Caso individual (CAS) - Discusión: 2015, Publicación: 104ª reunión CIT (2015)

Convenio sobre la libertad sindical y la protección del derecho de sindicación, 1948 (núm. 87) - El Salvador (Ratificación : 2006)



A Government representative emphasized the importance accorded by her Government to the work of the ILO, especially its promotion of freedom of association and tripartite dialogue. Regarding the regrettable events resulting in the death of a representative of the trade union movement, the Government had strongly condemned the incident and had ordered an investigation to be launched in order to identify the perpetrators. She emphasized that it had been an isolated incident. The investigation was in the hands of the Attorney-General of the Republic who, in order to expedite matters, had transferred the case from the city of Santa Ana to San Salvador. According to the latest information, the Office of the Attorney-General had requested the national civil police to provide further evidence and information. Unfortunately, the high crime rate and level of violence in the country were keeping the Office of the Public Prosecutor extremely busy, which was resulting in delays in investigations. She reiterated the Government’s commitment to strengthen the justice system, combat impunity and to step up its efforts to ensure respect for the life and integrity of the Salvadorian people. Regarding the participation of workers’ and employers’ representatives in bipartite and tripartite decision-making bodies, she confirmed that a significant reform was being undertaken of 19 public and autonomous institutions which would allow broader participation by small, medium and large enterprises, and by trade unions, federations and confederations, which had previously been excluded. The reform was particularly important for bodies that played a decisive role in promoting the rights of workers, including the Salvadorian Social Security Institute (ISSS), the Social Housing Fund (FSV) and the Salvadorian Vocational Training Institute (ISAFORP). No change had been made in the bipartite and tripartite structure envisaged in the Legislative Decree of 2 July 1993, nor in the tripartite forums in which employers’ organizations, such as the National Business Association (ANEP), participated. They also continued to participate effectively in, for example, the National Minimum Wage Board and other tripartite bodies. The Higher Labour Council (CST) was currently not functioning because of a disagreement among the trade union representatives. The Ministry of Labour had made every effort to resolve the issue, as could be seen from the numerous meetings that had been convened between May and October 2013 to determine the CST’s composition, and the three meetings that had been held to elect the trade union representatives. At the first meeting the representatives formed two blocks, each supporting its own list of candidates, and it had proved impossible to settle on a single list. In view of the disagreement, a second meeting of trade union representatives had been convened, which had been attended by representatives of 37 federations and eight confederations. Once again no agreement had been forthcoming. In July 2013, a meeting had been organized of the executive board of the CST. As there were no elected workers’ representatives, and in order find a solution to the situation, the meeting had convened members whose mandate had ended. The representatives of workers whose mandate had ended urged the Ministry of Labour to swear in the candidates on one of the lists on the grounds that they were the most representative. Although the employers’ adviser to the CST had agreed to the procedure, it had been deemed impossible because it did not comply with the electoral procedure laid down in the regulations. Since the reactivation of the CST had continued to be a matter of high priority from June 2014 to June 2015, a total of 16 bilateral and joint meetings had been held with the various trade union representatives to continue to seek a solution, but no satisfactory outcome had been forthcoming. However, this all showed the clear determination of the Government to ensure the operation of the CST.

Regarding the right to organize of public employees, she observed that the number of legally established and registered unions in the country had increased over the previous five years. Of 464 active trade unions, 99 represented the public sector and 35 were in autonomous institutions. She added that the first Union of Paid Women Domestic Workers had now been registered. The objective was that the process for the establishment of unions should be rapid and efficient, in compliance with the national legislation and the Convention. The national legislation nevertheless needed to be reviewed as it still imposed certain limitations on the effective exercise of freedom of association. Regarding the legislation setting a maximum of six months for a trade union to obtain legal personality, she said that the problem had been resolved in practice as trade unions generally completed all the necessary formalities in a much shorter time. She referred to the recent establishment, at the initiative of the President, of the Presidential Committee on Labour Affairs by Executive Decree No. 86, in response to the request by workers’ representatives for direct access to the Office of the President of the Republic. The Presidential Committee, which was mainly focussed on the public sector, was a forum for dialogue that did not in any way seek to replace the tripartite machinery that already existed, and the issues that it discussed would be referred to the appropriate bodies. She regretted that the employers’ representatives were discrediting the initiative and were interfering in matters and forums that were legitimately intended for workers. She also regretted that ANEP had taken the step of expressing opinions on issues that were not on the table, such as the minimum wage. She emphasized that the Government had created social dialogue platforms with all sectors of society, including private enterprise, which was one of the cornerstones of economic growth and employment generation in the country, as indicated in the five-year development plan 2014–19. She expressed her appreciation of the valuable offers of support from the ILO and reiterated the commitment of the Ministry of Labour to make every effort to ensure compliance with the observations and recommendations of the Conference Committee.

