Individual Case (CAS) - Discussion: 2018, Publication: 107th ILC session (2018)

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



A Government representative, Minister of Labour and Social Welfare, acknowledged the professionalism and objectivity with which the Director of the International Labour Standards Department had chaired the direct contacts mission that had taken place in July 2017. In its report, the Committee of Experts recognized El Salvador as a case of progress regarding observance of the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144), as a result of the actions taken to activate the Higher Labour Council (CST) and move forward in terms of effective compliance with the Convention. The Government had therefore been surprised to see itself included once again in the shortlist of individual cases of the Committee on the Application of Standards, since the Government had not only expressed its commitment to find solutions to activate the CST and promote dialogue, but had also taken the corresponding actions. With the same determination and on the basis of the principles of democratic orientation and transparency which directed the workings of the Government, it had accepted the direct contacts mission, which had thus been given the opportunity to observe in situ the actions and commitments of the government bodies directly connected with ensuring observance of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and Convention No. 144. With regard to the recommendation of the direct contacts mission relating to the inactivity of the CST and taking up again the suggestions of the mission, a request had been made to the ILO in October 2017 for technical cooperation, which had been accepted. ILO assistance had been requested with three processes to be launched with the workers and employers in relation to: (i) the reform of the CST regulations; (ii) the formulation of proposals for legislative reforms to expand the right to freedom of association; and (iii) action to be taken in the area of training and the promotion of social dialogue. Despite delays in the coordination of the cooperation, a first round of consultations had been held with the workers to initiate a proposal for reform of the Labour Code. It was regrettable that representatives of the federations which were the complainants in Case No. 3054 before the Committee on Freedom of Association did not attend that first meeting, even though they had been invited to do so. In that regard, and with the expectation of effective coordination with the technical cooperation of the ILO, the actions taken as part of the follow-up to the conclusions of the direct contacts mission would continue in the coming months.

With regard to the reports to be presented under article 22 of the ILO Constitution and the consultations regarding these, despite the fact that the reports were sent each year to the employers’ and workers’ organizations for consultation, the Ministry of Labour and Social Welfare (Ministry of Labour) had not received inputs or evaluations from those organizations. Moreover, the reports contained public information so they were available to anyone requesting them through the relevant channels. Furthermore, and irrespective of the constant complaints from the National Business Association (ANEP) and its affiliated federations and confederations, the Government, in line with its commitment to the workers, was taking steps to ensure decent living conditions and access to decent work. In this regard, progress had been achieved and decisions had been taken in tripartite forums that maintained an active work agenda and in which ANEP was constantly represented. The progress achieved included the approval of the increase in the minimum wage by the National Minimum Wage Council (CNSM), as a result of which over 240,000 workers, of which 45 per cent were women, had enjoyed an increase in income and an improvement in the standard of living of their families. Furthermore, the Salvadoran Social Security Institute (ISSS) had approved two new special social security schemes for informal economy workers and migrants and their families. Furthermore, as a result of action taken by the Government and the conditions generated by productive investment, there had been an increase in the number of jobs. In particular, between 2009 and 2018, a total of 138,293 formal jobs had been created, 79 per cent of them in the private sector. According to the 2017 Multi-Purpose Household Survey (EHPM), there had been an 11 per cent reduction in the poverty rate, with a drop in the number of households concerned from 40 to 29 per cent in 2017. Measures were being adopted through the Housing Social Fund (FSV), such as the opening of credit lines, to ensure entitlement to decent housing for workers and their families. Furthermore, the Salvadoran Vocational Training Institute (INSAFORP) was innovating training processes to enable the workforce to gradually adapt to the needs of the labour market. Lastly, the Government representative supplied statistical information highlighting the progress achieved in labour matters in the previous four years, such as: the placement of 70,170 persons in jobs (33,369 women and 36,801 men); the realization of 119,316 inspections and re-inspections at 9,367 workplaces which had been fined for non-observance or violation of the labour legislation; and cooperation with over 20,000 private companies to promote employment through the National Employment System (SisNE). All of the above bore witness to the fact that the Government had been constantly engaging in dialogue and coordinating and driving joint initiatives with workers and employers and all stakeholders committed to the development of the country. However, social dialogue through the CST, and in view of its competencies for ensuring observance of international labour standards, required political will on the part of ANEP, its member associations and its affiliated federations and confederations. El Salvador had the openness, the conviction and the historic perspective to realize that social dialogue was the cornerstone of democracy and peace. However, tripartism required the participation of three parties, and if one of the parties had neither the political will nor the democratic orientation to engage in it, it was impossible for tripartism to be implemented and consolidated. Consequently, the Government representative appealed to the employers’ organizations to join the CST, taking account of the fact that they were entitled to do so under the regulations in force and they did not need to be elected. Their participation in the CST was crucial, considering the desire and the duty that they had as ILO constituents to ensure that international labour standards were applied in El Salvador. She thanked the Office once again for the support given with technical cooperation in the context of compliance with Conventions Nos 87 and 144, and the promotion of the Maternity Protection Convention, 2000 (No. 183), and the Domestic Workers Convention, 2011 (No. 189). Lastly, she reiterated the Government’s commitment to social dialogue aimed at achieving the progress and development of the country and ensuring that the workers had access to a decent life.

