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

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Observation (CEACR) - adopted 2019, published 109th ILC session (2021)

The Committee notes the Government’s replies to the previous observations of the International Trade Union Confederation (ITUC).

Article 1 of the Convention. Adequate protection against anti union discrimination. In its previous comments, the Committee emphasized the importance of reforming penalties against anti-union discrimination in order to ensure their dissuasive effect. The Committee notes that the Government: (i) states that the fines that can be imposed for violations of labour standards (such as anti-union discrimination) are very low (up to US$57.14 per violation), even compared with the penalty system on risk prevention in the workplace (which ranges from 4 to 28 minimum wages); and (ii) reports that, although proposals for reforms to increase the amount of fines related to labour standards have been presented since 2014, the Legislative Assembly has not yet issued an opinion. Regretting the lack of progress in this regard and reiterating the importance of the fines imposed in the event of anti-union discrimination being of a dissuasive nature, the Committee requests the Government, following tripartite consultation, to take effective measures to establish a dissuasive penalty system, and firmly hopes to be able to note progress in the near future.

Furthermore, in its previous observation, the Committee highlighted that the fact that the staff of the municipal authorities is not covered by the Labour Code does not free the Government of its responsibility to guarantee this category of workers adequate protection against anti-union discrimination. The Committee notes that the Government once again provides information on the existing legal framework, indicating that currently the staff of the municipal authorities can submit complaints to the Counsel General’s Office and Office of the Human Rights Advocate and Attorney General’s Office; reiterating that Ministry of Labour and Social Welfare should refrain from carrying out inspections among the municipal authorities (with the exception of inspections relating to the General Act concerning occupational hazard prevention); and noting the need to amend the applicable legislation. In this respect, the Committee notes that the Committee on Freedom of Association requested the Government, in consultation with the social partners from the sector, to take the necessary steps, including legislative measures if necessary, to ensure that the workers in the municipal authorities have access to adequate protection mechanisms against acts of anti union discrimination (see case No. 3284, report No. 389, in which the Committee on Freedom of Association referred the legislative aspects of the case to the present Committee). Recalling its previous comments within the framework of the application of the present Convention and the Labour Relations (Public Service) Convention, 1978 (No. 151) on the need to introduce legislative reforms to ensure that all public workers covered by those Conventions enjoy adequate protection against anti-union discrimination, the Committee requests the Government to, in consultation with the social partners from the sector, revise the legal framework to ensure that the workers in the municipal authorities have access to adequate protection against acts of anti union discrimination, and to keep it informed of any developments in this regard.

Articles 2, 4 and 6. Legislative issues pending for several years. The Committee recalls that for several years it has been making comments on certain provisions of domestic law with the aim of bringing them into conformity with Articles 2, 4 and 6 of the Convention:

– acts of interference: section 205 of the Labour Code and 247 of the Penal Code so that the legislation explicitly prohibits all acts of interference under the terms prescribed by Article 2 of the Convention;
– requirements to be able to negotiate a collective agreement: sections 270 and 271 of the Labour Code and sections 106 and 123 of the Civil Service Act 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: section 276(3) of the Labour Code to ensure that the renegotiation of 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: section 279 of the Labour Code to specify that judicial remedies are applicable against decisions of the Director-General not to register a collective agreement;
– approval of collective agreements concluded with a public institution: section 287 of the Labour Code and 119 of the Civil Service Act, which regulate collective agreements concluded with a public institution, to replace the requirement for prior ministerial approval 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;
– exclusion of certain public employees: section 4(1) of the Civil Service Act 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 the Government’s indication that it plans to address these recommendations in the Higher Labour Council, which has recently been reactivated, and requests the technical assistance of the Office in this regard. Hoping to be able to note progress in the near future and noting that the Government requests the technical assistance of the Office, the Committee urges the Government to, with prior tripartite consultation, take the necessary steps to ensure conformity of the above provisions with the Convention.

Application of the Convention in practice. The Committee notes the information provided by the Government on the state of collective bargaining in the country, indicating that: (i) there are a total of 175 registered collective agreements, 133 of which are in force; and (ii) a total of 81,487 workers are covered by collective bargaining. Taking due note of this information, the Committee requests the Government to continue providing information on the number of collective agreements signed and in force, the sectors concerned (detailing the agreements of the public sector and of the education system) and the number of workers covered by those agreements, as well as on any measures adopted to promote the full development and use of collective agreements under the Convention.

