Direct Request (CEACR) - adopted 2016, published 106th ILC session (2017)

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

Article 3 of the Convention. Right of workers’ organizations to organize their activities in full freedom and to formulate their programmes. In its previous comments, the Committee requested the Government to take the necessary measures to amend article 221 of the Constitution of the Republic so as to limit the prohibition of the right to strike in the public service to officials exercising authority in the name of the State and those who perform their duties in essential services in the strict sense of the term, while recalling that it is also possible to restrict the exercise of the right to strike through the establishment of minimum services in public services of fundamental importance. The Committee notes the Government’s indication that up to now it has not been possible to give effect to the requested proposal to amend article 221 of the Constitution, but that efforts will be made to examine the Committee’s request with the relevant parties. The Committee therefore requests the Government to report the initiatives taken to amend article 221 of the Constitution as indicated.

In its previous comments, the Committee requested the Government to take the necessary measures to amend section 529 of the Labour Code to provide that, when a decision is taken to call a strike, only the votes cast are taken into account, and to recognize 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, even in cases where the decision to call the strike has been made by an absolute majority of the workers. The Committee notes the Government’s indication that the draft reform of the Labour Code (file no. 370-11-2015-1), submitted to the National Assembly in November 2015, envisages amending section 529 so that: (i) only 30 per cent of the votes cast by the workers in the enterprise or establishment are required to be able to call a strike; (ii) the right to work of non-strikers is ensured; and (iii) the right of employers and managerial staff to enter the premises of the enterprise or establishment is guaranteed. The Committee welcomes the submission of this draft legislative reform and, recalling that it may have recourse to ILO technical assistance during the discussion of this text, requests the Government to report any progress made in this regard.

Declaring strikes unlawful. In its previous comments, the Committee requested the amendment of section 553(f) of the Labour Code, which 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 in the enterprise or establishment”. The Committee considered this provision to be inconsistent with section 529(3), under which a strike may be called, respecting the right to work of non-striking workers, with the support of 30 per cent of the workers in the enterprise or establishment, and that it excessively restricts the exercise of the right to strike. The Committee notes the Government’s indication that the draft reform of the Labour Code, submitted to the National Assembly in November 2015, envisages the amendment of section 553(e) of the Labour Code to reduce the majority required to call a strike from 50 to 30 per cent of the workers in the enterprise, but does not envisage the amendment of section 553(f). Considering that section 553(f) of the Labour Code appears to be in contradiction with both the wording of the present section 529(2) of the Labour Code, as well as the proposed amendment of section 553(e), and once again observing that this provision amounts to an excessive restriction on the right of workers’ organizations to organize their activities in full freedom and to formulate their programmes, the Committee requests the Government to amend this provision as indicated.