Observation (CEACR) - adopted 2016, published 106th ILC session (2017)

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 31 August 2016, referring to issues examined in this observation. In addition, the Committee notes the joint observations of the International Organisation of Employers (IOE) and the National Business Association (ANEP), received on 4 September 2016, which also refer to issues examined in the present observation. The Committee further notes the observations of the IOE, received on 1 September 2016, which are of a general nature.

Follow-up to the conclusions in the Committee on the Application of Standards (International Labour Conference, 105th Session, May–June 2016)

The Committee notes the discussion held in the Conference Committee on the Application of Standards (hereafter the Conference Committee) in June 2016 on the application of the Convention by El Salvador. It notes that the Conference Committee expressed its concern at the lack of progress both in law and in practice with respect to the issue of the autonomy of employers’ and workers’ organizations to nominate their representatives to joint or tripartite decision-making bodies and again urged the Government, in consultation with the social partners, to take all measures necessary, without delay, to amend the 19 legislative decrees adopted on 22 August 2012, so as to bring them into line with the guarantees set out in the Convention. It also urged the Government to: (i) take all measures necessary, without delay, to identify those responsible for the murder of Mr Victoriano Abel Vega and punish the perpetrators of the crime; (ii) reactivate, without delay, the Higher Labour Council, the work of which has been suspended since 2013 and which was the main forum for social dialogue in the country and for tripartite consultation, recalling that the Government must abstain from requiring consensus among trade union federations and confederations in designating their representatives to the CST; (iii) ensure full autonomy for employers’ and workers’ organizations; (iv) ensure adequate protection for the premises of the ANEP, the country’s most representative organization of employers; and (v) report on all progress with regard to the issues discussed in a detailed report to the Committee of Experts, to be considered at its next meeting. The Committee also notes that the Conference Committee requested that a direct contacts mission be sent to El Salvador.

With regard to the murder of Mr Victoriano Abel Vega in 2010, the Committee refers to the recommendations of the Committee on Freedom of Association in the context of Case No. 2923 (March 2016, 378th Report). While noting the information provided by the Government, the Committee firmly hopes that the Government and the competent authorities will give full effect to these recommendations so as to determine criminal liability and punish the perpetrators of this crime in the near future.

With regard to the direct appointment by the President of the Republic of the employers’ representatives to the joint or tripartite bodies of 19 autonomous institutions, following the adoption on 22 August 2012 of 19 legislative decrees, the Committee recalls that the full autonomy of employers’ and workers’ organizations to choose their representatives, envisaged in Article 3 of the Convention, also applies to the designation of their representatives to joint and tripartite bodies. In this respect, the Committee notes the Government’s indication that: (i) it met on 22 August 2016 with the representatives of the 19 institutions concerned to address the issue brought before the ILO supervisory bodies by the ANEP; (ii) as a result of a questionnaire sent by the Government after this meeting, 12 of the 19 institutions agree that the reform on the participation of employers in their executive councils does not represent any type of control or interference by the Government, and that it has not impeded the independent participation of the employers; (iii) in many of the institutions concerned, employers’ organizations linked to the ANEP are represented; and (iv) the 19 institutions are functioning normally, and there are no grounds to reform the mechanisms for designating their executive boards. The Committee however notes that the IOE and the ANEP express the utmost concern at the lack of will by the Government to comply with the recommendations of the various ILO supervisory bodies in relation to the appointment of employers’ representatives on the executive boards of 19 autonomous institutions. The Committee notes with concern that, despite its repeated comments, the recommendations of the Committee on Freedom of Association in the context of Case No. 2980 and the discussions held on the application of this aspect of the Convention in the Conference Committee in 2015 and 2016, this issue has not been resolved. Finally, the Committee observes that the Constitutional Chamber of the Supreme Court of Justice in a ruling of 14 November 2016, declared unconstitutional the 19 legislative decrees referred to for lack of compliance with the constitutional provisions concerning the legislative deliberation and approval process. Observing that the legislative decrees adopted on 22 August 2012 have been declared unconstitutional on formal grounds, the Committee urges the Government, in consultation with the social partners concerned, including the ANEP, to take without delay any necessary steps to ensure that the designation of employer representatives to the 19 institutions is in compliance with the guarantees laid down in the Convention. The Committee requests the Government to report any progress made in this regard.

