Individual Case (CAS) - Discussion: 2016, Publication: 105th ILC session (2016)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - El Salvador (Ratification: 2006)



A Government representative said that her participation in the Conference as Minister of Labour and Social Welfare demonstrated the importance her country attached to the Organization’s activities, especially progress on trade union rights, the promotion of decent work, dialogue and tripartite consensus, which were the cornerstones of its activities and constituted a guarantee of labour rights. With reference to the application of the Convention and the questions raised by the Committee of Experts in its observation, it was regrettable that so far even the Office of the Attorney General had not been able to identify the causes and perpetrators of the murder of Victoriano Abel Vega. Meetings had been held with both the previous and current Attorneys General, and both had agreed that the case needed to be solved and the investigation closed. However, it was well known that the Government of El Salvador was taking steps to combat crime and to prosecute offences with the aim of giving the Salvadorean people better and broader public safety. Every effort would continue to be made to ensure that Mr Vega’s death did not go unpunished. In relation to the 19 decrees adopted to expand and democratize the representation of employers’ and workers’ organizations in joint and tripartite bodies, an analysis had been undertaken revealing that at no time had those measures, by making slight changes to election processes, restricted the independence of employers’ or workers’ organizations. On the contrary, they were fully functional, with the participation of various employers’ and workers’ organizations. In the case of the tripartite bodies, it was regrettable that the National Business Association (ANEP) continued to express its disagreement, given that it currently enjoyed active representation in the country’s tripartite bodies. In order to guarantee such participation, the Government set aside a significant amount each year to cover the expenses of both worker and employer representatives. However, in reply to the observation of the Committee of Experts, the request to hold consultations on these reforms would be taken into account.

In relation to the activation of the Higher Labour Council (CST), resolving the dispute that prevented the CST from becoming active because of the persistent disagreement between the country’s most representative trade union organizations on their representation was one of the priorities of the Ministry of Labour. In that respect, various steps had been taken, including requesting mediation, for which the Office had provided technical cooperation, so as to have an external party who was completely neutral and could contribute to identifying a consensus solution to the dispute. Mediation had taken place in February 2016, with the participation of the ILO and a consultant who had held meetings with the various groups of the federations and confederations which had submitted their respective representation lists to the CST. The consultant, in his report, had noted, at the request of the trade union organizations, the complexity of the problem and the difficulty of reaching an agreement, which was one of his main findings. He had also said that, in view of its independent nature, the dispute was one that should be resolved directly with the Ministry of Labour and that mediation was not necessary. Acting on the findings of a consultant, in the first week of April 2016, with the Office of the Human Rights Ombudsman as mediator and the ILO, bilateral meetings had been held with each of the trade union groups. A joint meeting had also been held, facilitated by the Ombudsman and attended by the ILO, to seek an understanding and an agreement, but a solution had yet to be reached. In the absence of a mechanism for electing labour representatives, participating organizations had been asked to form an interim committee to revise and formulate a proposal for new regulations, specifically concerning trade union election procedures, which had been rejected by the complainant trade unions in this case, which considered that the regulations in question could only be revised by the CST. Although the Committee had emphasized that a single list should not be required, it was important to take into account the fact that, in view of the right to autonomy of trade union organizations, ignoring the representativity of organizations that were at dispute and convening the Council without the agreement of all parties would run totally counter to the practices and rules that determined trade union autonomy. At no time had the Government impeded the activation of the CST. On the contrary, it had sought viable democratic options that were in line with Conventions and legislation in force so that a solution could be found. Efforts would continue to be made to find a solution.

