and hopes that the assistance will materialize in the near future.

Lastly, the Committee welcomes the ILO’s project, funded by the Directorate-General for Trade of the European Commission, to support countries benefiting from the Generalized System of Preferences (GSP+) in applying international labour standards effectively, El Salvador being one of the four countries covered by the project. The Committee trusts that the activities conducted under the project will strengthen the Government’s capacity to adopt the measures requested in this observation.

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