The Worker members voiced great concern at the prevailing climate of violence in El Salvador. In May 2015, some 20 workers had been murdered, the highest level of violence since the end of the civil war in 1992. The situation was extremely worrying, especially as the violence was directed against representatives of trade unions. In January 2010, the Secretary-General of the Union of Workers and Employees of the Municipality of Santa Ana, Victoriano Abel Vega, had been murdered. The Committee of Experts had condemned the murder and the Committee on Freedom of Association had taken up the case. The Committee on Freedom of Association was also examining Cases Nos 2957 and 2896 concerning the detention of a trade union representative, the dissolution of a branch union and the creation of an enterprise union controlled by the employer. The national legislation was not in compliance with Article 2 of Convention No. 87, specifically in relation to the time required between a refusal to register a trade union and the submission of a new request, the possibility for a worker to join more than one organization, the registration procedure and the requirement that trade unions certify the status of their members. On the first point, section 248 of the Labour Code provided that no new request for registration of a trade union could be submitted for at least six months following a previous request. In 2009, as set out in the White Paper, the Government had undertaken to reform the national labour legislation and to amend section 248 of the Labour Code. Despite the Government’s repeated promises and the failure to amend section 248, the Worker members expressed concern and trusted that the issue would be resolved very soon. Regarding the possibility of joining more than one trade union, section 204 of the Labour Code prohibiting workers from doing so would need to be amended. As to the registration procedure, section 219 of the Labour Code provided that employers must certify that founding members of a trade union were employees. The Government would therefore have to take steps to amend the provision, for example by empowering the Ministry of Labour to provide such certification. In conclusion, the Worker members drew the Committee’s attention to the non-compliance of article 47 of the Constitution, section 225 of the Labour Code and section 90 of the Public Service Act with Article 3(1) of the Convention. All of those provisions required that, to be members of a union executive committee, workers had to be Salvadorian by birth. So far the Government had still not amended those provisions. Under those conditions, it was important for the Government to take steps at the earliest opportunity to make the necessary amendments so as to guarantee respect for freedom of association and collective bargaining.

The Employer members indicated that this case was considered to be very serious, owing to the nature of the actions taken by the Government and the fact that they had continued for three years. Despite the comments of the ILO supervisory bodies, far from being resolved, the situation had deteriorated. In 2012, the President had submitted a bill to Congress to amend 19 basic laws on official autonomous institutions and to modify participation by employers’ representatives in the various executive boards by empowering the President to nominate and appoint the respective employer representatives. They explained that it was the granting of that power, and not the changes in the structure of those bodies, as claimed by the Government representative, that was the focus of criticism. The bodies in question included the ISSS, the ISAFORP and the FSV. Such action constituted a clear violation of the Convention, as it prevented employers’ organizations from exercising their right to elect their representatives in full freedom. They noted that the reforms in question were also in violation of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and emphasized that measures that placed organizations under the Government’s control constituted acts of interference. Such would be the case if the President designated employer representatives to these bodies. They recalled that, in the context of Case No. 2980, the Committee on Freedom of Association had drawn the Government’s attention to the principles relating to the freedom to appoint employers’ representatives and to tripartite consultation, requesting it to respect those principles fully in the future. On the same occasion, the Committee on Freedom of Association had also requested the Government to conduct urgently in-depth consultations with workers’ and employers’ organizations within the CST. They noted that the Government’s response could not have been more disappointing. The Government had aggravated the situation by ceasing to convene the CST on the pretext that one of the social partners had not been able to reach agreement on the nomination of its representatives, which was not a requirement under the Council’s rules. They considered that the Government had used that excuse to avoid convening the CST and complying with the recommendations of the Committee on Freedom of Association. Moreover, the Government had established a new bipartite body, under Presidential Decree No. 86, which excluded the employers. They also regretted having to disagree with the Government representative, as their reading of the Decree suggested a different interpretation. In practice, the Presidential Committee on Labour Issues was assuming the functions of the CST and the Wages Commission and of other tripartite bodies and higher‑level legal bodies. They expressed the view that it seemed to be the intention to prevent employer representatives from participating in decision making. Needless to say, the abovementioned bodies had been established without consultation, in clear breach of the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144).