In a recent ruling, the Constitutional Chamber of the Supreme Court of Justice had produced a detailed analysis of a request for constitutional protection (amparo) submitted by the complainant organizations, seeking to be named as the only trade union representatives on the CST and asking that the request of other nationally representative trade union organizations should not be taken into account. The Chamber, in amparo ruling No. 951-2013, had ruled that “the Ministry of Labour and Social Welfare does not have the power to appoint the members of the Higher Labour Council, to change the list of the workers’ organizations in question or to remove them if they are already members of the Council”. It had also considered that “… the submission of a single list of appointees to the Council is the expected result of a democratic and representative election process carried out by trade union federations and confederations in order to guarantee the participation of workers in the national body …” and insisted “… that the Minister of Labour and Social Welfare, by requiring agreement to be reached in election procedures and favouring a definitive list of appointees was not imposing a restriction or arbitrary condition that prejudiced the organizations in question or those persons proposed independently or by any organization in exercise of their right to freedom of association on the terms set out above, for which reason it must be found that there are no grounds for the amparo petition.” At the same time, the Government would continue to take action and to request support and cooperation from the ILO in identifying solutions, both to the issue of the CST, and other requests made by the Conference Committee. In relation to the requests to reform various provisions of the Constitution, the Labour Code and the Civil Service Act, inter alia, reforms to a range of legislative acts were being examined. Recently, at the initiative of the Parliamentary Group of the Farabundo Martí Front for National Liberation (FMLN), in the Legislative Assembly, a request had been made in November 2015 for sections 204, 211, 212, 219, 529 and 553 of the Labour Code to be reformed to expand trade union rights. Those and other initiatives that were being examined by the Legislative Assembly would be facilitated by the support provided by the technical cooperation requested from the ILO and the inter-institutional teams created to examine the initiatives. With regard to refusals of registration received by trade unions, from June 2015 to the present, legal personality had been granted to 45 trade union organizations, of which only five had been refused for failure to meet legal requirements, which did not mean that they could not resubmit their documents and request registration, for which reason, even though the law allowed six months for them to amend their request, the 45 submitting organizations had been dealt with in 20–25 working days on average. The Government of El Salvador was committed to complying with ILO Conventions, not only Convention No. 87 but also others that contributed to moving forward on labour rights in the country and promoting social dialogue, which were consistent with Government policy, as well as with other forums for discussing matters of national interest, for example, the National Council for Citizens Security and Coexistence, in which various national actors were participating, including ANEP, and others relating to the promotion of investment and the inclusive economic development of the country. Significant measures had been taken to ensure access to dignified and decent work, and 35,248 jobs had been created by 3,000 private enterprises through the National Employment System, 75 per cent of which were for young people, of whom 49 per cent were women. Employability training had been provided for 223 people and 27,241 inspections had been carried out, covering over 500,000 workers. The aim was to build a productive, educated and safe country for the Salvadorean people, for which purpose integrated public policies were being promoted and established, focusing on ensuring the well-being and improving the living conditions of the Salvadorean population. The Ministry of Labour and Social Welfare was committed to making every effort necessary to comply with the observations and recommendations made by the Committee of Experts in line with current legislation, consistent with the ILO’s vision of dignifying the rights of workers and creating decent work and productive jobs and the firm commitment to join forces with workers and employers to ensure effective protection for labour rights in the country.

The Worker members once again expressed their deep concern regarding the political situation and the murders committed, and the issues relating to Convention No. 87 in El Salvador. Recalling that the situation had not improved since 2015, they indicated that the country remained a hotbed of intense violence and urged the Government to continue its efforts to reduce violence. This situation needed to be seen in relation to freedom of association. Violence against workers’ representatives was common and instigated by gangs, particularly in export processing zones. In January 2010, Victoriano Abel Vega, Secretary-General of the Union of Municipal Workers of Santa Ana, had been murdered. The Committee of Experts had condemned this act, the Committee on Freedom of Association had taken up the case and the Conference Committee in 2015 had requested the Government to take all measures without delay to identify those responsible. Despite the acceleration in the action taken, the authorities had still not identified those responsible and the accomplices of this abject act. Case No. 2957, as well as eight other cases, were also being examined by the Committee on Freedom of Association. They concerned the detention of a trade union representative and anti-trade union action. The Worker members considered that national regulations were not in line with Article 2 of Convention No. 87, in particular the limit required before a new request could be submitted where registration had been rejected, the possibility for a worker to join several organizations, the registration procedure, and the need for a trade union to certify the status of its members. With regard to the time before a new request for registration could be made, section 248 of the Labour Code provided that a new request to establish a trade union had been made at least six months after the previous one. In 2008, the Committee of Experts had noted that the Ministry was in the process of establishing a special commission entrusted with formulating a proposed amendment in that regard. In 2009, the Government had indicated that it had made the commitment, as reflected in the report known as the White Paper, to modify the labour legislation and amend section 248 of the Labour Code. A draft decree to that effect had been submitted to the CST for consultation. Following the 2015 Conference Committee, the Government had proposed an amendment but, in 2016, section 248 of the Labour Code remained unchanged. In view of the Government’s repeated promises and the failure to amend section 248 of the Labour Code, the Worker members expressed concern and hoped the problem would be solved as soon as possible. With regard to the possibility of joining several trade unions, they recalled the need to amend section 204 of the Labour Code, which prohibited membership of more than one trade union and ran counter to Convention No. 87. Further to the examination by the Conference Committee in 2015, even though the Government had reported on a draft text to reform section 204 of the Labour Code, no information on a legislative amendment had been provided. With regard to the registration procedure, section 219 of the Labour Code provided that, within the context of this procedure, the employer must certify the status of the founding members as employees. As in 2015, the Worker members called on the Government to take measures to amend this provision, for example by enabling the Ministry of Labour to draw up the certificate. In conclusion, they drew the attention of the Committee to the non-conformity of article 47 of the Constitution, and sections 225 of the Labour Code and 90 of the Public Service Act with Article 3(1) of Convention No. 87. These provisions made it necessary to be Salvadorean by birth to be a member of the executive board of a trade union. Recalling that national legislation should permit foreign workers to have access to trade union office, at least after a reasonable period of residence in the host country, they noted that the Government had not yet amended these provisions. While expressing their profound concern about this issue, they emphasized that a swift legislative amendment was more than necessary and hoped that the technical assistance requested by the Government would contribute to that.

