Rapport définitif - Rapport No. 404, Octobre 2023

Cas no 3161 (El Salvador) - Date de la plainte: 07-SEPT.-15 - Clos

Allegations: The complainant organization alleges that numerous anti-union acts, including transfers and dismissals, have been carried out against officials and members of a trade union in a public hospital, and that labour relations roundtables have been set up in the public health sector with representatives of non-unionized workers, with the aim of undermining dialogue and negotiations with the trade unions

1. 291. The complaint was presented by the Trade Union Coordinating Body of El Salvador in communications dated 7 September and 5 November 2015.
2. 292. The Government of El Salvador sent its observations on the allegations in two communications, dated 31 October 2016 and 27 September 2019.
3. 293. 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), the Labour Relations (Public Service) Convention, 1978 (No. 151), and the Collective Bargaining Convention, 1981 (No. 154).

A. The complainant’s allegations

1. 294. In its communication dated 7 September 2015, the Trade Union Coordinating Body of El Salvador states that it is presenting a complaint concerning the violation of the ILO Conventions on freedom of association and collective bargaining ratified by El Salvador on the grounds of numerous anti-union acts carried out against the Trade Union of Doctors of Rosales Hospital (SIMEHR), a hospital that is under the remit of the Ministry of Health (MINSAL).
2. 295. The complainant organization states that the SIMEHR, an organization that was established in 2009, submitted on multiple occasions requests for compliance with Article 7 of Convention No. 151 in order to participate in the determination of the terms and conditions of employment of doctors at Rosales Hospital, which the SIMEHR considers to be abysmal, inhuman and inadequate.
3. 296. The SIMEHR states that, after it filed a series of complaints with a view to achieving a safe working environment with the necessary resources to provide adequate care for the hospital’s patients, the director took retaliatory measures. According to the complainant, the aim of the measures was to harass and violate the rights of the trade union and its members, all under the complacent eye of the senior authorities of MINSAL and the Ministry of Labour and Social Welfare.
4. 297. In this respect, the complainant organization alleges that the director of Rosales Hospital took a series of anti-union measures in 2010 and 2011, namely: (i) the arbitrary transfer of three doctors, who were in charge of the teaching units and who were also union officials; (ii) the workplace harassment and transfer of the former head of pathology, a union member, through the dissemination of falsified audit reports; (iii) labour rights violations and psychological harassment against a specialist in the pathology department, Dr Genoveva Ochoa, a union member, who, as a result, asked to be transferred to another hospital; and (iv) labour rights violations against the head of the research unit at Rosales Hospital, a union member, by forcing her immediate superior to adjust her performance appraisal downwards in retaliation for her participation in a protest against him.
5. 298. The complainant organization further alleges that the director of Rosales Hospital committed a series of violations of the trade union rights of officials and members of the union in 2012 and 2013, namely: (i) the unfair and arbitrary dismissal of union members, including the head of the intensive care unit and the head of otorhinolaryngology; (ii) the violation of the rights of Dr Alcides Gómez Hernández, the general secretary of the union, by issuing him with a warning in 2012 for reasons that he was never able to establish and by denying him the right to defence in the disciplinary proceedings; (iii) unwarranted searches of union members’ belongings following a complaint in 2012 that supplies had gone missing; (iv) the suspension of union member Dr Guillermo Reyes in 2012 for refusing a police search, without him being given the opportunity to defend himself; and (vi) the refusal to grant union leave to union officials.
6. 299. The organization also alleges that, in June 2014, a system for clocking in and out of the workplace exclusively through the use of biometric markers was unilaterally imposed, without the trade union being consulted, which was perceived to be an act of repression. The complainant organization further alleges that this practice goes against the grain of specialized medical care and trade union rights, as it contributes to the mechanization of medical care work. The complainant also states that all these measures are part of an ongoing pattern of mistreatment, workplace harassment, and supply and equipment shortages. The complainant organization states that, since the appointment of Dr Mauricio Ventura as director of Rosales Hospital, the SIMEHR has tried unsuccessfully to resolve these labour issues with the hospital director and with the MINSAL authorities. To this end, according to the complainant organization, it held meetings with several senior officials from MINSAL and from Rosales Hospital, without managing to find a solution to the labour issues being faced.
