Direct Request (CEACR) - adopted 2008, published 98th ILC session (2009)

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

The Committee notes the Government’s first report and its reply to the comments of the International Trade Union Confederation (ITUC) of 28 August 2007 and the new comments of the ITUC of 29 August 2008 relating to legislative matters. The ITUC also refers to serious acts of violence against trade unionists, the detention of a trade union leader and the refusal to register a trade union. The Committee requests the Government to provide its observations in this respect.

The Committee also notes the various cases that are under examination by the Committee of Freedom of Association.

Article 2 of the Convention. Right of workers, without distinction whatsoever, to establish and join organizations of their own choosing without previous authorization. Exclusion of numerous public employees from the guarantees of the Convention. The Committee notes that under sections 4 and 73, second paragraph of the Civil Service Act, as amended by Legislative Decree No. 78 of August 2006, many workers in the public sector are excluded from the guarantees afforded by the Convention. Section 4 of the Act refers to public servants who are excluded from an administrative career and therefore from the right to organize, while section 73, second paragraph, refers to workers who do not enjoy the right to organize (public servants covered by articles 219(3) and 236 of the Constitution of the Republic, titularized employees of the Office of the Public Prosecutor and their deputies, those acting as auxiliary staff, labour prosecutors and their substitutes, those engaged in judicial careers and other public servants who are excluded from an administrative career). In this respect, the Committee considers that “given the very broad wording of Article 2 of Convention No. 87, all public servants and officials should have the right to establish occupational organizations, irrespective of whether they are engaged in the state administration at the central, regional or local level, are officials of bodies which provide important public services or are employed in state-owned economic undertakings”. In the case of public servants holding managerial and supervisory positions, the Committee had considered that “to bar these public servants from the right to join trade unions which represent other workers is not necessarily incompatible with freedom of association, but on two conditions, namely that they should be entitled to establish their own organizations, and that the legislation should limit this category to persons exercising senior managerial or policy-making responsibilities” (see General Survey of 1994 on freedom of association and collective bargaining, paragraphs 49 and 57). In this respect, since in accordance with Article 2 of the Convention, all workers, without distinction whatsoever, with the sole possible exception of the armed forces and the police (Article 9 of the Convention) should be able to establish organizations of their own choosing, the Committee requests the Government to take the necessary measures to amend sections 4 and 72, second paragraph, of the Civil Service Act to allow all public servants to establish and join organizations of their own choosing, in accordance with the Convention.

Declaration of unconstitutionality. The Committee also notes that in a ruling of 31 October 2007 the Constitutional Chamber of the Supreme Court of Justice found that the extension of the right of freedom of association to public employees who are not included among those enjoying this right under the Constitution of the Republic is unconstitutional (D.O. 2003 T. 377 of 31 October 2007). The Committee observes that the Government does not refer to this issue in its report. The Committee regrets this decision by the Constitutional Chamber handed down shortly after the ratification of Conventions Nos 87 and 98 and requests the Government to guarantee the application of the Convention to public employees including, if necessary, through the reform of the Constitution.

The Committee notes from the cases under examination by the Committee on Freedom of Association that workers in private security firms do not enjoy the right to establish or join trade union organizations. The Committee considers that, in accordance with Article 2 of the Convention, these workers must also enjoy the right to organize and requests the Government to take the necessary measures in this respect.

Right of workers and employers to establish and join organizations of their own choosing. The Committee notes that section 204 of the Labour Code prohibits membership of more than one trade union. In this respect, the Committee considers that workers who are engaged in different activities in more than one job should be able to join the corresponding unions, and that in any event workers should be able, if they so wish, to join trade unions at the branch level as well as the enterprise level at the same time. The Committee requests the Government to take the necessary measures for this provision to be amended in accordance with this principle.

Right of workers and employers to establish organizations without previous authorization. Minimum membership. The Committee notes that section 211 of the Labour Code and section 76 of the Civil Service Act establish the requirement of 35 workers and section 212 of the Labour Code requires seven employers as a minimum to be able to establish an organization. The Committee notes that in its previous report the Government indicated that the Ministry was working on the establishment of a special commission entrusted with formulating a proposed amendment to the Labour Code in this respect. The Committee considers that the minimum membership should be fixed in a reasonable manner so that the establishment of organizations is not hindered (see General Survey, op. cit., paragraph 81). In this respect, the Committee requests the Government to take the necessary measures to amend section 211 of the Labour Code and section 76 of the Civil Service Act to reduce the minimum number of workers necessary to establish a workers’ organization, for example to 25 members, taking into account the large proportion of small and medium-sized enterprises in the country. Moreover, the Committee requests the Government to take the necessary measures to amend section 212 of the Labour Code in order to reduce the necessary minimum number of members to establish an employers’ organization.

Requirements for the acquisition of legal personality. The Committee notes that under section 219, for trade unions to be legally constituted, within five days of the documentation being submitted to the Ministry of Labour and Social Insurance, the latter shall contact the employer with a view to ascertaining the status of the founder members as employees. The Committee considers that, as this involves the communication of the names of the members to the employer, this provision may give rise to acts of discrimination against workers who wish to establish a union. The Committee requests the Government to take the necessary measures to amend this provision, for example, by establishing that the verification shall be carried out by the Ministry of Labour by checking the list of employees of the enterprise or establishment provided by the employer.

Waiting period for the establishment of a new union. The Committee notes that section 248 provides that “further steps may not be taken to establish another union until six months have elapsed since the previous application”. In this respect, the Committee notes the Government’s indication that the special commission which will formulate proposed amendments to the Labour Code will also be entrusted with the amendment of this section. The Committee considers that once the legal requirements have been fulfilled, unions should be registered and recognized without delay. The Committee hopes that the envisaged reform will abolish the above waiting period.

