Observation (CEACR) - adopted 2017, published 107th ILC session (2018)

Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144) - El Salvador (Ratification: 1995)

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 106th Session, June 2017)

The Committee notes the discussion that took place in the Conference Committee on the Application of Standards in June 2017 concerning the application of the Convention. In this regard, the Conference Committee urged the Government to: (i) reactivate, without delay, the Higher Labour Council (CST); (ii) ensure concrete positive developments with regard to the freedom and autonomy of employers’ and workers’ organizations to appoint their representatives in compliance with the Convention, without intimidation; (iii) ensure adequate protection for the premises of the representative workers’ and employers’ organizations from violence and destruction; and (iv) report in detail on the application of the Convention in law and practice to the next session of the Committee of Experts.

The Committee also notes the direct contacts mission undertaken in El Salvador from 3 to 7 July 2017, in which consultations were held with the tripartite constituents and recommendations were made, according to which: (i) the Government is encouraged to ensure that additional measures are adopted through social dialogue to ensure the reactivation and full operation of the CST; (ii) the competent authorities are encouraged to ensure that the necessary measures are taken, in consultation with the employers’ and workers’ organizations concerned, to ensure full respect for the autonomy of employers’ and workers’ organizations to appoint their representatives; (iii) the Government is invited to consider, in consultation with the employers’ and workers’ organizations, uniform procedures for the accreditation of such organizations; (iv) the public authorities are encouraged to take all relevant measures to ensure the protection of the premises of the National Business Association (ANEP) and the safety of representatives of the employers’ and workers’ organizations; (v) with regard to the murder of the trade unionist Mr Abel Vega, the Committee hopes to observe tangible progress with regard to clarification of the facts, identification of the perpetrators and imposition of adequate penalties; (vi) the willingness of the government authorities to engage in social dialogue to address the issues raised by the mission is welcomed and it is recommended that measures are taken to promote a culture of social dialogue, in particular by strengthening the capacities of the social partners to participate constructively in tripartite discussions and ensuring compliance with the ground rules needed to conduct a mature dialogue; and (vii) it is suggested that technical assistance be sought from the ILO in order to follow up these recommendations.

The Committee also notes the observations of the ANEP and the International Organisation of Employers (IOE), received on 30 and 31 August 2017, respectively, alleging non-observance of the Convention by the Government.

Articles 2 and 3(1) of the Convention. Adequate procedures. Election of representatives of the social partners to the CST. In reply to the Committee’s previous comments, the Government indicates that in its decision of 17 March 2017 the Constitutional Chamber of the Supreme Court of Justice ruled that the Government’s request for a definitive list of representatives does not impose an arbitrary requirement or condition that violates the right to freedom of association of the organizations concerned. However, the Court concluded that this does not release the Ministry of Labour and Social Welfare (Ministry of Labour) from its obligation to implement and support processes of social dialogue and tripartite participation. The Court observed that dialogue forums should be promoted between the trade unions so that they can agree on and apply clear and permanent procedures for the election of their representatives, in order to ensure the appointment of representatives of the workers to the CST and their participation therein.

