Rapport définitif - Rapport No. 373, Octobre 2014

Cas no 3012 (El Salvador) - Date de la plainte: 02-OCT. -12 - Clos

Allegations: The complainant organization alleges obstacles and excessive delays in the collective bargaining of the first collective agreement between the complainant trade union and the Supreme Electoral Tribunal

1. 294. The complaint is contained in a communication from the Trade Union of Workers of the Supreme Electoral Tribunal (STRATSE) dated 2 October 2012. This organization sent additional information in a communication dated 30 April 2013.
2. 295. The Government sent its observations in a communication dated 7 July 2014.
3. 296. 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), the Workers’ Representatives Convention, 1971 (No. 135), and the Labour Relations (Public Service) Convention, 1978 (No. 151).

A. The complainant’s allegations

1. 297. In its communication dated 2 October 2012, the STRATSE alleges that it initiated the collective bargaining process with the Supreme Electoral Tribunal on 23 July 2010, and the representatives of both parties signed the first collective agreement on 17 December of the same year.
2. 298. However, this collective agreement had to be sent to the Ministry of Finance for validation (section 119 of the Civil Service Act), which on 16 March 2011, stated that the benefits granted in the collective agreement were not viable from a budgetary point of view as the cost was significantly higher than the budget available to the Supreme Electoral Tribunal, and consequently it was issuing an unfavourable opinion regarding the collective agreement.
3. 299. Bargaining consequently resumed between the parties and alternatives were submitted to address the unfavourable opinion issued by the Ministry of Finance. The Supreme Electoral Tribunal asked the trade union to adjust its claims to US$1 million and the trade union approved this proposal at an extraordinary assembly on 4 June 2011. In October 2011, the renegotiated collective agreement was sent to the Ministry of Finance, but in December 2011, the Ministry of Finance again failed to approve the collective agreement and recommended that it be negotiated a third time.
4. 300. In its communication dated 30 April 2013, the STRATSE indicates that the Civil Service Tribunal ordered that the matter be submitted to conciliation and, when this failed, to arbitration, but that the arbitrators have not yet been sworn in.
5. 301. The complainant trade union considers that the decisions made by the Ministry of Finance and the excessive delays that have occurred in the collective bargaining process infringe the ratified ILO Conventions on freedom of association and collective bargaining.

B. The Government’s reply

1. 302. In its communication dated 7 July 2014, the Government refers to the allegation by the STRATSE concerning the 2011 notification by the Ministry of Finance stating that the financial evaluation conducted into the benefits agreed in the collective labour agreement concluded by the STRATSE and the Supreme Electoral Tribunal indicated that the cost of the agreement in question was significantly higher than the budget available to the Supreme Electoral Tribunal and that consequently it was issuing an unfavourable opinion regarding its approval.
2. 303. The Government states in this respect that the allegations presented by the STRATSE lack any basis in fact or relevance, as according to the registers of the National Department of Social Organizations of the General Labour Directorate of the Ministry of Labour and Social Welfare, the STRATSE was granted the collective labour agreement through the registration on 15 July 2013 of the arbitration award handed down by the respective arbitration tribunal, which put an end to the collective labour dispute initiated by the STRATSE against the Supreme Electoral Tribunal. The Government notes that the arbitration award contains the final consolidated version of the clauses approved at the direct discussion and arbitration stages, which have been numbered by the Civil Service Tribunal from 1 to 66, and that in accordance with section 156 of the Civil Service Act: “The award puts an end to the collective dispute and has the status of a collective labour agreement.” Consequently, the abovementioned department, without further administrative paperwork or formalities, proceeded to register the arbitration award in the corresponding register, and it will remain valid for three years as from the date of registration.
3. 304. On the basis of the above, the Government asks that the case be closed.

C. The Committee’s conclusions

1. 305. The Committee observes that the complainant trade union alleges delays of over two years and obstacles to the collective bargaining process it initiated with the Supreme Electoral Tribunal in July 2010, resulting from the legal requirement for the Ministry of Finance to approve the collective agreement, which it refused to do on two successive occasions, citing budgetary reasons in violation of the right to collective bargaining.
2. 306. The Committee notes the Government’s statement that: (i) the cost of the collective agreement was significantly higher than the budget available to the Supreme Electoral Tribunal for the purpose, and that consequently the Ministry of Finance issued an unfavourable opinion regarding its approval; and (ii) the problem raised in the complaint was settled by way of an arbitration award registered on 15 July 2013, which ended the collective dispute and which has the status of a collective labour agreement.
3. 307. The Committee observes that it has examined similar allegations on previous occasions. For example, at its June 2014 meeting it examined a case relating to obstacles and delays in collective bargaining within the civil service (National Centre of Registries) in which the Ministry of Finance also issued an unfavourable opinion regarding the collective agreement concluded with the complainant trade union and more specifically its economic clauses [see 372nd Report, Case No. 2986 (El Salvador), paras 204 et seq.], and on that occasion it highlighted that the examination of collective agreement clauses with a financial or budgetary impact by the financial or budgetary authorities should take place during the collective bargaining process and not, as has occurred in this, and in other cases brought before the Committee, after the collective agreement has been signed by the parties, as this is incompatible with the principle of free and voluntary collective bargaining and the principle according to which agreements should be binding on the parties [see 372nd Report, Case No. 2986, para. 206, and Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 939].
4. 308. The Committee notes that, while after the failure of conciliation proceedings, the matter was submitted to compulsory arbitration, which put an end to the dispute, and there is currently a collective agreement in place that was registered in July 2013, it must express regret regarding the excessive delay that occurred in the collective bargaining process and settlement of this dispute (three years). It therefore reiterates in this case the conclusions it formulated in June 2014 and requests that in future the principles mentioned in the previous paragraph be taken into account. Furthermore, observing that the problems mentioned keep recurring in the public sector, the Committee invites the Government to consider availing itself of ILO technical assistance in order to overcome these problems.

The Committee’s recommendations

1. 309. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) While noting that the collective bargaining process was submitted to arbitration and that there is presently a collective agreement in place at the Supreme Electoral Tribunal, the Committee regrets the excessive delays in the bargaining process and requests the Government to take into account in future the principles mentioned in the conclusions on interference by the financial authorities in collective bargaining processes.
   • (b) In this respect, the Committee invites the Government to consider availing itself of ILO technical assistance in order to overcome the problems raised in this and previous cases it has been called upon to examine.