The Employer members welcomed the information provided by the Government and noted that this was an important case for the Employers’ group. Convention No. 87 had been ratified in 2006. The Conference Committee had examined the case in 2015, and the Committee on Freedom of Association had examined the application of the Convention on various occasions. In 2015, the International Trade Union Confederation (ITUC), the International Organisation of Employers (IOE) and the ANEP had communicated their observations on the application of the Convention. The Committee of Experts, in its latest observation, referred to various issues and followed up on the conclusions of the examination of the case by the Conference Committee in 2015. With regard to the murder of the trade union leader Victoriano Abel Vega in 2010, which was the subject of Case No. 2923 before the Committee on Freedom of Association, five years had elapsed and the perpetrators of the crime had still not been found. The Government should be urged to take all necessary measures to determine criminal liability and to punish the perpetrators of this crime in the near future.

With regard to the autonomy of employers’ and workers’ organizations to appoint their representatives in joint and tripartite decision-making bodies, the President continued to appoint at his discretion the private sector representatives to those bodies. Since this matter had been discussed in the Conference Committee in 2015, the situation had worsened and a person who was not representative of the private sector had been appointed to the governing board of the Development Bank of El Salvador. With reference to the 19 decrees adopted on 22 August 2012 (Decrees Nos 81–99), which provided that the employer representatives who were to sit on the executive councils should be chosen and appointed by the President of the Republic from an open list of candidates from employers’ organizations which had duly approved legal personality, and which should select their candidates in accordance with their internal regulations, it was regrettable that no progress had been made to overcome the situation. This was a very serious case of interference which affected the autonomy of the private sector and violated Article 3 of Convention No. 87. Furthermore, they rejected the Government’s statement that ANEP was not representative of small and medium-sized businesses in the country. The criteria of the most representative organization to be followed was that of the ILO. As indicated by the Committee of Experts, progress needed to be made in law and practice, in consultation with the workers’ and employers’ organizations, to amend the 19 decrees adopted on 22 August 2012.

With regard to the failure to appoint the worker representatives to the CST, the Council’s regulations provided that trade union federations and confederations appointed their representatives. In 2013, two federations submitted a list of representatives, but the Government had since then been trying to reach a consensus. In November 2015, the Government had requested ILO mediation, which had not borne fruit. This situation also violated the autonomy of the workers’ organizations and Article 3 of Convention No. 87. The criteria of the most representative should be applied, based on specific, predictable and objective criteria. There were other concerns, such as difficulties in determining the national minimum salary. The issue had been politicized and acts of violence occurred on the wage council and in the actual ANEP headquarters. Therefore, in addition to the violation of Convention No. 87, the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144) had been affected due to the misrepresentation and the failure to implement and promote social dialogue within the framework of the country’s labour relations system, which undermined the legitimacy of the country’s labour standards and practices. In its direct request, the Committee of Experts referred to the issue of the right to strike. The position of the Employers’ group on this subject was known and reference had been made to it. Notwithstanding, it was a matter of concern that not only was information requested from the Government, but also that action had been suggested relating to the amendment of several legislative aspects.