7. 300. The complainant organization alleges that the very tense situation created by these labour issues led to a decision by the Assembly of Doctors on 9 September 2014 to reduce outpatient work, with the exception of certain critical specialities. The complainant organization states that it was only after the adoption of this measure that the authorities of MINSAL and the Office of the Human Rights Ombudsman (PDDH) decided to take action in this regard. Furthermore, the complainant organization states that, although the PDDH set up a table for dialogue and negotiation between the authorities of MINSAL and the medical specialists of Rosales Hospital, represented by the SIMEHR, no progress has been made, and it attributes this lack of progress to the political alignment of the PDDH and the personal ambitions of the Human Rights Ombudsman.
8. 301. The complainant organization states that, on 17 September 2014, it was notified of a decision handed down by the First Labour Court of San Salvador declaring the strike staged by the SIMEHR since 9 September 2014 to be unlawful and ordering the strikers to return to their respective posts. The complainant organization also states that, after an appeal brought before the same court was rejected, the SIMEHR filed, on 20 October 2014, an application for amparo (protection of constitutional rights) before the Constitutional Chamber of the Supreme Court of Justice, which, at the time of the presentation of the complaint in September 2015, had not been settled. The complainant organization goes on to state that it was obliged to file an application for amparo with the Supreme Court because, under section 565 of the Labour Code, decisions concerning the determination of a strike or work stoppage are not open to appeal. The complainant alleges that this provision is contrary to international labour standards.
9. 302. The complainant organization further alleges that the dispute continued to escalate as a result of the retaliatory measures taken by the authorities of Rosales Hospital, namely: (i) wage deductions of 40 per cent were applied in July 2014, even before the reduction of work began; (ii) wage deductions of 100 per cent were applied in August 2014 and of over 100 per cent were applied in September and October 2014 and from January to May 2015; (iii) criminal complaints were filed on 10 September 2014, in other words the day after the reduction of work began, by the hospital director with the Office of the Attorney General of the Republic against the union’s executive committee and 42 specialist doctors who were also union members, for the alleged offences of denial of health care (section 176 of the Criminal Code) and breach of duty (section 231 of the Criminal Code); (iv) complaints were filed with the First Labour Court by the hospital director against 82 specialist doctors, calling for the strike consisting of a reduction of work to be declared unlawful, with the First Labour Court declaring it unlawful on 17 September 2014; (v) acts of harassment were carried out by members of the political police on 14, 15 and 16 September 2014, who went to the homes of certain union members without showing identification to inform them that they were under investigation, with the aim of intimidating them; (vi) a one-day suspension from work was imposed on 21 chief medical specialists, the majority of whom are members of the union and its executive committee; and (vii) disciplinary proceedings with threats of dismissal were initiated against union officials and anyone who did not obey the orders of the hospital director. Furthermore, the complainant organization alleges that, from June 2014 until at least the date on which this complaint was presented (7 September 2015), the union members who participated in the strike have not been paid their wages and have not received social benefits or social security.
10. 303. The complainant also alleges that, in June 2015, the director of Rosales Hospital filed an action with the First Civil and Commercial Court to dismiss union officials and union members, in violation of the ILO Conventions ratified by El Salvador.
