Observation (CEACR) - adopted 2023, published 112nd ILC session (2024)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - El Salvador (Ratification: 2006)

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The Committee notes the observations of the International Organisation of Employers (IOE), received on 10 November 2022, which refer to matters examined in the present comment.

The Committee recalls that in its previous comment it expressed concern at the serious allegations made in 2020 by the National Business Association (ANEP), with the support of the IOE, in relation to acts of defamation and intimidation of the President of the ANEP, and of the organization itself. The Committee notes that, in this respect, in communications sent during the course of 2022, the Government indicates that in April 2022 the members of the ANEP freely and independently elected a new President for the period 2021-23. The Government claims that it has respected the independence of the ANEP as an association representing employers and indicates that there has not been any conduct involving harassment, interference or aggression towards the organization. The Committee notes that these matters were examined by the Committee on Freedom of Association in Case No. 3380 and the Committee on the Application of Standards (hereinafter the Conference Committee) in 2022 and 2023 in relation to the application of the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144). The Committee notes the IOE’s indication in its observations that, despite the fact that in 2022 the Conference Committee urged the Government to refrain from any aggression and from interfering in the establishment and the activities of employers’ and workers’ organizations, in particular the ANEP, the Government has continued to show aggression towards employers’ organizations and to interfere in their activities. The Committee notes that in 2023 the Conference Committee urged the Government to immediately cease all acts of violence, threats, persecution, stigmatization, intimidation or any other form of aggression against individuals or organizations in connection with both the exercise of legitimate trade union activities and the activities of employers’ organizations, and to adopt measures to ensure that such acts are not repeated, in particular for the ANEP and its members. The Committee refers to its comments in relation to Convention No. 144 and urges the Government, in consultation with the social partners, to adopt as soon as possible each and every measure that it has been urged to take by the Conference Committee. The Committee requests the Government to provide information in this regard, with an indication of the measures adopted to guarantee that no other acts of hostility and interference occur against the ANEP or its members and leaders in respect of the freedom of employers to establish organizations of their own choosing, organize their administration and activities and formulate their programmes without interference by the public authorities.

Trade union rights and civil liberties. Murder of a trade unionist. The Committee notes the Government’s indication that the Office of the Attorney-General of the Republic is continuing to investigate the case of the murder of Victoriano Abel Vega, which occurred in 2010. The Committee notes that, in its most recent examination of Case No. 2923, the Committee on Freedom of Association deplored the absence of tangible progress towards the resolution of the case more than 13 years since the murder and firmly urged the Government and all the competent authorities to make, in a coordinated manner and as a matter of urgency and priority, all the necessary efforts to expedite and conclude the investigations under way in order to identify and punish as soon as possible both the instigators and the perpetrators of the murder of Victoriano Abel Vega. The Committee refers to the recommendations of the Committee on Freedom of Association in that case (403rd Report, June 2023).

The Committee also notes that, when examining Case No. 3395 in relation to the murder of the trade union leader Weder Arturo Meléndez Ramírez, the Committee on Freedom of Association noted that a proposal for the reform of the Criminal Code, drafted by the Ministry of Labour and Social Welfare with the aim of improving the protection of freedom of association for trade union leaders and members was under examination by the Ministry for subsequent submission to the Legislative Assembly (404th Report, October 2023). The Committee invites the Government to provide information on any progress in this regard.

Articles 2 and 3 of the Convention. Pending legislative reforms. For many years, the Committee has been requesting the Government to take the necessary measures to amend the following legislative and constitutional provisions:

• articles 219 and 236 of the Constitution of the Republic and section 73 of the Civil Service Act, which exclude certain categories of public servants from the right to organize (members of the judiciary, public servants who exercise decision-making authority or are in managerial positions, employees with duties of a highly confidential nature, private secretaries of high-ranking officials, diplomatic representatives, assistants of Public Prosecutors, auxiliary agents, assistant prosecutors, labour prosecutors and delegates);
• section 204 of the Labour Code, which prohibits membership of more than one trade union, so that workers who have more than one job in different occupations or sectors are able to join different trade unions;
• sections 211 and 212 of the Labour Code (and the corresponding provision of the Civil Service Act in respect of unions of public service employees), which establish, respectively, the requirement of a minimum of 35 members to establish a workers’ union and a minimum of seven employers to establish an employers’ organization, so that these requirements do not hinder the establishment of workers’ and employers’ organizations in full freedom;
• section 219 of the Labour Code, which provides that, in the process of registering the union, the employer shall certify that the founding members are employees, so as to ensure that the list of the applicant union’s members is not communicated to the employer;
• section 248 of the Labour Code, by eliminating the waiting period of six months required for a new attempt to establish a trade union when its registration has been denied;
• article 47(4) of the Constitution of the Republic, section 225 of the Labour Code and section 90 of the Civil Service Act, which establish the requirement to have attained the age of majority and to be a national of El Salvador by birth in order to hold office on the executive committee of a union, which are excessive restrictions on the right of workers to freely elect their representatives;
• article 221 of the Constitution of the Republic so as to limit the prohibition of the right to strike in the public service to officials exercising authority in the name of the State and those who perform their duties in essential services in the strict sense of the term (while recalling that it is also possible to restrict the exercise of the right to strike through the establishment of minimum services in public services of fundamental importance);
• section 529 of the Labour Code so that, when a decision is taken to call a strike, only the votes cast are taken into account, and also that the principle is recognized of the freedom to work of non-strikers and the right of employers and managerial staff to enter the premises of the enterprise or establishment, even where the strike has been decided upon by an absolute majority of the workers; and
• section 553(f) of the Labour Code, which provides that strikes shall be declared unlawful “where inspection shows that the striking workers do not constitute at least 51 per cent of the personnel of the enterprise or establishment”, which is inconsistent with section 529(3) of the Labour Code and which restricts excessively the right of workers’ organizations to organize their activities in full freedom and to formulate their programmes.