In the light of the above, a request for urgent intervention had recently been presented to the ILO Director-General by ANEP and the International Organisation of Employers (IOE). However, there had been no sign of positive changes from the Government to date. They said that it was not the first time that the Committee had discussed the case of a government that guided consultations with social partners to reflect its interests by handpicking those who attended tripartite meetings. They considered that such behaviour should not become a trend and should be immediately brought to an end, otherwise it would inevitably lead to authoritarianism and destroy the cornerstone of the ILO. The Government seemed to be showing total indifference to the recommendations of the ILO supervisory bodies, even though those recommendations were intended to enable the social partners to nominate their representatives to the country’s various tripartite forums. That power was now vested by law in the President, in clear violation of the Convention and to the detriment of social dialogue in El Salvador. In conclusion, they were of the view that the Committee should call for a series of urgent measures, without ruling out a direct contacts mission.

The Worker member of El Salvador said that trade unions had been drawing up proposals and contributing to public debate on establishing and strengthening democratic institutions in the country, despite the slowness of the procedures intended to ensure profound structural change. There were various factors explaining the fact that the CST was not yet functioning properly. The CST’s regulations did not define clearly, or even tacitly, the procedure for elections for workers’ representatives. Moreover, there was no consensus among the country’s trade unions on the composition of the CST, as those who had traditionally been appointed were not prepared to allow election procedures to be made more transparent and democratic to guarantee the participation of other organizations that had emerged recently. She condemned the interference of ANEP, which had publicly requested the former Minister of Labour to recognize the list put forward by a group of workers who were linked or close to employers, in a bid to undermine other legally constituted and representative organizations. The matter had at the time been brought to the attention of the Director-General of the ILO. She urged ANEP to respect the autonomy and independence of trade unions to elect their representatives and requested the Government to take steps to set the CST in motion as soon as possible and to ensure the membership of more trade union representatives. Referring to the complaint presented to the Committee on Freedom of Association by ANEP (Case No. 2980), she said that the decree that had given rise to the complaint was designed to establish a procedure that would guarantee the participation of other employers’ organizations, including those representing micro- and small enterprises. She believed that one of ANEP’s main concerns was that it might lose the control that it had enjoyed up to now over tripartite institutions.

She welcomed the Government’s initiative in creating a bipartite forum through the creation of a roundtable on industrial relations in order to move towards genuine social dialogue and citizens’ participation. The objective of the forum was to formulate and propose public policies and legislative reforms, such as the improvement of industrial relations in the public sector. The participants included the various movements within the trade union sector. She regretted the position adopted by ANEP which, because it did not agree with that type of forum, had announced that it would present a complaint to the ILO alleging that such matters should be discussed in a tripartite context. She explained that so far the forum had not discussed any issue that came within the purview of tripartite bodies. Although a number of new trade unions had emerged, they were for the most part in the public and informal sectors, while in the private sector unions were tending to disappear. She called on private sector enterprises to respect the provisions of the Convention and allow the establishment of trade unions without let or hindrance. She urged the State to respect the exercise of freedom of association, especially the right to strike. Historically, only two strikes had ever been declared legal in El Salvador, which was clear evidence of the impunity that prevailed and of a flawed judicial system. The workers she represented hoped that the current Government would ensure a labour administration that was fair and just and which applied labour law effectively. In conclusion, she urged the State to speed up the judicial inquiry into the murder of trade unionist Victoriano Abel Vega, clarify the motives behind the crime and punish those responsible.