11. 304. In its communication dated 11 November 2015, the complainant organization alleges that the instruction document concerning the establishment and functioning of the labour relations roundtables of MINSAL (hereinafter “the instruction document”), which was adopted in August 2015 and which provides for the establishment of a series of labour relations roundtables at the national, regional and local levels within El Salvador’s public health system, as well as in every public hospital, constitutes a clear violation of freedom of association, rather than fulfilling its stated purpose of improving the work climate and environment. The complainant organization states in particular that: (i) according to the recitals of the instruction document, labour relations roundtables are appropriate forums and mechanisms for dialogue, conciliation and agreement so that the issues that exist in every institution in respect of labour relations and the improvement of services can be addressed in a timely way; (ii) section 1 of the instruction document provides that the document will “also govern the procedure for the adoption of agreements and recommendations and the formal conditions for ensuring their validity and effective application”; (iii) according to section 5 of the instruction document, the national labour relations roundtable shall be composed of: one delegate from the Ministerial Office; one delegate from the Office of the Deputy Minister for Health Policies; one delegate from the Office of the Deputy Minister for Health Services; one delegate from the Office of General Operations Management; one Ministerial Legal Adviser; one delegate from every national trade union duly accredited by the Ministry of Labour and Social Welfare; one delegate from every national association of employees or workers duly accredited by the Ministry of the Interior; and one or more delegates for employees that do not belong to a trade union organization, so that there is one such delegate for every delegate from a trade union or workers’ association; and (iv) according to section 17 of the instruction document, the roundtable agendas are set unilaterally, as a number of requirements are imposed regarding the items that may be put forward by the representatives of the roundtables, such as the requirement that the items must benefit administrative management in the interests of the users of the network of public health establishments or the employees of these establishments, and must be viable from a technical and financial point of view.
12. 305. The complainant organization, after claiming that the instruction document was adopted without prior consultation with the trade unions, alleges that this instrument: (i) encourages the participation of representatives of workers who are not union members, to the detriment of trade unions; and (ii) violates the bipartite bargaining process by allowing the participation of elected representatives under employer control with a view to obtaining the majority of votes, thereby undermining the trade union’s participation in the determination of terms and conditions of employment and in the settlement of disputes. The complainant organization concludes by stating that labour relations roundtables are a mechanism that will facilitate favouritism or hostility towards certain trade union organizations and undue interference by the public authorities in trade union activities.

B. Information submitted by the Government

1. 306. In its communication dated 31 October 2016, the Government provides its observations on the complainant organization’s allegations concerning the anti-union nature of the instruction document, stating that: (i) the aim is simply to establish forums and mechanisms that encourage dialogue, conciliation and agreement, and there is therefore no violation of trade union rights; (ii) the instruction document is not a law or a formal legislative act, but an instrument providing administrative support; and (iii) it neither replaces nor hinders dialogue with trade unions – rather, it encourages trade union activity and strengthens protection against acts of interference. The Government adds that: (i) labour relations roundtables provide an opportunity to discuss problems and find solutions and in no way do they restrict trade union activity or prevent bipartite bargaining; (ii) the Government is not engaged in any collective bargaining and it refutes the complainant’s allegations in that regard; and (iii) the Government encourages the inclusion of non-unionized workers in labour relations roundtables in accordance with the legislation in force.
2. 307. In its communication of 27 September 2019, the Government presents its observations on the allegations that the director of Rosales Hospital carried out violation of rights and acts of repression against the SIMEHR trade union and its members, depriving them of their wages, social security, pension funds, social and economic benefits and union dues. In this respect, the Government states that such allegations are false and lack any factual and legal basis. Likewise, with regard to the complainant’s allegations of deplorable and unsafe conditions in Rosales Hospital, including equipment and medicine shortages, while the Government acknowledges that resources are insufficient, it emphasizes that significant improvements have been made under the leadership of Dr Mauricio Ventura, the hospital director, such as, for example, a reduction in waiting times and a lower rate of medical supply shortages.
3. 308. The Government states that the complainant organization’s allegations stem from the fact that the administrative authorities had launched administrative proceedings against staff members of Rosales Hospital for having refused to comply with the institutional regulations imposed on them concerning the clocking in and out of staff by biometric means. The Government states that the financial impact on their wages, their social security and their pension funds is due to the deductions that had to be made when they refused to comply with the requirement to register their attendance at work using a biometric clocking system. The Government states that this refusal led to findings of administrative misconduct that were handled in accordance with due process. The Government specifies that the findings of administrative misconduct also applied to union members, as the trade union guarantees they enjoy are not a shield that exempts them from their responsibilities or from following due process.
4. 309. With regard to the complainant organization's allegations that no headway has been made in the talks with the authorities of MINSAL and the PDDH aimed at establishing a dialogue and negotiation table, and that this has led to increased retaliation against the union's members and its executive committee through various anti-union acts, the Government states that, since the suspension of the meetings with the PDDH, no decision at all has been handed down against the director of Rosales Hospital for arbitrary acts, abuse of authority or unfair deductions. It follows, in the Government's view, that the institution responsible for the protection of labour rights investigated the allegations made by the complainant and found insufficient evidence and the PDDH has not requested further information on these cases either.
