Labour Relations (Public Service) Convention, 1978 (No. 151) - El Salvador (Ratification: 2006)

Observation (CEACR) - adopted 2024, published 113rd ILC session (2025)

Article 1 of the Convention. Public servants excluded from the guarantees of the Convention. In its previous comments, the Committee observed that sections 4(k) and (l) of the Civil Service Act (LSC) exclude certain categories of public employees from the guarantees of the Convention. The Committee notes the Government’s indication that a draft updated version of the Labour Code is currently under examination and that it takes the Committee’ recommendations into account, which will subsequently make possible the amendment of the LSC. In this regard, the Committee recalls that under Article 1 of the Convention, the only categories of public employees in respect of which national laws or regulations may determine the extent to which the guarantees provided for in the Convention shall apply are: (i) high-level employees whose functions are normally considered as policy-making or managerial; (ii) employees whose duties are of a highly confidential nature; and (iii) the armed forces and the police. While noting the draft updated version of the Labour Code indicated by the Government, the Committee requests the Government to swiftly take the necessary measures to revise the LSC to ensure that all public employees covered by the Convention effectively enjoy its guarantees. The Committee requests the Government to provide information of any developments in this regard.

Article 4. Protection against anti-union discrimination and against acts of interference. In its previous comment, the Committee noted the absence of specific provisions in the LSC related to protection against anti-union discrimination and acts of interference. The Committee notes the Government’s indication that section 47 of the Constitution, sections 32(j) and (m) of the LSC and the ruling for protection of constitutional rights No. 433-2005 of the Constitutional Chamber of the Supreme Court of Justice govern protection against any act of anti-union discrimination in the public administration. The Committee duly notes the content of section 47 of the Constitution and, in particular, of section 32 of the LSC, which prohibits discrimination against public servants on grounds of their membership of a trade union, or reprisals taken against them on the same grounds. While observing that the cited legislation governs protection against anti-union discrimination for trade union leaders and members in general, the Committee nonetheless observes that the LSC contains no provisions which: (i) define applicable penalties in the event of anti-union discrimination against trade union leaders and members in general; and (ii) prohibit acts of anti-union interference. The Committee recalls once more the need for the national legislation to contain an explicit prohibition of any act of anti-union discrimination against public employees, and against any act of interference by the public authorities in the establishment, operation or administration of organizations of public employees, and for such acts to give rise to dissuasive sanctions. The Committee therefore requests the Government, in consultation with the representative organizations concerned, to take the necessary measures to adopt legal provisions expressly prohibiting acts of anti-union interference in the public administration, and to establish dissuasive sanctions both for such acts and also for anti-union discrimination. The Committee requests the Government to provide information on all progress in this regard.

Article 6. Facilities to be afforded to public employees’ organizations. In its previous comment, the Committee observed that the LSC does not contain provisions on facilities to be afforded to public employees’ organizations and trusted that the current legislative reform would give full effect to the application of Article 6 of the Convention. The Committee notes the Government’s indication that: (i) the Criteria and Guidelines for the Provision and Administration of Trade Union Leave for Representatives of Public Servants in the Executive have been drawn up; and (ii) the Constitutional Chamber of the Supreme Court of Justice, through Decision No. 746-2011, establishes trade union leave for public employees. The Committee regrets that the Government has not provided information on the preliminary draft Public Service Bill which contains provisions respecting the facilities to be afforded to trade union representatives and that there continues to be no legal provision in place in this respect. The Committee requests the Government to report on any development concerning the preliminary draft Public Service Bill which contains provisions regarding the facilities to be afforded to public employees’ organizations, as well as on other legal action to give full effect to the application of Article 6 of the Convention.

Article 8. Settlement of disputes. As El Salvador has ratified the Collective Bargaining Convention, 1981 (No. 154), in 2022, the scope of which covers the public service, the Committee refers to its comments on the application of that Convention in respect of this matter.

Observation (CEACR) - adopted 2014, published 104th ILC session (2015)

Article 1 of the Convention. Public servants excluded from the guarantees of the Convention. In its previous comments, the Committee noted the amendment to article 47 of the Constitution to recognize the right of public servants and employees, and of municipal employees, to establish occupational associations or unions. Further to this constitutional reform, the Committee also requested information on the possible amendment of section 4(k) and (l) of the Civil Service Act (LSC), which excluded certain categories of public employees from the guarantees of the Convention. The Committee notes that the Government reports the submission on 24 May 2011, following a successful process of dialogue with the 59 public sector unions on a preliminary draft reform of the LSC, including the amendment of section 4 and the reduction of the categories of public servants excluded from the civil service regime. In this regard, the Committee recalls that, under the terms of Article 1 of the Convention, the only categories of public employees in respect of which national laws or regulations may determine the extent to which the guarantees provided for in the Convention shall apply are: (i) high-level employees whose functions are normally considered as policy making or managerial; (ii) employees whose duties are of a highly confidential nature; and (iii) the armed forces and the police. While noting that the Government refers in its report to various draft legislative amendments relating to the public service, the Committee trusts that the revision of the LSC will be adopted in the near future so as to ensure that all the public employees covered by the Convention benefit in practice from its guarantees. The Committee requests the Government to report any developments in this regard.

Article 4. Protection against anti-union discrimination and against acts of interference. The Committee notes the Government’s indication that the preliminary draft Public Service Bill submitted to the Legislative Assembly affords protection against any act of anti-union discrimination and contains provisions protecting trade union representatives. In this respect, observing that the LSC does not contain provisions on these matters, the Committee recalls the need for the national legislation to contain an explicit prohibition of any act of anti-union discrimination against public employees, and against any act of interference by the public authorities in the establishment, operation or administration of organizations of public employees, and for such acts to give rise to dissuasive sanctions. Trusting that the current legislative reform will give full effect to Article 4 of the Convention, the Committee requests the Government to provide information on any developments in this respect.

