Interim Report - Report No 409, March 2025

Case No 3258 (El Salvador) - Complaint date: 28-OCT-16 - Active

Allegations: The complainants allege, on the one hand, the imposition of arbitrary requirements for the registration and issuance of accreditation to trade union executive committees and, on the other hand, irregularities in the appointment of worker representatives to a number of tripartite bodies

1. 208. The Committee last examined this case (presented in 2016) at its meeting in March 2021, when it presented an interim report to the Governing Body [see 393rd Report, paras 367–374, approved by the Governing Body at its 341st Session]. 
2. 209. By a communication dated 9 March 2021, the Single Confederation of Salvadoran Workers (CUTS), the National Trade Union Federation of Salvadoran Workers (FENASTRAS) and the Single Federation of Rural Workers of El Salvador (FUOCA) sent additional allegations. In a communication dated 14 September 2023, the CUTS sent new information and allegations.
3. 210. The Government sent its observations in a communication dated 6 October 2021.
4. 211. El Salvador has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), the Labour Relations (Public Service) Convention, 1978 (No. 151), and the Collective Bargaining Convention, 1981 (No. 154).

A. Previous examination of the case

1. 212. In its previous examination of the case in March 2021, the Committee made the following recommendations [see 393rd Report, para. 374]:
   • (a) The Committee refers to its conclusions in Case No. 3136 regarding the requirement to be Salvadoran by birth and again expresses the hope that the Government will take all steps, including legislative measures, to ensure that section 225 of the Labour Code and its application are consistent with the right of workers to elect their representatives in full freedom.
   • (b) The Committee requests the Government to take appropriate steps to ensure that, irrespective of the worker’s type of contract, trade unions may freely appoint members of their executive committees. The Committee requests the Government to keep it informed in this regard.
   • (c) The Committee requests the Government, in consultation with the most representative trade union organizations, to take the necessary steps to review the rules applicable to the registration of executive committees in order to guarantee the right of organizations to elect their representatives in full freedom and to ensure a swift process. Reminding the Government that it can avail itself of ILO technical assistance, the Committee requests the Government to keep it informed in this regard.
   • (d) The Committee requests the Government, in consultation with the organizations concerned, to expedite the pending registrations of the executive committees of the trade unions mentioned in this case. The Committee requests the Government to keep it informed in this regard.
   • (e) With regard to the suspension of the Higher Labour Council, the Committee refers to its recommendations in Case No. 3054 and urges the Government to reactivate the Higher Labour Council as soon as possible.
   • (f) As for the alleged irregularities in the appointment of worker representatives to the National Minimum Wage Council and the Housing Social Fund, the Committee urges the Government to respond without delay to the allegations made by the complainant and expresses the hope that the Government will ensure that the appointment of worker representatives to tripartite bodies will be based on objective, precise and pre-established criteria on representativeness, and that any dispute as to the appointment of those representatives will be resolved by an independent body. Regretting that this situation has persisted for years, and reminding the Government that it can continue to benefit from the Office’s technical assistance, the Committee requests the Government to keep it informed in this regard.