Observation (CEACR) - adopted 2017, published 107th ILC session (2018)

The Committee notes the Government’s comments in response to the observations of the International Trade Union Confederation (ITUC) received in 2014 and 2016. In relation to the allegations of anti-union discrimination against staff of the municipal authorities, the Committee notes the Government’s statement that no investigations are conducted by the Ministry of Labour and Social Security, since the Labour Code does not apply to this category of public servants. The Government also states that the national jurisprudence has established that the Ministry of Labour should refrain from carrying out inspections into violations of labour rights among the municipal authorities as they do not have the competence in this regard. Lastly, the Government indicates that it has planned to meet with the municipal authorities to inform them of the complaints before the ILO and to initiate a dialogue process with a view to protecting the rights of affiliated workers. While noting the actions envisaged by the Government, the Committee highlights that the fact that the staff of the municipal authorities is not covered by the Labour Code does not free the Government of its responsibility to guarantee this category of workers adequate protection against anti-union discrimination. Recalling its previous comments in the framework of the application of this Convention and the Labour Relations (Public Service) Convention, 1978 (No. 151) on the need to reform the Civil Service Act to ensure that all public employees covered by these Conventions enjoy adequate protection against anti-union discrimination, the Committee requests the Government to take, in the near future, all necessary measures to ensure that, first, investigations are conducted by the competent authorities into the allegations of anti-union discrimination reported by the ITUC and, where necessary, effective penalties are imposed and, second, the legal framework is revised as indicated. The Committee requests the Government to provide information in this regard. It requests the Government to send its comments on the allegations of anti-union discrimination in the aviation civil service and in an enterprise of the bakery sector.

Article 1 of the Convention. Adequate protection against anti-union discrimination. The Committee notes the Government’s indication that the bill on the new system of fines has not been adopted. Recalling the importance of the fines imposed in the event of anti-union discrimination being of a dissuasive nature, the Committee requests the Government to take effective measures to establish a dissuasive penalty system and expects that it will soon be able to adopt the reforms envisaged in this regard.

Articles 2, 4 and 6. Legislative issues pending for several years. The Committee recalls that for several years it has been making comments on certain provisions of domestic law with the aim of bringing those into conformity with Articles 2, 4 and 6 of the Convention:

-acts of interference: section 205 of the Labour Code and section 247 of the Penal Code so that the legislation explicitly prohibits all acts of interference under the terms prescribed by Article 2 of the Convention;
-requirements to be able to negotiate a collective agreement: sections 270 and 271 of the Labour Code and sections 106 and 123 of the Civil Service Act 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: section 276(3) of the Labour Code to ensure that the renegotiation of 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: section 279 of the Labour Code to specify that judicial remedies are applicable against decisions of the Director-General not to register a collective agreement;
-approval of collective agreements concluded with a public institution: section 287 of the Labour Code and section 119 of the Civil Service Act, which regulate collective agreements concluded with a public institution, to replace the requirement for prior ministerial approval 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;
-exclusion of certain public employees: section 4(1) of the Civil Service Act 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 firstly that the Government refers to the adoption of legislative Decree No. 10 of 2009 which sets forth that all those employees who entered the public administration before 31 January 2009 will receive permanent contracts. The Committee requests the Government to provide further details on the effects of the adoption of the above legislative Decree on the application of the Convention. The Committee notes secondly the Government’s indication that, following an analysis of the labour reforms prepared within the framework of the strategic plan of the Ministry of Labour and Social Security 2014–19, a ministerial commission has been established for the presentation of the reforms to the Legislative Assembly. The Committee hopes that the Government, following consultation with the most representative workers’ and employers’ organizations, will present to the Legislative Assembly, in the near future, the bills on the reforms of the legislative provisions contained in the Labour Code, the Penal Code and the Civil Service Act which have been the subject of its comments for several years. The Committee requests the Government to provide information on any progress in this regard and emphasizes that it could consider the possibility of including these issues in the framework of the technical assistance it had requested as a follow-up to the direct contacts mission regarding the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144).