The Worker member of El Salvador voiced her indignation at the delay by the State in investigating the murder of Victoriano Abel Vega, which had occurred six years earlier, and that the perpetrators had still not been brought to justice. She added that Mr Vega had received death threats from mayors in the west of the country because of his trade union activities in the municipalities. Attempts were being made to divert attention away from this line of investigation by suggesting that the murder could have been the result of common crime or committed by gangs. She also referred to another example of the anti-trade union culture that prevailed in the country: the case of Juan Antonio Hernández, Secretary-General of the General Union Federation of Salvadorian Workers (FUGTS) who, on 21 December 2015, had been attacked in a union office by heavily armed men, beaten and driven to an area controlled by gangs. His vehicle had appeared on National Civil Police premises where seized objects were kept. The Government was still interfering in the election of worker representatives to tripartite dialogue bodies, which had prevented the Higher Labour Council from meeting. In a blatant violation of trade union autonomy, the Government had refused to accept the membership of representatives of federations and confederations which had obtained the highest number of votes in legal elections and had demanded a single list. Following the mediation of the ILO, as requested by the Ministry of Labour, a series of very positive recommendations had been adopted, which could only be implemented once the Higher Labour Council was operational. Furthermore, the ruling of the Supreme Court of Justice on this matter could not take effect until the Council met and, as it implied that consensus would need to be sought in future elections, could be a violation of the Convention. The fact that the Council had not been convened made it impossible for it to issue opinions on the draft reform of the labour and social welfare legislation and to recommend that the Government ratify the ILO Conventions that it considered appropriate. The Government had recently presented a proposal to the Legislative Assembly for the reform of the pension system, which had not been subject to consultation with the social partners. In addition, the Government had refused to set up a tripartite forum on the establishment of a new pension system based on the ratification of the Social Security (Minimum Standards) Convention, 1952 (No. 102), with ILO technical assistance. One of the obstacles to the exercise of freedom of association was the inclusion in the Labour Code of a requirement for the members of all trade union executive bodies to be elected every year, as well as the ridiculous requirements that the Ministry of Labour imposed on a daily basis through the National Department of Labour Organizations. Furthermore, as from 1 June 2016, it was necessary to submit an attendance list duly signed by members present at general, sectoral, federal or confederal assemblies, organizations failing to comply with the new rule were refused certification, and remained leaderless. Many unions were currently leaderless because they had refused to comply with any requirements that were not specifically set out in the Labour Code. The Ministry of Labour was according itself the right to interpret several rulings handed down by the Supreme Court of Justice as it saw fit, and also to adopt laws, by establishing new requirements without first amending the existing labour laws. The Government needed to amend the legislation in order remove the obstacles to freedom of association, including those referred previously, and to reduce the number of members required to establish a trade union, in order that employees in municipalities with more than 35 workers could exercise their right to organize. Moreover, the requirement that, to be a member of a union executive board, a worker had to be a citizen of El Salvador by birth prevented Honduran and Nicaraguan immigrants employed in the construction industry and in the agricultural sector from holding union office. In addition, they were only permitted to join one trade union. That was the type of generalized violation of freedom of association by public and private institutions that Salvadoreans were constantly confronted with.

At the request of the Trade Union of Employees of the Office of the Ombudsman for Human Rights of El Salvador (SEPROHEDES), a complaint had been lodged with the ILO on 30 May 2016, by employees of the Office of the Ombudsman regarding the violation of Convention No. 87, the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), the Labour Relations (Public Service) Convention, 1978 (No. 151), and the Workers’ Representatives Convention, 1971 (No. 135). That was unprecedented, as the Office of the Ombudsman had been established specifically by the peace agreements to protect human rights. The Government was reducing membership of trade unions to favour other organizations, which was undermining the autonomy and freedom of trade unions. These cases highlighted the Government’s lack of will to engage in social dialogue and the absence of any democratic labour policy. For the workers, the priority was the struggle to find decent jobs and working conditions that could lift them out of precarious employment. In conclusion, she emphasized that it was essential to develop industrial relations and respect for the legal framework to guarantee: the promotion of freedom of association, collective bargaining and the strengthening of industrial relations; the conclusion of collective agreements between employers and workers at the industrial branch level under the auspices of the Government, as part of a national employment policy; and the operation and reinforcement of the CST as the tripartite instance of the country for discussions on labour policy and all issues relating to the labour market.