5. 310. The Government states that ensuring respect for the rights of users is a priority in El Salvador’s public administration and that, with a view to improving the health services offered to its users, Rosales Hospital has set up its own institutional regulatory framework. The Government also states that the supervisory body that is competent to determine compliance with this regulatory framework is the Court of Auditors of the Republic, which assesses all activities, and if an unlawful wage deduction is detected, the Court will be responsible for ensuring the reimbursement of the money that has been deducted arbitrarily.
6. 311. The Government reiterates once again that the issues at Rosales Hospital arose as a result of the decision by the hospital authorities that, as of July 2014, medical staff would have to register their attendance at work using a biometric system, in accordance with the provisions of section 35 of the regulations setting out the hospital’s specific technical standards for internal oversight.
7. 312. The Government states that it was because of the refusal by several doctors to register their attendance using the biometric system when it was introduced in June 2014 that a decision was taken to apply the relevant deductions to certain unionized doctors. The Government further states that the relevant evidence was submitted to the labour courts and arguments were put forward demonstrating that the doctors’ claims were false, since, according to the documentary evidence submitted to the courts, all the procedures under the institutional regulations had been followed in making the deductions. The Government also provides the numbers of the cases brought before the Civil Service Courts, which contain details of the procedures followed in making the deductions.
8. 313. The Government states that the fact that some staff members at Rosales Hospital failed to apply the provisions of the regulatory framework is demonstrated by the final decision handed down by the Government Ethics Court on 3 October 2018, a copy of which is annexed to its communication. In this decision, 16 doctors were found to be responsible for failing to comply with section 6(d) of the Government Ethics Act, which prohibits the holding of two or more incompatible posts in the public sector.
9. 314. With regard to the allegations concerning the written warnings given to union members, the Government explains that the issuance of such warnings is provided for in section 43 of the Civil Service Act. The Government adds that the power and the competence to issue this type of warning lies with the immediate superiors, as is provided for in the Act, and that such warnings are a tool to prevent anarchy from a work and administrative point of view. The Government also states that only the immediate superior can issue a written warning and that the steps leading to the issuance of the warnings were approved by the Civil Service Court in the corresponding proceedings. Specifically with regard to the disciplinary proceedings initiated by the hospital director against Dr Alcides Gómez Hernández, the general secretary of the SIMEHR union, and the acts of discrimination against him, the Government states that, in this case, a court decision has already been handed down in favour of Rosales Hospital, establishing that the proceedings were lawful and that the relevant institutional regulations were duly applied.
10. 315. With regard to the complainant’s allegations concerning the arbitrary deductions of wages, social security, pension funds and economic and social benefits that were applied to union officials and union members, the Government states that, in the various court cases that have been brought against the director of Rosales Hospital, decisions have been handed down that are favourable to the interests of the institution.
11. 316. With regard to the complainant’s allegations that union leave has not been granted to union members, the Government states that requests for such leave are processed by MINSAL and that the trade unions that have requested such leave have been granted it without any problem. However, the Government states that the SIMEHR has not taken any steps to request such leave and it cannot provide any evidence of a decision rejecting a request for time off for union purposes as it has never made such a request. Furthermore, the Government states that the members of the complainant organization hold their general assemblies on days and at the time of their own choosing and do not request permission from their immediate supervisors to be absent from their workplaces.
12. 317. With regard to the establishment of labour relations roundtables in the context of Rosales Hospital, the Government states that the majority of the hospital’s employees are not members of the SIMEHR, which has a membership of 69 doctors, whereas the hospital has a total of 2,007 public servants. The Government adds that the workers who are not union members have their own mechanism for election to and participation in the establishment of labour relations roundtables. The Government also states that Rosales Hospital is merely a user of the instruction document in question and was not involved in drafting it.