B. Additional information and new allegations from the complainants

1. 213. In a communication dated 9 March 2021, the CUTS, the FENASTRAS and the FUOCA reiterate that the National Department of Social Organizations (DNOS) within the Ministry of Labour and Social Welfare (MTPS) continues to hinder the exercise of trade union rights by imposing requirements for registration of a number of documents not provided for by law. As well as referring to the requirements already specified in the present case (identity document, payslip or attestation of post or functions for the registration of trade union officials), the complainants assert that: (i) the imposition of these requirements for the establishment of enterprise trade unions means that some of those documents must be requested from the employer, which exposes workers to retaliation; and (ii) the requirement to submit full records of proceedings for the dismissal of trade union officials or the expulsion of trade union members, not provided for by law, constitutes a further act of interference by the labour administration. The complainants claim that the imposition of these requirements discourages acceptance of trade union leadership positions and that the Government seeks to render trade union organizations leaderless, so that they are unable to participate in national tripartite bodies or undertake labour rights advocacy.
2. 214. The communication further lists 27 trade union organizations and branches affected by the non-issuance or late issuance of credentials (21 cases in which the granting of credentials was still pending and six in which the organizations had to wait for up to 11 months before their executive committees received credentials, as a result of which, in practice, the effective mandates of the trade union officials were reduced, given that credentials were issued only when the terms of their mandates were about to expire).
3. 215. The complainants also allege that: (i) the MTPS maintains, purportedly based on the Administrative Procedure Act, that it has up to 11 months for the issuance of credentials, which is incongruous with the fact that the procedure for a trade union to acquire legal personality, being more complex, must be completed within 30 working days; (ii) a step has been added to the procedure for the registration of or modifications to trade union management committees, involving the referral of the file to the Legal Advice department of the MTPS for clearance; and (iii) the DNOS acts on a discretionary basis by, on the one hand, delaying the issuance of credentials to the complainants and their affiliates, even when provided previously, and, on the other hand, prioritizing the issuance of credentials to other trade union organizations. The complainants indicate, lastly, that in order to provide legal certainty in the procedure for the issuance of credentials, they have requested reforms to the Administrative Procedure Act, the Labour Code and the Civil Service Act, but that these requests are pending before the Legislative Assembly.
4. 216. By a communication dated 14 September 2023, the CUTS alleges that the DNOS continues to delay the issuance of credentials and cards to trade union management committee members, exceeding the legally established time limits, despite the fact that a final judgment of the Second Chamber of the Administrative Disputes Court of 31 January 2023 (NUE 00122-22-ST COIN-2CAM Case SITTOJ) has ruled that, in application of the rule of positive silence, they must be issued once the period of 20 days prescribed in the Administrative Procedure Act is exceeded. The CUTS attaches a copy of a communication dated 12 September 2023, sent by the CUTS, the FENASTRAS and the FUOCA to the DNOS, providing details of 16 cases of trade union organizations and branches subject to excessive delays in the issuance of credentials or approval of statutory amendments (15 of which were previously mentioned in the complainants’ communication of 2021), which can take more than 200 days from initiation of the procedure or 180 days from completion of the required corrections.
5. 217. The complainants further allege that: (i) their trade union organizations are subject to discrimination, given that they were not invited to the issuance of credentials organized by the MTPS in September 2023; (ii) the Government has not taken measures to repeal the legal obligation for trade unions to request the renewal of their legal status every 12 months, nor has it reactivated the Higher Labour Council (CST), issues addressed by the ILO supervisory bodies and by the Committee on the Application of Standards of the International Labour Conference; (iii) the trade union organizations are not called to elect worker representatives to the Salvadoran Social Security Institute, despite the fact that the mandate of the former representatives has expired and, consequently, the body in question has no leader; (iv) the Ministry of the Interior and Territorial Development presented a legislative proposal to dissolve the El Salvador Vocational Training Institute (INSAFORP), doing away with its tripartite structure and replacing it with a Council consisting solely of Government representatives; and (v) the MTPS is developing a consultation on the elaboration of a new Labour Code, from which autonomous and independent trade unions have been excluded.

C. The Government’s reply

1. 218. In a communication dated 6 October 2021, the Government provides information in relation to the recommendations made by the Committee in its previous examination of the case. The Government states in particular that: (i) the MTPS is analysing the legislation with a view to formulating a proposed amendment to section 225 of the Labour Code, which establishes the requirement to be Salvadoran by birth to become a member of the management committee of a trade union; and (ii) the registration of trade union management committees is an administrative matter involving the verification of legal requirements by the competent departments of the MTPS and, furthermore, that trade union representatives are elected without intervention of any kind by public authorities and with prior knowledge of the requirements; (iii) management committees are registered irrespective of the type of contract that members hold, provided that they have an employment relationship and all requirements established by law are met; (iv) trade union organizations are free to choose their representatives, and management committees are registered only after verifying that applications for registration comply with the requirements established in the Labour Code; (v) of the 24 trade union organizations the management committees of which the Trade Union Council of El Salvador (CONSISAL) alleges were refused registration in the period 2017–21, nine are actively registered, six were refused registration for non-compliance with the legal requirements and nine have not resubmitted documentation to register their executive committee; (vi) after the election of representatives of workers’ and employers’ organizations and of the Government, on 19 September 2019 the activities of the CST resumed and two sessions of this tripartite body were held; nevertheless, activities had to be suspended because of the COVID-19 pandemic; and (vii) with regard to the alleged steps taken to exclude trade unions that are not close to the Government from various tripartite bodies and the alleged irregularities in the appointment of worker representatives to them, election to and participation in those bodies presupposes compliance with certain requirements established in the respective regulations, which the Government is responsible for monitoring, it not being in its interest to exclude any organization that complies with the requirements concerned.