Application of the Convention in practice. The Committee notes the Government’s information that no collective labour agreements have been concluded with teachers in the public sector and that between 2009 and March 2016, the Ministry of Labour and Social Security registered 43 collective labour agreements, 39 of which are from the private sector and four from the public sector. The Committee notes with concern that the number of collective agreements referred to is very low, particularly when taking into account that, in practice, collective bargaining is carried out in the country at enterprise level. The Committee requests the Government to take measures to promote collective bargaining in all sectors covered by the Convention, including in public education, and to provide information in this respect indicating any proposed collective bargaining agreement in the public education not concluded and the reasons for such results. The Committee also requests the Government to continue providing information on the number of collective agreements signed, the sectors concerned and the numbers of workers covered by those.

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

The Committee notes the observations of the International Trade Union Confederation (ITUC), received on 1 September 2014 and 31 August 2016, 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.

The Committee notes that the Government’s report has not been received. It is therefore bound to repeat its previous comments.

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.).

The Committee hopes that the Government will make every effort to take the necessary action in the near future.

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

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.

– 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.

Observation (CEACR) - adopted 2013, published 103rd ILC session (2014)

The Committee notes the comments of the International Trade Union Confederation (ITUC) of 2013 on matters already dealt with by the Committee. Moreover, the Committee notes the comments of the National Association of Private Enterprises (ANEP) of 2012 regarding Cases Nos 2930 and 2980 examined by the Committee on Freedom of Association and related to the Government’s interferences in the composition and appointment of workers and employers representatives in tripartite social dialogue bodies. The Committee shares the conclusions of the Committee on Freedom of Association and asks the Government to refrain from any interference in the future.

The Committee notes that the Government’s report has not been received. It must therefore repeat its previous observation.

Article 2 of the Convention. Protection against acts of interference. In its previous comments the Committee noted that section 205 of the Labour Code and section 247 of the Penal Code provide for protection against certain acts of interference and asked the Government to take the necessary steps, in the context of the process to revise labour law, to provide explicitly in the legislation for a prohibition on all acts of interference referred to in Article 2 of the Convention, in particular 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 the employers or employers’ organizations. The Committee requests the Government to take the necessary measures, in the context of the process to revise labour standards as mentioned in its previous report, to complete the existing provisions providing protection against acts of interference, together with penalties that constitute 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 engage in collective bargaining. It asked the Government to take the necessary measures to amend the abovementioned sections to ensure that when there is no union that covers more than 50 per cent of the workers, all the unions are granted the right to engage in collective bargaining, at least on behalf of their own members. The Committee notes the Government’s indication that section 270 of the Labour Code and also sections 106 and 123 of the Civil Service Act are not being reformed and that it will send notification of any changes in this respect. The Committee also notes that the Government adds that section 271(2) of the Labour Code provides that if two or more trade unions have members in the same enterprise or establishment but neither of them has at least 51 per cent of the total number of workers, either of the enterprise or of the establishment, these unions may unite with a view to achieving the aforementioned percentage, in which case the employer shall be obliged to negotiate and conclude a collective agreement with the united unions, if the latter make a joint request to this effect. While noting the possibility for two trade unions in the same enterprise to unite with a view to achieving the minimum percentage of representation to engage in collective bargaining, the Committee hopes that the Government will take the necessary measures to amend sections 270 and 271 of the Labour Code and sections 106 and 123 of the Civil Service Act in such a way that when no union covers more than 50 per cent of the workers, all unions are given the right to engage in collective bargaining, at least on behalf of their own members.

Revision of collective agreements. In its previous comments the Committee noted that section 276(3) 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 force for at least one year” and asked the Government to take the necessary measures to amend section 276(3) 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. The Committee notes the Government’s indication that to date there are no plans to reform section 276 of the Labour Code and that it will send any information in due course on any changes in this respect. The Committee recalls that to impose by law the renegotiation of existing agreements is in principle contrary to the principles of free and voluntary collective bargaining laid down in the Convention. The Committee therefore requests the Government once again to take the necessary measures to amend section 276(3) 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, referring to section 279 of the Labour Code – which provides that a decision by the Director General of Labour to deny registration of a collective agreement is not open to judicial review – the Committee noted the Government’s explanation that the prohibition 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, in accordance with section 7(a) of the Act concerning the settlement of administrative disputes. The Committee considered 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. The Committee once again requests the Government to consider the possibility of amending section 279 of the Labour Code in order to expressly provide in the legislation that the Director-General’s decision may be challenged before the judicial authority. The Committee requests the Government to provide information on any further developments in this respect.