13. 318. With regard to the dismissal action brought by the director of Rosales Hospital against union members and union officials, the Government alleges that all public servants possess the constitutional power to bring legal action when they detect a possible violation and that failure to do so constitutes a breach of that constitutional duty. Therefore, according to the Government, bringing legal proceedings against union members and union officials does not in itself constitute a violation of the labour rights of union members, as, in the Government’s view, trade union membership does not mean that union members are free not to meet their work obligations.
14. 319. With regard to the complainant’s allegation concerning the complaints of manifest injustice filed with the Civil Service Court, the Government states that the Court reported that, in 2013, 2014 and 2015, it received 45 complaints of manifest injustice from doctors working at Rosales Hospital and that the proceedings had been completed, according to a report submitted by the Civil Service Court at the time the Government submitted the present communication.
15. 320. With regard to union members not being paid their wages as from July 2015 because of their participation in the strike, the Government states that the court hearing the case ruled that the deductions were applied to the employees in accordance with the legal provisions and that the administrative process allowing for the non-payment of these wages was carried out in compliance with the guarantees of due process. Accordingly, the court found that the manifest injustice action brought by the union members was without merit.
16. 321. With regard to the dismissal action brought in June 2015 against union officials and union members, the Government states that this action has now been closed and filed, as the First Civil and Commercial Court before which the action was brought found that it had no jurisdiction and the action was dismissed. The Government also states that the fact that the hospital director initiated the dismissal action does not in itself mean that any trade union rights were violated, but rather that the hospital director applied the principle of legality enshrined in article 86 of the Constitution of El Salvador.

C. The Committee’s conclusions

1. 322. The Committee notes that, in the present case, the complainant organization alleges that a series of anti-union acts were committed between 2010 and 2015 by a public hospital against the officials and members of a trade union of doctors, the SIMEHR, before and after a strike was staged in September 2014 demanding the modification of the system for monitoring the attendance of medical staff by means of biometric markers that was introduced in the hospital in June 2014. The Committee notes that the complainant organization also alleges that the instruction document adopted in August 2015, which provides for equal representation between trade union representatives and representatives of non-unionized workers, facilitates interference by the public authorities in the representation of workers and undermines the rights of trade union organizations, including in respect of collective bargaining.
2. 323. The Committee notes that, for its part, the Government states that: (i) the acts against the officials and members of the SIMEHR alleged by the complainant organization are not anti-union in nature but are the result of the failure by some doctors to apply the hospital’s regulations, notably the system for monitoring attendance using biometric markers; (ii) the strike staged in September 2014 was declared unlawful by the courts, which, in accordance with the regulations in force, carried a number of implications for the doctors who took part in it; and (iii) the Ministry of Health’s instruction document of August 2015 creating labour relations roundtables encourages consultation with both the trade unions in the health sector and the representatives of non-unionized workers and therefore does not undermine dialogue with the trade unions.
3. 324. The Committee notes that the complainant organization alleges first of all that, between 2010 and 2013, a series of anti-union acts were carried out against the officials and members of the SIMEHR, including, inter alia: (i) the arbitrary transfer of three doctors who were union officials and of two others who were members of the union; (ii) the issuance of unfounded warnings to Dr Alcides Gómez Hernández, the general secretary of the union, without giving him the opportunity to defend himself; (iii) the dismissal of the head of the intensive care unit and the head of otorhinolaryngology; (iv) the suspension of Dr Guillermo Reyes, a union member, in 2012, for having refused a police search; and (v) the denial of requests for union leave made under the instruction document and to the director of Rosales Hospital in order to enable officials of the SIMEHR to carry out their union activities. With regard to this first set of allegations, the Committee notes that the Government states that: (i) having the status of a trade union official does not constitute a shield that exempts that person from responsibility for any misconduct that they might commit; (ii) the disciplinary proceedings against the general secretary of the trade union were the subject of legal action and concluded with a decision in favour of Rosales Hospital, which found that the disciplinary proceedings were in accordance with the law and that the institutional regulations were duly applied; and (iii) although trade union leave can be requested without any problem under the instruction document, the SIMEHR has not requested such leave, which has not prevented union members from holding assemblies without the permission of their superiors.