The Worker members recalled that this was the fourth consecutive year that the case was being examined by the Committee. In 2017, the Committee had urged the Government to: (i) reactivate, without delay, the 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 Committee of Experts. They welcomed that the Government had in the meantime accepted a direct contacts mission, which had taken place in July 2017. The mission had suggested that the Government avail itself of ILO technical assistance to implement the Committee’s recommendations. It was to be welcomed that the Government had now requested technical assistance and was collaborating with the ILO to give full effect to the Convention. The current comments of the Committee of Experts focused on two elements: effective tripartite consultations and adequate procedures for the election of representatives of the social partners to the CST. It was regrettable that, despite repeated discussions in the Committee, the Government had failed to hold tripartite consultations with respect to the matters concerning the activities of the ILO. The ratification of ILO Conventions was no compensation for the absence of consultations, which had to start without any further delay. While other tripartite bodies, such as the ISSS, the FSV and the CNS were fully functional and effective, the challenges with respect to the CST had not entirely been resolved. They understood that the main obstacles for the operationalization of the CST concerned the difficulties with respect to the procedures in relation to the procedures for electing representatives of the social partners.

While there were no complaints with respect to the election of employer representatives to the CST, there were still questions with respect to the election of worker representatives. They understood from the Government’s submission before the Conference Committee that the Government had requested the trade unions to present their nominations for the worker representatives to the CST, that three relevant nomination proposals had been received in May 2017, and that the Government had subsequently determined the members of the CST based on criteria such as membership and number of collective bargaining agreements. Subsequently, by applying the representation criteria, the first list had been allocated with five titular representatives, the second list with two titular representatives and the third with one titular member. The worker members had been sworn in. The employer side had decided not to attend the first meeting of the CST due to its concern over the non-conformity of the workers’ representation mechanism. While the concerns from the employer side were understandable, that issue was really for the trade unions to decide. Appreciative of the attempts undertaken by the Government to resolve the impasse, it was important that the criteria for representativeness were transparent and objective. The procedure and the criteria chosen had to be based on the consensus of the workers and had to enjoy their trust. The Government had to take a proactive role in facilitating consensus seeking instead of unilaterally imposing criteria, which as presented did not in themselves seem particularly objectionable. In their view, the actions so far taken by the Government had been delayed and lacked the transparency needed for building trust with the social partners. The implementation of the recommendations of the 2017 direct contacts mission was crucial to achieve real progress. In particular, the mission had recommended that a working group might be set up with all the federations and confederations concerned, including those that were not represented by recently elected members, to determine procedures and representativeness criteria. As had been the case with the other tripartite structures functioning in El Salvador, they remained convinced that improving social dialogue would ease many disputes in the country.

The Employer members said that the Committee was examining the application of the Convention for a second consecutive year, and it had previously been examined in 2015 and 2016 under Convention No. 87. At the previous session of the Conference Committee, the Government had explained how it was applying the Convention; a number of recommendations had been made, and it had been decided to send a direct contacts mission. The task was now to assess how the recommendations made by the Committee the previous year and by the direct contacts mission were being followed. As a starting point, the Government had been urged to reactive the CST without delay, a recommendation that had been further stressed by the direct contacts mission, with the comment that it should be done through social dialogue in order to ensure the full functioning of the CST. To date, the CST was still not in operation. However, the Government reported that it had appointed members. It was important to note that the Convention in question concerned social dialogue, which was part of the essence of the Organization. The fact of belonging to the ILO already constituted a commitment by States to hold consultations with the social partners in areas of interest. Such consultations should be held with legitimate representatives of workers and employers; that was an obligation assumed by States and a right enjoyed by the social partners. In the present case, the Government had appointed workers without revealing what criteria it had used to gauge representativeness, assuming it had any – so much so that the three majority groups of workers had told the direct contacts mission that they did not know what criteria the Government had used, and one group had contested the appointments. The workers held the Government responsible for paralysing the CST. Doubts had been raised by the employers, for whom consultations under such conditions would be problematic. At the root of the problem lay the fact that the appointment criteria, if they existed, had not been explained. Several months previously, the direct contacts mission had insisted that clear, transparent, lawful rules should be established for the reactivation and full operation of the CST. It had been reported to officials at the ILO Office in San José that a review would begin shortly. That gave rise to legitimate doubts about the Government’s will to make progress in applying the recommendations of the supervisory bodies. Similarly, the Government had said that, as well as the CST, there were five other tripartite entities and 17 independent tripartite bodies that were fully operational. The information in the employers’ possession seemed to contradict the Government’s claim. In March 2018, ANEP and the International Organisation of Employers (IOE) had presented the ILO Director-General with a request for urgent action, specifically in relation to Government interference in elections for representatives to the CNSM, the Institute for Access to Public Information, the board of governors of the Independent Executive Committee for Ports and the board of governors of the Electricity and Telecommunications Regulatory Authority (SIGET). In that regard, attention should be drawn to the previous year’s conclusions and to the comments of the direct contacts mission to the effect that the Government should guarantee freedom and independence in the election of workers’ and employers’ representatives. In all those institutions, delegates for the employer sector had been appointed not by the most representative organization (ANEP), but by the President of the Republic, on the basis of legislative decrees issued separately for each of the institutions with the aim of allowing the presidential appointments to pass without consultation. All the decrees displayed constitutional irregularities, as had been pointed out by the Constitutional Court. Regrettably, according to the Court’s ruling, it was necessary to wait until the expiry of the term of office of the current directors – who were not representative of the employers – to appoint legitimate representatives in accordance with the original legislation. That had not happened either, because, once that term had expired in five of the organizations concerned, the Government had taken different steps that clearly constituted interference, in flagrant breach of the recommendation of the direct contacts mission and the ruling of the Constitutional Court, with the aim of avoiding participation by the employers’ sector. In some cases, the Government had simply not appointed anyone, while in others it had gone to extremes that should be brought to the Committee’s attention so as to dispel any doubt regarding the lack of governmental will to meet the obligations arising from membership of the ILO and ratification of its Conventions. With regard to the case of SIGET, the law stipulated that its board of directors should include one director and one substitute elected by private sector trade union associations legally established in the country. The Government, knowing that ANEP was the most representative organization of employers – a fact recognized and undisputed by all previous governments and by every other employers’ organization in the country – had facilitated the swift and irregular creation of a series of so-called associations that had stood in the election for employer representatives, ensuring a majority that would succeed in returning delegates loyal to the Government. The events had been brought to the attention of the prosecution authorities so that those responsible for offences committed in the preparation of fake minutes and the falsification of documents needed for creating the so-called employers’ organizations could be punished. At the same time, the issuing of credentials to associations belonging to ANEP had been blocked, thereby preventing them from participating in the vote, which went against the requirements of the direct contacts mission. The facts presented demonstrated the Government’s obvious disregard for social dialogue and disinclination to meet the obligations arising from ratification of the Convention, which promoted tripartite consultation as one of its fundamental pillars and was aimed at improving governance and ensuring the smooth functioning of labour relations at national level. Biased actions such as those in the present case undermined trust between the social partners and the Government and furthered the Government’s autocratic mode of action. The ILO could not remain indifferent to such a reality, which was clearly harmful to social dialogue and the legitimate right to organize of the country’s employers. No matter what the occupational organization involved and whether it represented employers or workers, the ILO should act with the same rigour; not to do so would be to undermine the credibility of the system. Lastly, the Employer members urged the Government to implement without delay the recommendations of the direct contacts mission, particularly with regard to reactivating the CST; to guarantee the freedom and independence of employers’ and workers’ organizations in appointing representatives to social dialogue forums; and to refrain from any kind of interference in that process.