Article 6. Facilities to be afforded to public employees’ organizations. The Committee notes the Government’s indication that the Civil Service Tribunal refers to Article 6 of the Convention when it is consulted on matters relating to the facilities to be afforded to public employees’ organizations. The Committee also notes that the preliminary draft Public Service Bill contains provisions respecting the facilities to be afforded to trade union representatives. Observing that the LSC does not contain provisions on these matters, the Committee trusts that the current legislative reform will give full effect to Article 6 of the Convention and requests the Government to report any developments in this regard.

Article 7. Participation in determining terms and conditions of employment. The Committee notes with interest the information provided by the Government concerning the conclusion of seven collective agreements with public institutions and that two other collective contracts are currently under negotiation. The Committee also welcomes the training in collective bargaining provided for trade union leaders in the public sector (1,288 persons trained). Furthermore, the Committee refers to its observation on the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), in which it requests the revision of the legislative provisions on the negotiation of the terms and conditions of employment of public employees.

Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

Article 1 of the Convention. Exclusion of public servants. The Committee recalls that under article 47 of the Constitution of the Republic, civil servants and public employees did not enjoy the right to establish unions. The Committee notes with satisfaction that article 47 of the Constitution, as amended by Decree No. 33 of June 2009, establishes that employers and workers in the private sector, without distinction as to nationality, sex, race, creed or political views, regardless of the activity or the nature of the work they perform, have the right to associate freely in order to defend their respective interests, by forming professional associations or unions; the same right applies to workers in autonomous official institutions, civil servants, public employees and municipal employees. The Committee notes in this connection that legal personality has recently been granted to a number of unions in ministries, municipalities and the judiciary.

In its previous comments, the Committee referred to section 4(k) and (l), under which certain categories of public employees are excluded from the safeguards established in the Convention. The Committee understands that some of the former provisions of the Civil Service Act have been eliminated following the amendment of the Constitution and asks the Government to provide particulars.

Articles 6, 7 and 8. Facilities and procedures for determining the conditions of employment of public employees. In its previous comments, the Committee asked the Government to send information on the measures taken to apply the Convention and to indicate whether, in the context of collective bargaining, it was possible to establish facilities for trade unions. The Committee notes in this connection that, according to the Government, with the amendment of the Constitution, the right of public employees to collective bargaining has been recognized. The Government adds that it will take the necessary measures to promote collective bargaining processes in the public sector and that the Ministry of Labour will launch a process for training of the staff of the Civil Service Tribunal in procedures regarding collective disputes of an economic nature. It further notes that, according to the Government, a number of collective agreements have been registered in the public sector which include trade union leave and time off, contributions for social, cultural, artistic and sports facilities and the grant of trade union premises. The Committee requests the Government to examine with the social partners how to promote, on a broader basis, the facilities to be granted to workers’ representatives, and to provide information on any developments regarding the legislation that applies to collective bargaining and dispute settlement.

Direct Request (CEACR) - adopted 2008, published 98th ILC session (2009)

The Committee takes note of the Government’s first report.

Article 1 of the Convention. Exclusion of public servants. The Committee notes that the Government points out in its report that section 4 of the Civil Service Act indicates the categories of public employee excluded from the guarantees of the Convention. The Committee notes that section 4(k) and (l) refer to the following categories: command, supervisory and security staff in prisons; inspectors and guards in juvenile detention centres and customs; permanent representatives and deputy permanent representatives of the Directorate-General for Migration; customs administrators, assistant customs administrators and their secretaries; public servants occupying the positions of directors, deputy directors and directors’ secretaries; managers, heads of department and section, collectors, treasurers, cashiers, administrators, warehouse security staff, warehouse personnel and auditors in any public institution department, as well as those who manage public or municipal funds or other assets which are held in the custody of the State or are deposited with the State for any other reason, or those who are obliged to give an account to the Treasury as part of their duties; and in general, public servants who are responsible for the processing of payment orders. The Committee considers that, with the exception of command staff in prisons, the other categories cannot be regarded as employees with policy-making functions or duties of a confidential nature within the meaning of the Convention, and should therefore enjoy fully the guarantees of the Convention. The Committee requests the Government to take the necessary measures to amend section 4(k) and (l) of the Civil Service Act in the manner indicated above.

Declaration of unconstitutionality. The Committee also notes that, in a decision of 31 October 2007, the Constitutional Chamber of the Supreme Court of Justice found that it was unconstitutional to extend the right to freedom of association to public employees, who are not included among the holders of that right under section 47 of the Constitution of the Republic, which refers only to private workers (O.J. 203 T.377 of 31 October 2007). The Committee notes the information provided by the Government according to which the section of the Constitution in question is in the process of being reformed and will be submitted to the Legislative Assembly in 2009. The Committee requests the Government to provide information on any developments relating to the draft constitutional reform and hopes that the application of the Convention to public employees will be ensured.

Articles 6 and 7. Facilities. The Committee notes the information provided by the Government that efforts are being made to apply the Convention in this regard. The Committee requests the Government to provide information on any developments relating to this matter and indicate whether, in the context of collective bargaining, it is possible to establish facilities in favour of trade unions.

Articles 7 and 8. The restrictions on the collective bargaining rights of minority unions are examined in the Committee’s examination of the application of Convention No. 98.