Definitive Report - Report No 337, June 2005

Case No 2360 (El Salvador) - Complaint date: 28-MAY-04 - Closed

Allegations: The complainant organization alleges unjustified delays on the part of the Ministry of Finance in the approval process for the collective agreement concluded between the complainant and the Salvadorian Institute of Tourism

855. The complaint is contained in a communication from the Trade Union of Workers in Tourism, the Hotel Industry and Allied Industries (STITHS) dated 29 May 2004.

1. 856. The Government sent its observations in a communication dated 24 February 2005.
2. 857. El Salvador has not ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Labour Relations (Public Service) Convention, 1978 (No. 151), or the Collective Bargaining Convention, 1981 (No. 154).

A. The complainant’s allegations

1. 858. In its communication dated 29 May 2004, the Trade Union of Workers in Tourism, the Hotel Industry and Allied Industries (STITHS) states that on 21 August 2000 it submitted a request to the General Labour Directorate asking that the process of negotiating a collective agreement with the Salvadorian Institute of Tourism (henceforth ISTU) be considered under way, in accordance with the provisions of sections 270 and following of the Labour Code. On 24 August 2000, the trade union was notified of the resolution issued by the General Labour Directorate on 21 August 2000, according to which STITHS was deemed to be a party to the collective bargaining process and the request to begin negotiating the first collective labour agreement between STITHS and ISTU was granted. In this same resolution, the then legal representative of ISTU was summoned for the first time to appear before the Ministry of Labour and Social Security on 30 August to respond to the trade union’s request.
2. 859. On 11 September 2000, STITHS was notified of the resolution issued by the General Director of Labour granting the request for STITHS and ISTU to conclude the collective labour agreement and ordering that the direct negotiation stage be initiated, in accordance with the provisions of sections 481-489 of the Labour Code. A copy of the relevant list of demands was sent to ISTU. On 12 September 2000, the negotiating committees of STITHS and ISTU met to schedule a series of discussion meetings, thus complying with the provisions of section 484 of the Labour Code. Despite this agreement, 21 days passed and the ISTU still had not complied with the agreed programme, prompting the General Secretary of the union’s General Executive Committee, on 3 October 2000, to address a written complaint to the General Director of Labour bringing this breach of the law to his attention, an action supported by the provisions of section 488 of the Labour Code.
3. 860. The complainant adds that, on 9 October 2000, the General Director of Labour notified STITHS of the resolution in which it resolved to summon the parties to agree, in the presence of the General Director of Labour, on a new programme of collective talks. On 11 October, at the hearing presided over by a representative of the General Director of Labour, the General Secretary of STITHS General Executive Committee and the ISTU representative rescheduled the series of meetings between the parties. The direct negotiation stage of the collective bargaining process began on 17 October 2000 and ended on 31 May 2001 with the adoption of the collective agreement between STITHS and ISTU. In accordance with the law, the agreement was registered at the Ministry of Labour and Social Security.
4. 861. The complainant points out that, when one of the parties to a collective labour agreement is an autonomous official institution, approval is required from the associated ministry – in this case the Ministry of the Economy – and the Ministry of Finance must also be consulted. This is stipulated in section 287 of the Labour Code. Given that ISTU has a close relationship with the Ministry of the Economy, it sent the collective agreement to the Minister of the Economy on 17 July 2001. On 30 July, a copy was sent to the Minister of Finance. On 14 November 2001, STITHS was informed that, at the end of November 2001, the collective agreement, duly revised, would be sent to the Office of the Minister of Finance.
5. 862. In the face of the lack of any response from the Minister of Finance, STITHS lodged a petition on the grounds of unconstitutionality (amparo) with the Constitutional Division of the Supreme Court of Justice, drawing attention to the violation of the constitutional right to collective bargaining (the petition was given reference number 260/2003). By the time this petition was lodged, STITHS had been waiting for a total of 630 days for the Minister of Finance to state his opinion on the new collective agreement, so that it could be duly registered and enter into force. The fact that the Minister of Finance did not give an opinion on the collective agreement prevented it from being registered and entering into force. The indifference of the Minister thwarts the hitherto successful efforts at dialogue and consensus made by the trade union and ISTU and violates the constitutional principle enshrined in article 35, which recognizes the right to conclude collective agreements within the framework of labour law.
6. 863. On 1 December 2003, STITHS received notification of the resolution issued by the Constitutional Division of the Supreme Court of Justice indicating that the Minister of Finance had presented a written statement to this Court, which is the highest judicial body according to this statement “on 16 May this year [...] informed the Minister of the Economy of the outcome of the relevant evaluations, indicating that it was not viable to authorize the collective labour agreement concluded between the Salvadorian Institute of Tourism (ISTU) and the trade union, given that the ISTU does not possess the necessary financial capacity to honour its new contractual and economic obligations”. In response to this statement, the Constitutional Division surprisingly dismissed the case and ordered the dossier filed.
7. 864. The complainant points out that the actions of the Minister of Finance and the ruling handed down by the Constitutional Division of the Supreme Court of Justice constitute a violation of its trade union rights. The legal registration of the collective agreement with the Ministry of Labour and Social Security would safeguard trade union rights and provide legal underpinning for the economic provisions set out in the agreement, from which workers are already benefiting in practice.
8. B. The Government’s reply
9. 865. In its communication of 24 February 2005, the Government stated that, in accordance with the provisions of section 287 of the Labour Code, the Minister of Finance, in his communication of 8 February 2005, had given a favourable opinion on the collective agreement in question maintaining that the Salvadorian Institute of Tourism (ISTU) does have the necessary financial capacity to honour the obligations arising from the collective agreement negotiated with the trade union representing its workers. This opinion followed a further financial study of the current and projected economic situation of ISTU, and was a response to the request for a review of the unfavourable opinion given in December 2001.
10. 866. The Government adds that, through the agreement of 11 February 2005, the General Executive Committee of the Trade Union of Workers in Tourism, the Hotel Industry and Allied Industries (STITHS) approved the minutes of the meetings of 6 and 19 June 2001 in which the draft collective agreement was formalized and submitted to the union’s Extraordinary General Assembly for consideration. The Government adds that, through a resolution dated 10 February 2005, the Minister of Tourism had, in accordance with section 287 of the Labour Code, approved the collective agreement in its entirety.
11. 867. Lastly, the Government indicates that the collective agreement concluded between ISTU and STITHS was presented on 15 February 2005 and registered under number 11, from page 370 to page 421 of the 99th Book of the Collective Agreements Register of the Department of Social Organizations, on 17 February this year.