The Worker member of El Salvador recalled that the country had suffered a civil war whose origins lay in the marginalization, extreme poverty and exploitation suffered by the majority of the population and the total breakdown of democratic procedures and social expression. The peace agreements had come at the cost of over 80,000 deaths, as well as disappearances and summary executions. During the 1980s and 1990s, in accordance with the recommendations of the international financial institutions, economic restructuring had been undertaken consisting of the approval and implementation of neo-liberal policies. Under those policies, many sectors had been privatized, including the financial sector, telecommunications, energy and the pensions system. The dollar had also been promoted as the official currency and free trade agreements had been adopted. The result had been the mass dismissal of men and women workers, the deterioration of living conditions, an increase in migration and a loss of social security entitlements which had been acquired through union action. In that context, tripartite mechanisms had been used by the Government and employers’ organizations to serve their own interests, and the only workers’ organizations to participate in such mechanisms had been those close to the Government and employers, with the most representative workers’ organizations being sidelined. Nevertheless, since 2009, the most representative workers’ organizations in the public sector had succeeded in participating in the adoption of policies that were contributing to an improvement in the quality of life of workers. One example was the approval of the access to social security of workers in the informal economy and migrants under special schemes and the adoption in 2017 of an increase in the minimum wage, which had benefited over 250,000 workers. That wage increase, obtained as a result of the participation of the unions and their commitment to social justice, was a coherent and just response to the requirements of the Constitution and the real economic situation of the country. In view of such progress, ANEP was opposed to the operation of tripartite mechanisms with the active and pluralist participation of unions and partners who were not close to the employers. Biased practices for the election of the representatives of workers’ organizations to tripartite mechanisms had also been eliminated and an effective process of pluralist participation involving the various union movements had commenced. However, the employers were endeavouring to remove the most representative workers’ organizations from decision-making in tripartite bodies. Employers’ organizations were therefore refusing to participate in the CST and the CNSM, thereby failing to give effect to the provisions of the Convention. He emphasized the low number of unions in the private sector and referred to various cases in which employers’ organizations had harassed, dismissed and called for the detention of trade union leaders. In one of the cases, the enterprise had refused to reinstate all of the dismissed members of the executive committee of the enterprise union, despite an order issued by the Supreme Court of Justice. With regard to the functioning of tripartite mechanisms in El Salvador, such as the ISSS, he indicated that they were all operating correctly with the exception of the CST, due to the refusal of employers’ organizations to participate in the latter. Employers’ organizations, and particularly ANEP, must not interfere in any way in the decisions of workers concerning the election of their representatives. In contrast with the previous procedures for the election of representatives to tripartite bodies, the current procedure was participatory and democratic and based on universal criteria of representativeness. Moreover, with a view to ensuring that the country followed on the path of being governable and of sustainable development, it was necessary to strengthen social dialogue, bargaining and consensus, as well as compliance with the national legislation and ILO instruments. He therefore called on the Government to continue giving effect to the requests made by the Committee of Experts to: (i) promote the participation of employers and workers in decision-making; and (ii) activate procedures for interaction in tripartite mechanisms as soon as possible, despite the refusal of private enterprises to participate in them. He also called on the Government, through the Ministry of Labour, to which a higher budget should be allocated, to give greater emphasis to the effective enforcement of labour legislation in the public and private sectors and to ensure a higher number of enterprise inspections. Lastly, private enterprise, as an important pillar of the economy, needed to make efforts to reach agreement in tripartite bodies, while respecting the independence of workers’ organizations, pluralism, democracy and diversity of opinion. The basic values of humanism, solidarity and mutual respect required workers, employers and governments to act in conformity with the Constitution, which reaffirmed that labour was not a commodity, and to combat precarious work, the deterioration of the environment and the exploitation of children.