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 previously requested the Government to take the necessary steps to amend section 287 of the Labour Code and section 119 of the Civil Service Act in order to remove the requirement of prior ministerial approval for collective agreements to be able to come into force. The Committee notes that according to the Government that the planned reform of section 287 of the Labour Code as proposed does not contemplate the removal of that request but seeks to modify the time in which the Ministry of Finance is able to reply and, should it fail to do so, the resulting administrative silence shall be construed as positive with a view to expediting the procedure for the registration of collective agreements of autonomous official institutions. As regards the amendment of section 119 of the Civil Service Act, the Committee notes that the Government will provide information in due course on any further developments in this respect. The Committee recalls that the requirement of ministerial approval to enable a collective agreement to enter into force is not fully consistent with the principles of voluntary bargaining laid down in the Convention: however, there is nothing to prevent the budgetary authority, prior to the conclusion of the collective agreement, from informing the employer of the situation and of the budget that is available. The Committee again requests the Government to take the necessary measures 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. The Committee requests the Government to provide information in its next report on any measures taken in this regard.

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 requested the Government to take the necessary steps to ensure that public servants not engaged in the administration of the State enjoy the guarantees provided for in the Convention. The Committee notes the Government’s indication that section 4(1) of the Civil Service Act is not being reformed and that it will provide information on any changes in this respect. The Committee recalls that the only possible exceptions to the guarantees laid down in the Convention refer to the armed forces, the police and public servants engaged in the administration of the State (Articles 5 and 6). The Committee requests the Government once again to take the necessary steps to amend section 4(1) of the Civil Service Act in order that public servants not working in the administration of the State enjoy the guarantees provided by the Convention. The Committee requests the Government to provide information in its next report on any measures taken.

Right to collective bargaining of teachers. In its previous comments the Committee noted that section 2 of the Civil Service Act provides that, because of the nature of their duties, members of the teaching profession are governed by a special act – which, in this specific case, does not contain any provisions on collective bargaining – without prejudice to the social rights laid down in the Civil Service Act, which shall apply to them. The Committee also noted the Government’s confirmation that, in addition to the right to association, teachers also enjoy the right to collective bargaining and requested the Government to indicate the date of the most recent collective agreements concluded with teachers in the public sector. The Committee notes the Government’s statement that to date no collective labour agreement has been concluded with teachers in the public sector. The Committee, recalling that all teachers, including those in the public sector, are covered by the scope of the Convention’s provisions, requests the Government to promote the right to collective bargaining of teachers in the public sector and to provide information on any further developments in this respect.

The Committee hopes that the Government will make every effort to take the necessary action in the near future.

Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

The Committee notes the Government’s detailed reply to the comments from the International Trade Union Confederation (ITUC) of 2008 and 2009. The Committee also notes the recent comment from the ITUC, dated 4 August 2011, referring to anti-union practices and dismissals. The Committee requests the Government to send its observations thereon.

The Committee also notes the technical assistance given in 2009 to the constituents of the country, concerning training and practice relating to Convention No. 98, and the Labour Relations (Public Service) Convention, 1978 (No. 151).

Registration of collective agreements. In its previous comments, referring to section 279 of the Labour Code – which provides that a decision by the Director-General of Labour to deny registration of a collective agreement is not open to judicial review –, the Committee noted the Government’s explanation that the prohibition 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, in accordance with section 7(a) of the Act concerning the settlement of administrative disputes. The Committee considered 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. The Committee once again requests the Government to consider the possibility of amending section 279 of the Labour Code in order to expressly provide in the legislation that the Director-General’s decision may be challenged before the judicial authority. The Committee requests the Government to provide information on any further developments in this respect.