C. The Committee’s conclusions

1. 868. The Committee observes that the complainant objects to the delay on the part of the Ministry of Finance (630 days) in giving its opinion on the collective labour agreement which the complainant had concluded with ISTU on 31 August 2001. According to the complainant, STITHS was notified only on 31 December 2003, after lodging a petition with the Constitutional Division of the Supreme Court of Justice, of the fact that the Ministry of Finance had indicated that it was not possible to authorize the collective agreement in question.
2. 869. In this respect, the Committee notes the Government’s information to the effect that: (1) on 8 February 2005 the Ministry of Finance gave a favourable opinion on the collective agreement in question; (2) said opinion was issued after further investigation of ISTU’s current economic situation and came as a response to the request for a review of the earlier unfavourable opinion; and (3) on 17 February 2005, the collective agreement concluded between ISTU and STITHS was entered in the Collective Agreements Register of the Department of Social Organizations at the Ministry of Labour and Social Security.
3. 870. The Committee notes that the collective agreement concluded between STITHS and ISTU in 2001 was eventually approved and registered and has entered into force.
4. 871. However, the Committee considers that the extremely long period of time that elapsed from the beginning of negotiations to the approval and definitive registration of the collective agreement was excessive, and that it has undoubtedly harmed the complainant and its affiliated workers. The Committee considers that a situation such as the one described does not encourage collective bargaining. Given these conditions, the Committee requests the Government to take steps to avoid future instances of unjustified delays by budgetary authorities in the approval process for collective labour agreements.

The Committee's recommendations

1. 872. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
   • The Committee requests the Government to take steps to avoid in future unjustified delays by budgetary authorities in the approval process for collective labour agreements.