The Employer member of El Salvador recalled that the Committee had been examining the repeated violations of various Conventions by the Government for four consecutive years. The previous year, it had been examined as a double-footnoted case and the Committee had urged the Government to accept a direct contacts mission, which showed the gravity of the reiterated violations of the Convention. The present Convention, which concerned social dialogue and tripartite consultation, was given effect in El Salvador through a tripartite body entitled the CST. The CST had not been functioning since 2013 as a result of a unilateral decision by the Government to require unanimity among workers’ organizations for the election and designation of their representatives. However, the real reason was that the Government did not want to engage in social dialogue or tripartite consultation. The previous year, after noting the absence of effective consultations with representative and independent organizations of workers and employers, the Committee had urged the Government to: (i) reactivate without delay the CST; and (ii) ensure concrete positive developments with regard to the freedom and autonomy of employers’ and workers’ organizations to appoint their representatives, without intimidation. The Committee had also once again requested the Government to accept a direct contacts mission to the country. In July 2017, the direct contacts mission had been carried out and certain tripartite meetings had been held. In one of the meetings, the workers’ representatives designated by the Government as members of the CST had acknowledged that they were not aware of the criteria that had been adopted by the Government for their appointment. That interference by the Government was recorded in the final report of the mission. In its final report, the mission had also recommended that the Government: (i) reactivate the CST; and (ii) ensure in law and practice the freedom and independence of employers’ and workers’ organizations in the election of their representatives. One year after the Committee had adopted its conclusions, the Government had not only failed to give effect to any of the recommendations, with the exception of the direct contacts mission, but had acted in a manner that was contrary to the recommendations. For example, it had prepared a Decent Employment Policy, which had been launched in public in September 2017 without prior consultation of the social partners. One week before the launching of the policy, without having had any occasion to participate in its preparation and not being aware of its contents, ANEP had received a note from the Government requesting it to comment on the document with a view to securing its support for the public launch of the employment policy. In that regard, he emphasized that the Government could not develop an employment policy without consulting the most representative organizations of employers and workers with a view to taking fully into account their experience and views, and securing their full collaboration in the preparation of the policy and the necessary support for its implementation. Another example had been in May 2018, when ANEP had been invited, with less than two hours’ notice, to participate in the review of a document entitled the National Employment Pact, which would be submitted in public the day following its review. The lack of notice was a clear indication not only of the lack of respect for the social partners, but also for social dialogue, tripartite consultation and the Government’s obligations as a Member of the ILO. Moreover, at the same time that the direct contacts mission was being carried out, the Government had adopted a series of measures intended to prevent the employers from designating, in accordance with the law, a titular and a substitute director of SIGET, the regulatory body for electricity and telecommunications in the country. Over a short period, 60 associations had been created, composed of young persons between 18 and 20 years of age living in 17 municipal areas characterized by poverty and a high rate of informality. The associations were created on the basis of a model document prepared by lawyers who were also public employees of the state enterprises regulated by SIGET. The 60 associations had participated in the elections and had won. The Government was therefore not only refusing to engage in dialogue with the legitimate representatives of the employers, but was also creating fake associations to replace the legitimate partners. In light of those events, the employers’ organizations had appealed to the Constitutional Chamber of the Supreme Court, which had ordered precautionary measures, and to the Office of the Public Prosecutor to undertake the corresponding criminal investigations. In January 2018, in accordance with the provisions of the legislation, ANEP had designated a director of the Road Conservation Fund (FOVIAL) and proposed a shortlist for the El Salvador Tourism Corporation (CORSATUR). Five months later, the Government had not made appointments to those positions or convened meetings. With reference to the election of representatives to the Institute for Access to Public Information and the CNSM, the employers’ organizations were pursuing appeals under the Constitution. With regard to the Autonomous Port Executive Commission, the situation was more complex. The Government was refusing to give effect to the ruling by the Constitutional Chamber of the Supreme Court which had found unconstitutional the Decrees of 2012, as a result of which employers’ organizations had recovered the capacity to designate and appoint directors of autonomous public bodies freely and independently. In brief, there was a long list of violations of the Convention by the Government, including the fact that ANEP had been waiting for a year to receive its official credentials.

The Government member of Bulgaria, speaking on behalf of the European Union (EU) and its Member States, as well as Albania, Bosnia and Herzegovina, Montenegro, Norway, Serbia and the former Yugoslav Republic of Macedonia, recalled the commitment undertaken by the Government under the trade pillar of the EU–Central America Association Agreement to effectively implement the fundamental ILO Conventions. It was regrettable that the case had already been discussed at the Committee in 2017, at which time the Committee had urged the Government to reactivate the CST and ensure positive developments on the right of the social partners to appoint their representatives. However, it had to be welcomed that a direct contacts mission had taken place in July 2017, and that the Government had attempted to reactivate the CST during an inaugural meeting in June 2017, in which the employers had, however, not participated, alleging non-conformity of the workers’ representation mechanism. The social partners had the right to freely appoint the representatives of their choice in joint and tripartite bodies without interference from the Government. As an essential measure to build trust among the different stakeholders, she urged the Government to take measures to include all social partners in consultations related to employment and labour policies, in a transparent manner, before a decision was taken. The Government should reconstitute the CST as a matter of urgency. To this end, it should promptly establish, in consultation with the social partners, clear and transparent rules for nomination of their representatives to the CST, based on the criteria of representativeness of organizations and in compliance with the Convention. Furthermore, the Government should explore all possible ways to promote social dialogue, and all social partners should engage in tripartite dialogue in a constructive manner. She strongly encouraged the Government to continue to avail itself of ILO technical assistance, and emphasized the commitment of constructive engagement with the country, including through EU and Member States cooperation projects, which were aimed to strengthen the Government’s capacity to address all issues raised in the observation of the Committee of Experts.