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 previously requested the Government to take the necessary steps to amend section 287 of the Labour Code and section 119 of the Civil Service Act in order to remove the requirement of prior ministerial approval for collective agreements to be able to come into force. The Committee notes the Government’s statement that the planned reform of section 287 of the Labour Code as proposed does not contemplate the removal of that request but seeks to modify the time in which the Ministry of Finance is able to reply and, should it fail to do so, the resulting administrative silence shall be construed as positive with a view to expediting the procedure for the registration of collective agreements of autonomous official institutions. As regards the amendment of section 119 of the Civil Service Act, the Committee notes the Government’s indication that it will provide information in due course on any further developments in this respect. The Committee recalls that the requirement of ministerial approval to enable a collective agreement to enter into force is not fully consistent with the principles of voluntary bargaining laid down in the Convention: however, there is nothing to prevent the budgetary authority, prior to the conclusion of the collective agreement, from informing the employer of the situation and of the budget that is available. The Committee again requests the Government to take the necessary measures 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. The Committee requests the Government to provide information in its next report on any measures taken in this regard.

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 requested the Government to take the necessary steps to ensure that public servants not engaged in the administration of the State enjoy the guarantees provided for in the Convention. The Committee notes the Government’s indication that section 4(1) of the Civil Service Act is not being reformed and that it will provide information on any changes in this respect. The Committee recalls that the only possible exceptions to the guarantees laid down in the Convention refer to the armed forces, the police and public servants engaged in the administration of the State (Articles 5 and 6). The Committee requests the Government once again to take the necessary steps to amend section 4(1) of the Civil Service Act in order that public servants not working in the administration of the State enjoy the guarantees provided by the Convention. The Committee requests the Government to provide information in its next report on any measures taken.

Right to collective bargaining of teachers. In its previous comments the Committee noted that section 2 of the Civil Service Act provides that, because of the nature of their duties, members of the teaching profession are governed by a special act – which, in this specific case, does not contain any provisions on collective bargaining –, without prejudice to the social rights laid down in the Civil Service Act, which shall apply to them. The Committee also noted the Government’s confirmation that, in addition to the right to association, teachers also enjoy the right to collective bargaining and requested the Government to indicate the date of the most recent collective agreements concluded with teachers in the public sector. The Committee notes the Government’s statement that to date no collective labour agreement has been concluded with teachers in the public sector. The Committee, recalling that all teachers, including those in the public sector, are covered by the scope of the Convention’s provisions, requests the Government to promote the right to collective bargaining of teachers in the public sector and to provide information on any further developments in this respect.

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

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.

Direct Request (CEACR) - adopted 2008, published 98th ILC session (2009)

The Committee notes the Government’s first report. It further notes the comments made by the International Trade Union Confederation (ITUC), dated 28 August 2007, and the Government’s reply thereto. The Committee also notes the new comments made by the ITUC on 29 August 2008, which refer to acts of discrimination and interference in the functioning of the Labour Inspectorate. The Committee requests the Government to send its observations on these matters.

The Committee also notes the various cases currently before the Committee on Freedom of Association, which refer to matters relating to the application of the Convention.

Article 2 of the Convention. Protection against acts of interference. The Committee observes that, although the Civil Service Act provides for protective measures against acts of interference (prohibition and sanctions), the Labour Code does not contain adequate provisions on this subject for the private sector, given that the Labour Code merely prohibits the organization and functioning of mixed trade unions, i.e. those composed of employers and workers (section 206) and prohibits any person from carrying out acts aimed at preventing the establishment of a trade union, dissolving it or placing it under the control of an employer or employers’ organization. In this regard, the Committee considers that, in order to ensure the application in practice of Article 2 of the Convention in the private sector, legislation should explicitly: (1) prohibit any act of interference; and (2) make express provision for rapid appeal procedures and effective and sufficiently dissuasive sanctions against acts of interference, principally acts which are designed to promote the establishment of workers’ organizations controlled by an employer or employers’ organization, or to support workers’ organizations by financial or other means, with the aim of placing such organizations under the control of an employer or employers’ organization. In these circumstances, the Committee requests the Government to take the necessary measures to adopt appropriate legislative measures to ensure effective protection against acts of interference.