With regard to the failure to appoint workers’ representatives to the Higher Labour Council (hereafter “the Council”), which has paralysed the Council since 2013, the Committee recalled in its previous comments the principles which, by virtue of the Convention, should guide the process for designating members of the Council and, highlighting the importance of the reactivation of this body, requested the Government to report on the results of the mediation process which was being prepared. The Committee notes the Government’s indication that: (i) it has requested the technical assistance of the Office in the form of the identification of an independent person to conduct the mediation; (ii) the Office identified such a person, who conducted with all the interested parties a mediation mission from 1 to 3 February 2016; (iii) having noted the polarized positions of the various trade union blocks, the mediator suggested that the Ministry of Labour should hold working meetings as soon as possible with each of the trade union blocks first, and then a joint meeting; (iv) these meetings took place during the first week of April 2016 with the participation of the Office of the Ombudsman for the Protection of Human Rights and an ILO official, but an agreement was not reached; (v) in light of the absence of a mechanism for determining the trade union representativity, the Ministry of Labour and Social Welfare requested the trade unions to establish a transitional committee to draft a proposal for revising the part of the Council’s regulations on the designation of its worker members; (vi) this proposal was rejected by one of the trade union blocks, which argued that only the Council could revise its own regulations; and (vii) in May 2016, the Ministry of Labour and Social Welfare informed the employers’ associations represented on the Council of the developments in the situation and gathered their views on possible ways to resolve the situation. The Government also indicates that on 14 March 2016, the Constitutional Chamber of the Supreme Court of Justice ruled on the amparo appeals brought by various complainant organizations, which argued that the urging by the Ministry that the various trade unions put forward a single list of workers’ representative on the Council, undermined the principle of freedom of association enshrined in the Constitution. The Government indicates that the Supreme Court of Justice set aside the amparo appeal, finding that the Ministry’s request to the trade union movement to put forward a single list was not unconstitutional; rather it was based on the Ministry’s lack of authority to designate the members of the Council. The Government indicates that, in light of the above, now that the period has elapsed for which the 2013 designation process had been organized, it has the authority to call for a new election to the Higher Labour Court.

The Committee duly notes these measures, as well as the joint observations of the IOE and the ANEP, indicating that the Government’s action regarding the designation of workers’ representatives was based on the political motivation of preventing the reactivation of such an important representative body. The Committee expresses its growing concern at the prolonged paralysis of the Council, which is a fundamental forum for the development of social dialogue in the country. The Committee observes that as the Council’s statutes indicate that the workers’ representatives shall be designated by the trade union federations and confederations registered with the Ministry of Labour and Social Welfare, but do not provide for specific mechanisms governing such designation, the organization of a new election of the members of the Council could lead to a situation similar to that of 2013. The Committee also notes that, in its ruling of 14 March 2016, the Supreme Court of Justice indicated that the Ministry of Labour and Social Welfare must provide trade unions with “the necessary resources so that they can implement and agree on clear and permanent procedures for the election of their representatives in order to guarantee the designation and participation of workers in this consultative body”. In this connection, the Committee once again recalls that: under Article 3 of the Convention, the designation of workers’ and employers’ representatives to joint and tripartite bodies must respect the independence of the representative workers’ and employers’ organizations; where the designation of the representatives is based on the “most representative” status of the organizations, the determination of the most representative organization should be based on objective, precise and pre-established criteria; and any dispute as to the designation of workers’ or employers’ representatives should be resolved by an independent body that has the confidence of the parties. The Committee urges the Government to take the necessary measures to reactivate the Council as soon as possible to give full effect to the principles mentioned above. The Committee requests the Government to report any progress made in this regard.