The Employer member of El Salvador indicated that on 12 August 2012 the Government had introduced 19 legislative reforms that had subsequently been approved by Congress without consultation. Their effect was to expel private sector representatives from 19 autonomous institutions, some of which were tripartite bodies. Among these were the ISSS, to which the private sector was the main contributor, and the ISAFORP, where employers were the only contributors. He added that there were also institutions that were not tripartite in composition, but which received private sector contributions. He observed that, at present, these funds were managed by the Government and used for internal campaigns and to pay off gangs. Moreover, the 19 institutional reforms had changed the method of nominating private sector representatives. Since August 2012, representatives had been nominated by the President of the Republic, rather than on the basis of a shortlist submitted by organizations within the sector or a simple majority of an assembly convened for the purpose. He recalled that the situation had prompted ANEP to present a complaint to the Committee on Freedom of Association alleging the violation of Conventions Nos 87 and 144 (Case No. 2980). In its recommendations, the Committee on Freedom of Association had drawn the Government’s attention to the principles of the freedom to nominate employers’ representatives and of tripartite consultation, and had requested the Government to respect those principles fully in future. The Committee had also requested that the Government conduct in-depth consultations with workers’ and employers’ organizations within the CST so that agreement could be reached on ensuring the balanced tripartite composition of the executive boards of the autonomous institutions referred to in the complaint. He observed that, when the Committee on Freedom of Association had made its recommendations, the Ministry of Labour had stopped convening the CST on the pretext of the lack of consensus among workers, with the result that no agreement had been reached. The requirement for consensus, rather than an election by simple majority as provided for in the CST rules, meant that any federation close to the governing party could veto a majority agreement. He expressed regret that the new Minister of Labour had maintained the same position on consensus, which was a ruse to ensure that tripartite dialogue within the CST remained paralysed. When the time had come to nominate candidates to the board of the ISSS, organizations affiliated to ANEP had proposed certain names, but the President had decided to choose another person who had been rejected by ANEP because of links to the pharmaceutical sector and the existence of conflicts of interest. As the person in question now sat as the representative of the private sector on the ISSS committee for the purchase of medicines, which had authorized direct purchases (with no bidding process) amounting to over US$50 million, there were grounds for wondering where the responsibility lay if any acts of corruption came to light. He added that, in January 2015, the Presidential Committee on Labour Issues had been established, through which the Government had begun bipartite dialogue with workers’ unions from both the public and private sectors. He explained that private sector unions had also been invited, but had later been told that the decree establishing the Committee only applied to public employees. That assertion was at odds with the text of the decree in question and with the words of the President, who had stated that the Committee would pursue a strategy to adjust the minimum wage gradually and to strengthen workers’ organizations. This had various implications, including the existence of a new means of interfering in workers’ organizations and the demise of tripartite dialogue in the National Minimum Wage Board. He expressed support for the call made by the Employer members for the Conference Committee to approve a direct contacts mission to determine whether the conclusions of the Committee on Freedom of Association were being applied. He hoped that such a mission could be undertaken before the meeting of the Committee of Experts so that its conclusions could be reported to the next session of the Conference.

The Government member of Mexico, speaking on behalf of the Group of Latin American and Caribbean Countries (GRULAC), said that he had listened with interest to the statement made by the Government representative regarding respect for freedom of association and protection of the right to organize in law and practice. He also referred to the arguments put forward by the Government concerning police action and investigations carried out and the current situation in the CST. Those arguments had been covered by the report of the Committee of Experts. He took note of the Government’s openness and willingness to engage in dialogue with all the economic and social sectors. In light of Article 8(1) of the Convention, he reiterated GRULAC’s commitment to applying the Convention and to respecting freedom of association. He was confident that the Government would continue to comply with the Convention.

