Definitive Report - Report No 392, October 2020

Case No 3215 (El Salvador) - Complaint date: 04-APR-16 - Closed

Allegations: refusal to register an approved collective agreement and continue negotiating with the majority union

1. 578. The complaint is contained in communications from the CONAMYPE Workers’ Union (SITCO) and the Trade Union Coordinating Body of El Salvador (CSS) dated 4 April 2016 and 1 November 2017, as well as in a communication received on 25 September 2018 signed by SITCO.
2. 579. The Government sent its observations in communications dated 6 March 2017, 22 January, 27 March and 28 June 2019, and 31 January 2020.
3. 580. El Salvador has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and the Labour Relations (Public Service) Convention, 1978 (No. 151).

A. The complainants’ allegations

1. 581. In their communications, the complainants report that the authorities have refused to register a collective agreement that has already been approved and that the employer organization has refused to continue negotiating with SITCO. They indicate that:
   • on 21 October 2014 SITCO, as the union with the majority membership of workers, initiated the negotiation of a collective agreement with the National Commission for Micro and Small Enterprises (CONAMYPE) by presenting a request to the Ministry of Labour;
   • on 3 December 2014, the Directorate General for Labour (DGT), faced with the reasonable question of whether CONAMYPE was an independent body or a unit of the Ministry of the Economy, requested an opinion on the matter from the Minister of the Economy and the Minister of the Treasury; the Minister of the Economy responded that CONAMYPE was an independent body and was not part of the centralized structure of the Ministry;
   • in light of this response, on 19 December 2014, the DGT, treating CONAMYPE as an independent body, decided to go ahead with the negotiation and called on the parties to set a timetable for the direct negotiation stage, as well as calling on the Minister of the Economy in his capacity as president and legal representative of CONAMYPE (a position that the Minister did not dispute at that time, but which he denied after the collective agreement had been made);
   • the negotiations took place in a normal fashion: 90 per cent of the collective agreement was agreed during the direct negotiation stage, the rest was resolved in the conciliation stage, whereby SITCO and CONAMYPE concluded the negotiation of the collective agreement satisfactorily, in accordance with the rules for independent bodies. The collective agreement was signed by both parties on 15 June 2015: on one side, the Minister of the Economy and president of CONAMYPE, and, on the other side, the Secretary-General of SITCO;
   • on 16 October 2015 the Minister of the Economy and president of CONAMYPE submitted the collective agreement to the Ministry of the Treasury for its opinion (one of the legal requirements established in the Labour Code) – surprisingly, the Minister of the Economy changed his opinion in that communication and declared that CONAMYPE was not independent and that he was not its legal representative;
   • on 6 November 2015 the Minister of the Treasury issued a resolution declaring that, since CONAMYPE was not established as an independent body, its legal status did not meet the requirements laid down in article 287 of the Labour Code and article 119 of the Civil Service Act, which meant that the requested statement could not be issued, and that the Ministry lacked the jurisdiction to give a legal, technical, financial or budgetary opinion;
   • SITCO continued the process of registering the collective agreement that had already been made and duly signed and approved by the Ministry of the Economy, presenting the necessary information to the Ministry of Labour; however, the Ministry of Labour responded on 30 November 2015 with additional prerequisites, notably the “favourable” opinion of the Ministry of the Treasury and the approval of the Minister of the Economy (approval that was already on record, since he had signed the collective agreement himself);
   • in the interest of complying with the additional prerequisites, SITCO again requested: (a) confirmation of the Minister of the Economy’s approval – however, the Minister responded on 8 January 2016, once again contradicting his initial statement on the basis of which the agreement had been made and stating that CONAMYPE was not an independent body and that he was not its legal representative; and (b) the opinion of the Minister of the Treasury – who withdrew his previous response regarding lack of jurisdiction. SITCO submitted these opinions to the Ministry of Labour with a view to moving past the request to register the collective agreement – however, the Ministry of Labour denied the request, stating that it did not comply with “one of the necessary prerequisites for registration, that is to say the favourable opinion of the Ministry of the Treasury, in order for the collective labour agreement to be valid in accordance with article 287 of the Labour Code”;
   • the denial was unfounded because: (a) article 287 refers to “the opinion of the Ministry of the Treasury” without specifying whether it needs to be favourable; (b) in addition, the objective of this prerequisite is to establish whether funds are available, which was not relevant in this case because it did not affect the balance of the budget (the agreement had been made on the basis that it would be implemented with salary economies generated each tax year – and for that reason the Ministry of the Treasury has not expressed any impediment to the signing of the agreement in its communications); and (c) both the Ministry of the Treasury and the Ministry of the Economy had been asked the central question (about the legal nature of CONAMYPE) at the outset of the proceedings and did not raise any reservations about the negotiation process at that time – the Minister of the Economy had confirmed that it was an independent body and signed the agreement that was negotiated himself. As a result, SITCO appealed the denial, but on 18 March 2016 the DGT upheld its initial resolution and again refused to register the collective agreement; and
   • subsequently, the complainants reported that workers’ representatives had been excluded from the process of drawing up the CONAMYPE travel allowance regulations (2 July 2018) and its protocol for dealing with cases of workplace and sexual harassment (5 September 2018).

