Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 393, Marzo 2021

Caso núm. 3330 (El Salvador) - Fecha de presentación de la queja:: 29-MAY-18 - Casos en seguimiento cerrados por falta de información de parte de la organización querellante o del Gobierno al término de dieciocho meses contados desde la fecha del último examen de los casos

Allegations: Delays and other obstacles to collective bargaining within a public health institution

1. 375. The complaint is contained in communications from the Union of Health Solidarity Fund Workers (SITRAFOS) and the Autonomous Federation of Salvadoran Workers (CATS) dated 29 May and 8 October 2018.
2. 376. The Government sent its observations in a communication dated 12 June 2019.
3. 377. 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 complainants’ allegations

1. 378. The complainant organizations report delays and other obstacles to collective bargaining suffered by the majority trade union at the Health Solidarity Fund (FOSALUD) (the employing institution).
2. 379. In their communication of 29 May 2018, the complainant organizations condemn the fact that the various state bodies in which they participated in order to engage in collective bargaining in strict accordance with the law, instead of creating conditions to facilitate or promote negotiation, have shown deliberate intent to obstruct it. They allege that this has allowed the employer to avoid negotiating with SITRAFOS. The complainants state that:
   • SITRAFOS is the majority trade union at the employing institution with 1,654 members and, in accordance with the requirements of section 271 of the Labour Code (to have at least 51 per cent of the workers as members), it drew up a set of demands in the form of a draft collective agreement, which was approved by its general assembly on 12 June 2017, and, following the procedure established in the Labour Code, it made a request on 17 October 2017 to the Directorate-General of Labour to launch the direct contact phase in the negotiation process;
   • on 7 November 2017, SITRAFOS was notified of the decision of 31 October 2017 of the Director-General of Labour instructing the representatives of FOSALUD (the employer) to certify the type of employment relationship that existed between the institution and its workers (individual employment contracts or appointments under the Wages Act);
   • on 13 November 2017, the Minister of Health, as the legal representative of FOSALUD, issued a reply indicating that 299 employees had individual contracts and the other 2,659 were employed under the Wages Act;
   • on the basis of this information, arguing that if the process was conducted on the basis of the Labour Code the resulting collective agreement would only apply to the minority of workers holding individual contracts, the Labour Director-General, by a decision of 15 November 2017, declared that the matter lay outside her competence and that the Civil Service Act was applicable. In this regard, the complainants questioned the validity of the above-mentioned argument and pointed out that, under the existing legal provisions, the resulting collective agreement – irrespective of the legislative basis – would apply to all workers. They emphasized that the Labour Director-General was aware of this, since there had been previous examples of autonomous institutions which, like FOSALUD, employ workers on individual contracts as well as workers appointed under the Wages Act, and in these institutions collective agreements exist which have been negotiated on the basis of the provisions of the Labour Code and apply to all workers;
   • SITRAFOS had no choice but to use the procedure established in the Civil Service Act and on 15 December 2017 it submitted to the Civil Service Tribunal (TSC) the request and documentation for initiating the direct contact phase;
   • by a decision of 10 January 2018, the TSC issued four specific reservations, which SITRAFOS resolved satisfactorily within the stated deadline;
   • however, the TSC was dilatory in not informing the FOSALUD representatives until 19 March 2018, when it issued a decision requesting the latter to submit the payroll of public servants working at the institution. The complainants object that this requirement was not only unnecessary – since the union’s request already contained the relevant documentation, which the employer had forwarded to the Ministry of Labour and which SITRAFOS had already sent to the TSC – but was also imposed without fixing a time limit, thereby paving the way for further delays; and;
   • the Minister of Health, representing the employer, had not completed this formality at the time of presentation of the complaint (29 May 2018), thereby unduly delaying the procedure, despite possessing the information and having previously sent it to the Ministry of Labour.
3. 380. By a communication of 8 October 2018, the complainants provided additional documentation condemning the continuation of the delaying tactics, since the bargaining process had still not started at that date. By a decision of 7 June 2018, the TSC finally confirmed that the requirements of the Civil Service Act (having a membership of at least 51 per cent of the workers) had been met, and so it would be possible to proceed to the initial phase of direct contact. However, the employer’s representatives continued with their delaying tactics. Instead of calling a meeting with the union representatives in accordance with its legal obligation (section 133 of the Civil Service Act gave the employer 72 hours, from the time of the TSC decision, to hold a meeting with the requesting party), the employer addressed a note directly to the TSC, dated 19 June 2019, delaying even further the start of negotiations.
4. 381. The complainants indicate that, as a result of these manoeuvres, the TSC summoned the parties to a hearing to be held on 20 July 2018 to determine the date and time of negotiations (which, under the terms of the Civil Service Act, should have been determined within the 72 hours following the decision of 7 June 2018). Moreover, the complainants object that in this summons the institution’s proposal was not sent to SITRAFOS, which would have enabled progress to be made. Lastly, the complainants indicate that this proposal was not sincere either, since on the day of the hearing the employer’s representatives, far from maintaining this proposal, refused to enter into negotiations and presented three additional delaying motions that lacked any legal basis, and these were addressed by the TSC.