The Employer member of El Salvador summarized the complaints submitted against the Government by the Salvadorean employers concerning violation of freedom of association (Cases Nos 2930 and 2980) and the recommendations that the Committee on Freedom of Association had adopted on the subject in 2015. The violations had referred to the Committee of Experts and formed the basis of its observations on the Convention. In a clear violation of the Convention, the Government had submitted draft legislation to the Legislative Assembly that had resulted in 19 decrees reforming the country’s autonomous institutions, so that private sector representatives on their executive bodies who were in the minority were appointed directly by the President of the Republic at his discretion. Although there had been a change of Government, the new Minister of Labour had regrettably maintained the practice of the previous Government of ignoring the regulations of the Higher Council of Labour. She continued to require all the trade unions to reach an agreement among themselves, despite the fact that in the conclusions it adopted in 2015 the Conference Committee had clearly called on the Government not to demand a consensus in the election of representatives of the social partners. The employers of El Salvador were drawing attention to the illegality of those elections because they concerned private organizations, with the result that the National Council of Labour had not been able to convene since 2013. No solution had therefore been found to the question of autonomous institutions, in which private representatives continued to be appointed by the President of the Republic. For the employers, the fact that the Government had not convened meetings of the Council was a ploy to prevent it from concluding agreements, notably those concerning means to end the violation of employers’ freedom of association and to ensure that the employers’ representatives on the 19 autonomous organizations could be freely appointed. In June 2015, the employers had asked the Conference Committee for ILO technical assistance in finding a mediator who could help the Minister of Labour to reactivate the Higher Council of Labour, an institution that had originated in the peace agreement as a means of promoting dialogue on labour issues between the Government and the employers’ and workers’ organizations. In February 2016, an ILO consultant had visited El Salvador to provide international mediation concerning these issues. However, in spite of the outcome of that mediation and of the conclusions of the Conference Committee in 2015, the Minister of Labour had persisted in her strategy of paralyzing the Council on the grounds that, notwithstanding her best efforts, not all the trade union organizations had been able to agree.

He also denounced other acts of interference by the Government in the activities of labour organizations which made it difficult for tripartite bodies to operate. According to the media, the Ministry of Labour had been manipulating the registration of union members according to whether they were supporters of the Government or not. In recent months, the Government had delayed the adoption of agreements to increase the minimum wage by refusing to attend meetings of the Higher Council on the minimum wage so that there would not be a quorum. It had also launched a political campaign and encouraged demonstrations by activists linked to the FMLN party. A month earlier, the Minister of Labour had allowed a group of demonstrators to enter the Council’s premises, where they had threatened employers’ members, telling them that they knew where they lived. That was nothing short of class hatred. Finally, the employers and workers had recently reached an agreement on the minimum wage, and it was hoped that the President’s approval would not be blocked by the Minister of Labour. In conclusion, he requested a direct contacts mission to assess the many violations of the Convention by the Government.

The Government member of the Netherlands, speaking on behalf of the European Union (EU) and its Member States, as well as Norway, wished to recall the commitment undertaken by El Salvador under the trade pillar of the EU–Central America Association Agreement to effectively implement the fundamental Conventions of the ILO, including Convention No. 87. He acknowledged the progress made by El Salvador in recent years, but also called on the Government to rapidly bring to justice those responsible for the murder of the trade union leader Abel Vega, a case which had remained unresolved for five years. Delays in the investigation and punishment of those responsible created a climate of impunity. The Government should be encouraged to respect the autonomy of employers’ and workers’ organizations to appoint their representatives to joint and tripartite decision-making bodies and, more specifically, to accelerate the mediation process so as to ensure the appointment of workers’ representatives to the Higher Labour Council. The amendment of the legislation on the right to freely establish and join organizations was key to achieving compliance with the Convention. He welcomed the request by the Government for ILO technical assistance and hoped that work in this regard would be initiated shortly. In conclusion, he said that the EU and its Member States remained committed to cooperation with the country to enable it to address the issues raised by the Committee of Experts.

The Government member of Mexico, speaking on behalf of the group of Latin American and Caribbean (GRULAC) countries, thanked the Government for the information that it had provided on the exercise of freedom of association and the protection of the right to organize embodied in the Constitution, in national legislation and in Convention No. 87. Regarding the observation by the Committee of Experts, attention should be drawn to the investigations conducted by the police, the steps taken by the Prosecutor General of the Republic, and the role of facilitator assumed by the Government, with ILO assistance, to find a solution to the dispute that had arisen in the National Council of Labour by holding statutory meetings and advocating mediation. The Government had demonstrated its openness and willingness to engage in dialogue with all social and economic sectors. GRULAC reiterated its commitment to freedom of association and trusted that the Government would continue its efforts to comply with the terms of the Convention.