An observer representing the International Transport Workers’ Federation (ITF) said that the absence of convictions of those guilty of crimes against trade union leaders and members had created a situation of impunity which was extremely damaging to trade union activities, such as in the case of the tragic murder of Victoriano Abel Vega. He also referred to Gilberto Soto, a leader of the International Brotherhood of Teamsters, who had been murdered in 2004 and whose death still remained unsolved. According to the investigations by El Salvador’s Human Rights Ombudsman and the Human Rights Institute at the Central American University: (1) three men had shot Gilberto Soto in the back without taking his belongings; (2) the police had neglected to secure the crime scene or evidence; (3) the Interior Minister had declared that Gilberto Soto had not been killed by a death squad; (4) a Salvadorian ambassador had told American union officials that the police had refused to send him a copy of their report; (5) the national civil police had denied the constitutionally guaranteed right of the Human Rights Ombudsman to inspect its files and observe the progress of the investigation; and (6) the police had allegedly extracted confessions from three gang members by torturing them, and they had later recanted their statements. He emphasized that the Government should reopen this case to identify those who had ordered the crimes and who had covered them up. Furthermore, he emphasized that 159 members of the cargo and security departments of the international airport had been dismissed in 2001 in violation of their collective agreement. Management had also proceeded with an intimidation campaign to force the workers to withdraw from the El Salvador International Airport Workers’ Union, affiliated to the ITF. Referring to Case No. 2165 of the Committee on Freedom of Association, which had been closed more than ten years ago, unionized airport workers who organized had continued to face dismissals and the union had ended up ceasing all organizing activity as of 2013 due to constant anti-union discrimination. In conclusion, he urged the Government to heed the call of the airport workers’ union and to ensure compliance with the principles of freedom of association.

The Employer member of Uruguay supported the allegations made by ANEP. He expressed concern about the situations described on repeated occasions in the Committee, such as the trend for certain governments to choose their partners to engage in social dialogue. He called for respect for traditional tripartism, which had been the lifeblood of the Organization, or in other words, effective and constructive dialogue between the Government and the most representative workers’ and employers’ organizations. He emphasized that it was not for the Government to appoint like-minded social partners to implement its political agenda. On the contrary, it should take into account how representative the organizations actually were, as this had a direct impact on levels of representation and the legitimacy of any dialogue established. He expressed concern that certain types of dialogue served no other purpose than to bypass legitimate and representative organizations, both of workers and employers. He urged the Committee to consider these matters and to call for tripartite dialogue in the form established by the ILO. Existing safeguards on the representativeness of constituents attending the Conference and participating in discussions and in the adoption of international labour standards would be meaningless if false dialogue was promoted at the national level which allowed certain governments to impose their own solutions unilaterally.

The Government member of Honduras emphasized the Government’s openness and willingness to engage in dialogue with all social and economic sectors in his country which, according to what the Government had said, did not replace tripartite social dialogue. He also emphasized the Government’s will to continue working with workers and employers, with assistance from the ILO, and to take the necessary measures to give effect to the Convention.

The Employer member of Belgium said that the Federation of Belgian Enterprises supported the position of employers in El Salvador concerning the freedom to establish organizations and to nominate their representatives. It was important to note in that regard that the term liberté d’association in French, and its equivalent in Spanish, was the expression that best corresponded to the term “freedom of association” used in English. The term “trade union freedom” (liberté syndicale in French) could in fact imply that only the workers’ right of association was protected, while the Convention enshrined equality of treatment between workers’ and employers’ organizations. However, in El Salvador the rights of employers’ organizations were not guaranteed, which was to be deplored. There should be reflection on this linguistic distinction, which could lead to misunderstanding and provoke deliberate or unintentional errors of assessment.