D. The Committee’s conclusions

1. 219. The Committee recalls that this case concerns, on the one hand, the alleged imposition of excessive and arbitrary requirements for the registration and issuance of credentials to trade union management committees, and the subsequent refusal of the labour administration to register the executive committees of a number of trade union organizations, and, on the other hand, alleged irregularities in the appointment of worker representatives to a number of tripartite bodies.
2. 220. The Committee recalls that in its previous examination of the case, in the light of the information provided by the parties, it requested the Government to: (i) take a range of legislative and practical measures to ensure the right of trade union organizations to elect their representatives and expedite the process for registration and the issuance of credentials; and (ii), in consultation with the organizations concerned, expedite the pending registrations of the management committees of the 24 trade unions mentioned by the complainants.
3. 221. Regarding the first point, the Committee notes the Government's indication, in its communication of 6 October 2021, that: (i) the MTPS is analysing the legislation with a view to formulating a proposed amendment to section 225 of the Labour Code, which establishes the requirement to be Salvadoran by birth to become a member of the executive committee of a trade union; (ii) trade union representatives are elected without intervention of any kind by public authorities and with prior knowledge of the legal requirements; and (iii) management committees are registered irrespective of the type of contract that members hold, provided that they have an employment relationship and all legislative requirements are met. With regard to the registration of the 24 management committees examined in its previous examination of the case, the Committee notes the Government's indication that: nine are actively registered, six were refused registration for non-compliance with the legal requirements and nine have not resubmitted documentation to register their management committee.
4. 222. While noting this information, the Committee notes the new allegations and additional information submitted by the complainants in March 2021 and September 2023, which have not elicited observations from the Government. The Committee notes the complainants' allegations that: (i) the DNOS continues to delay in a discretionary and discriminatory manner the registration of management committees or the approval of statutory amendments with delays of up to 11 months, which drastically reduce the effective mandates of the trade union officials concerned, despite the fact that a final judgment of 2023 has ruled that, in application of the rule of positive silence, credentials must be issued once the period of 20 days established in the Administrative Procedure Act is exceeded; (ii) a step has been added to the procedure for the registration or modification of trade union management committees involving the referral of the file to the Legal Advice department of the MTPS for clearance; and (iii) the Government has not taken measures to repeal the legal obligations for trade unions to request the renewal of their legal status every 12 months.
5. 223. The Committee also notes that the complainants: (i) attach a note of 12 September 2023 addressed to the DNOS concerning the situation of 16 trade union organizations and branches subject to excessive delays which are still awaiting receipt of credentials or approval of statutory amendments; and (ii) claim that their organizations were excluded from a large-scale event for the issuance of credentials held by the DNOS in 2023 for numerous pro-Government organizations, which demonstrates partiality and discriminatory treatment on the part of the labour administration.
6. 224. The Committee notes these various elements. The Committee notes that both the information provided by the Government in October 2021 and the new allegations by the parties indicate that a significant number of organizations either continue to have their applications for the registration of management committees or approval of statutory amendments rejected or obtain them after a considerable period of time, which has a substantial impact on their capacity for action, particularly since the election and registration of management committees must be repeated annually. In this respect, the Committee observes with concern that: (i) of the 24 trade union organizations for which it had requested that the registration of their management committees be expedited, only one, the General Trade Union of Workers in the Fishing and Allied Industries (SGTIPAC), managed to have its trade union management committee registered continuously during the period 2017–21, while 14 organizations which applied for registration and were rejected in 2016 or 2017 did not submit documentation for the registration of management committees in subsequent periods; (ii) the Government has not provided information on the situation of the numerous trade union organizations and branches referred to in the complainants' communications of 2021 and 2023, in particular the 16 mentioned in the note of 12 September 2023 addressed to the DNOS.
7. 225. The Committee further observes that, since its last examination of the case, the difficulties surrounding the registration and issuance of credentials to management committees have received repeated attention from the Committee of Experts on the Application of Conventions and Recommendations (CEACR) and the Committee on the Application of Standards (CAS) in relation to the application of Convention No. 87 and the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144), and from the high-level tripartite mission which visited the country from 2 to 5 May 2022, at the request of the CAS. The Committee notes in particular that: (i) in its 2023 observation concerning the application of Convention No. 144, the CEACR once again urged the Government to adopt without delay the necessary measures to repeal the legal obligation on trade unions to renew the composition of their management committees and their legal status every 12 months; and (ii) in its 2024 conclusions concerning the application of Convention No. 87 by El Salvador, the CAS urged the Government, in consultation with independent and representative employers' and workers' organizations, to expedite the processes for the registration and issuance of credentials to management committees to ensure the right of workers' and employers' organizations to form and elect their representatives in full freedom and to repeal the legal obligation for trade unions to request the renewal of their legal status every 12 months.