Furthermore, recalling that prison staff must enjoy the right to organize, the Committee on Freedom of Association and the Committee of Experts requested the Government to take the necessary measures to ensure full respect of the right of prison staff to organize (Case No. 3321, Report No. 392, October 2020).

The Committee notes the Government’s indication that the constitutional and legislative reforms referred to above, including the reform of the Labour Code, are under examination by the Legislative Assembly. The Government emphasizes that in August 2022 the Trade Union Office was established, within the National Department of Social Organizations, and indicates that as of March 2023 credentials were issued through that Office for a total of 122 trade union organizations. The Government indicates that an average of 18 organizations a month were accredited between August 2022 and March 2023, which shows that since the establishment of the Office credentials have been issued within an average of ten days, and that the process may take a maximum of 15 days. The Government emphasizes the firm commitment to undertake more labour reforms over the coming years and expresses its good will to continue convening the social partners to engage in working days jointly with the Higher Labour Council and the National Minimum Wage Council. The Government adds that workers in prisons have established unions within the institution for which they work, which is the Ministry of Justice, and that, although three unions have been registered, they have been without leadership for several years.

The Committee takes due note of this information and of the Government’s commitment to undertake labour reforms and continue to convene the social partners to the Higher Labour Council and the National Minimum Wage Council. In this regard, the Committee recalls that, at its session in June 2023, the Conference Committee urged the Government to reactivate, without delay, the full operation of the Higher Labour Council and other tripartite bodies and to ensure the development and adoption, in consultation with the social partners, of clear, objective, predictable and legally binding rules to ensure their effective and independent functioning, without any external interference. Moreover, while welcoming the Government’s indications concerning the establishment and operation of the Trade Union Office which, as it emphasizes, has facilitated the processes of issuing credentials for trade unions, the Committee observes that the Conference Committee urged the Government to put a stop to the delays in issuing the credentials of workers’ and employers’ organizations, including the ANEP, in line with their right to representation. The Committee also notes that the Committee on Freedom of Association made specific recommendations in relation to the excessive requirements for the registration and for issuance of credentials for the executive committees of unions (such as the submission of copies of individual identity documents and pay slips in order to verify whether members of executive committees are nationals of El Salvador by birth or to verify the worker’s type of contract) and it requested the Government, in consultation with the most representative trade union organizations, to take the necessary measures to review the rules applicable to the registration of executive committees in order to guarantee the right of organizations to elect their representatives in full freedom and to ensure swift process (Case No. 3258, 393rd Report, March 2021). The Committee further notes the Government’s indications in relation to unions in the prison sector and observes that one of the three unions referred to by the Government was the union that made the complaint to the Committee on Freedom of Association, in relation to which the latter requested the Government to take measures to ensure full respect for the right to organize of prison staff.

The Committee firmly expects to be able to note progress in the near future on all the legislative matters referred to above that have been pending for many years. The Committee reminds the Government that ILO technical assistance is available to it and urges it, following tripartite consultation, to take the necessary measures to ensure the conformity of the provisions referred to above with the Convention. The Committee also urges the Government as soon as possible, in consultation with the social partners, to take the measures that it was urged to adopt by the Conference Committee and that have been requested by the Committee on Freedom of Association. The Committee hopes that the Trade Union Office will play an important role in ensuring the expeditious nature of the processes of registration and issuing credentials for the executive committees of unions and requests the Government to provide statistical data on procedures for the registration of the executive committees of employers’ and workers’ organizations. Moreover, observing that the case examined by the Committee on Freedom of Association in the prison sector, as referred to above, was filed by a union in the sector, the Committee requests the Government to take the necessary measures to ensure the full recognition of the right to organize of workers in that sector.