Definitive Report - Report No 377, March 2016

Case No 3136 (El Salvador) - Complaint date: 03-JUN-15 - Closed

Allegations: Refusal to register the general executive committee of the trade union through the imposition of discretionary guidelines

1. 314. The complaint is contained in a communication from the Trade Union of Workers of the Salvadoran Institute for Comprehensive Rehabilitation (SITRAISRI) dated 3 June 2015.
2. 315. The Government sent its observations in a communication dated 28 September 2015.
3. 316. 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) and the Labour Relations (Public Service) Convention, 1978 (No. 151).

A. The complainant organization’s allegations

1. 317. In its communication of 3 June 2015, the Trade Union of Workers of the Salvadoran Institute for Comprehensive Rehabilitation (SITRAISRI) alleges that the Ministry of Labour and Social Security imposed discretionary guidelines relating to the registration of the general executive committee of SITRAISRI and the issuing of accreditation and cards to its elected members, thus violating the right to a guarantee of trade union immunity.
2. 318. The complainant organization states that, on 24 March 2015, it submitted a request for the registration of its general executive committee and the issuing of accreditation and cards to the officials of SITRAISRI to the National Department of Social Organizations of the Ministry of Labour and Social Security. According to the complainant organization, the response time set for such a request is 15 working days. The complainant organization adds that 19 working days later, on 29 April 2015, it received a resolution from the National Department of Social Organizations stating, prior to ruling on the request for registration, that based on the documentation submitted, it was not possible to verify compliance with a number of the requirements set for membership of the executive committee in light of section 225 of the Labour Code, i.e. that members should: (i) be a national of El Salvador by birth; (ii) be over the age of 18 years; and (iii) not be employees in positions of trust or representatives of the employer. Consequently, as a part of the resolution, the trade union was called on to submit photocopies of individual identity documents and recent payslips, or certificates of employment setting out the duties performed by the elected officials.
3. 319. The complainant organization considers that the resolution essentially constitutes a refusal to register the new committee, thereby violating and preventing the enjoyment of the constitutional right to trade union immunity. The complainant organization considers that the applicable legislation does not establish an obligation to provide the documents requested in the contested resolution. SITRAISRI alleges that the resolution has no legal basis and that it introduces a discretionary requirement which consequently left the trade union leaderless.
4. 320. SITRAISRI also alleges that the request for additional documents required by the Ministry of Labour constitutes an arbitrary change in criteria that undermines legal security. The complainant organization states that, since the founding of SITRAISRI in 2010, five requests for registration and the issuing of accreditation and cards had been submitted and granted without any requirement to provide copies of the individual identity documents and payslips of the persons elected.

B. The Government’s response

1. 321. In its communication of 28 September 2015, the Government emphasizes that the resolution of 29 April 2015 contested by the complainant organization did not constitute a refusal but was, rather, an invitation to address the shortcomings of the request through the submission of the documents required. In that regard, the Government states that SITRAISRI was instructed to submit copies of the individual identity documents and payslips of the persons elected solely in order to enable verification: (i) through the individual identity documents, that the requirements relating to nationality and the age of majority had been met; and (ii) through the payslips, or, where required, certificates of employment, for the posts held by the persons concerned within the institution, in order to ensure that they were not employees in positions of trust or representatives of the employer.
2. 322. The Government states that, in light of the national case law, registration of executive committees is not a discretionary act but rather a regulated function of the administration and that, as a part of the process, checks must be completed to ensure that the legal requirements have been met. Furthermore, although the relevant provisions do not explicitly require the submission of the documents in question, this step is necessary in order to enable verification of compliance with the requirements set out in the national Constitution (Salvadoran nationality – article 47) and in the Labour Code (among other things, attainment of age of majority and the fact of not being employed in a position of trust or a representative of the employer – section 225).
3. 323. The Government admits that previous administrations did not check compliance with some of the legal requirements for membership of executive committees. The Government considers, however, that this approach led to grave problems in practice, including the existence of executive committees made up of foreign nationals or employees in positions of trust and representatives of the employer.
4. 324. Lastly, the Government reports that, on 26 June 2015, the complainant organization addressed the shortcomings in the request submitted by providing the national identity documents and payslips required by the resolution of 29 April 2015. The Government states that, once the documentation required was submitted, steps were taken to register the executive committee of SITRAISRI and its members were issued with their accreditation on 6 July 2015. Consequently, the Government considers that the complaint is without merit or foundation.

C. The Committee’s conclusions

1. 325. The Committee observes that, in the present case, the complainant organization alleges the refusal to register the general executive committee of SITRAISRI through the imposition of discretionary guidelines in a resolution of the National Department of Social Organizations of the Ministry of Labour and Social Security. The Committee also observes that, according to the Government, the contested resolution did not constitute a discretionary refusal to register the committee, but rather merely a request for the necessary documentation to be submitted (national identity documents and payslips) in order to enable verification of compliance with the requirements applicable to the members of the executive committee, in light of the Constitution of El Salvador and the Labour Code. Furthermore, the Committee observes that, according to the Government, once the complainant organization submitted the national identity documents and the respective payslips, steps were taken, a few days later, to register the executive committee and to issue its members with their accreditation.
2. 326. In this regard, the Committee wishes to recall that the requirements established in national law relating to the registration of executive committees must be in conformity with the principles of freedom of association, in particular the right of the workers freely to elect their representatives. The Committee notes that the Government states that it required the submission of copies of individual identity documents and payslips in order to verify compliance with the legal requirements that members of executive committees should: be nationals of El Salvador by birth; have attained the age of majority; and not be employed in positions of trust or representatives of the employer. As to the requirement that members should be nationals of El Salvador by birth, the Committee recalls the principle that legislation should be made flexible so as to permit the organizations to elect their leaders freely and without hindrance, and to permit foreign workers access to trade union posts, at least after a reasonable period of residence in the host country [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, paragraph 420]. Furthermore, the Committee observes that the Committee of Experts on the Application of Conventions and Recommendations (CEACR) has requested the Government to take measures to amend article 47(4) of the national Constitution, section 225 of the Labour Code and section 90 of the Civil Service Act, which establish the requirement to be “a national of El Salvador by birth” in order to hold office on the executive committee of a trade union. As to the requirement that members of an executive committee must have attained the age of majority, the Committee considers that its imposition constitutes a restriction of the right of the workers freely to elect their representatives.
3. 327. In view of the fact that El Salvador has ratified Convention No. 87, the Committee requests the Government to send detailed information to the CEACR on the measures taken to adapt the regulations on the formation and registration of executive committees in line with the principles of freedom of association, and draws the attention of the CEACR to the legislative aspects of this case.

The Committee’s recommendation

1. 328. In light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
   • In view of the fact that El Salvador has ratified Convention No. 87, the Committee requests the Government to send detailed information to the CEACR on the measures taken to adapt the regulations on the formation and registration of executive committees in line with the principles of freedom of association, and draws the attention of the CEACR to the legislative aspects of this case.