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

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

The Committee notes the observations of the Trade Union Confederation of Salvadoran Workers (CSTS), received on 31 August 2024, which refer to issues raised in the present comment. The Committee also notes the observations of the International Organisation of Employers (IOE), received on 1 September 2024, which reiterate the comments made in June 2024 in the Conference Committee on the Application of Standards (Conference Committee) on the application of the Convention by El Salvador. The Committee also notes the joint observations of the CSTS, the National Confederation of Salvadoran Workers (CNTS), the Autonomous Federation of Salvadoran Workers (CATS) and the Single Confederation of Salvadoran Workers (CUTS), received on 4 September 2024, as well as the observations of the International Trade Union Confederation (ITUC), received on 17 September 2024, which relate to issues raised in the present comment.

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 112th Session, June 2024)

The Committee notes the discussion which took place in the Conference Committee at the 112th Session (June 2024) of the Conference and observes that the Conference Committee: (i) noted with concern the allegations of ongoing violations of the Convention by the Government, including the absence of tangible progress in the investigations into the murders of trade unionists and reported acts of harassment against an employers’ organization (National Business Association – ANEP); and (ii) expressed concern regarding the allegations of interference by the authorities in the appointment of employers’ and workers’ representatives in public tripartite and joint bodies. The Conference Committee urged the Government, in consultation with independent and representative employers’ and workers’ organizations, to:

• immediately cease all acts of violence, threats, persecution, stigmatization, intimidation or any other form of aggression against individuals or organizations in connection with both the exercise of legitimate trade union activities and the activities of employers’ organizations, and adopt measures to ensure that such acts are not repeated;
• re-ensure respect for the freedom of workers and employers to constitute the organizations of their choosing, organize their administration and activities and formulate their programme of action without interference from the public authorities;
• expedite and conclude the ongoing investigations into the murders of trade union leaders with a view to establishing the facts, determining culpability and punishing the perpetrators;
• provide detailed information on the content and status of the parliamentary process of the proposed reform to the Penal Code, the consultation processes with social actors that exist in relation to this initiative and the results obtained;
• expedite the processes of registration of, and issuing credentials to, trade union executive committees (boards) to ensure the right of workers’ and employers’ organizations to establish and elect their representatives in full freedom;
• repeal the legal obligation for trade unions to request the renewal of their legal status every 12 months;
• reactivate, without delay, the Higher Labour Council (CST) to ensure the full participation of workers’ and employers’ organizations in social dialogue and tripartite consultation;
• develop a time-bound road map to implement without delay all recommendations made by the ILO high-level tripartite mission of 2022 and the Committee’s previous recommendations relating to the Convention;
• send information on the institutional change from the Salvadoran Vocational Training Institute (INSAFORP) to the Vocational Training Institute (INCAF) and ensure that INCAF has a tripartite structure.

The Committee notes the Government’s indication that the right of association to defend the interests of professional and trade union associations is a key issue and that, given the significant transformation process it has been experiencing since 2019, the Government has focused on ensuring security, and also creating employment and generating investment. The Government points out that it has respectfully addressed the allegations raised by ANEP, whose discourse reiterates objectives that are irrelevant in a context which is fully open to the social and productive freedom of employers in the country. The Government indicates that there are no acts of harassment, violence or discrimination against ANEP and that proof of this is that the allegations against the Government are contrary to what has been publicly expressed by representatives of the ANEP member unions, who have endorsed the Government’s administration. The Government also points out that the executive committee freely and democratically elected by ANEP in accordance with its own constitution for the 2022–24 period has performed its function both within the association and in different public forums without interference or harassment.

While noting these indications, the Committee observes that the Conference Committee noted with concern reports of acts of harassment against ANEP and also recalls that these issues are being examined by the Committee on Freedom of Association (CFA) in Case No. 3380. The Committee notes that the CFA, in its last examination of the case, urged the Government to take the necessary measures, including those in follow-up to the conclusions and recommendations of the high-level tripartite mission and of the ILO supervisory bodies, to ensure full respect for the autonomy of ANEP and the recognition of its representatives, as well as of this employers’ organization as a social partner, in order to go on promoting the full participation of ANEP in social dialogue. The Committee firmly hopes that the Government will implement the recommendations of the Committee on Freedom of Association (408th Report, October 2024) and requests the Government to provide information on the measures taken in this regard. In the same way as the Conference Committee, the Committee urges the Government to immediately cease all acts of violence, threats, persecution, stigmatization, intimidation or any other form of aggression against individuals or organizations in connection with both the exercise of legitimate trade union activities and the activities of employers’ organizations, and to take steps to ensure that there is no recurrence of such acts. The Committee requests the Government to provide information in this regard.

