Observation (CEACR) - adopted 2020, published 109th ILC session (2021)

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

The Committee notes the observations of the National Business Association (ANEP), supported by the International Organisation of Employers (IOE), received on 13 October 2020 (which also refer to the Right to Organise and Collective Bargaining Convention, 1949 (No. 98) and which the Committee is addressing here with regard to the present Convention), which report that the President of the Republic and other higher Governmental bodies have failed to recognize, slandered and intimidated the new President of ANEP, who was elected on 29 April 2020, preventing dialogue between public servants and ANEP or its President, thereby publicly denigrating the most representative employers’ organization and fuelling rejection of its President by the public, in violation of the Convention and the most fundamental civil liberties. The Committee expresses its concern at these serious allegations and requests the Government to provide its comments on the matter.

The Committee also notes that the Committee on Freedom of Association referred the legislative aspects of Case No. 3321 to this Committee, trusting that the Government would take the measures necessary to ensure full respect of the right to organize of prison staff (see 392nd Report, October 2020). Recalling its request that the necessary measures be taken in order to recognize the right to organize of State employees, with the sole possible exception of the armed forces and the police (see the legislative reforms pending below), the Committee requests the Government to keep it informed of any developments in this respect.

As regards the other pending issues, the Committee reiterates the content of its comments adopted in 2019, reproduced as follows.

The Committee notes the Government’s replies to the previous observations of ANEP and the IOE, as well as of the National Confederation of Salvadoran Workers (CNTS).

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 that the Government emphasizes the need to accelerate the investigation and punish the perpetrators, and it details the steps it is taking periodically to request updated reports from the Attorney-General of the Republic, with the most solid line of investigation being that the murder was committed mistakenly by a group of gang members. The Committee notes that the details provided by the Government on the investigation process have already been examined by the Committee on Freedom of Association and that recent updates show that the case is still under investigation. The Committee therefore refers once again to the recommendations of the Committee on Freedom of Association in Case No. 2923 (see 388th Report, March 2019).

Article 3. Freedom and autonomy of workers’ and employers’ organizations to appoint their representatives. Reactivation of the Higher Labour Council. The Committee notes with interest that, according to the Government, the Higher Labour Council, after having been inactive since 2013, was set up as of 16 September 2019. In this connection, the Committee refers to its comments on the application of the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144).

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

• -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);
• -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;
• -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 have attained the age of majority and to be a national of El Salvador by birth in order to hold office on the executive committee of a union, which are excessive restrictions of the right of the workers freely to elect their representatives;
• -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);
• -section 529 of the Labour Code so that when a decision is taken to call a strike, only the votes cast are taken into account, and also that the principle is recognized 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 where the strike has been decided upon by an absolute majority of the workers; and
• -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 of the enterprise or establishment,” which is inconsistent with section 529(3) of the Labour Code and which restricts excessively the right of workers’ organizations to organize their activities in full freedom and to formulate their programmes.

In this respect, the Committee notes that the Government duly notes the above-mentioned recommendations, indicates that consideration could not be given to proposals for reform owing to the inactivity of the Higher Labour Council over six years, and states that, with the reactivation of the latter, these, and other proposals for labour legislation reform, will be submitted to it. The Committee duly notes that, as specified by the Government, ILO technical assistance has been requested in this regard. Hoping to be able to note progress in the near future on these long pending legislative reform matters, the Committee urges the Government, following tripartite consultation, to take the necessary measures to ensure conformity of the above provisions with the Convention.