Article 3. Right of workers’ and employers’ organizations to elect their representatives in full freedom. The Committee notes that article 47(4) of the National Constitution, section 225 of the Labour Code and section 90 of the Civil Service Act establish the requirement to be “a national of El Salvador by birth” to hold office on the executive board of a union. In this respect, the Committee considers that provisions on nationality which are too strict could deprive some workers of the right to elect their representatives in full freedom. In this respect, foreign workers should be allowed to take up trade union office at least after a reasonable period of residence in the host country (see General Survey, op. cit, paragraph 118). The Committee requests the Government to take the necessary measures to amend article 47(4) of the Constitution, section 225 of the Labour Code and section 90 of the Civil Service Act so as to allow the election of foreign workers to trade union office in accordance with the principle indicated above.

Right of organizations to organize their activities in full freedom and to formulate their programmes. The Committee notes that under the terms of section 529 of the Labour Code, strikes shall be decided upon by the absolute majority of the workers in the enterprise or establishment affected by the dispute, in which case the decision shall be binding for all the personnel. In contrast, if it is decided upon by less than the absolute majority, the union and the workers who are active in the dispute shall be under the obligation to respect the freedom to work of those not participating in the strike. In this respect, the Committee considers that if a member State deems it appropriate to establish in its legislation provisions which require a vote by workers before a strike can be held, it should ensure that account is taken only of the votes cast, and that the required quorum and majority are fixed at a reasonable level (see General Survey, op. cit., paragraph 170). Furthermore, even in cases where the strike has been called by the absolute majority of the workers, the principle 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 has to be recognized. The Committee requests the Government to take the necessary measures to amend section 529 so that, when the decision is taken to call a strike, only the votes cast are taken into account and the principle 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 are recognized even in cases in which the strike has been decided upon by the absolute majority of workers.

Declaring strikes unlawful. The Committee notes that section 553(f) of the Labour Code 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”. The Committee observes that, on the one hand, this provision is in contradiction with section 529, second paragraph, which establishes the right to strike of unions representing at least 30 per cent of the workers in the enterprise or establishment and, on the other, places too great a restriction on the exercise of the right to strike. The Committee considers that section 553(f) should be amended or repealed.

Purposes of the strike. The Committee notes that, under section 528 of the Labour Code, strikes may only be called for the following purposes: the conclusion or revision of the collective labour agreement; the conclusion or revision of the collective labour agreement and the defence of the common occupational interests of workers. In this respect, the Committee considers that organizations responsible for defending workers’ socio-economic and occupational interests should, in principle, be able to use strike action to support their position in the search for solutions to problems posed by major social and economic policy trends which have a direct impact on their members and on workers on general, in particular as regards employment, social protection and the standard of living (see General Survey, op. cit., paragraph 165). The Committee requests the Government to indicate whether workers and their organizations may have recourse to strike action as a means of protection against the Government’s economic and social policy.

Essential services. The Committee notes that section 553(a) of the Labour Code provides that strikes shall be declared illegal when they are called in an essential service and that section 515 (respecting compulsory arbitration) indicates that essential services are considered to be those the interruption of which would endanger or threaten to endanger the life, personal safety or health or the normal conditions of existence of the whole or part of the population. The Committee, however, observes that there is no reference in the Labour Code indicating which specific services are considered essential. The Committee requests the Government to indicate the services that are considered essential, who determines such services and what are considered to be “normal conditions of existence”.

Minimum service. The Committee notes that section 532 of the Labour Code provides that within seven days of the commencement of a strike, the Director-General of Labour, at the request of one of the parties, “and after notification of the union that has called the strike”, shall determine the number, category and names of the workers who shall remain in the enterprise for the performance of work the suspension of which may seriously prejudice or render impossible the normal recommencement of work or affect the security or conservation of the enterprises or establishments. In this respect, the Committee considers that, since minimum services restrict one of the essential means of pressure available to workers to defend their economic and social interests, their organizations should be able, if they so wish, to participate in defining such a service, along with employers and the public authorities (see General Survey, op. cit, paragraph 161). In this respect, the Committee requests the Government to indicate: (1) whether the notification of the union which called the strike is for the purpose of its participation in the determination of minimum services; and (2) whether the administrative decision determining minimum services is subject to judicial appeal through which a rapid ruling can be obtained.

Public servants. The Committee notes that article 221 of the Constitution prohibits strikes by public and municipal employees. In this respect, the Committee considers that the prohibition of the right to strike in the public service should be limited to public servants exercising authority in the name of the State (see General Survey, op. cit., paragraph 151). The Committee requests the Government to take the necessary measures to amend article 221 of the Constitution so that strikes are possible in the public sector, with the sole possible exception of public servants exercising authority in the name of the State.

Article 6. Right of workers’ and employers’ organizations to establish federations and confederations. The Committee notes that section 259 of the Labour Code provides for the participation, of delegates of the Ministry of Labour and Social Insurance or of the public notary, in the constituent assembly of a federation or confederation to draw up the report indicating all the decisions taken. The Committee notes that, according to the Government, this provision refers to a specific procedure for federations and confederations, which differs from that for unions. In this respect, the Committee requests the Government to consider the amendment of the legislation for the purpose of making the presence of the public notary or the delegate of the ministry optional for the trade union organization.

Public sector. The Committee notes that the Civil Service Act does not contain provisions respecting the establishment of federations or confederations in this sector. In this regard, the Committee requests the Government to indicate whether unions of public employees may establish federations and confederations and, if so, whether they are able to group together in central organizations which also cover private sector workers.

The Committee requests the Government to provide information on all the measures adopted in relation to each of the matters raised above.