Article 4. Collective bargaining. The Committee notes that the Government indicates in its report that the Ministry of Labour and Social Welfare is carrying out various activities through the General Labour Directorate, aimed at promoting the full development and use of machinery for voluntary bargaining between employers’ and workers’ organizations. Since 2000, training has been given to workers and employers at the national level on social dialogue, workers’ and employers’ rights and collective labour agreements.

The Committee notes 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 bargain collectively. In this regard, the Committee considers that these provisions do not promote collective bargaining. The Committee considers that if no union covers more than 50 per cent of the workers, collective bargaining rights should be granted to all the unions in the bargaining unit concerned, at least on behalf of their own members (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 241). The Committee requests the Government to take the necessary measures to amend sections 270 of the Labour Code and 106 and 123 of the Civil Service Act in the manner indicated above.

Revision of the collective agreement. The Committee notes that section 276(3) 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”. The Committee requests the Government to indicate whether this provision entails the obligation to renegotiate the collective agreement in the circumstances described at the request of one of the parties.

Registration of collective agreements. The Committee observes that, under sections 279 of the Labour Code and 113 of the Civil Service Act, if a collective agreement is submitted to the Ministry of Labour and Social Welfare for registration and this is denied, either party may, if they consider it unjustified, appeal to the Director-General of Labour. The Committee observes that section 279 provides that no appeal may be made against that decision and that section 113 does not contain any provision on this subject. The Committee considers that, in both cases, provision should be made for the possibility of appealing to the judicial authority against the decision of the Director-General of Labour. The Committee requests the Government to take the necessary measures to ensure that the legislation ensures the possibility of appealing to the judiciary against the decision of the Director-General.

Approval of collective agreements concluded with a public institution. The Committee notes that, under sections 287 of the Labour Code and 119 of the Civil Service Act, in order to be valid, these agreements require the approval of the respective ministry and the prior opinion of the Ministry of Finance. In this regard, the Committee requests the Government to provide information on the application of this provision in practice and points out that a ministry’s approval of agreements concluded freely between parties infringes the principle of free and voluntary negotiation under Article 4 of the Convention.

Purpose of the bargaining. The Committee notes that, under section 108, collective bargaining shall cover both salary matters and matters relating to conditions of work. The Committee requests the Government to indicate whether any provision provides for collective bargaining relating to facilities in favour of trade unions.

Article 6. Exclusion of a very wide range of public employees from the guarantees of the Convention. The Committee notes that, in its report, the Government points out that the Civil Service Act establishes the procedure for the establishment, functioning and dissolution of trade unions of public employees. The Committee observes, however, that, under section 4(l) of the Civil Service Act, 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). In this regard, the Committee recalls that the only possible exceptions from the guarantees of the Convention refer to the armed forces, the police and public servants engaged in the administration of the State (Articles 5 and 6). The Committee recalls that a distinction must be drawn between, on the one hand, public servants who by their functions are directly engaged in the administration of the State (for example, in some countries, civil servants employed in government ministries and other comparable bodies, as well as officials acting as supporting elements in these activities), who may be excluded from the scope of the Convention and, on the other hand, all other persons employed by the government, by public enterprises or by autonomous public institutions, who should enjoy the guarantees provided for in the Convention. In these circumstances, the Committee requests the Government to take the necessary measures to ensure that workers not engaged in the administration of the State enjoy the guarantees provided for in the Convention.

Declaration of unconstitutionality. The Committee also notes 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, who are not included among the holders of that right in the Constitution of the Republic, was unconstitutional (O.J. 203 T. 377 of 31 October 2007). The Committee observes that the Government does not refer to this matter in its report. The Committee regrets that decision of the Constitutional Chamber shortly after the ratification of Conventions Nos. 87 and 98, and requests the Government to ensure the application of the Convention to public employees, including, if necessary, through the reform of the Constitution.

Right to collective bargaining of teachers. 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 contained in the Civil Service Act, which are applicable to them. Taking into account that the Teaching Careers Act does not contain specific provisions guaranteeing the right to bargain, the Committee requests the Government to indicate whether, under section 2 of the Civil Service Act, members of the teaching profession nonetheless enjoy the right to collective bargaining.