Observation (CEACR) - adopted 2014, published 104th ILC session (2015)

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

The Committee notes the observations of the International Trade Union Confederation (ITUC), received on 1 September 2014, referring to matters examined by the Committee, and containing a serious of allegations of acts of anti-union discrimination in municipal authorities and the private sector. The Committee requests the Government to provide its comments on this subject.

Article 1 of the Convention. Protection against anti-union discrimination. The Committee notes that the Government reports the submission on 21 January 2014 of the preliminary draft Bill to regulate labour and social welfare in which acts of anti-union discrimination are classified as very serious offences which may give rise to penalties of between one and ten monthly minimum wages. Recalling the importance of the fines imposed in the event of acts of anti-union discrimination being of a dissuasive nature in practice, the Committee requests the Government to continue taking the necessary measures to amend the legislation in line with the principle set out above, by further strengthening the penalties applicable in such cases, and to report any developments in this respect.

The Committee notes the information provided by the Government on the initiatives taken to strengthen protection against anti-union discrimination in the public service, and is examining this information in its comments on the Labour Relations (Public Service) Convention, 1978 (No. 151).

Article 2. Protection against acts of interference. The Committee recalls the need, as indicated in its previous comments, to supplement section 205 of the Labour Code and section 247 of the Penal Code so that the legislation explicitly prohibits all acts intended to promote the establishment of workers’ organizations under the domination of an employer or an employer’s organization, or to support workers’ organizations by financial or other means, with the object of placing such organizations under the control of an employer or an employers’ organization. Noting that the Government’s report does not refer to specific initiatives in this respect, the Committee reiterates its previous comments and requests the Government to provide information on any developments in this regard.

Article 4. Promotion of collective bargaining. Legislative issues that have been pending for several years. The Committee recalls that, for several years, it has been commenting on certain provisions of domestic law with a view to bringing them into full conformity with Article 4 of the Convention in relation to the promotion of collective bargaining:

• – requirements to be able to negotiate a collective agreement. While again noting the Government’s indication that two trade unions in the same enterprise may unite to achieve the minimum percentage for representation of over 50 per cent to be able to engage in collective bargaining, the Committee once again requests the Government to amend sections 270 and 271 of the Labour Code and sections 106 and 123 of the Civil Service Act (LSC) so that, when no union covers more than 50 per cent of the workers, the right to collective bargaining is explicitly granted to all unions, at least on behalf of their own members;
• – revision of collective agreements. While noting the Government’s indication that the revision of a collective agreement would be considered as the renegotiation of an agreement that is in force, the Committee once again requests the Government to amend section 276(3) of the Labour Code to ensure that the renegotiation of existing collective agreements while they are still in force is only possible at the request of both parties concerned;
• – judicial remedies in the event of the denial of the registration of a collective agreement. While noting the Government’s indication that section 279 of the Labour Code only excludes administrative remedies, the Committee requests the Government to amend that section to explicitly provide that a decision by the Director-General not to register a collective agreement may be challenged before the judicial authorities;
• – approval of collective agreements concluded with a public institution. While noting the current reforms to expedite ministerial approval, the Committee once again requests the Government, with regard to clauses in collective agreements with financial implications, to amend section 287 of the Labour Code and section 119 of the LSC to replace the requirement for prior ministerial approval for collective agreements with a public institution by a provision envisaging the participation of the financial authorities during the process of collective bargaining, and not when the collective agreement has already been concluded.

The Committee once again trusts that the Government will take the necessary measures in the near future, in consultation with the most representative workers’ and employers’ organizations, to amend the legislative provisions referred to above as indicated. The Committee reminds the Government that it may request technical assistance from the Office.

Article 6. Exclusion of certain public employees from the guarantees afforded by the Convention. In its previous comments, the Committee requested the Government to amend section 4(1) of the LSC so that all public officials who are not engaged in the administration of the State enjoy the guarantees provided for in the Convention. The Committee notes that the Government reports the submission on 24 May 2011 of a preliminary draft amendment to the LSC, including the amendment of section 4 and the reduction of the categories of public officials excluded from the civil service regime. The Committee trusts that the amendment of the LSC will be adopted in the near future and will ensure that all public officials who are not engaged in the administration of the State enjoy the guarantees afforded by the Convention. The Committee requests the Government to report any developments in this respect.

Application of the Convention in practice. The Committee welcomes the information provided by the Government concerning the registration of seven collective agreements in the public sector (including the Ministry of Finance). The Committee also once again notes the Government’s indication that, although teachers in the public sector enjoy the right to collective bargaining, up to now no collective agreements have been concluded, and bargaining has not been commenced with this category of workers. The Committee therefore once again requests the Government to promote collective bargaining by public teachers and to report any developments in this regard. In general, the Committee requests the Government to continue providing information on the measures adopted to promote collective bargaining in the various sectors of the country (number of collective agreements in force, number of workers covered, etc.).