The Worker member of Argentina referred to a series of provisions in the national legislation that were contrary to the Convention. Article 221 of the Constitution expressly prohibited strikes by public and municipal workers, and the collective stoppage of work, and authorized the militarization of civil public services in the event of a national emergency. However, a general prohibition of the right to strike by public sector workers was incompatible with the provisions of the Convention. Moreover, articles 529 and 553 established a cumbersome procedure for declaring strikes legal and required very strict majorities for calling strikes, which made it easier for them to be found illegal. The United Nations Committee on Economic, Social and Cultural Rights had expressed concern at the restrictions imposed on the exercise of the right to strike and the significant number of strikes declared illegal. It had also regretted that it had not received precise and up-to-date information on the number of strikes declared illegal and the grounds on which these decisions had been made. Restrictions on the right to strike were not limited to these two provisions. Other restrictions existed. It should be noted that the Labour Code also provided for compulsory arbitration in the case of essential services, namely in any situation that could be considered as endangering or threatening the normal living conditions of the whole or part of the population. The right to freedom of association was not being fully observed if strikes were declared illegal every time that workers called them. Collective bargaining could not exist if workers did not have the right to call a strike as their main means of collective action. The very existence of social dialogue presupposed that workers could exercise the right to strike with all legal and institutional guarantees. Those restrictions only benefited employers. The removal of such limitations would be a major sign of progress.

The Worker member of South Africa emphasized the need for legitimacy and autonomy of employers’ and workers’ organizations when taking action in matters related to work and the labour market. Turning to the cases of homicide of trade union leaders, he said that the number of unsolved cases was a matter of great concern. It was also distressing that the perpetrators of these crimes had not been detained and hence could enjoy the fruits of their sordid work. This situation needed to be condemned in the strongest terms possible. The Committee of Expert’s primary role was not to investigate said matters, but to remind the Government of its obligations arising out of the ratification of a Convention. The Government should therefore be urged to comply with the Convention it had ratified.

The Worker member of Uruguay said that the discussion had drawn attention to inconsistencies. ANEP had complained of interference in its activities in violation of the Convention, yet once attention focussed on the national level it was forgotten that the same Convention provided for the right to strike. The right to strike was applied in a very restrictive manner in the country. Furthermore, the rate of unionization was very low. He expressed indignation at the working conditions in maquilas (export processing zones) and emphasized that the type of dialogue advocated by the Government was not equivalent to tripartite dialogue. Dialogue should be effective and address all issues. Finally, he expressed the hope that investigations into the murders of trade union leaders would be completed without delay.

The Employer member of Honduras said that the Government was trying to eliminate tripartism by selecting the delegates from employers’ organizations. The objective of the Convention was to protect the right of organization of workers and employers, which included establishing organizations, drawing up their constitutions and rules, the internal procedures for electing their representatives and organizing their activities in accordance with national law. The Committee on Freedom of Association had recommended that the Government refrain from interfering in the selection of employer and worker delegates. The fact that the workers within the CST were not in agreement did not justify the Government failing to recognize employer delegates or holding tripartite meetings. The Government was trying to replace legitimate employer representatives with pro-government representatives and to prevent them from participating in tripartite bodies so it could avoid their surveillance and engage in the improper use of funds. Legitimate employer representation had thus been eliminated from 19 autonomous institutions. ANEP represented over 90 per cent of private enterprises and included members from small informal enterprises. ANEP therefore had the moral authority to demand that the Government repeal legislation that was not in conformity with Conventions Nos 87 and 144. The Committee should request the Government to repeal provisions that allow it to select employer representatives immediately.

The Employer member of Turkey indicated that the intervention of the President of El Salvador in the appointment of members of joint and tripartite executive boards constituted a clear violation of Article 3 of the Convention. This act by the President had hampered the autonomy of the employers’ organization namely ANEP. The rights of employers’ organizations to elect their representatives needed to be respected and the related provisions of the legislation therefore needed to be amended. As a representative of the employers’ organization of Turkey, he supported ANEP and urged the Government to respect the autonomy of this association.