The Government member of Paraguay, speaking on behalf of the group of Latin American and Caribbean countries (GRULAC), welcomed the information provided by the Government regarding compliance with the Convention. Furthermore, she referred to the report of the Committee of Experts with regard to: (i) the inclusion of El Salvador as a case of progress, in which the Committee had expressed satisfaction at some of the positive measures adopted by the Government in reply to its comments; (ii) the holding of a direct contacts mission in June 2017, in response to the Conference Committee’s conclusions from the previous year; (iii) the Government’s demonstration, during the direct contacts mission, of its willingness to carry out the actions indicated and agreed upon in the context of the mission, in order to continue to promote social dialogue and the agreements between the sectors, thus contributing to the activation of the CST; and (iv) the Government’s request for technical assistance in October 2017, which was already being provided by the San José Office. She was confident that the Government would continue to comply with the Convention.

The Government member of Panama supported the statement made by GRULAC, and said that he had listened closely to the information provided by the Government and the points raised by the Employer members and the Worker members, from which diverging opinions could be observed. In the current conditions, the establishment of dialogue was difficult. However, the Government had made efforts to reactivate the CST, which was the mechanism created in order to put tripartism into practice. It was hoped that such a mechanism would be able to function, respecting the will of the Salvadorean people and without interference by outside parties. He congratulated the ILO for the backing given on the ground, and reiterated his support for the Government in its efforts to create social justice and comply with the provisions of the Convention.

The Worker member of Guatemala expressed concern at developments in labour relations in El Salvador, in particular when social partners questioned the representativeness of others. In El Salvador, as in Guatemala, there had been too many years of war, deaths and victims, and immense value was therefore attached to peace and the need to change ways of relating within a context of democracy and respect. For there to be freedom of association and representativeness of employers’ and workers’ organizations, it was first necessary to consolidate a legal and social framework to enable the organizations to exist, develop and perform their activities without them or their members being persecuted. Organizing a workers’ trade union, especially in the private sector, still implied a major risk, since the reaction from the enterprise was likely to be dismissals or reprisals, as had been communicated time and again to the national authorities and the ILO. In some cases, trade union activities implied a risk to life, as had been demonstrated by the murders of trade unionists from El Salvador and Guatemala, whose cases remained open for years without the authorities shedding light on the perpetrators and instigators of their deaths. He supported the recommendations made by the direct contacts mission in 2017, in which the competent authorities had been encouraged to ensure that the necessary measures were 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. Furthermore, social dialogue was too important to be paralysed by procedural aspects. Where one or more of the sectors participating in or invited to consultation forums had internal difficulties in being considered representative, that issue should be resolved among the sectoral organizations themselves, in what was considered an appropriate manner and time. Lastly, he called on all parties to overcome difficulties and resume the social dialogue processes that had been promoted, since that was the only possible way to carry out the fundamental task of improving the living and working conditions of millions of Salvadoreans who were currently enduring difficult personal situations, far removed from the decent work recommended by the ILO.

The Government member of Honduras reaffirmed the support shown for the Government in the GRULAC statement regarding the application of the Convention. The Government had taken action in response to the Committee’s requests from the previous year and the recommendations of the direct contacts mission of July 2017. For example, it had held institutional consultations and validated labour procedures, and had also invited representatives of the three sectors to attend the inaugural meeting of the CST. He expressed regret that the meeting had not taken place and urged the Government to continue its efforts to promote tripartite dialogue so that the CST could soon be restored and fully operationalized. It would also be an opportunity to implement good practices that enabled consultation with social partners, thereby ensuring full tripartite participation. In a spirit of constructiveness, the mandatory nature of tripartite consultations continued to result in effective procedures for promoting the application of international labour standards. Hence, any decisions taken regarding the due observance of fundamental, governance and technical Conventions not only required a clear willingness on the part of the Government to carry out the steps specified and agreed, but also commitment on the part of the tripartite constituents and technical assistance from the ILO. Lastly, the Government should continue its efforts to implement the necessary measures and establishing dialogue mechanisms which contributed to consultation with the social partners leading to tripartite solutions.

