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

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - El Salvador (Ratification: 2006)

The Committee notes the observations of the International Organisation of Employers (IOE), which were received on 13 October 2020, endorsing the comments of the National Business Association (ANEP), which refer to issues examined by the Committee in the context of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).

Article 1 of the Convention. Adequate protection against anti-union discrimination. In its previous comments, the Committee emphasized the importance of reforming penalties for anti-union discrimination in order to ensure their deterrent effect. The Committee notes the Government’s indication that Legislative Decree No. 519, published in the Official Journal of 31 October 2022, amends section 627 of the Labour Code, which establishes fines of up to 12 minimum wage equivalents, in industry, commerce and the services sector, for each of the offences specified in Books I, II and III of the Code, and other related labour legislation, which did not establish any special penalties. The fines vary according to the size of the enterprise, the seriousness of the offence, the intent, and the injury caused. While welcoming this change in the legislation, the Committee notes that the Government has not provided any information on the classification of fines according to the seriousness or types of offences involving acts of anti-union discrimination. The Committee requests the Government to provide information on this matter, and on the application in practice of the imposition of fines for acts of anti-union discrimination.

Furthermore, in its previous observation, the Committee emphasized that even though the staff of municipal authorities are not covered by the Labour Code, this does not release the Government from its responsibility to guarantee adequate protection against anti-union discrimination for this category of workers. The Committee notes that the Government once again provides information on the existing legal framework: indicating that municipal authority workers can currently file complaints with the Attorney-General’s Office, the Human Rights Protection Office and the Public Prosecutor’s Office; reiterating that the Ministry of Labour and Social Welfare (Ministry of Labour) is obliged to refrain from carrying out inspections of the municipal authorities (except for inspections relating to the General Occupational Risk Prevention Act); and noting the need to amend the applicable legislation. In this regard, the Committee observes that the Committee on Freedom of Association (CFA) asked the Government to take the necessary steps, including legislative measures if necessary, in consultation with the representative social partners from the sector, to ensure that the staff of municipal authorities have access to adequate mechanisms for protection against acts of anti-union discrimination (see 389th Report, June 2019, Case No. 3284), in which the CFA referred the legislative aspects of the case to the Committee). Recalling its previous comments in the context of the application of the present Convention and of the Labour Relations (Public Service) Convention, 1978 (No. 151), on the need to introduce legislative reforms to ensure that all public workers covered by these Conventions enjoy adequate protection against anti-union discrimination, the Committee requests the Government to revise the legal framework, in consultation with the representative organizations in the sector, to ensure that municipal authority workers have access to adequate protection against acts of anti-union discrimination, and to provide information on any developments in this regard.

Articles 2, 4 and 6. Legislative issues pending for several years. For a number of years, the Committee has been making comments on certain provisions of domestic law with the aim of bringing them into full conformity with Articles 2, 4 and 6 of the Convention:

• acts of interference: section 205 of the Labour Code and section 247 of the Penal Code, so that the legislation explicitly prohibits all acts of interference in the terms prescribed by Article 2 of the Convention;
• requirements for negotiating a collective agreement: sections 270 and 271 of the Labour Code and sections 106 and 123 of the Civil Service Act, so that when one or more unions do not cover more than 50 per cent of the workers, collective bargaining rights are explicitly granted to the existing unions so that they, jointly or separately, can at least represent their own members;
• revision of collective agreements: section 276(3) of the Labour Code, so that the renegotiation of collective agreements while they are still in force is only possible at the request of both signatory parties;
• judicial remedies in the event of refusal to register a collective agreement: section 279 of the Labour Code, in order to clarify that appeals can be made against decisions of the Director-General involving refusal to register a collective agreement;
• approval of collective agreements concluded with a public institution: section 287 of the Labour Code and section 119 of the Civil Service Act, which regulate collective agreements concluded with a public institution, in order to replace the requirement for ministerial approval by a provision envisaging the participation of the budgetary authority during the process of collective bargaining, and not when the collective agreement has already been concluded;
• exclusion of certain categories of public employees: section 4(1) of the Civil Service Act, so that all public officials not engaged in the administration of the State enjoy the guarantees provided for in the Convention.

The Committee notes the information provided by the Government indicating that the Ministry of Labour, together with representatives of the unions, have set up a technical round table for the purpose of discussing and analysing the proposed reforms to the Labour Code. These reforms will subsequently be submitted to the employers for consideration before being referred to the Higher Labour Council.

The Committee welcomes this initiative and hopes that it will contribute to the reactivation of the Higher Labour Council as a tripartite social dialogue body, in which the pending legislative issues to which the Committee has repeatedly referred can be addressed comprehensively. Hoping to observe tangible progress in the near future, the Committee requests the Government to provide information on the status of these discussions and supply further details of the employers’ and workers’ organizations involved in the consultation process.

Application of the Convention in practice. The Committee notes the information provided by the Government on the status of collective bargaining in the country, indicating that: (i) there are 23 collective agreements in force in the public sector (of which 9 have been extended); and (ii) a total of 21,590 workers in the public sector are covered by collective bargaining. The Committee also welcomes the Government’s indication, in its report on the Collective Bargaining Convention, 1981 (No. 154), regarding the annual award of the “collective negotiation prize”, which the Ministry of Labour is implementing to promote a culture of dialogue, collaboration and mutual respect. The Committee notes this information but observes that it does not contain any details of collective agreements in the private sector. The Committee also observes that, according to available ILOSTAT data, the coverage rate for collective bargaining in the country was 4.6 per cent in 2018. The Committee considers that this low coverage rate may stem from the restrictive requirements established by the legislation for engaging in collective bargaining, as referred to above. The Committee therefore requests the Government to provide information on all legislative and practical measures taken to promote the full development and use of collective bargaining. The Committee also requests the Government to continue providing information on the number of collective agreements concluded and in force, indicating which relate to the private sector and which to the public sector, and also on the number of workers covered by these agreements.