The Government representative reiterated her Government’s willingness to work with all those who wanted a prosperous country that generated decent work, were committed to the health, education and welfare of families in El Salvador and fostered the development of micro-, small, medium and large enterprises. The Government’s commitment to dialogue had been shown, for example, by the recent withdrawal of the complaint made by the Sugar Cane Workers’ Union (SITRACAÑA) to the Committee on Freedom of Association. The establishment, through the reforms of joint and tripartite forums did not mean regression in the exercise of freedom of association. On the contrary, the Government was making the participation of employers and workers stronger and more democratic, in accordance with the Constitution. Changes in the legislation had been initiated to extend and comply with trade union rights, eliminating the limitations imposed by previous governments on public employees, which had impeded their right to organize. As a result, the number of trade unions, federations and confederations had increased in the public sector. Workers were key to achieving social, economic and political change. Steps were therefore being taken to ensure that all tripartite and joint forums functioned with the balanced participation and representation of all workers’ and employers’ organizations representing small, medium and large enterprises. There was not only one employers’ organization in the country, but several. Many had found it impossible to participate in tripartite or joint forums because of the hegemony exercised by certain employers’ organizations. Public sector unions had been similarly disadvantaged because, as they were not legally recognized, their participation in such bodies had been limited. Under the previous and current governments, trade union freedoms had been expanded and the number of legal and active unions had increased, as had the number of unionized workers. It was the Government’s wish that working women and men should have decent living conditions and that their fundamental rights should prevail over essentially economic interests so that the country could be an example of democratic practices where trade union rights were exercised in an autonomous manner in coherence with the historic struggles of the working class. The workforce needed to be the driving force behind economic and productive development, and not a commodity dominated by individual interests. In recognition of all the social and labour struggles throughout the country’s history, the Government would continue working to ensure that all organized workers could freely engage in trade union activities and achieve, in both the public and private sectors, decent living and working conditions, with decent wages and social benefits, without any kind of discrimination. With regard to the situation of insecurity in the country, the Government shared the workers’ concern and was undertaking comprehensive action in the context of the Plan for a Safe El Salvador, which had been formulated with broad social and sectoral participation. The same applied to the Council for Public Safety, composed of representatives of the Government, private enterprise, including ANEP, organized workers, churches, the media and social organizations, with the assistance of the United Nations.

The Employer members considered that the information provided by the Government confirmed its deliberate intention to sideline the most representative employers’ organization. This was a legal debate to determine whether law and practice in El Salvador were in compliance with the Convention. The appointment of employer representatives to tripartite forums by the President was contrary to the Convention, as emphasized by the Committee on Freedom of Association. However, it was clear that the Government did not wish to collaborate with the supervisory bodies. Employers were being driven out of all tripartite forums and were being replaced by individuals close to the President. This undermined democratic values. The Employer members requested the Government to take steps to: guarantee the full autonomy of workers’ and employers’ organizations in tripartite and joint bodies; immediately convene and appoint members to the Higher Labour Council, which should be consulted on the legal reforms needed to guarantee the autonomy of these bodies; revise, under the auspices of the Higher Labour Council, Presidential Decree No. 86 establishing the Presidential Commission on Labour Issues; accept a direct contacts mission to visit the country before the next session of the Committee of Experts to ensure, together with the social partners, that the above actions were taken; accept technical assistance from the ILO to align its law and practice with the Convention; and inform the Committee of Experts at its next session in November 2015 of the progress made on the issue.

The Worker members observed that, while they concurred with the observation of the Employer members regarding equality between workers’ and employers’ organizations, the terminology used since 1948 had never given rise to any ambiguity that might suggest the contrary and had never stood in the way of the examination of that right in the context of the ILO’s work. Apart from the terminology used, which could vary from one country to another, it was a question here of the right to organize collectively and its corollary, the right to collective action, which for the workers meant the right to strike. Returning to the case under discussion, it should be observed that the situation in the country had worsened and the current circumstances called for urgent measures from the Government, in particular regarding the irregularities in the legislation, for which technical assistance would be necessary. It should be noted that the Government had requested such assistance. The latter would relate in particular to the procedure for the registration of trade unions and the requirement imposed on trade unions to certify the status of their members. Those two elements called for precise, effective and prompt legislative amendments. Regarding the nationality requirement to become a trade union representative and the possibility of joining more than one union, the Government should follow through on the many pledges that it had made and take remedial action as soon as possible. Furthermore, with regard to the murder of Victoriano Abel Vega, the justice system needed to do its work, otherwise there would be an unacceptable situation of impunity in a democratic State which would aggravate the climate of violence and insecurity and have an adverse effect on the exercise of trade union activities. The Government should therefore take all the necessary measures without delay and report on the matters raised before the next meeting of the Committee of Experts.