An observer representing the World Organization of Workers (WOW), speaking on behalf of the National Union of Workers of Venezuela (UNETE), the Democratic Union Alternative for the Americas (ADS) regional confederation and several Salvadorean trade unions, said that in the previous nine years, El Salvador had experienced a clear regression in terms of tripartism, social dialogue, freedom of association and the conclusion of collective agreements. In July 2017, the direct contacts mission had made a series of recommendations, which had not been implemented by the Government, given that the CST had still not met a year after it had been established. No consultations had been held with trade union federations or confederations to determine procedures for electing CST representatives, until 17 May 2018, when the Ministry of Labour had invited the trade union representatives to a meeting with an advisor to discuss the reform of the regulations, maintaining that it was thereby complying with the recommendations of the direct contacts mission, which showed that it only aimed to deceive the Committee, given that no actions had been carried out in that regard since the previous session of the Conference. The situation in the country had deteriorated. For example, the procedure to legally register various organizations had been made more complicated, imposing requirements not laid down in the legislation. Various comments had been made on the records of union assemblies of organizations which were considered by public officials to be unsound. There had been delays of 60 to 90 days in issuing the respective credentials, thereby hampering trade union representation because the organizations did not have the necessary accreditation. Additional requirements placed only on trade unions identified as not being compliant constituted discriminatory treatment. Public sector agreements were not implemented and tactics had been employed to prevent collective bargaining, such as in the cases of the Health Solidarity Fund (FOSALUD). Lastly, there was constant interference in trade union autonomy by the Ministry of the Interior and Territorial Development and the Ministry of Labour, which affected the independence and free exercise of trade union rights. The Government had not taken any steps to ensure the full application of the Conventions in law and practice, and had not initiated the process for the submission of the Conventions for ratification by the relevant bodies. Social dialogue was notably absent, as exemplified in the adoption of a national employment agreement and policy, without consultation with all the workers’ organizations. In addition, there were plans to adopt an Act on the public service, which essentially did away with trade unions, denied them the right to collective bargaining, eliminated public servants’ employment stability and was a flagrant breach of the ILO Conventions. The Government should reform national legislation with a view to removing obstacles to freedom of association. For example, it should take action to reduce the number of members required to establish a trade union, as municipal and central government workers employed in institutions with fewer than 35 employees, who were also unable to establish unions at enterprise level, were prevented from exercising their right to organize. Moreover, it was necessary to remove the requirement that trade union leaders must be Salvadorean by birth, because this excluded migrant workers from other countries who worked in construction and agriculture. It was also necessary to remove the rule that allowed workers to join only one trade union, even if they worked in two different economic sectors, and remove the obligation to elect the executive committees of trade union federations and confederations on an annual basis.

The Government member of the Dominican Republic endorsed the statement by GRULAC, and expressed her support for the information provided by the Government regarding the application of the Convention. She acknowledged the positive measures adopted by the Government, which clearly demonstrated its determination to encourage and strengthen social dialogue and consensus between the sectors, thus facilitating the activation of the CST. She also thanked the ILO for its contribution to strengthening the capacity of governments through technical cooperation, which was currently being provided to the Government.

The Worker member of the Bolivarian Republic of Venezuela indicated that the determination of the Government and the workers to promote social dialogue through the CST was noticeable. Dialogue should be honest, sincere and responsible, but it was being used as a tool to undermine the rights that workers had fought to obtain. In this case and others, the desire of the employers to destroy social dialogue could be observed, at a time when some governments were finally engaging in it and complying with the ILO Conventions. When they suffered defeat, the employers denied that they had been consulted and avoided dialogue, accusing governments of interfering. In cases of murders of trade unionists, students, teachers, environmentalists and journalists, the same forcefulness was not seen. It was necessary to protect trade unionists, activists and environmentalists and to impose severe penalties on those who violated, for example, the human rights to decent work, life, education, health and housing. It was also necessary to acknowledge that governments, along with their workers and honest employers, were surpassing and improving the ILO Conventions.

The Government member of Cuba expressed support for the statement made by GRULAC and welcomed the information provided by the Government. The points made in the report by the Committee of Experts, which examined the implementation by El Salvador of the Conference Committee’s 2017 conclusions, must be taken into consideration. The report included the country on the list of cases in relation to which the Committee of Experts had expressed satisfaction at the measures adopted and the processes implemented by the Government relating to tripartism and social dialogue. The Government had expressed its willingness to comply with the Convention. ILO technical assistance and cooperation could contribute to such a process.

The Worker member of Paraguay, speaking on behalf of the National Confederation of Workers (CNT) and the ADS, expressed concern at the Government’s lack of willingness to adopt the measures needed to promote and guarantee effective consultations and social dialogue with the workers’ and employers’ organizations, and its failure to observe the rules used as a basis for the development of mature dialogue, thus violating the right to freedom of association. The situation in the country was alarming, as the Government did not comply with the Convention and transgressed and violated the spirit and principles of social dialogue and effective consultation, which were pillars of the ILO and the work of the Committee. The Government had not supported the processes of social dialogue and tripartite participation which had been carried out, which had thereby had an adverse impact on the workers’ and employers’ organizations, and on the international community. It was important to have national and international bodies within which governments could ensure inclusive and effective consultations and collaboration for the proper development of common interests. Such bodies should be free from discriminatory practices and guarantee the respect of freedom of association and tripartism in order to make improvements at national level that would transform labour relations in a successful and positive manner. Social dialogue played a crucial role in the promotion of dignified and decent work with the necessary guarantees, freedom, security and dignity. The Government must transform its willingness into a powerful driving force.

The Employer member of Honduras recalled that the case had been examined last year as a double-footnoted case and the Committee had once again urged the Government to accept a direct contacts mission before the end of 2017. This was an indication of the seriousness of the Government’s repeated violations, both of the Convention and of the principles of the ILO. Furthermore, the Committee, having noted a lack of genuine consultation with representative and independent workers’ and employers’ organizations, had urged the Government to: (i) immediately reactivate the CST; and (ii) ensure that tangible progress was made with regard to the freedom and independence of the employers’ and workers’ organizations to appoint their representatives, without being subject to intimidation. The final report of the direct contacts mission recommended that the CST should be reactivated and the freedom and independence of the elections of representatives of workers and employers should be guaranteed. It also called on the Government to guarantee, in law and in practice, full respect for the independence of employers’ and workers’ organizations in appointing their representatives. It was a source of concern that the Government had not adopted any of the recommendations of the Committee or the direct contacts mission, and that it was ignoring the shortcomings of its own constitutional oversight bodies, thus violating labour standards and destroying the trust that should prevail in social dialogue. The Committee had a duty to promote compliance with international labour standards through the relevant mechanisms. In view of the Government’s repeated omissions, the speaker asked that: (i) a firm demand should be made for compliance with the recommendations of the Conference Committee and the direct contacts mission; (ii) the Government should bring together the legitimate representative social actors; and (iii) reports detailing compliance with the Committee of Experts’ recommendations should be presented within two months.