The Government member of Panama supported the statement of GRULAC, and emphasized that the Government of El Salvador had expressed a genuine willingness to follow through with its commitments and to comply with the recommendations of the Committee of Experts. As pro tempore President of the Council of Ministers of Central America and the Dominican Republic, the Government of Panama expressed its concern at the inclusion of El Salvador in the list of individual cases, along with Guatemala and Honduras. There was still a lack of objective criteria and transparency in the choice of such cases, which was evident from the regional imbalance. The technical assistance provided by the ILO to the countries of the Central American region had not been valued, since three of the seven countries concerned were in the list of individual cases. The countries of the region recognized the positive results derived from the ILO support and the useful exchange of experience that took place with a view to the effective application of international labour Conventions. A cross-cutting regional plan of action had been approved by the Council of Ministers of Labour of Central America and the Dominican Republic. He welcomed the additional efforts that had been made in this context with respect to labour legislation, the elimination of child labour, social dialogue, employment policy and labour mobility.

An observer representing the International Organisation of Employers (IOE) voiced great concern at the violations of the Convention by the Government of El Salvador, and in particular its continued and serious interference in the autonomy of employers’ and workers’ organizations and the arbitrary appointment of employer members to tripartite institutions by the President of the Republic. Nineteen decrees had been adopted unilaterally and without consultation in 2012 to bolster these arbitrary prerogatives to interfere in the autonomy of the social partners, in violation of the Convention, and in disregard of the real institution for social dialogue, the Higher Council of Labour, the activities of which had been suspended since 2013 on purely procedural grounds and on the pretext that the criteria of representativity had not been respected. He also referred, as examples of an attitude that should not be overlooked, to: the lack of appropriate protection for the premises of ANEP, which was the most representative employers’ organization; the failure to follow up the recommendations of the Committee of Freedom of Association; and the Government’s lack of consideration of the conclusions of the Conference Committee. The Government needed to take immediate steps to remedy the situation and submit a detailed report to the Committee of Experts for examination at its next session. Regrettably, in view of the repeated violations of the Convention and the increasing lack of respect for freedom of association, it was also important for a direct contacts mission to be sent to El Salvador. The case should be included in a special paragraph of the Committee’s report.

The Worker member of Guatemala said that the situation regarding the violation of the freedom of association in El Salvador was similar to that of Guatemala. Violations of the Convention included the dismissal of an elected worker, the Secretary-General of the Trade Union of the Municipality of San Martin, and the dismissal by the security company C.V. COSASE of officials of the Union of Workers’ of Private Security Companies (SITESPRI). The establishment of a trade union in the catering, public transport and private security sectors was now almost a crime. Shifts of more than 12 hours were worked for the minimum wage without overtime pay. Many workers had no social security and very few were able to contribute to a pension scheme. The contractual labour situation in the public sector was the result of the absence of social dialogue and of a policy for the democratic management of industrial relations. Union leaders in the public sector were subject to arbitrary reductions from their wages and sanction procedures as a result of being denied union leave. Some union officials of the Union of the Workers of the Bloom Hospital (SITHBLOOM), for example, had not received their wages for six months. The Ministry of Labour refused to register the collective agreement that had been negotiated by the Union of the National Commission of Micro and Small Enterprises, even though it met all the legal requirements. Finally, the Workers’ Union of the Secretariat for Social Inclusion had lodged a complaint that the workers had been treated with verbal disrespect and arrogance by the management, were isolated, regularly reassigned, and were victims of physical aggression and wage inequality.

The Government member of Cuba endorsed to the statement by GRULAC and welcomed the information provided by the Government of El Salvador and its willingness to comply with its commitments in relation to the ILO. She emphasized the measures that were currently being adopted, including the process of mediation to reactivate the National Council of Labour, legislative measures and the Government’s request for ILO assistance. She called on the Government to continue its efforts and the ILO to continue providing technical assistance and cooperation.

The Employer member of Belgium recalled that freedom of association was a fundamental principle of the ILO and suggested that the same term be used in French and Spanish as in English (“freedom of association”). Workers’ and employers’ organizations were entitled to autonomy in their organization, management and functioning, and she condemned State practices that curbed the autonomy of employers’ organizations, as was the case in El Salvador, where the Government appointed in an authoritative manner employers’ representatives or tripartite bodies. The executive had no right to act in place of the social partners, and the public authorities must refrain from any impediment to the legal exercise of the right of employers’ and workers’ organizations to elect their representatives freely. The suspension of the National Council of Labour by the Government was a violation of Article 3 of the Convention; she called for the independence of employers’ and workers’ representatives to be guaranteed as an essential prerequisite for effective social dialogue at all levels.