B. The Government’s reply

1. 582. In its communications the Government provides the responses from the authorities concerned to the allegations made in the complaint. The Government indicates that:
   • (i) in response to the request from SITCO to register the collective agreement, the information submitted was checked and it was found that a favourable opinion from the Ministry of the Treasury had not been included, which is an indispensable prerequisite for registration, in accordance with article 287 of the Labour Code (which requires “the approval of the relevant Ministry” as well as obtaining “the opinion of the Ministry of the Treasury in advance”) and article 119 of the Civil Service Act (which makes registration subject “to the favourable opinion of the Ministry of the Treasury”);
   • (ii) on 30 November 2015 the trade union was notified that it would need to present a favourable opinion from the Ministry of the Treasury, as well as approval from the Ministry of the Economy (because CONAMYPE is affiliated to it); and
2. 583. The Government also indicates that:
   • on 6 July 2015 the Minister of the Economy sent a memo to the President of the Republic’s Secretary for Legislative and Legal Affairs, stating that the legal nature of CONAMYPE needed to be established with regard to its legal representation – however, no response was received at that time. Prior to that, on 15 June 2015, the Minister had gone ahead and signed the collective agreement in his capacity as Minister of the Economy, but he did not hold the position of legal representative of CONAMYPE. Subsequently, in a memo dated 16 October 2015, the Minister of the Economy wrote to the Minister of the Treasury to explain the follow-up that had been given to the collective agreement in question and to clarify that CONAMYPE was not an independent body and that, as a result, there had been a delay in processing the documentation, since it did not comply with article 287 of the Labour Code;
   • it could be said that there was a legal lacuna in the decree that set up CONAMYPE, since it did not establish its legal representation, and this situation prevented the registration of the collective agreement;
   • the leadership of CONAMYPE stated that they were prepared to negotiate a collective agreement with SITCO and indicated that, during the impasse, they had provided additional employment benefits, some of which were among those that had been duly agreed with the union;
   • subsequently, legislative measures were taken to define the legal nature of CONAMYPE and on 15 November 2017 legislative decree No. 383 was adopted, establishing CONAMYPE as an independent body – which led to a transition process that did not affect SITCO;
   • on 15 February 2018 negotiations were established between CONAMYPE and SITCO in order to reach a common agreement and five meetings were held in this framework, addressing various issues of mutual interest, including the collective labour agreement, labour liabilities, wage adjustment and specific cases, and
   • with regard to the collective labour agreement, SITCO requested that the agreement that had already been negotiated be taken up again, but CONAMYPE proposed negotiating a new collective agreement. SITCO showed willingness to renegotiate, as long as this was voluntary, since it did not have the percentage established in law for compulsory negotiation (51 per cent), and as long as the resulting agreement could be registered without further delay. Consequently, various public authorities were consulted to assess the legitimacy of that request, which did not meet the legally established prerequisites for compulsory negotiation.
3. 584. In its communications of 27 March 2019 and 31 January 2020, the Government adds that:
   • on 5 July 2018 a round table was held between CONAMYPE and SITCO at the Ministry of Labour and Social Welfare, during which it was stated that CONAMYPE was carrying out additional consultations so that its board of directors could assess the possibility of ratifying the contents of the existing draft collective agreement;
   • on 3 November 2018 another meeting was called with the DGT as mediator, but that one was unsuccessful as the parties disagreed and the representatives of CONAMYPE decided to leave the round table, declaring that the negotiations could not proceed in the absence of respectful conditions –neither party has communicated with the DGT since then;
   • according to the consultations that the Government held with CONAMYPE at that time, CONAMYPE has declared that SITCO has lost members and its membership only amounted to 49.15 per cent of public servants in the institution, so it would not be possible to continue the negotiations; nonetheless, CONAMYPE was prepared to start negotiations when the prerequisites established in law were met (51 per cent membership for compulsory negotiation);
   • starting on 1 June 2019, changes were made in executive authority institutions, including CONAMYPE, and on 18 June 2019 SITCO met with the new president of CONAMYPE, expressing that they were “prepared to make progress” with the institution; the following day, the president of CONAMYPE made it known that “we will make our relationship with SITCO win-win, both for the institution and for the workers”; and
   • in that context, the SITCO Delegates Assembly approved a list of requests for the negotiation of the collective agreement, which was presented to the administrative authorities on 1 July 2019, who stated that they will draw up mechanisms for the development of a proposal.
4. 585. With regard to the two internal instruments referred to by SITCO, the Government states that, according to information received from CONAMYPE: (i) the CONAMYPE travel allowance regulations (2 July 2018) at no time established conditions that were any different to those that had already been included in the general travel allowance regulations, they simply set up the internal administrative procedures, so there had been no need to negotiate with the union; and (ii) the workers were indeed consulted about the contents of the institution’s protocol for dealing with cases of workplace and sexual harassment (5 September 2018) and they had taken account of the observations that SITCO had made as part of the internal employment regulations (the Government submits various documents to support this), since the protocol was initially contained within those regulations – however, due to its importance, it was later presented as a separate instrument.

