Observation (CEACR) - adopted 2018, published 108th ILC session (2019)

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, 107th Session, May–June 2018)

The Committee notes the discussion that took place in the Conference Committee on the Application of Standards in June 2018 concerning the application of the Convention, in which the Conference Committee noted with concern the dysfunctional operation of social dialogue in the country and the non-compliance with the Convention. The Conference Committee therefore called upon the Government to: (i) 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; (ii) 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); (iii) 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; (iv) appoint without delay representatives of the most representative employers’ organizations in the CST where such appointments are still pending; and (v) avail itself of ILO technical assistance. It also recommended that the Government submit a detailed report for examination at the next session of the Committee of Experts.

The Committee also notes the observations of the National Business Association (ANEP) and the International Organisation of Employers (IOE), received on 11 September 2018, alleging non-compliance with the Convention by the Government.

Articles 2 and 3(1) of the Convention. Adequate procedures. Election of the representatives of the social partners to the CST. In reply to its previous comments, the Committee notes that the Government’s report refers to the intervention of a Government representative at the 107th Session of the Conference Committee in June 2018. The Government representative expressed her view that the case had been recognized by the Committee of Experts as a case of progress as a result of the actions taken by the Government to reactivate the CST. With regard to the allegations of Government interference in the appointment of workers’ representatives to the CST and the National Minimum Wage Council, made by the ANEP, the Government representative denied them and referred to acts of interference by the ANEP, stating that the ANEP should not interfere in the appointment of worker members. The Government representative added that other tripartite bodies in which the ANEP participated on a permanent basis and without interference operated normally. In this regard, the Government representative referred to various measures adopted on a tripartite basis in the National Minimum Wage Council, the Housing Social Fund (SFV) and the Salvadoran Vocational Training Institute (INSAFORP).

The Committee also notes the observations of the IOE and the ANEP indicating that the Government is continuing to fail to engage in genuine dialogue and is not holding tripartite consultations, thereby failing to comply with the recommendations and resolutions issued by the ILO’s supervisory bodies. They maintain that, since the failed attempt to convene the CST in July 2015, the Government has not taken any measures for the reactivation of the CST, nor have legitimate representatives of the social partners on the CST been elected freely and independently and without Government interference. With reference to the Government’s indications that the ANEP refused to participate in the session of the CST held on 6 July 2017, the employers’ organizations allege that the convening of the meeting was unlawful and that, in contrast with the provisions of section 3 of the Rules of the CST, the President of the CST (the Minister of Labour) convened the session unilaterally, without the agreement of the Vice- President nominated by the workers or the Vice-President nominated by the employers. With reference to the Government’s claim that the process of appointing workers’ representatives in the CST was undertaken publicly with the representatives of workers and employers, the employers’ organizations indicate that the election was undertaken directly by the Government based on election criteria that even the workers’ organizations indicated that they were not aware of during the direct contacts mission which visited the country in July 2017. The Committee also notes the allegation by the employers’ organizations that no sessions of the CST were held between December 2016 and July 2017, but that it was in practice the Higher National Minimum Wage Council which held its sessions during that period. In that regard, they emphasize that the election of the representatives to the Higher National Minimum Wage Council was carried out based on rules issued by the Minister of Labour who, under the terms of the legislation in El Salvador, is not empowered to issue such instructions. The employers’ organizations indicate that they have appealed against those rules to the Supreme Court of Justice calling for them to be set aside. They also refer to the Government’s claim that the various tripartite bodies in the country are fully operational. In this regard, they affirm that they are in full operation, but only due to the fact that it was the Government itself, on the basis of the legal reforms adopted in 19 of the bodies in August 2012, which appointed the employers’ representatives to the Executive Boards of the bodies. These reforms were declared unconstitutional by the Supreme Court of Justice in November 2016. In particular, they refer to interference by the Government in, among other bodies, the General Electricity and Telecommunications Supervisory Body (SIGET), the regulatory body for electricity and telecommunications in the country. They allege that the Government interfered in the nomination by employers’ organizations of a titular director and a substitute director in the SIGET through the creation over a short period of time of 60 fictitious employers’ associations which participated in the elections. They indicate that these facts have been denounced to the Chamber of the Constitutional Court, which has ordered precautionary measures, and the Prosecutor-General of the Republic for the corresponding criminal investigations. The Committee further notes the indication by the employers’ organizations of other cases which illustrate the Government’s lack of commitment to promoting social dialogue, such as the development between July and August 2017 of a decent work policy without the participation of the social partners, and the presentation in May 2018 of the National Employment Pact, for the revision of which the ANEP was only allowed two working hours. The Committee also notes that the employers’ organizations denounce attacks against the premises of the ANEP on 30 August 2018. The Committee firmly trusts that the Government will take the necessary measures to promote and reinforce tripartism and genuine social dialogue with a view to ensuring the operation of the Higher Labour Council. The Committee once again urges the Government to establish without delay, in prior consultation with the social partners, clear and transparent rules for the nomination of workers’ representatives to the CST that comply with the criterion of representativity. The committee requests the Government to provide its comments and information in response to the ANEP’s allegations of interference and attacks against ANEP offices. In addition, the Committee trusts that the Government will take the necessary measures to investigate and resolve this matter. The Committee requests the Government to keep it informed of any developments in this respect.

Article 5(1). Effective tripartite consultations. In its previous comments, the Committee requested the Government to keep it informed of the outcome of the tripartite consultations held on the proposals to be submitted to the Legislative Assembly with regard to the submission of 58 instruments adopted by the Conference between 1976 and 2015. The Committee notes the Government’s indication that, with the support of the cooperation provided by the ILO within the framework of the project of the Generalized System of Preferences (GSP) of the European Union, a draft was adopted of a “Protocol on the submission procedure”. The Government indicates that on 2 May 2018 the draft Protocol was communicated to the competent bodies for consultation. The bodies required legal consultations with a view to identifying the commitments and implications of the submission process. The Government adds that, once the final proposed Protocol has been adopted, it will also be sent to the social partners for consultation. The Committee also notes that the ANEP maintains that it has not received the reports on ratified Conventions that are to be sent by the Government under article 23 of the Constitution. The Committee requests the Government to provide information on the outcome of the tripartite consultations held in relation to the Protocol on the submission procedure, and to provide a copy of the Protocol when it has been adopted. The Committee also requests the Government to provide updated information on the content and outcome of the tripartite consultations held on all the matters relating to international labour standards covered by Article 5(1)(a)–(e) of the Convention.

Technical assistance. In reply to the Committee’s previous comments, the Government indicates that, in the context of ILO technical assistance, in June and July 2018 various workshops were held separately with representatives of the Government, workers’ organizations and employers’ organizations with a view to identifying points of agreement relating to the reform or proposal of new rules of the CST as a means of bringing to an end the inactivity of this tripartite body. The Government adds that, in accordance with the recommendations contained in the report of the direct contacts mission carried out in July 2017, support was also requested for the consultations to be held with workers and employers for purposes of formulating legislative reforms proposing to extend freedom of association rights and to develop and promote social dialogue. In this respect, the Government indicates that a first round of consultations has been undertaken with workers with a view to developing a proposed reform of the Labour Code. Finally, the Government indicates that the planned activities will be continued in the months to come in the context of the follow up to the recommendations of the direct contacts mission. The Committee requests the Government to continue providing detailed information on the measures adopted in the framework of ILO technical assistance, and on their outcome.