Article 2 of the Convention. Right of workers, without distinction whatsoever, to establish and join organizations of their own choosing without previous authorization. Exclusion of some categories of public employees from the guarantees of the Convention. In its previous comments, the Committee requested the Government to take the necessary measures to amend articles 219 and 236 of the Constitution of the Republic and section 73 of the Civil Service Act (LSC), which exclude certain categories of public servants from the right to organize (members of the judiciary, public servants who exercise decision-making authority or are in managerial positions, 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 the Government’s indication that: (i) the amendment of section 73 of the LSC presupposes the amendment of articles 219 and 236 of the Constitution; (ii) the revision of the Constitution requires agreement by two consecutive, ordinary legislative assemblies; and (iii) as the legislative body is renewed every three years, it is not possible to make substantial progress in respect of the reform requested by the Committee. While noting this information, the Committee requests the Government to report the measures taken thus far for the amendment of articles 219 and 236 of the Constitution and section 73 of the LSC as indicated. The Committee requests the Government to report any progress made in this regard.

Articles 2 and 3. Other legislative reforms requested. For several years, the Committee has been requesting the Government to take the necessary measures to amend the following legislative and constitutional provisions:

• -section 204 of the Labour Code, which prohibits membership of more than one trade union, so that workers who have more than one job in different occupations or sectors are able to join trade unions;
• -sections 211 and 212 of the Labour Code (and the corresponding provision of the LSC on unions of public service employees), which establish, respectively, the requirement of a minimum of 35 members to establish a workers’ union and a minimum of seven employers to establish an employers’ organization, so that these requirements do not hinder the establishment of workers’ and employers’ organizations in full freedom;
• -section 219 of the Labour Code, which provides that, in the process of registering the union, the employer shall certify that the founding members are employees, so as to ensure that the list of the applicant union’s members is not communicated to the employer;
• -section 248 of the Labour Code, by eliminating the waiting period of six months required for a new attempt to establish a trade union when its registration has been denied; and
• -article 47(4) of the Constitution of the Republic, 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.

In this respect, the Committee notes the Government’s indication that: (i) a parliamentary group submitted to the Legislative Assembly a Bill to reform the Labour Code (No. 370-11-2015-1) of November 2015, which contains the amendments requested by the Committee in relation to sections 204, 211, 212, 219 and 248 of the Labour Code; (ii) on 25 July 2016, the Minister of Labour and Social Welfare sent a communication to the President of the Labour and Social Welfare Commission of the Legislative Assembly, highlighting the importance of the Bill in ensuring the conformity of the national legislation with the Convention; (iii) the Bill is currently being examined by the legislative commission mentioned above; and (iv) although up to now there have been no proposals for reforms aimed to amend the constitutional and legislative provisions setting out the requirement to be “a national of El Salvador by birth” in order to hold office on the executive committee of a union, efforts will be made to re-examine the possibility of such a reform.

The Committee welcomes the submission of the Bill to reform the Labour Code, the content of which reflects most of the Committee’s legislative comments relating to the Convention, and further welcomes the Bill’s endorsement by the Minister of Labour and Social Welfare. Noting the presence in the country of an ILO project funded by the Directorate General for Trade of the European Commission, aimed at supporting the effective implementation of international labour standards, the Committee highlights that the process of examining this Bill could benefit from this cooperation project. The Committee requests the Government to report any progress in the examination of the Bill to reform the Labour Code (No. 370-11-2015-1). The Committee also requests the Government to take the necessary measures for the amendment of the national provisions which require the members of the executive committee of a union to be “nationals of El Salvador by birth”.

While recognizing that the Government has provided a report as requested by the Conference Committee, the Committee regrets that the Government still has not responded to the request by the Conference Committee for a direct contacts mission and expresses the firm hope that this mission will contribute to resolving the difficulties in the application of the Convention identified in this observation.

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

[The Government is asked to reply in full to the present comments in 2018.]