C. The Committee’s conclusions

1. 586. The Committee observes that, in this case, relating to collective bargaining in a public institution (CONAMYPE), the complainants report that the competent authorities have refused to register a collective agreement that has already been approved and to continue negotiating with the majority union (SITCO).
2. 587. The Committee observes that confusion about the legal status of CONAMYPE as an employing organization – whether or not it was an independent body – led, firstly, to a collective agreement being made through direct negotiation and conciliation, and, secondly, to the refusal to register the agreement that had been negotiated and signed in good faith by the parties. After SITCO had followed the appropriate collective bargaining procedures and after the Ministry of Labour had carried out the relevant consultations, the Minister of the Economy had initially believed that CONAMYPE was an independent body whose relations with the Executive went through his Ministry. Having received that opinion, the Ministry of Labour began the negotiating process. However, once the agreement had been negotiated, signed by the Minister of the Economy himself in his role as president of CONAMYPE, he then issued another opinion (finding that it was not an independent body affiliated to his Ministry) which meant that the agreement could not be registered. The Committee also observes that, subsequently, when the legal nature of CONAMYPE was clarified, enabling negotiations again, the authorities concerned concluded that they could not negotiate with SITCO because it had lost some members and its membership only amounted to 49.15 per cent of the workers – which did not meet the 51 per cent membership established in the Labour Code and the Civil Service Act that would oblige the public institution to negotiate and sign a collective agreement.
3. 588. In this regard, the Committee recalls the importance which it attaches to the obligation to negotiate in good faith for the maintenance of the harmonious development of labour relations [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 1327]. The Committee considers that the question about the legal nature and representation of the employer organization should have been addressed beforehand – this question was later raised by the same party who participated in the negotiation in order to deny the registration of the collective agreement. This should have been clarified in advance or at least before the collective agreement was signed – for example, when the question was raised by the Ministry of Labour following the union’s request for negotiations. The Committee considers that this type of situation can erode confidence in the sector’s industrial relations system and hopes that it does not happen again in the future.
4. 589. With regard to CONAMYPE’s refusal to negotiate with SITCO because it no longer represents 51 per cent of the workers, the Committee has considered that, if there is no union covering more than 50 per cent of the workers in a unit, collective bargaining rights should nevertheless be granted to the unions in this unit, at least on behalf of their own members [see Compilation, para. 1390].
5. 590. In light of the foregoing, since the question about the legal nature of CONAMYPE and its capacity for collective bargaining has been clarified, and observing that the latest information provided by the Government suggested that the union was very close to having the percentage required for the negotiations to become compulsory (its membership amounting to 49.15 per cent of public servants in the public institution) and that the Government has indicated in several of its communications that it is carrying out consultations regarding the possibility of reaching a collective agreement voluntarily – and reported in its latest communication that the administrative authorities had expressed that they would draw up mechanisms for the development of a proposal in response to the list of requests presented by SITCO on 1 July 2019 – the Committee trusts that the authorities concerned will continue to take the necessary measures to promote the negotiation of a collective agreement in full respect of the principles of freedom of association and collective bargaining.

The Committee’s recommendation

1. 591. In light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
   • The Committee trusts that the authorities concerned will continue to take the necessary measures to promote the negotiation of a collective agreement in full respect of the principles of freedom of association and collective bargaining.