Observation (CEACR) - adopted 2018, published 108th ILC session (2019)

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

The Committee notes the joint observations of the National Business Association (ANEP) and International Organisation of Employers (IOE), received on 11 September 2018, which refer to issues covered by this observation and also allege the existence of a campaign to intimidate ANEP. The Committee requests the Government to send its comments in this regard.

The Committee also notes the observations of the National Confederation of Salvadoran Workers (CNTS), received on 8 June 2018, indicating that the preliminary draft law on the public service will undermine the right to organize and freedom of association in the public sector, which are guaranteed by the Convention. The Committee requests the Government to send its comments in this regard.

The Committee further notes the report of the direct contacts mission, which visited the country from 3 to 7 July 2017, following a request by the Committee on the Application of Labour Standards of the International Labour Conference (hereafter “the Conference Committee”) in June 2016.

Trade union rights and civil liberties. Murder of a trade unionist. With regard to the murder of Mr Victoriano Abel Vega in 2010, the Committee notes the Government’s indication that in March 2018, it requested an updated report from the Attorney General of the Republic, who stated that: (i) the investigation, conducted by the Prosecution Unit Specializing in Organized Crime (UFEDCO), is active and that the Anti-Organized Crime Elite Division of the National Civil Police (DECO) has been working on the case; (ii) at present, there is no concrete material evidence relating to the perpetrator or participation in the events; and (iii) once such evidence has been obtained, the relevant criminal proceedings will be initiated. In the light of this information, the Government indicates that it has sent requests for additional information to UFEDCO and DECO. Observing that the Committee on Freedom of Association has been examining this matter in the context of Case No. 2923 (March 2017, 381st Report), the Committee refers to its recommendations in this regard. While noting the information provided by the Government, the Committee firmly hopes that the Government and the competent authorities will give full effect to the recommendations of the Committee on Freedom of Association so as to determine criminal liability and punish the perpetrators of this crime in the near future.

Article 2 of the Convention. Right of workers, without distinction whatsoever, to establish and to join organizations of their own choosing without previous authorization. Exclusion of some categories of public employees from the guarantees of the Convention. In its previous comments, the Committee requested the Government to take the necessary measures to amend articles 219 and 236 of the Constitution of the Republic and section 73 of the Civil Service Act (LSC), which exclude certain categories of public servants from the right to organize (members of the judiciary, public servants who exercise decision-making authority or are in managerial positions, employees with duties of a highly confidential nature, private secretaries of high-ranking officials, diplomatic representatives, assistants of the Public Prosecutor, or auxiliary agents, assistant prosecutors, labour prosecutors and delegates). The Committee, having noted that the revision of the Constitution requires agreement by two consecutive, ordinary legislative assemblies, requested the Government to report the measures taken for the necessary amendments. The Committee observes that the Government once again: (i) reiterates that the amendment of section 73 of the LSC presupposes the amendment of articles 219 and 236 of the Constitution; (ii) emphasizes that, among other requirements, the revision of the Constitution requires, first of all, the presentation of a proposal by at least ten representatives; and (iii) indicates that, at present, there is no group of ten or more representatives who wish to propose the amendment of articles 219 and 236 of the Constitution. Hoping to be able to observe progress in the near future with respect to the exclusion of categories of public servants from the guarantees of the Convention, the Committee once again requests the Government to take the necessary measures for the amendment of articles 219 and 236 of the Constitution and section 73 of the LSC as indicated.

Articles 2 and 3. Other legislative reforms requested. For several years, the Committee has been requesting the Government to take the necessary measures to amend the following legislative and constitutional provisions:

• -section 204 of the Labour Code, which prohibits membership of more than one trade union, so that workers who have more than one job in different occupations or sectors are able to join trade unions;
• -sections 211 and 212 of the Labour Code (and the corresponding provision of the LSC on unions of public service employees), which establish, respectively, the requirement of a minimum of 35 members to establish a workers’ union and a minimum of seven employers to establish an employers’ organization, so that these requirements do not hinder the establishment of workers’ and employers’ organizations in full freedom;
• -section 219 of the Labour Code, which provides that, in the process of registering the union, the employer shall certify that the founding members are employees, so as to ensure that the list of the applicant union’s members is not communicated to the employer;
• -section 248 of the Labour Code, by eliminating the waiting period of six months required for a new attempt to establish a trade union when its registration has been denied; and
• -article 47(4) of the Constitution of the Republic, section 225 of the Labour Code and section 90 of the LSC, which establish the requirement to be “a national of El Salvador by birth” in order to hold office on the executive committee of a union. The Committee also observes that the Committee on Freedom of Association drew the legislative aspects of Case No. 3117 to this Committee (see 382nd Report of the Committee on Freedom of Association, June 2017, paragraph 314), including the requirement that members of an executive committee must have attained the age of majority, as this imposition constitutes an excessive restriction of the right of the workers freely to elect their representatives.

In this respect, the Committee notes the Government’s indication that: (i) the initiatives to reform the Labour Code presented in 2015 are still under examination in the Legislative Assembly, and (ii) with regard to the amendment of the provision setting out the requirement to be “a national of El Salvador by birth” in order to hold office on the executive committee of a union, this provision is not being examined by the Legislative Assembly. Moreover, the Committee observes that the direct contacts mission expressed an interest in ILO technical assistance by members of the Legislative Assembly, including in relation to the Labour Code reform. Recalling that the competent authorities may avail themselves of ILO technical assistance, the Committee requests the Government to take the necessary measures to bring the above-mentioned provisions into conformity with the Convention and hopes to be able to observe progress in the near future.