4. 325. With regard to the granting of trade union leave to the SIMEHR, the Committee, while noting the differing versions of events given by the parties, takes note of the document provided by the Government containing a notification addressed to the complainant organization, dated 5 February 2016, in which its representatives are invited to a second meeting for the granting of trade union leave. On the basis of the foregoing, the Committee trusts that the SIMEHR is able to enjoy the trade union leave to which it is entitled and it will therefore not pursue the examination of this allegation.
5. 326. With regard to the allegations concerning a series of specific acts that were carried out between 2010 and 2013 against certain officials and members of the SIMEHR, the Committee, while taking due note of the Government’s reply concerning the confirmation by the courts of the lawfulness of the warning issued to the general secretary of the trade union, observes that: (i) neither the reference number nor the text of the above-mentioned court decision has been provided; and (ii) the Government has not provided a response concerning the other specific acts alleged by the complainant organization. Recalling that the Government is responsible for preventing all acts of anti-union discrimination and it must ensure that complaints of anti-union discrimination are examined in the framework of national procedures which should be prompt, impartial and considered as such by the parties concerned [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, para. 1138], the Committee requests the Government to ensure that, from now on, any allegations of anti-union acts in the hospital in question are promptly followed up by effective investigations by the competent authorities so as to guarantee full respect for freedom of association within the hospital.
6. 327. The Committee also notes that the complainant organization also alleges that, due to the opposition of the SIMEHR to the unilateral implementation in June 2014 of a biometric attendance monitoring system and the impossibility of engaging in a constructive dialogue with the hospital management and the Office of the Human Rights Ombudsman, the trade union was forced to carry out a partial work stoppage as from 9 September 2014. The Committee notes that the complainant organization states that the dispute over biometric attendance monitoring led to an escalation of anti-union acts against the SIMEHR, alleging in particular that: (i) union members were subject to a wage deduction of 40 per cent in July 2014; (ii) wage deductions of 100 per cent were imposed in August 2014 and of more than 100 per cent in September and October 2014 and from January to May 2015; (iii) in retaliation for the reduction of work, the hospital director filed criminal complaints against the union’s executive committee and 42 specialist doctors, who are themselves members of the union, as well as complaints before the First Labour Court against 82 specialist doctors; (iv) a total of 21 chief medical specialists, the majority of whom are also members of the union and its executive committee, were suspended from work for one day; (v) the doctors who participated in the work stoppage were harassed by members of the political police on 14, 15 and 16 September 2014, with the aim of intimidating them; and (vi) in June 2015, disciplinary proceedings with threats of dismissal were initiated against union officials and all those who did not obey the orders of the hospital director.
7. 328. The Committee notes that the complainant organization adds that the work stoppage was declared unlawful by a decision of the First Labour Court of 17 September 2014, that the Labour Code provides that the Court’s decision is not open to appeal and that the amparo action brought in this respect before the Supreme Court was pending at the time of submission of the present complaint.
8. 329. The Committee notes that, for its part, the Government states that: (i) the financial impact on wages, social security and pension funds mentioned in the complaint is due to the deductions that had to be applied to staff members who refused to comply with the requirement to register their attendance at work using the biometric clocking system; (ii) this refusal led to findings of administrative misconduct against staff, whether union members or not, which were handled in accordance with due process; (iii) in the different court cases that have been brought against the director of Rosales Hospital with respect to the aforementioned deductions, decisions have been handed down that are favourable to the interests of the institution; (iv) in its final decision of 3 October 2018, the Government Ethics Court found that 16 doctors at the hospital were responsible for failing to comply with the Government Ethics Act, which prohibits the holding of two or more incompatible posts in the public sector; (v) a court heard the case concerning the non-payment of the wages of union members for having participated in the strike and ruled that the deductions were applied to the employees in accordance with the legal provisions and that the administrative process allowing for the non-payment of these wages was carried out in compliance with the guarantees of due process; and (vi) the dismissal action brought in June 2015 against union officials and union members has now been closed and filed, as the First Civil and Commercial Court before which the action was brought declared itself incompetent and the action was dismissed. The Committee takes due note of the information provided by the parties in relation to the dispute arising from the introduction in June 2014 of the biometric monitoring of staff attendance. The Committee wishes to recall first of all that its mandate consists in determining whether any given legislation or practice complies with the principles of freedom of association and collective bargaining laid down in the relevant Conventions [see Compilation, para. 9]. It is therefore not within its competence to examine the merits and suitability of the biometric attendance monitoring system introduced by the hospital, as it is not alleged that such a system had the purpose or effect of infringing freedom of association. Noting, however, that the Government does not object to the allegation that the new attendance monitoring system was introduced unilaterally, the Committee emphasizes that it has recalled the importance of consulting all trade union organizations concerned on matters affecting their interests or those of their members [see Compilation, para. 1521]. The Committee therefore invites the Government to take the necessary steps to establish a framework for constructive dialogue between the trade unions present in the hospital and the hospital management and the Office of the Human Rights Ombudsman on matters affecting their interests or those of their members.