The Government member of Honduras emphasized that the Government had shown its full willingness to honour its commitments and to continue complying with the recommendations of the Committee of Experts. He therefore endorsed the statement of GRULAC.

The Worker member of Uruguay recalled that the case was being examined for the second consecutive year by the Committee and deplored the fact that mediation had failed to yield any results. He expressed solidarity with the workers of El Salvador with regard to the complaints made concerning situations of violence against trade union leaders, the threats that hampered the development of trade union organizations and the anti-union dismissals. Requirements for trade union registration were excessive and constituted a form of undue interference by the Government. Even though mechanisms and bodies existed which would be suitable for conducting good social dialogue, problems persisted in relation to the definition of the forms of representation in these bodies. As it had not been convened, the Higher Labour Council could not give its views on the labour issues on the agenda. He reiterated the need for technical collaboration with the ILO to enable amendments to the regulations that could be agreed with the social partners with a view to establishing transparent methods for determining representativeness that enshrined the principle of independence from the Government.

The Employer member of Guatemala noted with deep concern the statement by the Minister of Labour, as she had reiterated the arguments put forward when the case had been examined by the Committee the previous year. He recalled that the case was being discussed by the Committee for the second consecutive year, and that the situation under discussion had been going on for four years. Despite the comments of the ILO supervisory bodies, the Government was not showing the will to resolve the situation, and the conclusions and recommendations of the supervisory bodies were being ignored by the national authorities. The crisis appeared to have taken a serious turn for the worse and posed a threat to the integrity of employers’ organizations in El Salvador. He referred in particular to the powers of the President of the Republic to appoint the representatives of employers’ organizations to bipartite and tripartite bodies, which amounted to a clear violation of the Convention and placed these bodies under the control of the Government, thus constituting an extremely serious act of interference. Lastly, he called for a direct contacts mission to be sent to the country and for the conclusions on this case to be placed in a special paragraph of the Committee’s report.

The Government member of the Dominican Republic endorsed the statement of GRULAC and welcomed the information supplied to the Committee by the Minister of Labour. The Government of El Salvador was showing goodwill and was making efforts to honour its commitments taken on in the context of the ILO through action for the observance of standards, the promotion of fundamental rights and the strengthening of social dialogue and negotiation. The ILO should continue to support the Government and give it technical assistance.

The Government representative said that she had listened attentively to all the statements, which were consistent with the interests represented. With regard to the murder of Abel Vega, the Government, having asked the Office of the Public Prosecutor to investigate, was calling for a pooling of efforts with the social partners to resolve the case. The Government had identified social dialogue as a pillar of the drive for consensual policies, as shown by the dialogue round table which had been set up recently to establish a joint agenda with the ANEP, an organization that participated in all tripartite forums in the country. Efforts were being made to identify short- and medium-term solutions regarding trade union representation on the Higher Labour Council, for which the will of the organizations concerned was required to ensure representation on an equal footing. The Government was open to overcoming any limitations in the exercise of trade union rights, within the requirements and procedures necessary to safeguard legal security. Moreover, the appointment procedures to joint bodies were not in contradiction with the autonomy of employers’ and workers’ organizations, and tripartite bodies were governed by regulations that had been adopted by previous administrations with the agreement of the social partners. Efforts had been made over the previous five years to give full access to the right to organize, as shown by the existence of over 200,000 trade union members and more than 450 active trade union organizations. The Government trusted that the actions in the context of the project supported by the ILO and the Generalized System of Preferences of the EU would contribute to improving in compliance with the Convention, as the current cooperation with the ILO was doing.

The Employer members expressed deep concern at the fact that, despite the time that had elapsed, there was no sign of real progress towards resolving the instances of non-observance of the Convention. So the time had come to face facts, and the Committee, in its conclusions, should: (1) note with extreme concern the lack of progress with regard to the issue of the autonomy of employers’ and workers’ organizations to appoint their representatives to joint and tripartite decision-making bodies, and urge the Government, in consultation with the social partners, to take the necessary steps without delay to amend the 19 decrees adopted in August 2012; (2) urge the Government to reactivate without delay the Higher Labour Council, which constituted the principal forum for social dialogue and tripartite consultation in the country; (3) urge the Government to ensure adequate protection for the premises of ANEP, which was the most representative employers’ organization; (4) request the Government to provide information on all progress made in that regard in a report to be examined at the next meeting of the Committee of Experts; and (5) in view of the seriousness of the violations and the lack of firm action by the Government to ensure observance of the Convention, request the establishment of a direct contacts mission and include the case in a special paragraph of the Committee’s report.