Trade union rights and civil liberties. The Committee notes the Government’s indication that the investigation into the murder of Mr Victoriano Abel Vega, which took place in 2010, is still under way. The Committee observes that the ITUC, CNTS, CSTS, CATS and CUTS point out that no action has been taken so far towards ensuring that the perpetrators and instigators are brought to justice. The Committee observes that the CFA, in its last examination of Case No. 2923, deplored the absence of information on tangible progress towards the resolution of the case more than 14 years after the murder, and firmly urged the Government and all the competent authorities, in a coordinated manner and as a matter of urgency and priority, to make all the necessary efforts to expedite and conclude the investigations under way in order to identify and punish as soon as possible both the instigators and the perpetrators of the murder of Mr Victoriano Abel Vega. The Committee refers to the recommendations of the CFA in this case (Report No. 407, June 2024). With regard to the murder of the trade union leader Mr Weder Arturo Meléndez Ramírez, the Government indicates that the perpetrators of the murder have been identified and the criminal proceedings are at the preliminary stage, with a final judgment still to be handed down. The Committee observes that the CFA, in its last examination of Case No. 3395, expressed the hope that the criminal proceedings under way would enable both the instigators and perpetrators of the murder of Mr Meléndez to be identified and punished without delay. The Committee refers to the recommendations of the CFA in this case (Report No. 408, October 2024). The Committee recalls that the CFA noted, in the context of Case No. 3395, that the Government had referred to a proposal to reform the Penal Code which had been drawn up by the Ministry of Labour and Social Welfare, with the aim of improving the protection of freedom of association of trade union leaders and members. The Committee invited the Government to provide information in this respect. The Committee observes that the CFA, in its last examination of the case, referred to the Committee for follow-up of the handling of this initiative. Once again underlining the importance of having a legislative framework which enables prompt and deterrent penalties to be imposed on acts of anti-union violence, the Committee requests the Government to provide information on the status of the handling of the initiative in question.

The Committee notes that the CNTS claims there is a latent threat against the trade union movement: (i) in mid-2022, following an anonymous call to the National Police, Ms Dolores Almendares, general secretary of the Cuscatancingo San Salvador Centro Employees’ and Workers’ Union and member of the CNTS executive committee, was arrested and detained for 7 months; (ii) at the end of 2018, the National Police arrested Mr José Hever Hernández Chacón, general secretary of the El Salvador Federation of Independent Workers’ and Commercial Unions, who remained in detention and died without a letter of release having been implemented; (iii) Mr José Leonidas Bonilla, a trade unionist at the mayor’s office of Mejicanos, was arrested on 26 April 2022, following an anonymous call identifying him as a member of unlawful associations, and died in detention in September that year without a letter of release, signed by a judge, having been implemented; and (iv) Mr Sabino Ramos, member of the executive committee of the Workers’ Union of the Mayor’s Office of Panchimalco and member of the executive committee of the El Salvador Federation of Municipal Workers, was arrested on 28 April 2022 and is currently in custody. The Committee expresses its concern at the seriousness of these allegations. Recalling that the arrest and detention of trade union leaders and members for the exercise of legitimate trade union activities constitute a serious obstruction of their rights and a violation of freedom of association, and underlining the importance of ensuring guarantees of due process, the Committee requests the Government to provide its comments in this respect.

Articles 2 and 3 of the Convention. Pending legislative reforms. For many years the Committee has been asking the Government to take the necessary steps to amend the following legislative and constitutional provisions:

• articles 219 and 236 of the National Constitution and section 73 of the Civil Service Act, which exclude certain categories of public servants from the right to organize (members of the judiciary, public servants who exercise decision-making authority or are in managerial positions, employees with duties of a highly confidential nature, private secretaries of high-ranking officials, diplomatic representatives, assistants in the Public Prosecutor’s Office, auxiliary employees, assistant prosecutors, labour prosecutors and delegates);
• section 204 of the Labour Code, which prohibits membership of more than one trade union, so that workers who have more than one job in different occupations or sectors are then able to join different trade unions;
• sections 211 and 212 of the Labour Code (and the corresponding provision of the Civil Service Act in respect of unions of public service employees), which establish, respectively, the requirement of a minimum of 35 members to establish a workers’ union and a minimum of seven employers to establish an employers’ organization, so that these requirements no longer hinder the establishment of workers’ and employers’ organizations in full freedom;
• section 219 of the Labour Code, which provides that, in the process of registering the union, the employer must certify that the founding members are employees, so as to ensure that the list of the applicant union’s members is not communicated to the employer;
• section 248 of the Labour Code, which requires a waiting period of six months for a new attempt to establish a trade union when its registration has been refused;
• article 47(4) of the National Constitution, section 225 of the Labour Code and section 90 of the Civil Service Act, which establish the requirement to have attained the age of majority and to be a national of El Salvador by birth in order to hold office on the executive committee of a union, which are excessive restrictions on the right of workers to elect their representatives in full freedom. In this regard, the Committee notes that the ITUC, CNTS, CSTS, CATS and CUTS all indicate that the requirement to be a national of El Salvador by birth prevents migrant workers from Honduras and Nicaragua who work in the construction industry and agriculture from holding union office;
• article 221 of the National Constitution, so as to limit the prohibition of the right to strike in the public service to officials exercising authority in the name of the State and those who perform their duties in essential services in the strict sense of the term (while recalling that it is also possible to restrict the exercise of the right to strike through the establishment of minimum services in public services of fundamental importance);
• section 529 of the Labour Code, so that when a decision is taken to call a strike, only the votes cast are taken into account, and also that the principle is recognized of the freedom to work of non-strikers and the right of employers and managerial staff to enter the premises of the enterprise or establishment, even where the strike has been decided upon by an absolute majority of the workers;
• section 553(f) of the Labour Code, which provides that strikes shall be declared unlawful “where inspection shows that the striking workers do not constitute at least 51 per cent of the staff of the enterprise or establishment”.