The Worker member of Brazil voiced his solidarity with the workers of El Salvador and expressed the hope that the Government would ensure the application of the Convention, establishing and guaranteeing all the conditions for doing so in a pluralistic, transparent and democratic manner. The participation of trade unions had been fundamental in the country when it came to improving minimum wages and access to social security for informal and migrant workers. It was therefore necessary to strengthen the presence of trade unions in the private sector. Employers must not support tripartism only when they derive a benefit from this, and should allow more representative workers’ organizations to be incorporated into all tripartite bodies. It was necessary for those bodies to operate with the active and pluralistic participation of trade unions, governments and employers in pursuit of social dialogue and in a spirit of tripartism, with the goal of good governance, social justice, sustainable development and continued progress.

The Government representative said that she had listened carefully to the statements made concerning the case and emphasized that various initiatives had been introduced and would continue to be pursued until a solution was reached to reactivate the CST. The Government would continue to request technical cooperation and mediation from the Office, principally because the employers’ unions only responded to invitations to discuss the topics raised when invited by the Office to talk to the Ministry of Labour. The arguments made concerning an election process in the complaint submitted by ANEP and in the statement of the Employer member regarding SIGET were baseless and reflected a divergence of sectoral interests. In El Salvador, it was not a crime to establish organizations or unions, as it had been for a decade under military rule, resulting in armed conflict. The Government stood guarantor for freedom of association, freedom of expression and civil and political rights, which were constitutional rights because they were part of the results of the dialogue and negotiation enshrined in the Peace Accords. The Supreme Court had even issued a protection order halting the election, not on account of the organizations created but because there was a conflict of interest between one of the individuals elected and the functions of SIGET. The Supreme Court had ordered the Legislative Assembly to issue an interim provision amending the act on the creation of SIGET to reappoint the directors whose term had expired in December 2017. SIGET was acting accordingly pending a ruling in the constitutional protection (amparo) proceedings brought before the Supreme Court. It was therefore necessary for all parties to respect due process. Irregularity in the participation of organizations not sympathetic to the employer sector did not mean that those organizations must be illegal or that they had failed to observe the precepts of the Convention. Moreover, electricity and telecommunications were not the sole preserve of the employers’ sector but matters of national interest, as they were not only an economic resource but also a resource for the development and well-being of the population. As such, various sectors had a legitimate interest in participating, expressing their views and being listened to in the decision-making process. With regard to the Employer members’ comments on government interference in election processes, it was important to note that the criteria considered in appointing representatives of the workers’ sector had been taken from international custom and were intended to ensure the objective application of the conclusions of the ILO concerning: (i) the reactivation of the CST without delay; and (ii) the ruling of the Constitutional Chamber of the Supreme Court stating that the Ministry of Labour was obliged to establish and maintain processes of social dialogue and tripartite participation to tackle the circumstances that were stopping the CST from functioning. In the same ruling it was stated that forums should be provided for dialogue among the trade union organizations involved, which should be given the necessary means to agree on and apply clear and permanent procedures for electing their representatives, so as to ensure that workers’ representatives were appointed and participated in the aforementioned consultative body. In that respect, criteria such as the number of union members, number of member unions and number of collective agreements for each of the lists submitted were what had guided the appointments. The criteria had been assessed on the basis of data registered with the Ministry of Labour and the information supplied by the registered trade unions. The Government must guarantee that the measures ordered by the Legislative Assembly through legislation and by the Supreme Court were implemented. It followed that there had been no modification of the CST regulations of the CST, but the procedural gaps concerning the workers’ delegation had persisted since 1994, resulting in the CST becoming inactive. Furthermore, the Government had given the employers an absolute guarantee of participation. The Government had respected the law and had not introduced any election procedures whatsoever that served specific interests.