Furthermore, as regards the functioning of the CST, the Government indicates that as follow-up to the Conference Committee’s conclusions, a request was made on 1 May 2017 to the legally registered trade union federations and confederations to present their proposals for representatives to the CST. The Committee notes that between 12 and 17 May 2017 three nomination proposals were received from the workers, which made it possible to compose the list of representatives and their respective substitute members in the CST. In this regard, the Government indicates that the unions which submitted their proposals all feature in the register of the National Department of Labour Organizations at the Ministry of Labour, accounting for 56 per cent of active unions, 51 per cent of trade union members, and 82 per cent of registered collective agreements. The Government also indicates that the employers’ established in the relevant regulations submitted their list of representatives between 6 June and 4 July, and that by Executive Decision No. 288 of 29 May 2017, the Government members were nominated. The Government adds that on 29 June 2017 the representatives of the three sectors were invited to attend the inaugural meeting of the CST. However, the employers did not attend either the preparatory meeting or the inaugural meeting of the CST, as a result of which it was agreed to convene a new inaugural meeting, which coincided with the meeting with the direct contacts mission. The employers once again declined to participate in the meeting of the CST, alleging non-conformity of the workers’ representation mechanism. The Government reiterates in its observations its willingness to implement the procedures indicated and agreed upon in the context of the direct contacts mission to continue promoting social dialogue and agreements between the sectors, thereby contributing to the activation of the CST. The Government emphasizes that the process for the nomination of workers’ and employers’ representatives was undertaken publicly, with the participation of the previous workers’ and employers’ representatives, the Secretariat for Civic Participation, Transparency and Anti-Corruption, the Government Ethics Tribunal and the media. However, the Government indicates that the employers represented by the ANEP, despite having been democratically elected, refused to participate in the ordinary and extraordinary meetings held between December 2016 and July 2017. Lastly, the Government indicates that, in addition to the CST, the State has five tripartite entities and 17 tripartite autonomous institutions, which are fully operational and include, among others, the Salvadorian Social Security Institute, the Housing Social Fund, the Salvadorian Vocational Training Institute and the National Minimum Wage Council.

The Committee also notes the observations made by the ANEP to the effect that the Ministry of Labour distanced herself from the Committee’s recommendations regarding the reactivation of the CST. In this respect, the ANEP indicates that, in abolishing the function of the electoral body, the Ministry assumed the power to issue instructions for the election of workers’ representatives and appropriated the competence for determining criteria for the nomination of workers’ representatives to the CST, thereby committing acts of interference. The Committee also notes that the observations made by various worker groups in the context of the direct contacts mission, according to which two groups of workers’ organizations attributed the standstill in the CST to interference by the Government, since the latter reportedly called for a single list adopted by consensus. Moreover, the Committee notes that one of the two abovementioned groups of workers decided not to accept the composition of the CST, while the other group, despite expressing criticism and reservations regarding the nomination process, opted to participate in the CST. The Committee notes that a group bloc of workers’ organizations emphasized that one group of workers has been unlawfully monopolizing worker representation in the tripartite institutions for years and criticized the stance of the employers in not attending the inauguration of the CST. Lastly, the Committee notes that in the context of the direct contacts mission all groups of workers’ organizations indicated that they did not accept the representativeness criteria applied by the Government.

The Committee notes that, in reply to its previous comments, the Government expresses its willingness to take the necessary steps to promote social dialogue and reactivate the Higher Labour Council (CST). The Committee expresses the firm hope that the Government will take the necessary steps to promote and strengthen tripartism and social dialogue in such a way as to ensure the functioning of the CST. The Committee urges the Government to establish without delay, in consultation with the social partners, clear and transparent rules for the nomination of workers’ representatives to the CST that comply with representativeness criteria. With regard to the allegations of interference, the Committee hopes that the Government will take the necessary steps to investigate and resolve them. The Committee requests the Government to keep it informed of any developments in this respect.

Article 5(1). Effective tripartite consultations. The Government indicates that it has still not held tripartite consultations in relation to the documents adopted during the International Labour Conference between 1976 and 2015. The Committee notes the Government’s reply indicating that the results of the consultations will be brought to the Committee’s attention as soon as the consultations have been held, and that at present, since no defined basis exists for assessing the implications of the submission of labour Conventions and there are conflicting opinions on the repercussions of failure to meet international commitments, the Government is holding consultations and validating procedures with the heads of government authorities and their respective legal departments. The Committee also notes the indication in the observations of the ANEP that, despite the fact that it completed the relevant procedures with the Directorate for International Relations at the Ministry of Labour, it has been unable to obtain copies of the reports to be sent to the ILO. The Committee requests the Government to provide information on the results of the tripartite consultations held on the proposals to be submitted to the Legislative Assembly with regard to the submission of the 58 instruments adopted by the International Labour Conference between 1976 and 2015.

Technical assistance. The Committee notes that in October 2017 the Government requested technical assistance from the Office. The Committee hopes that the requested technical assistance will be provided soon and requests the Government to provide information on any activity undertaken in this context.