9. 330. With regard to the deductions of wages after the entry into force of the attendance monitoring system and prior to the strike action, while regretting that it has not received the text of the rulings referred to by the Government, the Committee trusts that these rulings have ensured that the deductions have been applied objectively, irrespective of the trade union membership or union activity of the hospital workers.
10. 331. With regard to the partial strike staged from 9 July 2014, the Committee recalls that the right to strike is one of the essential means through which workers and their organizations may promote and defend their economic and social interests [see Compilation, para. 753]. Nevertheless, the Committee recalls that it has considered that the right to strike may be restricted or prohibited: (1) in the public service only for public servants exercising authority in the name of the State; or (2) in essential services in the strict sense of the term (that is, services the interruption of which would endanger the life, personal safety or health of the whole or part of the population) [see Compilation, para. 830] and that, in this regard, it has considered that the hospital sector may be considered to be an essential service [see Compilation, para. 840]. Lastly, the Committee recalls that salary deductions for days of strike give rise to no objection from the point of view of freedom of association principles [see Compilation, para. 942]. With regard to the allegation that court decisions on the lawfulness of a strike cannot be challenged, the Committee notes that the SIMEHR did file an application for amparo before the Constitutional Chamber of the Supreme Court of Justice and trusts that this matter has been resolved promptly and in conformity with the principles of freedom of association.
11. 332. With regard to the complainant organization’s allegations concerning a series of reprisals following the strike action, the Committee notes that the Government states that it stopped pursuing the dismissal actions after the court hearing the case found it had no jurisdiction, and that these cases have been closed and filed. The Committee regrets to note, however, that the Government has not provided its observations on the allegations of criminal proceedings against 42 officials and members of the SIMEHR and the other legal actions mentioned by the complainant organization. While emphasizing the importance of conducting legitimate trade union activities in a peaceful manner, the Committee considers that the criminalization of industrial relations is in no way conducive to harmonious and peaceful industrial relations [see Compilation, para. 974]. On the basis of the foregoing, the Committee trusts that the various criminal and legal actions arising from the strike action mentioned by the complainant organization have been brought to a close. The Committee also invites the Government to take the necessary steps to establish a framework for constructive dialogue between the hospital and the various trade union organizations present in the hospital.
12. 333. Furthermore, the Committee notes that the complainant organization claims that the instruction document violates the principles of freedom of association in that: (i) it encourages acts of interference by supporting the representation of workers who are not members of a trade union and who answer to MINSAL, to the detriment of trade unions; and (ii) it violates the bipartite bargaining process by allowing a majority to be obtained as a result of the participation of elected representatives under employer control, thereby undermining the trade union’s participation in the determination of terms and conditions of employment and in the settlement of disputes through labour relations roundtables. The Committee also notes that the Government, for its part, stated that the instruction document: (i) aims to establish labour relations roundtables, which are forums and mechanisms that encourage dialogue, conciliation and agreement; (ii) is not a formal legislative act, but merely an instrument that provides administrative support; (iii) allows for the participation of all workers in labour relations roundtables, including those who are not members of a trade union organization, in accordance with the legislation in force, without restricting trade union activity; and (iv) does not affect collective bargaining with trade union organizations.
