Direct Request (CEACR) - adopted 2009, published 99th ILC session (2010)

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - El Salvador (Ratification: 2006)

The Committee notes the comments of 26 August 2009 by the International Trade Union Confederation (ITUC) referring to the denial of the right to collective bargaining in export processing zones, breach of collective agreements and freedom of association in a union in the fishing sector, dismissal of the founding members of a transport union and dismissals of members of municipal unions. The Committee requests the Government to send its observations in reply to the ITUC’s latest comments as well as its comments of 29 August 2008.

The Committee also notes several cases under examination by the Committee on Freedom of Association that concern issues relating to the application of the Convention.

Article 2 of the Convention. Protection against acts of interference. In its previous comments, the Committee asked the Government to adopt appropriate legislative measures to ensure effective protection against acts of interference. It notes that in its report the Government states that section 205 of the Labour Code contains an express prohibition against interference since it prohibits any person from: (a) exerting pressure on another to join or leave a union, except in the event of expulsion on grounds already established in the by-laws; (b) preventing the person concerned from joining in the establishment of a trade union or exerting pressure on someone to do so; (c) discriminating between workers on grounds of their trade union activities or taking reprisals against them on the same grounds; (d) engaging in actions the purpose of which is to prevent the establishment of a trade union or that lead to its dissolution or its submission to control by the employer; and (e) engaging in any action against the legitimate exercise of the right to join an occupational association. The Government indicates that the prohibition on any “person” covers both natural and legal persons. The Government adds that the Penal Code, in Title IX “Offences against the social and economic order”, Chapter IV “Offences against rights at work and the right of association”, provides in section 247, which is about coercion to the exercise of freedom of association or the right to strike, provides that: “Anyone who brings pressure to bear on another person to prevent or limit that person’s exercise of freedom of association or right to engage in a strike or work stoppage shall be punished with a penalty of imprisonment ranging from one to three years. The same penalty shall apply to persons acting together to coerce others to initiate or pursue a strike, or stoppage or suspension of work.” The Committee notes that the Government also states that the labour legislation is to undergo revision and that the matter will be discussed in that process. The Committee is of the view that, in order properly to guarantee protection against acts of interference, a provision should be adopted expressly prohibiting any acts which are designed to promote the establishment of workers’ organizations under the domination of employers or employers’ organizations, or to support workers’ organizations by financial or other means, with the object of placing such organizations under the control of employers or employers’ organizations. The Committee asks the Government to take the necessary steps, in the context of the process to revise labour law, to provide in the legislation for appropriate and full protection against acts of interference, accompanied by sufficiently dissuasive sanctions.

Article 4. Collective bargaining. In its previous comments, the Committee noted that, under sections 270 of the Labour Code (concerning the conclusion of the first collective agreement in an enterprise or establishment) and 106 and 123 of the Civil Service Act, a trade union must have as members no less than 50 per cent of the workers of the enterprise, establishment or institution, in order to be able to initiate the collective agreement or to bargain collectively. It asked the Government to take the necessary steps to amend sections 270 of the Labour Code and 106 and 123 of the Civil Service Act so that when there is no union that covers more than 50 per cent of the workers, all the unions are granted the right to bargain collectively, at least on behalf of their own members. The Committee notes the Government’s statement that it will report on any progress made in this connection. It hopes that as part of the planned labour law revision, the Government will take the necessary steps to amend sections 270 of the Labour Code and 106 and 123 of the Civil Service Act to ensure that where no union covers more than 50 per cent of the workers, all unions are given the right to bargain collectively, at least on behalf of their own members.

Revision of the collective agreement. In its previous comments, the Committee noted that section 276, third paragraph, of the Labour Code provides that “if the economic conditions in the country or enterprise should change significantly, either party may request the revision of the collective labour agreement, provided that the agreement has been in force for at least one year” and asked the Government to indicate whether this provision entails the obligation to renegotiate the collective agreement in the circumstances described at the request of the one of the parties. The Committee notes the Government’s statement that, although the term renegotiation is not mentioned in this provision, the revision in question amounts to renegotiation. The Committee recalls in this connection that to impose by law the renegotiation of existing agreements is in principle contrary to the principles of free collective bargaining laid down in the Convention. In these circumstances, the Committee requests the Government to take the necessary steps to amend section 276, third paragraph, of the Labour Code, in order to ensure that the renegotiation of existing collective agreements shall be possible only at the request of the parties concerned.

Registration of collective agreements. In its previous comments, the Committee noted that section 279 of the Labour Code provides that a decision by the Director-General of Labour to deny registration of a collective agreement is not open to judicial review and that section 112 of the Civil Service Act contains no provisions on the subject, and asked the Government to take the necessary steps to provide by law for appeal to the judicial authority against such a decision by the Director-General of Labour. The Committee notes in this connection the Government’s statement that, in the ban on challenging the Director-General’s decision in section 279 refers only to administrative channels, meaning that administrative remedies have been exhausted and judicial channels of appeal are open. The Committee is of the view that, in order to avoid any confusion, it would be advisable to amend section 279 to make it plain that the Director-General’s decision may be challenged before the judicial authority. It asks the Government to provide information on any measures taken to this end.