In addition, recalling that prison staff must have the right to organize, the CFA and the Committee have asked the Government to take the necessary measures to ensure full respect of the right of prison staff to organize (Report No. 392, Case No. 3321, October 2020).

In its last comment, the Committee noted the Government’s indication that the constitutional and legislative reforms referred to above, including the reform of the Labour Code, were under examination by the Legislative Assembly. The Committee notes the Government’s indication that in 2022 and 2023 various sections of the Labour Code were reformed which are not concerned with matters relating to the Convention. The Government highlights the work of the Trade Union Office, which provides legal support for trade unions, and indicates that in 2022–23 the National Department of Trade Unions (DNOS) granted legal personality to 41 new trade union organizations (three federations, 18 trade unions and 20 union branches).

While noting these indications, the Committee notes with regret that the Government does not refer to the adoption of any measures to revise the numerous constitutional and legislative provisions referred to above. The Committee notes that the ITUC, CNTS, CSTS, CATS and CUTS: (i) emphasize that it is vitally important that the requested reforms be implemented as soon as possible; and (ii) state that the Legislative Assembly working committee was dissolved on 1 June 2024 and that it is not known so far which of the established committees will deal with the topics that came under that committee’s mandate, and so any reform that had been addressed by the dissolved committee might be shelved. Emphasizing the extended number of years that the Committee has been raising these legislative matters,the Committee strongly urges the Government to take the necessary steps, after tripartite consultations, to ensure that the provisions referred to above are in conformity with the Convention and to provide information on this matter.

Application of the Convention in practice. While noting the Government’s indications regarding the work of the Trade Union Office and the DNOS, the Committee notes that the ITUC, CNTS, CSTS, CATS and CUTS raise a number of concerns regarding the process of registration, the election of trade union executive committees and the issuing of credentials. Specifically, the unions indicate that: (i) one of the biggest obstacles to the exercise of freedom of association is the obligation to hold elections every year for the executive committees of all unions, federations and confederations; (ii) the discretionary delay in issuing credentials to union executive committees (currently more than six months) continues to cause serious damage to the organizations (the CSTS refers to the unjustified delay in relation to organizations that try to be independent of the political activities organized by the Government); and (iii) the DNOS imposes arbitrary requirements, not laid down in the Constitution or the law, with regard to the registration of union executive committees and the issuing of credentials to them, including the requirement to provide payslips and individual identity documents for executive committee members, and that the procedure for the registration or modification of executive committees used to be free of charge and is now subject to payment. The Committee recalls that the CFA has had occasion to examine allegations of excessive requirements for the registration of union executive committees in El Salvador (Case No. 3136, Report No. 377; Case No. 3258, Report No. 389) and has referred to the need to review the rules applicable to the registration of executive committees to guarantee the right of organizations to elect their representatives in full freedom and to ensure a swift process. The Committee refers to the recommendations made by the CFA in these cases. In the same way as the Committee on Freedom of Association (CFA) and the Conference Committee, the Committee urges the Government to speed up the processes of registration and issuing of credentials for union executive committees in order to guarantee the right of workers’ and employers’ organizations to establish and elect their representatives in full freedom. The Committee once again requests the Government to provide statistical information on the status of procedures for the registration of the executive committees of employers’ and workers’ organizations.

Reactivation of the Higher Labour Council (CST) and appointment of worker and employer representatives to INCAF. The Committee notes with regret that the Government makes no reference in its report to the Conference Committee’s conclusions regarding the reactivation of the CST and the tripartite structure of INCAF. The Committee notes that the ITUC, CNTS, CSTS, CATS and CUTS indicate that: (i) the CST last met on 5 May 2022; and (ii) INCAF, established after the dissolution of INSAFORP (which had a tripartite structure), only has representatives from the Government. In the same way as the Conference Committee, the Committee urges the Government to reactivate the CST without delay in order to ensure the full participation of employers’ and workers’ organizations in social dialogue and tripartite consultations and to ensure that INCAF has a tripartite structure.

The Committee notes that the trade union organizations referred to above agree in their allegations that there are serious restrictions in law and in practice, and also a lack of genuine social dialogue, which obstruct the development of a free and autonomous trade union sphere and restrict freedom of association. The Committee expresses its concern on this matter and urges the Government, in consultation with the social partners, to adopt all the measures that it was urged to adopt by the Conference Committee. The Committee requests the Government to provide information on all progress made on the implementation of these measures and reminds the Government that it may still avail itself of ILO technical assistance.

[The Government is asked to reply in full to the present comments in 2025].