13. 334. The Committee takes due note of these various points. The Committee notes that the above-mentioned instruction document, which was adopted in August 2015, establishes a number of labour relations roundtables at the national, regional and local levels within the public health system of El Salvador, as well as in every public hospital. The Committee notes in particular that: (i) section 5 of the instruction document provides for equal representation in the labour relations roundtables between trade union representatives and (elected) representatives of non-unionized workers; and (ii) section 1 of the instruction document "also governs the procedure for the adoption of agreements and recommendations and the formal conditions for ensuring their validity and effective application", and that section 13 stipulates that "[t]he members of the labour relations roundtables shall try to reach consensus on recommendations and agreements concerning the determination of measures, actions or terms and conditions relating to the performance of work of MINSAL staff". While noting that the parties have not provided comprehensive data on the rate of trade union membership in the public health sector, the Committee further notes that: (i) the instruction document does not provide for or make reference to representativeness mechanisms that would ensure that the number of seats given to the different workers’ representatives at labour relations roundtables is proportionate to the support they have from staff; (ii) the instruction document establishes that the delegates representing non-unionized employees shall be elected by the assembly of non-unionized employees, and therefore it does not provide for a mechanism allowing trade union organizations to try to obtain the votes of non-unionized workers; and (iii) the Government does not mention other platforms through which it negotiates exclusively with trade union organizations in the public health sector or the existence of collective bargaining agreements signed with unions in this sector.
14. 335. The Committee considers that the various points highlighted in the preceding paragraph should be taken into consideration when examining the complainant organization's allegations that the instruction document enables the public authorities to interfere in the representation of workers in the public health sector and undermines bipartite collective bargaining with trade union organizations in the sector. In this regard, the Committee recalls that measures should be taken to encourage and promote the full development and utilization of machinery for voluntary negotiation between employers or employers’ organizations and workers’ organizations, with a view to the regulation of terms and conditions of employment by means of collective agreements [see Compilation, para. 1231]. Noting also that El Salvador has ratified Convention No. 135, the Committee recalls that Article 5 of this Convention provides that "[w]here there exist in the same undertaking both trade union representatives and elected representatives, appropriate measures shall be taken, wherever necessary, to ensure that the existence of elected representatives is not used to undermine the position of the trade unions concerned or their representatives and to encourage co-operation on all relevant matters between the elected representatives and the trade unions concerned and their representatives”. In view of the above, the Committee requests the Government, in consultation with the most representative trade union organizations in the sector, to take the necessary measures to ensure that the instruction document is revised so that dialogue with elected workers’ representatives does not undermine the position of the trade union organizations and is not carried out to the detriment of the collective bargaining processes with these organizations.

The Committee’s recommendations

1. 336. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government to ensure from now on that any allegations of anti-union acts in the hospital in question are promptly followed up by effective investigations by the competent authorities so as to ensure full respect for freedom of association within the hospital.
   • (b) The Committee invites the Government to take the necessary steps to establish a framework for constructive dialogue between the trade unions present in the hospital and the hospital management and the Office of the Human Rights Ombudsman on matters affecting their interests or those of their members.
   • (c) Concerning the wage deductions for non-compliance with the attendance monitoring system, the Committee trusts that the courts have ensured that such deductions are applied objectively, irrespective of the trade union membership or union activity of the hospital workers.
   • (d) The Committee trusts that the amparo action brought by the SIMEHR before the Constitutional Chamber of the Supreme Court of Justice has been resolved promptly and in conformity with the principles of freedom of association.
   • (e) The Committee trusts that the various criminal and legal actions arising from the strike action mentioned by the complainant organization have been brought to a close. The Committee also invites the Government to take the necessary steps to establish a framework for constructive dialogue between the hospital and the trade union organizations present in the hospital.
   • (f) The Committee requests the Government, in consultation with the most representative trade union organizations in the sector, to take the necessary measures to revise the instruction document concerning the establishment and functioning of the labour relations roundtables of the Ministry of Health so that dialogue with elected workers’ representatives does not undermine the position of the trade union organizations and is not carried out to the detriment of the collective bargaining processes with these organizations.
   • (g) The Committee considers that this case does not call for further examination and is closed.