Conclusions

The Committee noted the oral information provided by the Minister of Labour and Social Welfare and the discussion that followed.

The Committee observed that the issues raised by the Committee of Experts related to: the murder of a trade union leader; observations by the ITUC and IOE; lack of autonomy of workers’ and employers’ organizations to select their representatives on joint and tripartite bodies; legislative restrictions on the right to establish trade union organizations for certain categories of public employees; requirement for the employer to certify that the founding members of a trade union are employees; requirement to be a national of El Salvador by birth in order to hold trade union office; and, in the event of refusal of trade union registration, the existence of an excessive waiting period before submission of a new application.

The Committee noted that the Minister of Labour and Social Welfare indicated that the Government condemned the killing of trade union leader Mr Victoriano Abel Vega, that it was still being actively investigated at present by the Prosecutor’s Office, which was stepping up inquiries to elucidate the facts with the express intention of preventing the crime from going unpunished. The Government was maintaining a constant social dialogue with all social sectors including private enterprise but, contrary to hegemonic practices in the past, with all employers’ organizations – small, medium and large – and also with all trade union organizations, including those which had been excluded in the past. Tripartite social dialogue existed in 19 autonomous public institutions and, further to the major reform undertaken and in the light of regulatory aspects, there was a further opening up for the participation of all organizations. With regard to the problems of constituting the Higher Labour Council, the Government representative referred to numerous initiatives and meetings instigated by the Ministry up to June 2015 to resolve the impasse on the basis of democratic, inclusive and representative practices and the regulations in force. She indicated that the existing problem was due to disagreement on the part of the trade union representation, which was divided into two blocks supporting two lists of elected representatives and that the impasse had not been caused by the Government. The Presidential Commission for Labour Affairs which focused mainly on the public sector was a response to the request from the Workers to have a mechanism for direct communication in relation to the Government’s Five-Year Plan; and that this labour forum would not replace the mechanisms for tripartite participation. The Government had achieved changes in the legislation in order to guarantee the trade union rights of public employees and in the past five years the number of active trade unions had risen to 464, with 99 unions in the public sector and 35 in autonomous institutions. According to the practice followed by the Ministry of Labour and Social Welfare, trade union organizations whose registration had been refused could submit a new application the following day. The Government had noted the importance of the provisions and issues referred to by the Committee of Experts and had pledged to ensure compliance with the latter’s observations in conformity with the legislation in force. Action was being taken with regard to an automated record of participation of all unionized workers in relation to the various reforms requested by the Committee of Experts.

The Committee recalled the emphasis placed during the discussion on the fact that a climate of violence and insecurity was extremely damaging to the exercise of trade union activities. Moreover, it recalled that the Convention concerned the right of all workers and employers to establish and join the organizations of their own choosing and for their organizations to carry out their activities without government interference.

Taking into account the discussion in this case, the Committee requested the Government to:

• take all necessary measures without delay to identify those responsible for the murder of Victoriano Abel Vega and to punish those guilty of this crime;
• ensure the full autonomy of employers’ and workers’ organizations in the joint and tripartite decision-making bodies, which necessitated the convocation and immediate setting up of the Higher Labour Council where the legal reforms necessary to guarantee this autonomy should be consulted. In order to achieve this, the Government should abstain from requesting consensus from the trade union confederations and federations for the nomination of their representatives to the Higher Labour Council;
• revise on a tripartite basis in the Higher Labour Council Presidential Decree No. 86, which created the Presidential Commission for Labour Affairs;
• accept ILO technical assistance with a view to bringing its legislation and practice into conformity with the provisions of the Convention; and
• submit a report to the Committee of Experts on the progress made in achieving the full application of the Convention for consideration at its next meeting in November 2015.

The Government representative indicated that the Government had noted the conclusions and would continue to work with a view to achieve compliance with the Convention and progress in relation to labour rights. The Government was committed, through democratic practices and openness for dialogue, to solve the disagreements, in conformity with the national legislation, and reiterated the Government’s interest to avail itself of ILO technical assistance.