Approval of collective agreements concluded with a public institution. In its previous comments, the Committee noted that, under sections 287 of the Labour Code and 119 of the Civil Service Act, in order to be valid, collective agreements require the approval of the relevant ministry and the prior opinion of the Ministry of Finance. The Committee asked the Government to provide information on the effect given to this provision in practice. It notes the Government’s statement that the Ministry of Finance is involved because it is responsible for the administration of public funds. The Government further indicates that there is no intent to offend against the principle of free and voluntary bargaining, but merely to ensure compliance with what was agreed by the parties that negotiated the collective agreement, to avoid the State being confronted with a financial imbalance jeopardizing fulfilment of the agreement. The Committee recalls in this connection that a requirement for ministerial approval in order for a collective agreement to take effect is not fully consistent with the principles of voluntary bargaining laid down in the Convention. The Committee nonetheless points out that, while the principle of autonomy of the parties to collective bargaining is valid as regards public servants covered by the Convention, the special characteristics of the public service require some flexibility in its application. Thus, in the view of the Committee, legislative provisions which allow Parliament or the competent budgetary authority to set upper and lower limits for wage negotiations or to establish an overall “budgetary package” within which the parties may negotiate monetary or standard-setting clauses (for example: reduction of working hours or other arrangements, varying wage increases according to levels of remuneration, fixing a timetable for readjustment provisions) or those which give the financial authorities the right to participate in collective bargaining alongside the direct employer are compatible with the Convention, provided they leave a significant role to collective bargaining. It is essential, however, that workers and their organizations be able to participate fully and meaningfully in designing this overall bargaining framework, which implies in particular that they must have access to all the financial, budgetary and other data enabling them to assess the situation on the basis of the facts (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 263). The Committee requests the Government to take the necessary steps to amend section 287 of the Labour Code and section 119 of the Civil Service Act so as to abolish the requirement for prior ministerial approval in order for collective agreements to take effect. It asks the Government to provide information on any measures taken in this regard.

Purpose of the bargaining. The Committee noted in its previous comments that, under section 108 of the Civil Service Act, collective bargaining shall cover both salary matters and matters relating to conditions of work, and asked the Government to indicate whether any provision allows for collective bargaining relating to facilities for trade unions. The Committee notes in this connection the Government’s statement that, while it is true that there is no express provision on this matter, it is also true that there is no express prohibition, that section 108 provides that collective bargaining shall include all the components of a public servant’s employment relationship, whether pertaining to wage content or to other conditions of work, and that this wording covers conditions not expressly referred to in the Act. The Government adds that, for bargaining with unions of public servants, it has granted facilities to unions of public institutions, and cites as examples the Salvadorean Social Security Institute (ISS), the National Administration of Water and Sewer Systems (ANDA) and the Río Lempa Hydroelectric Executive Committee (CEL).

Article 6. Exclusion of certain public employees from the guarantees of the Convention. In its previous comments, the Committee noted that, under section 4(1) of the Civil Service Act, as amended by Legislative Decree No. 78 of August 2006, numerous public sector workers are excluded from the administrative career and hence from the guarantees of the Convention (collectors, treasurers, cashiers, administrators, warehouse security staff, warehouse personnel and auditors in any public institution department), and asked the Government to take the necessary steps to ensure that workers not engaged in the administration of the State enjoy the guarantees provided for in the Convention. The Committee welcomes the Government’s statement that it will report on any progress made in this area. It recalls in this connection that the only exceptions that may be allowed to the guarantees laid down in the Convention concern the armed forces, the police, and public servants engaged in the administration of the State (Articles 5 and 6). The Committee requests the Government to take the necessary steps, in the process of revising the legislation, to amend section 4(1) of the Civil Service Act so as to enable all public servants who are not engaged in the administration of the State to enjoy the guarantees laid down in the Convention.

Declaration of unconstitutionality. The Committee recalls that in its previous comments it noted that, in a decision of 31 October 2007, the Constitutional Chamber of the Supreme Court of Justice found that the extension of the right to freedom of association to public employees (by virtue of the ratification of this Convention) who are not included among the holders of that right defined in the Constitution of the Republic, was unconstitutional (D.O. 203 T. 377 of 31 October 2007). The Committee notes the Government’s statement that Legislative Decree No. 33 of 27 May 2009 has amended article 47 of the National Constitution by extending the right to organize to public employees, which is an unprecedented step forward in the universal recognition of the trade union freedoms laid down in the Convention (see in this connection the comments under Convention No. 87).

Right to collective bargaining of teachers. In its previous comments, the Committee noted that section 2 of the Civil Service Act provides that, due to the nature of their duties, members of the teaching profession are governed by a special act, without prejudice to the social rights laid down in the Civil Service Act, which shall apply to them. Taking into account that the Teaching Career Act contains no specific provisions on this matter, it asks the Government to indicate whether, under section 2 of the Civil Service Act, members of the teaching profession enjoy the right to collective bargaining. The Committee notes in this connection that, according to the Government, although the nature of their duties means that they are governed by a special act, this does not mean that teachers are excluded from the right to collective bargaining pursuant to the last paragraph of section 2 which says “without prejudice to the social rights contained in this Act”, which means that, in addition to the right to association, they also enjoy the right to collective bargaining. The Committee takes due note of this information and requests the Government to give the date of the most recent collective agreements concluded with teachers in the public sector.