Definitive Report - Report No 370, October 2013

Case No 2932 (El Salvador) - Complaint date: 12-DEC-11 - Closed

Allegations: The complainant organization alleges restrictions on trade union leave for union officers in the courts sector

1. 392. The complaint in the present case is contained in a communication from the Union of Judiciary Workers (SITTOJ) dated 12 December 2011, which was received in the Office on 12 March 2012. The Government sent its observations in communications dated 17 October and 13 November 2012.
2. 393. El Salvador has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), the Workers’ Representatives Convention, 1971 (No. 135), and the Labour Relations (Public Service) Convention, 1978 (No. 151).

A. The complainant’s allegations

1. 394. In a communication dated 12 December 2011, which was received in the Office on 12 March 2012, SITTOJ alleges that Agreement No. 5-P issued by the Supreme Court of Justice on 21 July 2011 constitutes a restriction on the trade union leave granted to all officers of the trade union organizations of the judiciary, by limiting it to three officers and to one day per 40-hour working week. The complainant organization explains that it was customary at the Supreme Court of Justice for all union officers of the complainant organization to be granted full-time leave, since the Ministry of Labour recognized SITTOJ’s legal personality and provided for its registration in August 2008. However, the complainant organization also explains that the Supreme Court of Justice issued Agreement No. 5 P on 21 July 2011, which grants applicant organizations only one day of union leave per 40-hour working week, and that only three union officers designated by each organization are entitled to this union leave.
2. 395. The complainant organization states that it lodged an appeal against the decision on 10 August 2011. Following a complaint by various trade unions and associations in the sector, on 30 August 2011 the Office of the Human Rights Ombudsperson established interim measures under which the Supreme Court of Justice was to: (a) refrain from applying the measures contained in Agreement No. 5 P of 21 July 2011, pending the outcome of the appeal; and (b) establish a dialogue involving representatives of the various labour organizations and trade unions working in the judiciary in order to address the issue. Notwithstanding the foregoing, on 18 October 2011, the plenary of the Supreme Court of Justice ruled on the aforementioned appeal and upheld all provisions of Agreement No. 5 P of 21 July 2011 (decision) of the Supreme Court of Justice, thus maintaining the restrictions on trade union leave.

B. The Government’s reply

1. 396. In its communications dated 17 October and 13 November 2012, the Government states that the representatives of SITTOJ and another trade union lodged an application against the rulings of the Supreme Court of Justice before its Administrative Disputes Chamber; the Government does not however specify the content of this application. On 6 February 2012, the judges of the aforementioned chamber excused themselves from the case; on 3 May 2012, it was remanded to the plenary of the Supreme Court of Justice, where it is still pending.

C. The Committee’s conclusions

1. 397. The Committee notes that the present case refers to allegations of a significant restriction of the union leave granted to all officers of the trade union organizations of the judiciary.
2. 398. The Committee notes that, according to the allegations, there was a unilateral change in the granting of trade union leave for the complainant organization as a result of the issuance by the Supreme Court of Justice of Agreement No. 5 P on 21 July 2011 (decision issued by the Court upon a first appeal), which provides that applicant organizations [of judiciary employees] may be granted one day within the 40-hour working week; and that leave may be granted for three union officers, who shall be designated by each organization (trade union leave previously covered all union officers and was full time). The Committee further observes that, according to the allegations, on 30 August 2011, the Office of the Human Rights Ombudsperson requested the establishment of a dialogue on the issue of trade union leave. The Committee notes the Government’s indication that a new application lodged by the complainant organization and another trade union before the Administrative Disputes Chamber of the Supreme Court of Justice (submitted to the plenary of the Court in May 2012) is still pending, but observes that the Government does not specify the content of this application. The Committee regrets the unilateral change in practice for trade union leave and the fact that, contrary to the request by the Office of the Human Rights Ombudsperson in 2011, no dialogue has been established.
3. 399. The Committee reminds the Government that Convention No. 151, which El Salvador has ratified, provides that such facilities shall be afforded to the representatives of recognized public employees’ organizations as may be appropriate in order to enable them to carry out their functions promptly and efficiently, both during and outside their hours of work (Article 6(1)), but that the granting of such facilities shall not impair the efficient operation of the administration or service concerned (Article 6(2)). The Committee stresses the importance of agreed rules concerning trade union leave and emphasizes that the parties should resume dialogue, as recommended by the Office of the Human Rights Ombudsperson. The Committee underscores that the dialogue should take into account the aforementioned criteria of Convention No. 151. The Committee requests the Government to take steps to promote dialogue between the parties concerned in order to find an appropriate solution to the union leave issue.

The Committee’s recommendation

1. 400. 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 with a view to promoting dialogue between the parties concerned in order to find an appropriate solution to the issue of trade union leave.