B. The Government’s reply

1. 382. In its communication of 12 June 2019, the Government has provided the responses of the authorities concerned to the allegations made in the complaint. The Government states that:
   • on 31 October 2017, the Director-General of Labour issued a decision requesting FOSALUD to certify the type of its employment relationship with its workers. FOSALUD replied on 13 November 2017, stating that it employed 299 workers on individual contracts and 2,659 on appointment agreements under the terms of the Wages Act;
   • by a decision of 10 January 2018, the TSC acknowledged receipt of the set of demands containing the revised version of the FOSALUD collective labour agreement and it issued reservations which were resolved by SITRAFOS on 1 February 2018;
   • on 10 April 2018, the TSC notified the employer of the decision, requesting it to send the payroll of employees working at the institution;
   • on 23 May 2018, FOSALUD replied, certifying that SITRAFOS met the requirement of having a membership of more than 51 per cent of the workers;
   • on 18 June 2018, notification was received of the TSC official letter of 7 June 2018, informing the FOSALUD representatives of the set of demands and requiring them to reach agreement with the requesting trade union within 72 hours (under the terms of section 133 of the Civil Service Act) regarding the place, date and time for opening negotiations;
   • on 19 June 2018, FOSALUD sent a communication to the TSC proposing that the negotiations be held on Thursdays at 9 a.m.;
   • on 20 July 2018, a meeting was held at the TSC to enable the parties to reach an agreement on the scheduling of meetings. The Government points out that no agreement was reached at the above-mentioned meeting because the TSC representative started the meeting on the mistaken premise that the negotiation process had been exhausted;
   • on 23 July 2018, two motions were brought before the TSC: (a) one by SITRAFOS, alleging a violation of the right of defence and failure to meet the 72-hour deadline established by law; and (b) the other by the employing institution, to clarify whether the bargaining committee appointed by the union in 2017 still had the same legitimacy and representativeness to negotiate the collective agreement (or whether a new bargaining committee had been given legitimacy at the previous general assembly);
   • in view of the concerns expressed by SITRAFOS regarding the delays, FOSALUD sent the TSC a communication on 1 October 2018 denying any lack of willingness and declaring its readiness to the TSC to continue with the phases of the process, and requested a meeting with SITRAFOS to establish a mechanism to streamline notifications;
   • on 15 November 2018, the TSC declared certain previous notifications and decisions null and void and summoned the representatives of FOSALUD and SITRAFOS to appear before it;
   • by a ruling of 5 December 2018, the TSC placed on record that no agreement had been reached by the parties at the meeting of 20 November regarding the scheduling of meetings;
   • by a decision of 22 January 2019, the TSC acknowledged receipt of the certification of the record of the general assembly authorizing the elected executive committee to engage in the negotiation process;
   • on 15 February 2019, FOSALUD received an instruction for the parties concerned to agree on a timetable for holding meetings in the direct contact phase;
   • on 26 February 2019, the representatives of the parties went to the TSC, where a FOSALUD representative stated that, in accordance with the updated information at the institution’s disposal, SITRAFOS no longer had a membership of 51 per cent of the workers. Consequently, it stated that, being liable for its actions and acting on the basis of the principle of legality, the institution was not obliged to negotiate. The Government has forwarded a communication from that representative, stating that in the public sector voluntary negotiation is not possible if the 51 per cent requirement is not fulfilled (something which is possible under the Labour Code). The grounds put forward are that public officials do not have decision-making power to commit public funds for the future, or any other powers apart from those explicitly laid down by law, and that voluntary collective bargaining in the public sector, although not expressly prohibited, would be open to challenge on account of a lack of regulation. In this regard, the SITRAFOS bargaining committee replied that the TSC had already resolved the above-mentioned motion at the time (corroborating the necessary representativeness) and that it had been filed out of time. This being the case, no agreement had been reached to determine the place, date and time for engaging in the direct contact phase; and
   • on 13 March 2019, the TSC acknowledged receipt of the motion refusing negotiations on the grounds that SITRAFOS did not have the necessary representativeness.
2. 383. Lastly, the Government states that at no time did FOSALUD launch internal campaigns to undermine any of the trade unions at the institution, let alone to cause them any loss of membership. It concludes by stating that FOSALUD hopes that the TSC will resolve the outstanding motion so that negotiations regarding a collective agreement can go ahead.

