Rapport définitif - Rapport No. 378, Juin 2016

Cas no 2897 (El Salvador) - Date de la plainte: 05-JUIL.-11 - Clos

Allegations: Obstacles to negotiations for a salary increase for judiciary workers and unjustified pay deductions for strike days

1. 226. The complaint is contained in a communication dated 5 July 2011 from the Association of Judiciary Workers (ASTOJ), the “30 June” Judiciary Employees’ Union of El Salvador (SEJE 30 de junio) and the Union of Judiciary Workers (SUTOJ).
2. 227. The Government sent its observations in communications dated 21 August and 16 November 2015 and 11 April 2016.
3. 228. 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. 229. In their communication of 5 July 2011, the complainant organizations allege obstacles to negotiations for a salary increase for judiciary workers and unjustified pay deductions for strike days.

Allegations of obstacles to negotiations for a salary increase

1. 230. The complainant organizations allege that in January 2010 they submitted a claim for a salary increase for 2011 and that the competent authorities responded with delays and obstacles to negotiations in good faith, as follows: (i) they were silent for nine months, failing to respond to the initial claim for the pay rise; (ii) a copy of the draft budget, which was requested within the labour relations committee (the body for dialogue between representatives of the judiciary workers and the judiciary), was not made available even though the judges representing the Supreme Court of Justice in the committee had pledged to supply it; (iii) the representatives of the workers were informed that the budget did not contain a salary increase once the budget had been sent to the Ministry of Finance; and (iv) the competent authorities informed the trade union representatives in November 2010 that there were funds in the 2011 budget to cover the pay rise for all public employees announced by the President of the Republic, but then told them at the beginning of 2011 that there were no resources to grant the salary increase.
2. 231. The complainants indicate that they subsequently submitted a claim for a salary increase of US$200 for all judiciary workers. On 10 January 2011, the complainants were called to a meeting of the labour relations committee, at which the pay increase was not initially on the agenda but it was agreed to include this item and a judge undertook to forward the claim to the plenary of the Supreme Court. The complainants state that, after once again receiving no reply, all the trade unions agreed to stop work from 17 to 24 January 2011. The complainants add that, in response to this pressure, the competent authorities convened meetings with representatives of the labour relations committee on 17 and 21 January 2011 with a view to reaching a settlement, requesting that the work stoppage at the Institute of Forensic Medicine be discontinued, to which the unions agreed. The judges then undertook to refer the unions’ proposal to the plenary of the Supreme Court, confident that they would be able to announce a successful outcome that evening. However, the complainants claim that they were informed a few hours later that the President of the Supreme Court had broken off the negotiations, and the national police, through the Public Order Maintenance Unit, removed the workers from the premises of the Supreme Court and the Institute of Forensic Medicine. On 22 January 2011, the complainants requested the intervention of the Human Rights Ombudsman to reconvene the negotiations, and this had a positive outcome: the Supreme Court established a high-level advisory board and the trade unions were invited to a meeting on 11 February 2011 to launch the negotiations. However, the pay increase did not materialize on that occasion, further to the Supreme Court president’s statement that no funds were available. At this refusal, the complainants submitted another proposal for a salary increase which was again rejected supposedly for lack of funds, despite the fact that the trade unions had demonstrated through a financial study that the Supreme Court did have the funds to cover the proposal. The complainants add that an agreement was subsequently reached with the authorities, namely to award a US$200 bonus in March and the same amount again in September 2011 to more than 8,960 workers.

Allegations of unjustified pay deductions for strike days

1. 232. The complainants report that in February 2011 the competent authorities requested all members of the trade union executive committees to provide evidence that they duly provided services during the period of the work stoppage, otherwise pay would be deducted, in accordance with section 99 of the general budgetary provisions. The complainants allege that, after they were denied their right to a hearing and due process as provided for in the national Constitution was violated, five double daily salary equivalents were deducted for absence from work. They add that this measure affected only the officers of the trade unions referred to above. The complainants consider that the salary deductions constituted intimidation to prevent the exercise of their rights and an abuse of power on the part of the authorities concerned, since the union officers in question had attended the meetings to which they had been invited and so the authorities had witnessed the fact that the officers had been present in the workplace.