The Worker members expressed agreement with the Employer members regarding the major importance of the case. The Government had requested assistance from the ILO to rectify the legislative problems. Such cooperation was necessary with regard to the procedure for the registration of trade unions and the obligation to certify the status of trade union members, two points on which the Government had shown a positive attitude. The Government also needed to take action quickly concerning the access of foreign workers to trade union office and the membership of more than one trade union. The Government should also report on the murder of Victoriano Abel Vega, as the de facto impunity enjoyed by those committing crimes against trade union leaders was aggravating the climate of violence and insecurity, which was extremely prejudicial to trade union activities. The Worker members expressed their disagreement with the Employer members regarding the direct request addressed to the Government. The Workers’ group was of the view that the right to strike was protected by the Convention. The Employers’ and Workers’ groups had recognized in the joint statement of 23 February 2015 that “[t]he right to take industrial action by workers and employers in support of their legitimate industrial interests is recognised by the constituents of the International Labour Organisation. This international recognition by the International Labour Organisation requires the workers and employers groups to address the mandate of the CEACR as defined in their 2015 report”. The Committee of Experts had defined its own mandate as having to “determine the legal scope, content and meaning of the provisions of the Conventions”, which had been approved by the Governing Body. It was therefore part of the mandate of the Committee of Experts to request all information that it considered useful regarding the fulfilment by the State of its obligations arising from a ratified Convention.

Conclusions

The Committee took note of the information provided by the Government representative and the discussion that followed on issues raised by the Committee of Experts.

The Committee noted with concern the lack of progress both in law and in practice with respect to the issue of the autonomy of employers’ and workers’ organizations to nominate their representatives to joint or tripartite decision-making bodies and again urged the Government, in consultation with the social partners, to take all measures necessary, without delay, to amend the 19 Decrees adopted on 22 August 2012, so as to bring them into line with the guarantees set out in the Convention.

Taking into account the discussion of the case, the Committee urged the Government to:

• - take all measures necessary, without delay, to identify those responsible for the murder of Mr Victoriano Abel Vega and punish the perpetrators of the crime;
• - reactivate, without delay, the Higher Labour Council (CST), the work of which had been suspended since 2013 and which was the main forum for social dialogue in the country and for tripartite consultation. The Government must abstain from requiring consensus among trade union federations and confederations in designating their representatives to the CST;
• - ensure full autonomy for employers’ and workers’ organizations;

• - ensure adequate protection for the premises of the National Business Association (ANEP), the country’s most representative organization of employers;
• - report on all progress with regard to the issues discussed in a detailed report to the Committee of Experts, to be considered at its next meeting.

In the face of the Government’s failure to take action to apply the provisions of the Convention effectively in law and in practice, the Committee requested that a direct contacts mission be sent to El Salvador.

The Committee decided to include its conclusions in a special paragraph of the report.

The Government representative regretted that, despite all the Government’s efforts to guarantee and extend trade union rights, there was no mention of that fact in the conclusions. Her Government nevertheless took note of those conclusions and would examine them closely. Regarding the request of the ANEP that a direct contacts mission be sent to El Salvador, it would seem that the Association was being seriously challenged by the workers and social organizations over the agreement it reached with trade union represented on the National Minimum Wage Council, when it offered them a miserable increase of just 20 cents a day for agricultural workers, 33 cents for workers in maquilas, 37 cents for workers in trade and services and 41 cents for industrial workers over three years. That was nothing short of insulting for people who contributed to the country’s economic development by the sweat of their brow, and it did not comply with the provisions of article 38 of the Constitution or sections 145 and 146 of the Labour Code. The Government confirmed it willingness to continue receiving the technical assistance that was being provided by the mediator in the dispute between the trade unions that were seeking membership of the CST, as well as other support that it was being given to improve the labour rights of Salvadorean workers. In the short and medium term, the Government would certainly be providing additional information which would show clearly the progress that had been made. As a progressive Government it was committed to ensure that the workers were able to exercise their rights fully. There had been no breakdown in social dialogue in the country, and it was part of the President’s policy and the Government’s plan that there should be a constant dialogue between all the social partners and labour, political and economic sectors, in which the trade unions and ANEP both had an active role to play.