Article 3. Freedom and autonomy of workers’ and employers’ organizations to appoint their representatives. Reactivation of the Higher Labour Council and election of representatives in autonomous official institutions. With regard to the reactivation of the Higher Labour Council (hereafter “the Council”), the Committee recalls that the failure to appoint workers’ representatives has paralysed the Council since 2013. The Committee observes the Government’s indication that: (i) on 1 May 2017, the legally registered trade union federations and confederations were asked to present their proposed representatives for the labour sector of the Council; (ii) three proposals were received: one appointing eight representatives and their substitutes, backed by eight federations and one confederation (representing 39 trade unions, 19,107 members and five collective agreements), a second that also appointed eight representatives and their substitutes, presented by 18 federations and two confederations (representing 197 trade unions, 108,779 members and 74 collective agreements) and a third appointing only one person and his substitute (representing 15 trade unions, 4,130 people and three collective agreements); (iii) in view of the conclusions of the Conference Committee, as well as the decision of the Supreme Court of Justice on this matter, the authorities took into account the criteria of membership, collective agreements and the number of trade unions represented by each proposal (as the most universal representativeness criteria) and proceeded to request appointments proportional to the statistics on these criteria: the organizations that presented the first proposal were invited to appoint five representatives and their substitutes; those that presented the second proposal were invited to appoint two representatives and their substitutes; and those that presented the third proposal were invited to appoint one representative and a substitute; (iv) the federations and confederations that presented the first and third proposal put forward their representatives – however, the federations and confederations that presented the second proposal (including the CNTS and those that had presented a complaint on this matter to the Committee on Freedom of Association in 2013 under Case No. 3054) did not put forward a proposed appointment; (v) the employers’ representatives and the Government made their respective appointments; (vi) on 28 June, the employers’ and workers’ representatives were invited to the Office of the Minister of Labour and Social Welfare (President of the Council under its regulations), but only the workers’ representatives came; (vii) in the framework of the direct contacts mission, the members of the three sectors were invited to the inaugural meeting of the Council on 6 July 2018 – however, the employers’ sector did not attend, arguing that it did not agree with the appointment mechanism of the workers’ sector; (viii) although the Government has taken all the initiatives required to reactive the Council, these initiatives have not produced the expected positive results; (ix) in December 2017, the Government asked the ILO for assistance in this regard; (x) as a result of the technical assistance of the Office, various workshops were held in June and July 2018 with the three sectors in order to analyse possible ways to revise the rules of the Council; and (xi) the Government hopes that, as a result of the cooperation under way, consensus on the revision of the rules can be identified in order to address the causes of the inactivity in this tripartite entity. Moreover, the Committee observes that although the direct contacts mission noted the measures indicated by the Government, it also observed that certain social partners questioned the legality of the procedure for the appointment of members and for convening the Council, alleging in particular irregularities in procedure and undue interference by the Government in the determination of the criteria and the final composition of the representatives of the workers’ sector. In this connection, the Committee notes the recommendation of the direct contacts mission, recalling the importance of effective consultation with the confederations and federations concerned for the determination of stable election procedures with precise, objective, and pre-established representativeness criteria, while also recognizing the Government’s responsibility to take measures within its remit to ensure the functioning of the Council. Furthermore, the Committee takes due note of the conclusions of the Conference Committee of June 2018 on the application of the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144), relating to the reactivation of the Council. The Committee firmly hopes that the Government, in consultation with the most representative organizations and with the technical assistance of the Office, will take all the additional measures required for the adoption of precise, objective, and pre-established representativeness criteria for the appointment of the workers’ sector of the Council, with a view to ensuring the full reactivation of this tripartite body as soon as possible. The Committee requests the Government to report any developments in this respect.

With regard to the direct appointment by the President of the Republic of the employers’ representatives to the joint or tripartite bodies of 19 autonomous institutions, following the adoption on 22 August 2012 of 19 legislative decrees, the Committee observes the Government’s indication that: (i) the 19 laws in question were declared unconstitutional on procedural grounds (the urgency of their adoption had not been justified); (ii) as a result, there has been a return to the previous legislative situation and, since there is no new legislative initiative envisaged in this regard, there have been no tripartite consultations on this matter; and (iii) the ruling of unconstitutionality has not affected the existing appointments to the executive committees of the autonomous official institutions concerned, meaning that the previous legislative regime will be applied only when the members of the relevant executive committees are next appointed. Moreover, the Committee observes that, according to the report of the direct contacts mission: (i) on the one hand, representatives of ANEP have continued to report persistent interference by the Government in the appointment proceedings for its representatives and for its members in public institutions, even after the laws in question were declared unconstitutional; and (ii) on the other, the Legal Secretariat of the Cabinet reported that, when modernizing state institutions, due consideration would be given to the explanations provided by the direct contacts mission in relation to ILO standards on respect for the autonomy of employers’ and workers’ organizations in the free election of their representatives, and it invited any organization concerned to come forward with any pending allegations of interference so that the matter may be resolved. The Committee invites the Government, in consultation with the employers’ and workers’ organizations concerned to take all the measures required to ensure, both in law and in practice, full respect for the autonomy of employers’ and workers’ organizations in the appointment of their representatives, including in the public bodies in which they participate, and reminds the Government that it may avail itself of the technical assistance of the Office in this regard.

The Committee is raising other matters in a request addressed directly to the Government.