B. The Government’s reply

1. 233. In its communications of 21 August and 16 November 2015 and 11 April 2016, the Government declares that the complainant organizations’ rights to freedom of association have not been violated. It states that the Supreme Court of Justice has given considerable support to the trade unions at the Court, recognizing duly registered organizations and allowing them to participate in the labour relations committee to launch negotiations and settle any labour disputes.

Allegations of obstacles to negotiations for a salary increase

1. 234. With regard to the allegations of obstacles to negotiations for a salary increase, the Government states that an impasse occurred which has been resolved inasmuch as the Supreme Court indicates that the trade unions have participated actively since 2012 in the meetings of the labour relations committee bringing together the Supreme Court authorities and members of the trade union executive committees, at which any labour disputes have been settled. As an example of the agreements reached, the Government refers to the adoption on 4 September 2014 of an additional salary increase of US$150 for all employees and civil servants except judges and magistrates, which took effect as from January 2015.

Allegations of unjustified pay deductions for strike days

1. 235. With regard to the allegations of unjustified pay deductions for strike days, the Government states that representatives of the trade unions filed complaints for blatant injustice against the competent authorities and that the Civil Service Tribunal dismissed the complaints, ruling that the pay deductions imposed for not working during the period of the work stoppage were lawful.
2. 236. The Government explains that the deductions are justified by the Civil Service Act, the general budgetary provisions and the case law of the Supreme Court; due process was honoured and the deductions represented a payment or return of salaries to the state coffers for work not performed.
3. 237. The Government denies that the deductions were imposed in discriminatory fashion only on members of the trade union executive committees, indicating that they were also imposed on other Supreme Court employees who had failed to perform their duties. As an illustration of this, the Government refers to the proceedings initiated within the Civil Service Tribunal by the other employees who incurred the deductions, and attaches the relevant ruling of the Civil Service Tribunal of 7 May 2012, which records the other deductions made.
4. 238. The Government adds that the employees who provided evidence that they actually worked on the dates concerned were repaid the salary amounts that had been deducted.
5. 239. With regard to the strike ban imposed on public and municipal workers under article 221 of the national Constitution, the Government indicates that El Salvador has taken note of the observations of the ILO supervisory bodies so that the aforementioned article can be revised by the competent authorities in accordance with Convention No. 87.

C. The Committee’s conclusions

1. 240. The Committee observes that the complainant alleges obstacles to negotiations for a salary increase for judiciary workers and unjustified pay deductions for strike days.
2. 241. As regards reported obstacles to negotiations for a salary increase, the Committee notes the Government's statement that an impasse occurred which has been resolved, as borne out by the subsequent agreements on salaries concluded with the trade unions. Since it has not received any information to the contrary from the complainant organizations, the Committee acknowledges the efforts made by the competent authorities and encourages them to continue promoting social dialogue and voluntary collective bargaining conducted in good faith with the judiciary workers.
3. 242. As regards the allegation of unjustified pay deductions for strike days, the Committee notes the Government's indications that the deductions were made without distinction from all employees (not just the trade union officers) who were absent from work without good reason, in accordance with the legislation, due process and the applicable case law; that the competent courts dismissed the related appeals filed by the complainant organizations; and that the deducted salary amounts were repaid to workers who provided evidence that they had actually worked. The Committee wishes to recall that salary deductions for days of strike give rise to no objection from the point of view of freedom of association principles, however, in a case in which the deductions of pay were higher than the amount corresponding to the period of the strike, the Committee recalled that the imposition of sanctions for strike action was not conducive to harmonious labour relations [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, paras 654 and 655].

The Committee’s recommendation

1. 243. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
   • The Committee encourages the competent authorities to continue promoting social dialogue and voluntary collective bargaining conducted in good faith with the judiciary workers.