8. 226. The Committee notes with regret that it has not received information from the Government concerning measures taken to ensure, in law and in practice, the freedom of workers' organizations to elect their representatives in full freedom and to ensure that the registration of their management committees is expedited. Recalling that it should be left to the unions themselves to set the periods of term of office [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 598], the Committee emphasizes, firstly, the need for the Government, in consultation with the representative social partners, to take the necessary measures to remove the obligation on trade union organizations to elect their management committee every year (section 221 of the Labour Code and section 87 of the Civil Service Act). Furthermore, the Committee reiterates its previous request to the Government, with regard to the requirement to be Salvadoran by birth to become a member of the management committee of a trade union, to take all steps, including legislative measures, to ensure that section 225 of the Labour Code and its application are consistent with the right of workers to elect their representatives in full freedom.
9. 227. Also recalling that it has considered that the registration of trade union management committees should take place automatically when reported by the trade union, and should be contested only at the request of the members of the trade union in question [see Compilation, para. 604], the Committee, while taking due note of the judgment of the Second Chamber of the Administrative Disputes Court cited by the complainants, once again urges the Government, in consultation with the most representative trade union organizations, to take without delay the necessary measures to guarantee the right of organizations to elect their representatives in full freedom and to ensure a swift process for the registration of management committees. The Committee further urges the Government to expedite the pending registrations of the management committees and approval of amendments to the statutes of the trade union organizations mentioned in the note of 12 September 2023 addressed by various trade union organizations to the labour administration and to provide updated information in this regard without delay.
10. 228. The Committee recalls that in its previous examination of the case, in the absence of a reply from the Government, it was obliged to reiterate its recommendations of 2019 (in particular, calling on the Government to reactivate the CST, provide its observations concerning alleged irregularities in the appointment of worker representatives to the National Minimum Wage Council and the Housing Social Fund (FSV) and to base the appointment of worker representatives to tripartite bodies on objective, precise and pre-established criteria on representativeness). The Committee notes the Government's indication, in its communication of October 2021, that: (i) after the election of representatives of workers' and employers' organizations and of the Government, on 19 September 2019 the activities of the CST resumed and two sessions of this tripartite body were held; nevertheless, activities had to be suspended because of the COVID-19 pandemic; and (ii) the election to and participation of worker representatives in those bodies presupposes compliance with requirements established in the respective regulations, which the Government is responsible for monitoring, it not being in its interest to exclude any organization that complies with the requirements concerned.
11. 229. Nevertheless, the Committee notes that, in their communication of September 2023, which did not elicit comments from the Government, the complainants allege that: (i) the CST has not been reactivated; (ii) trade union organizations are not invited to elect worker representatives to the Salvadoran Social Security Institute, despite the fact that the mandate of the former representatives has expired and, consequently, the body in question has no leader; (iii) the Ministry of the Interior and Territorial Development presented a legislative proposal to dissolve INSAFORP, doing away with its tripartite structure and replacing it with a Council consisting solely of Government representatives; and (iv) the MTPS is developing a consultation on the elaboration of a new Labour Code, from which autonomous and independent trade unions have been excluded.
12. 230. The Committee further observes that, since its last examination of the case, the nomination of workers' representatives to tripartite bodies and the holding of tripartite consultations with all representative organizations have repeatedly received the attention of the CEACR and the CAS in relation to the application of Convention No. 87 and Convention No. 144, and of the high-level tripartite mission which, at the request of the CAS, visited the country on 2 May 2022. The Committee notes that the information examined in this context by the CAS and the CEACR indicates that: (i) although the CST was re-established after the COVID-19 pandemic, it has not reconvened in plenary since May 2022; (ii) the tripartite INSAFORP was dissolved in 2023 and replaced by the National Capacity-building and Training Institute (INCAF) which exclusively represents the government sector; and (iii) both workers' and employers' organizations continue to allege interference by the authorities in the nomination of their representatives to tripartite and joint public bodies. The Committee observes that, in view of the above, the CAS (2024 conclusions concerning the application of Convention No. 87) and the CEACR (2024 observation concerning the application of Convention No. 87) urged the Government to: (i) reactivate without delay the CST to ensure the full participation of workers' and employers' organizations in social dialogue and tripartite consultation; and (ii) ensure that the INCAF has a tripartite structure.
13. 231. The Committee recalls that it has indicated the importance, for the preservation of a country’s social harmony, of regular consultations with employers’ and workers’ representatives; such consultations should involve the whole trade union movement, irrespective of the philosophical or political beliefs of its leaders [see Compilation, para. 1518]. The Committee also recalls that pre-established, precise and objective criteria for the determination of the representativity of workers' and employers' organizations should exist in the legislation and such a determination should not be left to the discretion of governments [see Compilation, para. 530]. In the light of the above, the Committee urges the Government: (i) referring again to its recommendations in Case No. 3054, to reactivate the CST as soon as possible; (ii) to ensure that the appointment of worker representatives to the National Minimum Wage Council, the FSV and the National Social Security Institute is made without delay and is based on objective, precise and pre-established criteria on representativeness, and that any dispute as to the appointment of those representatives is resolved by an independent body; (iii) to ensure that the INCAF has a tripartite structure; and (iv) to ensure the effective consultation of all representative workers’ and employers’ organizations, including the most representative organizations, in the social and labour law reform processes. Noting once again with regret that this situation has persisted for years and reminding the Government that it can continue to benefit from the Office’s technical assistance, the Committee requests the Government to keep it informed in this regard.