The Employer members welcomed once again the agreement reached in the Conference Committee on the importance of social dialogue and respect for the independence of workers’ and employers’ organizations. However, it was a source of concern to hear the accounts of self-employed workers who claimed to have been subject to acts of discrimination, such as those pointed out by the Employers, which was a reminder of the gravity of this case. The Committee had underscored the importance of social dialogue, which was an essential building block of the Organization. For social dialogue to be fruitful, it was necessary for the legitimate representatives of employers’ and workers’ organizations to participate in good faith, and for the Government to acknowledge the need to facilitate such dialogue and attempt to reach consensus. Ultimately, a great deal depended on the Government’s having a true democratic orientation, with a view to meeting, in good faith, its obligations arising from its international commitments and, more importantly, with the intention of enriching the vision on issues of national interest and achieving governance. It was not a case of complying with a mere formality, let alone claiming to do so by convening bodies which were not at all representative or, even worse, which had been arbitrarily established for the purpose, suggesting a commitment to dialogue that it did not have. The statements made by the Government minutes earlier were a matter of concern, as they clearly recognized such bodies as representative employers’ organizations. The Employer members reiterated that the Government could not shirk its obligations solely because negotiations with one or both of the social partners might become uncomfortable if they defended their legitimate interests. The Conference Committee could not overlook a situation such as the one referred to in the strongest terms in the case, as it would contribute to the destruction of social dialogue and a loss of trust in the supervisory mechanisms. On this occasion, the employers of El Salvador were being discriminated against, on another occasion it could be workers or employers in any other part of the world. Since the discussion of the case in 2017 and the direct contacts mission had issued its recommendations, there had been no sign of the Government’s willingness to comply fully and in good faith with its obligations emanating from the Convention. It was the Committee’s duty to remind the Government in no uncertain terms of the need to modify its attitude and act in accordance with the law. In light of the above, the Employer members requested that: the seriousness of the social dialogue situation in the country should be highlighted in the conclusions of this case; the Government should be urged to immediately reactivate the CST, through social dialogue with the most representative workers’ and employers’ organizations, in order to ensure its full operation; and the Government should be urged to develop, in consultation with the social partners, clear and stable rules in conformity with the law for the reactivation and full operation of the CST. The Government must also be urged: (i) to refrain from interfering in the composition of the employers’ organizations and to facilitate, in accordance with the law, the proper representation of legitimate employers’ organizations, emitting the required credentials; (ii) to immediately appoint representatives of legitimate employers’ organizations to the social dialogue forums for which such appointments were pending; and (iii) to accept the technical assistance of the Office. Lastly, given the seriousness of the case, the Employer members asked for the conclusions to be included in a special paragraph of the Committee’s report.

The Worker members recognized the efforts made by the Government to comply with the Convention. In previous years, the technical assistance provided by the ILO and a direct contacts mission had indeed contributed to build trust and strengthen tripartite social dialogue in El Salvador. However, there were still significant shortcomings that needed to be overcome without delay. Unfortunately, social partners in the country had been deprived for too long of the opportunity to have their views heard in relation to the instruments adopted by the ILO. They therefore urged the Government to immediately create the conditions to allow such consultations to take place. Despite some positive engagement from the Government, there were still real doubts with respect to the criteria and procedures for the election of the worker representatives in the CST. The direct contacts mission that had visited the country in July 2017 had produced recommendations to the Government that were fully supported by the Workers’ group. The mission had indicated the need for effective consultation with the confederations and federations concerned for the determination of stable election procedures with precise, objective, and pre-established representativeness criteria. In addition, the mission had recommended the establishment of a working group open to all registered confederations and federations, to agree jointly clear and permanent criteria and procedures for the appointment of their representatives. ILO technical assistance was currently being provided in order to set up consultations with the social partners for the reform of the CST’s regulations to implement those recommendations. Both the employers and government authorities should respect this process and the choices made by the workers to allow the CST to finally start functioning. In this regard, all necessary steps should be undertaken, as recommended by the Committee of Experts, to investigate and resolve all the allegations of interference in the CST. The Employers’ group had highlighted the challenges they were experiencing with regard to various bodies at national level and the allegations of interference by the Government. They expressed the hope that the Government would engage with the employers swiftly in order to find a satisfactory resolution. However, it had to be pointed out that those bodies did not deal with the matters listed under Article 5 of the Convention and should therefore not distract from the other very important issues discussed. They once again urged the Government to work with the ILO through technical assistance in order to establish long overdue progress on that matter.

Conclusions

The Committee took note of the oral statements made by the Government representative and the discussion that followed.

The Committee noted with concern the dysfunctional operation of social dialogue and the current non-compliance with the provisions of the Convention.

Taking into account the Government’s submissions and the discussion, the Committee called upon the Government to:

- refrain from interfering with the constitution of employers’ organizations and to facilitate, in accordance with national law, the proper representation of legitimate employers’ organizations by issuing appropriate credentials;

- develop, in consultation with the social partners, clear, objective, predictable and legally binding rules for the reactivation and full functioning of the Higher Labour Council (CST);

- reactivate, without delay, the CST, through the most representative organizations of workers and employers and through social dialogue in order to ensure its full functioning;

- appoint without delay representatives of the most representative employers’ organizations in the CST where such appointments are still pending; and

- avail itself of ILO technical assistance.

The Committee recommends that the Government submit a detailed report to the Committee of Experts before its next session in November 2018.

A Government representative, Minister of Labour and Social Welfare, noted the conclusions and reiterated that the Government was firmly committed to due compliance with the Convention. The Government had fostered tripartite social dialogue as part of the national agenda in order to achieve social and labour justice and would continue with technical cooperation to ensure that the social partners had the technical tools to engage in it. In El Salvador, there was freedom of association; nobody was denied that right; and the unions representing the employers’ sector enjoyed active and guaranteed participation in all tripartite forums and in almost all bipartite forums. In the case of the Higher Labour Council (CST), the regulations provided for the participation of the ANEP unions (the Chamber of the Construction Industry (CASALCO), the Chamber of Agriculture (CAMAGRO), the Chamber of Commerce and the Salvadoran Industry Association (ASI)) and ANEP itself, which, despite not having attended the inaugural meeting, had already sent their representatives to participate in the CST. Unlike for the workers’ sector, which did not have an election procedure, there were no obstacles for the employers’ delegation. She welcomed the existence of the supervisory bodies, which supported countries in achieving compliance with the Conventions. Moreover, those bodies should not be used as forums for addressing disagreements which, precisely, could be resolved through active and effective participation in the bodies that had been set up for that purpose. She thanked the speakers who had acknowledged the action taken by the Government to make progress regarding compliance with the Convention and also expressed gratitude for the technical cooperation received from the Office.