C. The Committee’s conclusions

1. 384. The Committee observes that in the present case the complainant organizations report delays and other obstacles to collective bargaining from the authorities concerned. The Committee notes that the negotiation process was proposed in a public health sector institution (FOSALUD), where some workers had been contracted under the Labour Code and others under the Wages Act, and that, since most workers had been appointed under the Wages Act, the Directorate-General of Labour decided that the procedure established under the Civil Service Act should be applied; SITRAFOS complied with this, following the procedures provided for in the aforementioned Act.
2. 385. The Committee observes that, although the authorities indicate that they are willing to engage in negotiations, after a process initiated by SITRAFOS in October 2017 and with no success in fixing a place and date for sessions in the direct contact phase of negotiations, in February 2019 FOSALUD stated that it was unable to proceed with negotiations since SITRAFOS no longer had the 51 per cent representativeness required by the Civil Service Act for compulsory collective bargaining.
3. 386. In general terms, with regard to the alleged refusal of FOSALUD to negotiate with SITRAFOS on the grounds that the latter no longer represented 51 per cent of the workers, the Committee has considered that if there is no union covering more than 50 per cent of the workers in a unit, collective bargaining rights should nevertheless be granted to the unions in this unit, at least on behalf of their own members [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 1390].
4. 387. Furthermore, with regard to this specific case, the Committee observes that the objection made by FOSALUD that the membership had decreased in 2019 is a matter which, as indicated by SITRAFOS, was reportedly dealt with at the start of the procedure (compliance was verified by the TSC by a decision of 7 June 2018, admitting the list of demands and affirming that SITRAFOS had the stated percentage). In addition, the Committee observes that the alleged decrease in SITRAFOS membership below 51 per cent in 2019 is not an obstacle to negotiation via the procedures established by the Labour Code (these procedures, as asserted by the complainants and not denied by the Government, do allow voluntary negotiation when the 51 per cent level of representativeness is not achieved and apply to other institutions with similar mixed situations – in other words, involving workers appointed under the Wages Act as well as workers hired on the basis of the Labour Code).
5. 388. The Committee recalls the importance which it attaches to the obligation to negotiate in good faith for the maintenance of the harmonious development of labour relations, and also recalls that the principle that both employers and trade unions should negotiate in good faith and make efforts to reach an agreement means that any unjustified delay in the holding of negotiations should be avoided The Committee also recalls that both employers and trade unions should bargain in good faith and make every effort to come to an agreement, and satisfactory labour relations depend primarily on the attitudes of the parties towards each other and on their mutual confidence [see Compilation, paras 1327, 1330 and 1329].
6. 389. In this regard, the Committee observes that the Government, apart from denying the allegation of a lack of willingness to negotiate and stating its readiness to streamline and complete the negotiation process, does not deny or attempt to justify the specific instances of procrastination reported in the complaint (for example, one and a half months for FOSALUD to communicate information which it possessed and which it had already sent to the Ministry of Labour) or the resulting delay (over 14 months since the start of the procedure without any progress). The negotiation process having started at the end of 2017, there had still been no compliance in May 2019 with the initial requirement (agreeing on the schedule for direct contact meetings), for which the law prescribes no more than 72 hours. In conclusion, the Committee notes with regret that, in the negotiation process launched by SITRAFOS, a series of actions and delays occurred which could be ascribed to the authorities concerned and which had the effect of obstructing the negotiations. The Committee considers that situations of this kind can undermine confidence in the system of labour relations in the sector. Lastly, the Committee observes that although the Government refers to the decrease in union membership as an obstacle to negotiation, it concludes its observations by stating that FOSALUD is waiting for that issue to be resolved in order to conduct negotiations for the collective agreement.
7. 390. In these circumstances, the Committee firmly expects that the authorities concerned will take the appropriate measures to promote the negotiation of a collective agreement between FOSALUD and SITRAFOS without further delay. The Committee requests the Government to keep it informed of all progress in this respect.

The Committee’s recommendation

1. 391. In the light of the foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
2. The Committee firmly expects that the authorities concerned will take the appropriate measures to promote the negotiation of a collective agreement between the Health Solidarity Fund (FOSALUD) and the Union of Health Solidarity Fund Workers (SITRAFOS) without further delay. The Committee requests the Government to keep it informed of all progress in this respect.