The Committee’s recommendations

1. 232. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government, in consultation with the representative social partners, to take the necessary measures to remove the obligation on trade unions to elect their management committee every year (section 221 of the Labour Code and section 87 of the Civil Service Act);
   • (b) The Committee refers once again to its conclusions in Case No. 3136 concerning the requirement to be Salvadoran by birth and again expects that the Government will take all steps, including legislative measures, to ensure that section 225 of the Labour Code and its application are consistent with the right of workers to elect their representatives in full freedom;
   • (c) The Committee urges the Government, in consultation with the most representative trade union organizations, to take the necessary steps without delay to guarantee the right of organizations to elect their representatives in full freedom and to ensure a swift process for the registration of their management committees;
   • (d) The Committee urges the Government, in consultation with the organizations concerned, to expedite the pending registrations of trade union management committees and the approval of amendments to the statutes of the trade union organizations mentioned in the note of 12 September 2023 addressed by various trade union organizations to the labour administration and to provide updated information in this regard without delay;
   • (e) The Committee urges the Government: (i) referring once again to its recommendations in Case No. 3054, to reactivate the Higher Labour Council (CST) as soon as possible; (ii) to ensure that the appointment of worker representatives to the National Minimum Wage Council, the National Fund for Housing (FSV) and the National Social Security Institute is made without delay and is based on objective, precise and pre established criteria on representativeness, and that any dispute as to the appointment of those representatives is resolved by an independent body; (iii) to ensure that the National Capacity-building and Training Institute (INCAF) has a tripartite structure; and (iv) to ensure the effective consultation of all representative workers’ and employers’ organizations, including the most representative organizations, in the social and labour law reform processes. Noting once again with regret that this situation has persisted for years and reminding the Government that it can continue to benefit from the Office’s technical assistance, the Committee requests the Government to keep it informed in this regard.