Report in which the committee requests to be kept informed of development - Report No 329, November 2002

Case No 2190 (El Salvador) - Complaint date: 12-MAR-02 - Closed

Allegations: Non-recognition of the right of association of state employees leading to a refusal by the Ministry of Labour to approve the trade union statutes and grant legal personality.

1. 480. The complaint is presented in a communication from the Ministry of Education Workers’ Trade Union (ATRAMEC) dated 12 March 2002. The Government sent its observations in a communication dated 29 April 2002.
2. 481. El Salvador has not ratified either the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), or the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant’s allegations

1. 482. In its communication dated 12 March 2002, the Ministry of Education Workers’ Trade Union (ATRAMEC) states that it was also the complainant in Case No. 2085, on which occasion it alleged that the Ministry of Labour had refused to approve its trade union statutes and grant legal personality in spite of it having been established as a trade union since 24 March 2000. ATRAMEC recalls that the Committee on Freedom of Association, at its November 2000 meeting, had urged the Government “as a matter of urgency to ensure that national legislation is amended so that it recognizes the right of association of workers employed in the service of the State, with the sole possible exception of the armed forces and the police”.
2. 483. ATRAMEC adds that on 6 July 2001 it once again requested the Minister of Labour and Social Protection to grant legal personality to the Ministry of Education Workers’ Trade Union (ATRAMEC), and that this request, which is attached, has not been acknowledged. ATRAMEC emphasizes that the Government has ignored the recommendation of the ILO.
3. 484. ATRAMEC recalls that the ILO Declaration on Fundamental Principles and Rights at Work and its Follow-up, adopted by the International Labour Conference at its 86th Session held in Geneva on 18 June 1998, states:
4. The International Labour Conference: … 2. Declares that all Members, even if they have not ratified the Conventions in question, have an obligation, arising from the very fact of membership in the Organization, to respect, to promote and to realize, in good faith and in accordance with the Constitution, the principles concerning the fundamental rights which are the subject of those Conventions, namely: (a) freedom of association and the effective recognition of the right to collective bargaining …
5. B. The Government’s reply
6. 485. In its communication of 29 April 2002, the Government stated that, as had been previously mentioned, the Constitution and the Labour Code recognized only the right of private workers and employers, and workers in autonomous official institutions to establish trade unions.
7. 486. With regard to the recommendation of the Committee on Freedom of Association that it amend labour legislation to recognize the right of association of workers employed in the service of the State, the Government states that in a communication dated 7 January 2002 it replied that the legal recognition of the right to association for private workers and employers, as well as workers in autonomous official institutions, laid down in both the Constitution and the Labour Code, and the recognition of the right of public employees to form associative groups conform to the sovereign decisions and requirements of the country as laid down in the reforms of the Constitution of the Republic, proclaimed by the Constituent Legislative Assembly in 1983, and the reforms to the Labour Code, which were agreed upon on a tripartite basis at the forum for social consultation, resulting from the peace agreements, and with technical assistance from the ILO. The Government also states that in this report it informed the Committee on Freedom of Association of the government plan, “Alliance for Labour”, which envisages a strategic approach towards the adaptation of the legal framework to conform to the requirements of the national and international labour markets. It once again reiterates the validity of these concepts.

C. The Committee’s conclusions

1. 487. The Committee notes that in the present complaint, the education workers’ trade union alleges that the Government: (1) has refused to comply with the recommendations of the Committee in Case No. 2085 to amend the legislation so that it recognizes the right of association of public service employees; (2) the complainant organization still does not have legal personality in spite of a new request on 6 July 2001.
2. 488. The Committee notes the Government’s reply, but regrets that this reply contains no new elements in relation to the replies dated 24 July 2000 and 7 January 2002 in the framework of Case No. 2085. The Committee notes in particular that the workers of the Ministry of Education cannot legally form trade unions but only associations and the government plan, “Alliance for Labour”, envisages a strategic approach towards the adaptation of the legal framework to conform to the requirements of the national and international labour markets.
3. 489. In these circumstances, the Committee can only reiterate the conclusions it formulated on examining Case No. 2085 [see 323rd Report, para. 173, 327th Report, para. 57 and 328th Report, para. 47], which it repeats as follows:
   • – With regard to the refusal to grant legal personality to the Ministry of Education Workers’ Trade Union (ATRAMEC) in May 2000, the Committee notes that, according to the Government, the Constitution of the Republic grants the right of association to workers in the private sector and to those employed in autonomous official institutions, but not to workers employed in the service of the State (public service and government employees), since the State provides essential services which must not be interrupted for any reason. The Committee is bound to emphasize that the denial of the right of public service employees to establish unions is an extremely serious violation of the most elementary principles of freedom of association. Consequently, the Committee urges the Government as a matter of urgency to ensure that the national legislation of El Salvador is amended in such a way that it recognizes the right of association of public service employees with the sole possible exception of the armed forces and the police.
   • – The Committee hopes that the adaptation of the legal framework to which the Government refers will take place in the near future and will include all the reforms requested by the Committee. The Committee requests the Government to keep it informed in this respect and points out that some of the points calling for reform, like for example, the need to guarantee the right of association for state employees, are in fact serious violations of that freedom.
   • – With regard to the reform of the Labour Code concerning in particular, the recognition of the trade union rights of state employees, the Committee regrets that the Government merely reiterates its previous comments on this issue. In this respect, “in view of the importance of the right of employees of the state and local authorities to constitute and register trade unions, the prohibition of the right of association for workers in the service of the State is incompatible with the generally accepted principle that workers, without distinction whatsoever, should have the right to establish organizations of their own choosing without previous authorization” [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 215], the Committee requests the Government to take the necessary measures to amend the legislation on the points mentioned above, so as to bring it into conformity with the principles of freedom of association. The Committee requests the Government to keep it informed in this respect.
4. 490. The Committee expects that the trade union ATRAMEC will be recognized as soon as possible, as it was established since 24 March 2000.
5. 491. The Committee draws the Government’s attention to the availability of the technical assistance of the Office in this respect should it so desire.

The Committee's recommendations

1. 492. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee strongly urges the Government as a matter of urgency to ensure that the national legislation of El Salvador is amended so that it recognizes the right of association of workers employed in the service of the State, with the sole possible exception of the armed forces and the police.
   • (b) The Committee expects that the trade union ATRAMEC will be recognized as soon as possible, as it was established since 24 March 2000.
   • (c) The Committee requests the Government to take the necessary measures to amend the legislation on the points mentioned in its conclusions, so as to bring it into conformity with the principles of freedom of association. It requests the Government to keep it informed in this respect.
   • (d) The Committee draws the Government’s attention to the availability of the technical assistance of the Office in this respect should it so desire.